On Friday, California Attorney General Jerry Brown's office announced that it found insufficient evidence to file criminal charges in what has become known as "the De Anza rape case." The story began when a very intoxicated 17-year-old girl allegedly was gang-raped at a March 2007 party at the home of a De Anza College baseball player. Brown's review supports last year's decision by Santa Clara County District Attorney Dolores Carr not to prosecute any of the nine males present in the room.
Politically, Carr's refusal to press charges has not been popular. Lauren Breayans, Lauren Chief Elk and April Grolle -- three soccer players who say they saw the girl being sexually assaulted and brought her to the hospital -- issued a statement voicing their disappointment "in the entire criminal justice system. The message seems to be, if you get an underage girl drunk enough, you can get away with rape."
These three young ladies have shown themselves to be righteous, fearless and strong. They went to a party where they heard that a girl was in a bedroom with eight to 10 men, according to a civil lawsuit filed by victim Jane Doe. They peeked through a black sheet covering a window to the room's French doors and saw a young girl being used in the most despicable way. They determined to put a stop to it.
Sadly, in a way the soccer players may not have meant, they are right. Teenagers do need to be very wary about what others can do to them when they drink. It may not seem fair in this case, but the state cannot press charges if it lacks sufficient proof and even the victim does not remember what happened.
As Chief Assistant Attorney General Dane Gillette wrote, after the state interviewed more than 20 witnesses and devoted more than 1,000 hours reviewing the evidence, investigators found, "The extreme level of alcohol consumption appears to have clouded the memories of many people at the party. Jane Doe (the victim) has no memory of anything that happened at the party beyond her initial arrival."
"If she can't remember anything that happened, that's pretty strong evidence that she passed out drunk," noted attorney Jim Hammer, a former prosecutor who represents the three soccer players. Hammer contends that Carr should have pressed charges against a man who all three women say tried to keep them from rescuing Doe -- and then pressured him to testify against those who assaulted Jane Doe.
Easier said than done. Jane Doe's attorney, Barbara Spector, released a statement that noted, "We remain convinced that how these men acted is wrong, morally and legally. Our client is committed to pursuing her civil remedies, in large part to send a needed message that behavior such as these young men displayed is completely unacceptable and will not be tolerated."
"I'm looking forward to the civil suit," soccer player April Grolle told me, after she recounted seeing Jane Doe stripped from the waist down, with "vomit all over her face -- turns out it wasn't her own vomit."
Said Grolle, "No girl would ever have consented to that." I have to wonder if it is in Jane Doe's interest to go to trial in a civil case. This is unquestionable: It doesn't matter how much a 17-year-old drinks, she does not deserve to be raped -- and it is rape if the teenager is comatose.
But it is questionable whether Jane Doe will get the vindication she seeks by taking this case to court -- especially when prosecutors say they have none of the incriminating video evidence mentioned in Doe's civil suit.
"The issue isn't whether it's acceptable conduct, the issue is whether it's a crime," argued attorney John Cahners, who represents Steve Rebagliati, whose parents own the home where the party took place.
And if it is a crime, is it the same as premeditated rape? It may well be that civil courts are better suited to redress what happened at that March 2007 party.
According to Grolle and another source, the vomit on Jane Doe was not hers. Is it in society's interest to prosecute kids who are months older than Jane Doe for doing things in an alcohol-fueled atmosphere that they never would have done sober or alone? I think there's reasonable doubt.