Author: has written 5281 posts for this blog.

Jill has been blogging for Feministe since 2005.
Return to: Homepage | Blog Index

81 Responses

  1. gretel
    gretel May 26, 2011 at 10:44 am |

    Is there going to be a rally or some action around this? Because I am furious right now.

  2. Kristen J.
    Kristen J. May 26, 2011 at 10:50 am |

    I just saw this and…I just…I don’t even. I think I’m going to shut my office door and cry.

  3. Q Grrl
    Q Grrl May 26, 2011 at 11:04 am |

    If her recollection of the events was spotty, how in the hell could anyone think she was sober enough to consent. Grrrr.

  4. MacaroniGalaxy
    MacaroniGalaxy May 26, 2011 at 11:08 am |

    “meaning that she was either unconscious or unable to speak when she was penetrated.”

    Have I been confused on what constitutes a condition in which a person is too intoxicated to give consent? This seems a pretty extreme standard.

    My impression always was that sex with anyone who had impaired judgment or motor function as a result of substance use was considered rape?

    I would think that if you’re remotely close to in a state where you’d be escorted home by police in the first place, you’re nowhere near close to being in a state where you can legitimately give consent.

  5. andrea
    andrea May 26, 2011 at 11:14 am |

    MacaroniGalaxy:

    I would think that if you’re remotely close to in a state where you’d be escorted home by police in the first place, you’re nowhere near close to being in a state where you can legitimately give consent.

    This x 10000000

  6. Thomas MacAulay Millar
    Thomas MacAulay Millar May 26, 2011 at 11:24 am |

    This is really bad. I don’t know what else to say. Even when the case is strong and the prosecutors and judges do what they should, juries won’t convict.

    FYI, here’s the NY statutory law. First Degree Rape (NYPL 130.35):

    § 130.35 Rape in the first degree.
    A person is guilty of rape in the first degree when he or she engages
    in sexual intercourse with another person:
    1. By forcible compulsion; or
    2. Who is incapable of consent by reason of being physically helpless; or
    3. Who is less than eleven years old; or
    4. Who is less than thirteen years old and the actor is eighteen years old or more.
    Rape in the first degree is a class B felony.

    Second Degree Rape (NYPL 130.30):

    § 130.30 Rape in the second degree.
    A person is guilty of rape in the second degree when:
    1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
    2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

    Definitions of terms, from NYPL 130.00:

    5. “Mentally disabled” means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.
    6. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.
    7. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

    My understanding of the case law — though I don’t know the precise jury instructions here — is that “physically helpless” would include passed out, but not someone in a blackout and clearly really drunk but able to speak. For second degree, the “mentally incapacitated” definition is limited to involunary intoxication, like drugging, but excludes voluntary intoxication.

    That said, I don’t think it’s primarily an issue of law. Juries reflect the biases of the culture. I’ve written at length about what this means for juries in rape trials here.

  7. Pierre Hamel
    Pierre Hamel May 26, 2011 at 11:27 am |

    So, escorting a very drunk woman home, the proceeding to “Cuddle” her while she is nearly naked (with a condom, thank you very much) is considered okay. I’m thinking not at all, for anyone, and a thousand times more if you’re a POLICE OFFICER! I’m aghast.

    Let’s hope there’s an appeal, or some action of reprimand against these “officers” or, at the very least, as was already mentioned, some outcome in her favour in civil court. Just so sad.

  8. auditorydamage
    auditorydamage May 26, 2011 at 11:28 am |

    “Defense lawyers pointed to surveillance footage of the woman walking on her own as she entered the building in front of the officers as evidence that she was conscious and able to communicate.”

    I once pulled myself out of a car wreck, my right foot having been pinned between the passenger seat and the side of the car, staggered over to a safe spot, sat down, and touched a rip in the leg of my pants. I was not conscious for any of this, and only regained awareness some moments after sitting on the grass. I supposedly yelled “I’M STUCK” before extracting myself from the vehicle, but all I distinctly remember is gray nothingness from the moment I heard tires squeal until the moment I came to. I was running on automatic during that time — I’m not even describing amnesia, I clearly remember experiencing floating in a fairly flat gray environment as a result of the shock.

    In short, that defense lawyer is full of shit.

    This entire case is so disgusting and infuriating. If she couldn’t clearly recall giving consent in the first place, she wasn’t in a state to be able to give consent, and since the assaulting officer owned up to penetration, he should have been found guilty of rape, never mind the multiple illegal entries to her apartment.

    As for this…

    “She said in an interview that she knew that her son was “not capable of doing something so ugly.” ”

    …hello, rape denial culture.

    grrrrrrrrr*RAAAAAAAAAAGEHULKSMASH*

  9. MacaroniGalaxy
    MacaroniGalaxy May 26, 2011 at 11:34 am |

    Wow.

    That is a pretty extreme standard, I wouldn’t have guessed. Maybe I’m reading it wrong, but that makes it seem like if you’re able to so much as sit up, you’re still able to give consent. It’s a lot more strict than I would have thought before this.

    I would have assumed the line would have been drawn somewhere around where you’re not able to legally drive anymore or even sooner.

  10. matlun
    matlun May 26, 2011 at 11:43 am |

    Ok, rape may be hard to prove in criminal court, but why have they not at least been fired yet? The misconduct and falsification of emergency calls etc is not even in dispute. Surely that should be easily enough for termination?

    Apparently not: According to multiple news sources they have been suspended with pay.

  11. Yonmei
    Yonmei May 26, 2011 at 11:57 am |

    This? Just completely outrageous. Obviously she ought to win her civil suit, where the officers won’t have the benefit of “reasonable doubt”, but I also hope that Raymond W. Kelly, the police commissioner, follows through on what he said in 2009: “It is outrageous that officers summoned to assist a woman would end up allegedly taking advantage of her. The public needs to know that the police will be there to protect them, and they can know that.”

    Regardless of their being found not-guilty on charges of rape, it’s pretty damn clear that the officers knew she was drunk and took advantage of that. It does remind me horribly of the Ruari Dougal case in 2005 – a student working in university security walked another student home after she got drunk at a party, and raped her in the hall outside her room. He claimed she had consented and the judge decided that as she herself admitted she was too drunk to remember the rape, the jury had to assume she had consented because the rapist had said so.

    The links go to my journal, now on IJ – the posts were copied over from when I was on LJ, and don’t have comments attached. The comments-threads were long and sickening and ended several friendships with people who defended the idea that a woman too drunk to remember has to be assumed to have consented. And one I’ve remembered for years was from a man who claimed that Ruari had only done what any young man would do, given a young woman helplessly drunk and totally available to him, so he really shouldn’t be blamed for raping her.

    I hope these two officers are out of a job and blacklisted from any other police department, pronto.

  12. Yonmei
    Yonmei May 26, 2011 at 11:59 am |

    Link screwed up, apparently because Ruari has accents in his name that blogsoftware doesn’t recognise. The first post I made is Ruairi Dougal and also links to an Amnesty International report on rape culture in the UK.

  13. Angel
    Angel May 26, 2011 at 12:00 pm |

    I agree they should have been fired, I can’t believe they got suspended with pay. That is crazy. They acted …. obviously unlawfully, lied and had intent to do wrong. Why falsify the 911? This is also getting me mad. I hope Women Organizations as well as influential men and women speak out against this. These officers should not get away with a slight slap on the wrist.

  14. gretchen
    gretchen May 26, 2011 at 12:05 pm |

    WTF? Am i missing something here? Her drunken state necessitated an escort home, they falsified emergency calls, were seen entering her apartment 3 times, and there was a phone conversation with strong implications that more than ‘cuddling’ took place….

    This is such an abuse of power that reentering her flat and “cuddling” should be MORE than enough to get them fired.

    Disgusting.

  15. chava
    chava May 26, 2011 at 12:11 pm |

    Why have they not been fired yet? Because police can shoot an unarmed, prone black man in the back and walk (Oscar Grant, SF). Or a black police officer (NY, most recently). Or a man out on his bachelor party (Sean Bell, NY). Or an eight year old girl (Aiyana Jones, Detroit).

    When they can shoot you with impunity, I’m just. not. surprised that they can rape you with it.

  16. DP
    DP May 26, 2011 at 12:20 pm |

    MacaroniGalaxy:
    Wow.

    That is a pretty extreme standard, I wouldn’t have guessed. Maybe I’m reading it wrong, but that makes it seem like if you’re able to so much as sit up, you’re still able to give consent. It’s a lot more strict than I would have thought before this.

    I would have assumed the line would have been drawn somewhere around where you’re not able to legally drive anymore or even sooner.

    If the line for sexual consent was the blood alcohol level for impaired driving, then literally every single person I went to school with – male and female – is a rapist by your definition…

    On topic, this case is fucking horrifying. This, the Sean Bell case – the impunity of police officers is a horrifying thing.

    I hope this woman finds some justice in civil court.

  17. Lori
    Lori May 26, 2011 at 12:40 pm |

    This is outrageous! I’ve been following this case closely, as has my husband. He called me to tell me about the verdict; it’s disgusting. So, so wrong.

  18. benvolio
    benvolio May 26, 2011 at 12:46 pm |

    I’ve been collegially debating the prospects for a DSK conviction with a colleague. He thinks some Jack McCoy-type DA is gonna make a meal of him, I think it’s likelier he gets acquitted. After the verdict this morning, I asked him if he was still confident. And….no, not so much.

    Man, I sure hope we get juror interviews on this. I’m apoplectic.

  19. groggette
    groggette May 26, 2011 at 12:49 pm |

    chava, (plainclothes) police can also beat and attempt to kidnap a 13 yr old black girl, then arrest her and her father for resisting arrest and get away with it all, all because she “fit the description” of some adult white prostitutes a few streets away.

    Major trigger warning for the whole story.

  20. Ellie
    Ellie May 26, 2011 at 1:17 pm |

    You’d think a police officer would know better than to lie about wearing a condom to placate a woman accusing him of rape. (I’m sure it wasn’t a lie, but if that’s what he’s claiming, it’s absurd.)

  21. NaS
    NaS May 26, 2011 at 1:21 pm |

    Macaroni – “I would have assumed the line would have been drawn somewhere around where you’re not able to legally drive anymore or even sooner.”

    The legal limit of .08 is about two beers for most people. Having that standard for consent would be insane.. It would also be a major imposition on what people can do with their own bodies, because it would criminalize a lot of consensual sex if people were incapable of consenting after only two or three drinks. The standard they have is actually reasonable enough, in my opinion, because I think a narrow and definite standard for criminal laws is desirable.

    Without having seen all the evidence that the jury saw, it seems to me like this victim was telling the truth and there was ample evidence to convict. Probably these guys got a cop friendly jury, and would have been convicted if they weren’t cops. I wish juries were routinely this skeptical of states evidence.

  22. MacaroniGalaxy
    MacaroniGalaxy May 26, 2011 at 1:37 pm |

    The legal limit of .08 is about two beers for most people. Having that standard for consent would be insane.. It would also be a major imposition on what people can do with their own bodies, because it would criminalize a lot of consensual sex if people were incapable of consenting after only two or three drinks. The standard they have is actually reasonable enough, in my opinion, because I think a narrow and definite standard for criminal laws is desirable.

    Well I don’t know about “Insane”, but it seems fair enough that might be a bit too far in the other direction. I don’t claim to be an expert on drinking, sex or consent. I think personally I’d feel somewhat apprehensive having sex with someone who had any alcohol in their system… I would just have no way to be sure it’s the same decision they’d be making sober.

    Still, I do think the line as drawn in the law as quoted is a bit too conservative with where it draws the line, assuming I’m reading it. It really feels like the line should be drawn somewhere before unable the unable to speak or stand stage.

  23. gretel
    gretel May 26, 2011 at 1:52 pm |

    Via the Feminist Press I found this info about a protest tomorrow from 5:00 to 7:00 in front of 100 Centre Street in Manhattan:

    https://www.facebook.com/event.php?eid=105787382845246

  24. 1Lsucks
    1Lsucks May 26, 2011 at 1:58 pm |

    matlun:
    Ok, rape may be hard to prove in criminal court, but why have they not at least been fired yet? The misconduct and falsification of emergency calls etc is not even in dispute. Surely that should be easily enough for termination?

    Apparently not: According to multiple news sources they have been suspended with pay.

    That’s standard in government investigations-it has to do with protecting the criminal prosecution. Generally, before a government employee can be terminated, there has to be a fact-finding investigation including an interview with the officer. A cop can’t refuse to answer questions in that interview if the department gives him Garrity immunity, which basically says, “you have to answer our questions or we fire you, but we can’t use anything obtained as a result of your statement in court.” If that’s done before trial, the prosecutor would have ot be able to prove that none of the evidence or testimony presented derived from the Garrity interview, which is a difficult burden to meet. Hence, paid administrative leave until the trial is over, then disciplinary proceedings begin.

  25. Yonmei
    Yonmei May 26, 2011 at 2:12 pm |

    Hence, paid administrative leave until the trial is over, then disciplinary proceedings begin.

    …good to know?

    But. Does the Garrity interview business mean they won’t be fired? What if they admit in the disciplinary interview that they did rape her – but they’ve already been acquitted of doing so? Can they even get prosecuted for perjury?

  26. John Peterson
    John Peterson May 26, 2011 at 2:19 pm |

    COPS ARE JUST GODDAMNED FUCKING CROOKS PULLED TEMPORARILY INSIDE-OUT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Yonmei: Hence, paid administrative leave until the trial is over, then disciplinary proceedings begin.…good to know?But. Does the Garrity interview business mean they won’t be fired? What if they admit in the disciplinary interview that they did rape her – but they’ve already been acquitted of doing so? Can they even get prosecuted for perjury?

  27. Ellie
    Ellie May 26, 2011 at 2:25 pm |

    1Lsucks: Thank you, that was very educational. I didn’t know that.

    gretel: That’s good to see.

  28. Jim
    Jim May 26, 2011 at 2:27 pm |

    Q Grrl: If her recollection of the events was spotty, how in the hell could anyone think she was sober enough to consent. Grrrr.

    No shit. That sounds drunk enough to me. All the rest is bedside the point.

    Police get fired for having sex on duty, not rape, just consensual sex* and rightly so. That ought to be enough in this case too. I understand the administrative lag time until a termination, but the outcome should not be this much in doubt.

    * To the extent it really can be consensual given the power difference. Women report all kinds of bogus trafiic stops for the purpose of harrassment and all that kind of crap.

  29. Tom Foolery
    Tom Foolery May 26, 2011 at 2:32 pm |

    Why have they not been fired yet? Because police can shoot an unarmed, prone black man in the back and walk (Oscar Grant, SF). Or a black police officer (NY, most recently). Or a man out on his bachelor party (Sean Bell, NY). Or an eight year old girl (Aiyana Jones, Detroit).

    When they can shoot you with impunity, I’m just. not. surprised that they can rape you with it.

    It’s incredibly difficult to fire a cop unless they’ve actually been convicted of a crime — some cops stay on “administrative leave,” which is to say, paid vacation, for years, collecting hundreds of thousands of dollars. They can do completely beyond-the-pale things, like picking up a 7-year-old kid with special needs by the throat and choking him, and not get fired.

    The reason for this is cops have an incredibly strong institutional culture around protecting their own, and this is coupled with an extremely powerful union that opposes any officer being fired for any basically reason. If we want to see improvements in how law enforcement officers behave, both of those problems need to be addressed.

  30. norbizness
    norbizness May 26, 2011 at 2:33 pm |

    SOmebody on a similar thread at Ta-Nehisi Coates’ place said that NY1 reported they’ll be fired. I don’t have access to NY media, so I can’t vouch for that hearsay.

  31. Sheelzebub
    Sheelzebub May 26, 2011 at 2:38 pm |

    I just threw up a little in my mouth. Unfortunately, I’m not surprised. Sickened and disgusted, yes. Surprised? No.

  32. Ellie
    Ellie May 26, 2011 at 2:40 pm |

    From the article gretel posted: Moreno also had a warning for other NYPD officers when dealing with drunk women.

    “Be very, very, very careful,” he said. “Dot your i’s and cross your t’s.”

  33. Tom Foolery
    Tom Foolery May 26, 2011 at 2:45 pm |

    I’d caution people from believing that this firing is final. There’s an arbitration process that comes after the final decision that can reverse the firing, if these guys want to pursue it.

  34. Yonmei
    Yonmei May 26, 2011 at 3:52 pm |

    Ellie 5.26.2011 at 2:40 pm : From the article gretel posted: Moreno also had a warning for other NYPD officers when dealing with drunk women.

    “Be very, very, very careful,” he said. “Dot your i’s and cross your t’s and always wear a condom, because you don’t want to leave any DNA evidence.”

    I’m glad they got fired and will spend two years in jail. I hope the lady wins her civil suit.

  35. Rare Vos
    Rare Vos May 26, 2011 at 4:08 pm |

    Fired or not, the acquital is a nice loud message to women: Whatever you do DO NOT CALL THE POLICE.

  36. SephONE
    SephONE May 26, 2011 at 4:24 pm |

    “The standard they have is actually reasonable enough, in my opinion, because I think a narrow and definite standard for criminal laws is desirable.”

    Can’t say I agree with this since we, as a society, seem to have a really terrible idea of what consent even is (to the point where we still think there’s a such thing as ‘implied consent’ x.x).

  37. Lauren
    Lauren May 26, 2011 at 4:44 pm |

    There is a protest rally:

    When: Friday May 27, 5-7pm

    Where: In front of the Manhattan Criminal Court building at 100 Centre Street.

    Full details here:
    https://www.facebook.com/event.php?eid=105787382845246

  38. New York City Cops Acquitted on Rape Charges « hahayourefunny

    [...] New York City Cops Acquitted on Rape Charges — Feministe.  this disgusts me.  As a woman, I’m terrified of cops. if i weren’t completely and utterly emotionally exhausted I’d be furious. I find it interesting that the cop said they “cuddled”… i thought the current consensus on sexual assault of women was that they “lead men on” by such things as cuddling and they “send mixed signals” which lead to the the “confusion” wherein he heard yes but she said no or nothing.  I’ve heard laying in bed with a mostly naked woman as an excuse for later raping her, not as a cop out. … no pun intended… well now it is.. [...]

  39. William
    William May 26, 2011 at 9:29 pm |

    Ok, rape may be hard to prove in criminal court, but why have they not at least been fired yet? The misconduct and falsification of emergency calls etc is not even in dispute. Surely that should be easily enough for termination?

    Apparently not: According to multiple news sources they have been suspended with pay.

    They haven’t been fired because there are different rules for police. Police are rarely held accountable for their actions, on duty or off. Discipline for even extreme misconduct tends to be a loss of vacation time or a small suspension. If a cop manages to fuck up so spectacularly that he embarrasses his department he might get fired (more likely he’ll be allowed to quietly “retire”), but generally all that means is moving to a different department. Police investigate themselves, put the subjects of investigation on paid leave, and then somehow consistently decide that no wrong occurred.

    Look, we live in a country where a cop can handcuff someone face down on the ground, point a gun at their head even though they aren’t moving, pull the trigger, and then claim in court it they thought it was a stun gun and get away with manslaughter. We live in a country where five police can take turn beating a suspect on camera and get an acquittal. We live in a country where a large district in a major police department of a major city can torture suspects in order to coerce confessions and the DA overseeing these cases becomes a wealthy hero of a mayor while the cops in charge mostly get away with it and those few who don’t manage to run down the statute of limitations for so long that they get joke convictions and keep their pensions. Does rape really seem so far-fetched from a group of violent, entitled, armed, unaccountable thugs?

    Police aren’t expected to play by the same rules as everyone else, state sponsored sociopaths never are.

    If we want to see improvements in how law enforcement officers behave, both of those problems need to be addressed.

    I think stripping them of their unions and putting internal investigations of misconduct and associated discipline in the hands of elected community councils with the penalty for any obstruction being a summary dismissal and loss of pension would be a good place to start. Perhaps followed by an automatic felony upgrade for any crime committed, or covered up after the face, using official authority and aggressive conspiracy prosecutions for anyone who so much as looks the other way.

    But who are we kidding. Thats never going to happen. The only way to hold police accountable is to pull a Fred Hampton and stand up to defend your own communities, although even that only works for the time it takes for the uniformed criminals to kill you in your bed.

    I’d caution people from believing that this firing is final. There’s an arbitration process that comes after the final decision that can reverse the firing, if these guys want to pursue it.

    This. A year or two from now when the appeals are done and the arbitration is passed and the media attention has died down they’ll be allowed to walk quietly away with suspended sentences and early retirements.

  40. Lisa
    Lisa May 26, 2011 at 11:25 pm |

    Pretend for a moment that these guys weren’t cops, but two civilians who escorted a drunk woman home. From the evidence provided, would you –as a juror– convict them of rape?

    The fact that they WERE cops makes the official misconduct conviction & eventual dismissal from the police force a forgone conclusion. But, completely beside the point, in determining if they’re guilty… beyond a reasonable doubt… of rape.

  41. rare vos
    rare vos May 27, 2011 at 8:01 am |

    Okay, lisa, let’s pretend they’re not cops. The accused rapist told her he used a condom. Commence with the excuses of why that doesn’t mean anything.

  42. PrettyAmiable
    PrettyAmiable May 27, 2011 at 8:21 am |

    rare vos:
    Okay, lisa, let’s pretend they’re not cops.The accused rapist told her he used a condom. Commence with the excuses of why that doesn’t mean anything.

    Don’t people wear condoms on their hands when they greet each other where you’re from? Gees, why are you so negative??

  43. PrettyAmiable
    PrettyAmiable May 27, 2011 at 8:27 am |

    Cop: Oh, hi, are you going to be able to get into bed okay?
    Woman: Oh sure! I know this because I’ve already demonstrated that I can walk all on my own. But listen, I’m really terrified of non-sexually transmitted diseases. Your unwarranted hand shake is over the line. You could have transmitted the common cold to me.
    Cop: Oh don’t worry, I wore a condom.

    Definitely how it happened.

  44. Lisa
    Lisa May 27, 2011 at 8:55 am |

    Personally, I’ve assumed that these cops were guilty of the alleged rape since the story hit the papers. I was pretty shocked by the acquittal, and started to review the evidence yesterday. The more I read, the more I understood why the jury acquitted them of the charge. If you read the full transcript of the recording she made, the cop denies that anything sexual happened over and over and over and over. The final “admission” of condom use reads like “sure, lady… anything you say”– not a compelling, genuine admission. Do I think he may have been lying? Of course! Still, the taped conversation doesn’t serve as an admission to my mind, and obviously not to the twelve jurors either.

    No matter how “believable” the victim’s testimony –given that she’s unable to remember much of what happened– it simply wasn’t compelling enough to convict.

    So, what’s the point of the proposed protest/ rally? To protest the fact that twelve jurors took their jobs seriously?

  45. Kierra
    Kierra May 27, 2011 at 8:56 am |

    Pretend for a moment that these guys weren’t cops, but two civilians who escorted a drunk woman home. From the evidence provided, would you –as a juror– convict them of rape?

    Yes. She can’t remember what happened. She didn’t know these men before they escorted her home. The likelihood that she fully consented to sex with a random stranger while being too drunk to realize what was going on is highly unlikely. The fact that she was so drunk that they had to escort her home should have been indication enough to them at the time (especially given that they were perfectly sober) and should be evidence now that she was unable to give consent.

    More than that, even if they weren’t cops specifically, but still individuals that were on duty at a job should make it clear that their actions were entirely inappropriate. Substitute any other likely profession (delivery guy, doorman, repair/maintenance guys, etc) and it doesn’t change the plain fact that having any kind of intimate contact with a random drunk woman should have never crossed their minds.

  46. PrettyAmiable
    PrettyAmiable May 27, 2011 at 9:27 am |

    Lisa, I can’t find a transcript. I have this from cbs news:

    “Moreno asked her what she remembers. She said she remembered getting up the stairs and the next thing she knows, the police officer was having sex with her.
    Officer Marino repeatedly denies saying, “Ma’am, do you want me to admit to something that didn’t happen?”
    It’s only after she threatens to walk into the precinct and tell her story to the desk officer that Officer Moreno apologizes, admitted that he started out helping her and that things got a little crazy.”

    So she remembers him having sex with (i.e. raping) her? Why does it matter at all if she blacked out other portions of the night? And he apologized when she threatened to tell his superiors? If it didn’t happen, why wouldn’t he tell her to fuck off and do what she wants?

    Hell yes I would vote in her favor if I heard that. And yeah, I think every juror who voted in another direction is an asshole who personally is contributing to rape culture.

  47. Lisa
    Lisa May 27, 2011 at 9:33 am |

    “…their actions were entirely inappropriate… and it doesn’t change the plain fact that having any kind of intimate contact with a random drunk woman should have never crossed their minds.”

    You’ll get no argument from me, but the drunkenness factor certainly makes a murky mess in trying to determine beyond a reasonable doubt that a sex crime was committed. The witness doesn’t remember much. The accused ain’t telling. Total lack of physical evidence in this case. Perfect storm for an acquittal.

  48. Sheelzebub
    Sheelzebub May 27, 2011 at 9:44 am |

    Really? She was drunk enough that she can’t remember everything, she was drunk enough that she needed help getting home, but it’s “murky” that she didn’t consent to sex with the cop who brought her home? While his partner stood guard outside the door?

  49. Lisa
    Lisa May 27, 2011 at 10:04 am |

    Sheelzebub–Is there any subject quite SO murky as what constitutes “consent” between adults, when by legal definition, ANY person incapacitated by drugs or alcohol is incapable of consent? Are all sexual relations which take place under the influence of drugs and alcohol “sexual assault”? No? Yes? Maybe? Sometimes? (And, what’s the definition of “incapacitated” anyhow?)

    Yes– murky.

  50. Lisa
    Lisa May 27, 2011 at 10:11 am |

    Sheelzebub– Is there any subject quite SO murky as what constitutes “consent” between adults, when by legal definition, any person incapacitated by drugs or alcohol is incapable of consent? Are all sexual relations which take place under the influence of drugs and alcohol “sexual assault”? No? Yes? Maybe? Sometimes? And, what’s the definition of “incapacitated” anyhow?

    Seems pretty murky to me.

  51. Lisa
    Lisa May 27, 2011 at 10:14 am |

    (Sorry– the first post’s appearance was mysteriously delayed so I posted a second version. Oops.)

  52. Kristen J.
    Kristen J. May 27, 2011 at 10:19 am |

    Not really murky at all. Any time you have sexual contact with an intoxicated person you run some risk of committing rape. So, don’t engage in sexual contact unless you can be certain that the person you are engaging is affirmatively consenting. Unmurkedified.

  53. Sheelzebub
    Sheelzebub May 27, 2011 at 10:31 am |

    <i.Sheelzebub– Is there any subject quite SO murky as what constitutes “consent” between adults, when by legal definition, any person incapacitated by drugs or alcohol is incapable of consent? Are all sexual relations which take place under the influence of drugs and alcohol “sexual assault”? No? Yes? Maybe? Sometimes? And, what’s the definition of “incapacitated” anyhow?

    We aren’t talking about someone who had one or two beers. We’re talking about someone who was so intoxicated she had to be escorted home. Someone who was blacking out.

    The cop and his partner knew goddamn well this was rape. They called in a fake 911 call to “check” on her–with his partner standing guard at the door while he raped her.

  54. blondie
    blondie May 27, 2011 at 10:42 am |

    Perhaps it’s appropriate to use the Rodney King approach — when the state criminal trial obviously fails to result in justice, the federal justice system goes into action, charging the defendants with violating the civil rights of the rape victim.

    The victim should feel no compunction in holding back from a civil suit against the officers and their employer, as well. If the city and its police department have to pay enough $$ in verdicts and settlements for their employees’ misconduct, maybe they will finally be induced to hold their employees to higher standards of conduct.

  55. Laura
    Laura May 27, 2011 at 10:51 am |

    Here’s the full transcript of the recording that was referenced earlier:

    http://articles.nydailynews.com/2011-04-14/news/29449114_1_cw-ma-am-kenneth-moreno

  56. FashionablyEvil
    FashionablyEvil May 27, 2011 at 10:55 am |

    Total lack of physical evidence in this case.

    Like her bruised cervix that the defense argued was a result of vigorous scrubbing in the shower? That’s some awesome understanding of female anatomy right there, I must say.

  57. FashionablyEvil
    FashionablyEvil May 27, 2011 at 10:59 am |

    Is there any subject quite SO murky as what constitutes “consent” between adults, when by legal definition, any person incapacitated by drugs or alcohol is incapable of consent? Are all sexual relations which take place under the influence of drugs and alcohol “sexual assault”? No? Yes? Maybe? Sometimes? And, what’s the definition of “incapacitated” anyhow?

    Seems pretty murky to me.

    Also, any time you’re making the same argument as douchey college boys about, “Can I accidentally rape someone??” you should reconsider your analysis.

  58. Sheelzebub
    Sheelzebub May 27, 2011 at 11:09 am |

    Oh, Jesus. The cop came right out and said that she was so wasted she was puking on her self and pissed herself a little. Um, yeah, way too intoxicated to consent.

  59. blondie
    blondie May 27, 2011 at 11:27 am |

    I guess I can count my lucky stars that, when I have been in a less-than-great condition due to alcohol consumption, I have not been around princes like these cops. I think it’s Melissa McEwan at Shakesville who has a post on this idea — the difference between me at those times and the victim in this case was the presence of a rapist.

  60. PrettyAmiable
    PrettyAmiable May 27, 2011 at 11:33 am |

    FashionablyEvil: Like her bruised cervix that the defense argued was a result of vigorous scrubbing in the shower? That’s some awesome understanding of female anatomy right there, I must say.

    I don’t… how would you do that? Like, would you need a sponge on a stick?

  61. William
    William May 27, 2011 at 11:48 am |

    The victim should feel no compunction in holding back from a civil suit against the officers and their employer, as well. If the city and its police department have to pay enough $$ in verdicts and settlements for their employees’ misconduct, maybe they will finally be induced to hold their employees to higher standards of conduct.

    If paying out civil judgements taught the NYPD anything they’d have a doctorate in it by now. New York City alone has paid something in the neighborhood of a billion (yes, billion) dollars in civil suits and settlements in the last ten years. Put another way, in the last decade the NYPD has spent a little under $3,000 per officer per year to pay for fuck ups. Thats a little over 8% of an officer’s starting salary.

  62. Ellie
    Ellie May 27, 2011 at 12:21 pm |

    I’m a little confused… Is the question here whether or not he had sex with her, or whether or not it was rape?

  63. Ellie
    Ellie May 27, 2011 at 12:39 pm |

    Jill: Apparently both.

    Okay. So I didn’t have sex with that woman, but if I actually did have sex with that woman, it wasn’t rape. Okay, makes total sense.

  64. jennygadget
    jennygadget May 27, 2011 at 1:23 pm |

    Rare Vos

    “Fired or not, the acquital is a nice loud message to women: Whatever you do DO NOT CALL THE POLICE.”

    Considering all the horrendous things about this story, this should not the part that kills me but – but she wasn’t even the one that called the police. For all we know she didn’t trust the cops to begin with and would never have asked for their help. But a good samaritan tried to make sure she was ok, and the police that were called didn’t just show less concern for her health and safety than the person that made the call, they went so far as to abuse their power and our trust to commit a horrendous crime.

    And a jury acquitted them.

    So, it’s not even just DO NOT CALL THE POLICE, it’s: don’t ever be vulnerable to begin with, because even if you know not to call, some well-meaning person might not – and, being vulnerable, you won’t be able to stop them.

    I just have no words.

  65. Florence
    Florence May 27, 2011 at 3:08 pm |

    chava: Why have they not been fired yet? Because police can shoot an unarmed, prone black man in the back and walk (Oscar Grant, SF). Or a black police officer (NY, most recently). Or a man out on his bachelor party (Sean Bell, NY). Or an eight year old girl (Aiyana Jones, Detroit).

    When they can shoot you with impunity, I’m just. not. surprised that they can rape you with it.

    This. Brought me to tears. OMG this is so fucked up. So fucked up.

  66. Vigée
    Vigée May 27, 2011 at 6:07 pm |

    I’m sorry to be posting this here if it’s a derail, but I’ve been talking about this acquittal with a friend of mine and he keeps saying that the reason it’s hard to convict men of rape is because of All The Men who are falsely accused. I need some actual data on this statement to be able to argue it effectively, but am having trouble finding it. Does anyone know of any resources?

  67. EG
    EG May 27, 2011 at 7:14 pm |

    Vigee (I’m sorry; I don’t know how to do accents),

    Here’s a study that may help:

    https://yesmeansyesblog.wordpress.com/2010/09/09/false-rape-allegations-are-rare/

  68. konkonsn
    konkonsn May 27, 2011 at 8:06 pm |

    Vigée:
    I’m sorry to be posting this here if it’s a derail, but I’ve been talking about this acquittal with a friend of mine and he keeps saying that the reason it’s hard to convict men of rape is because of All The Men who are falsely accused.I need some actual data on this statement to be able to argue it effectively, but am having trouble finding it.Does anyone know of any resources?

    I’m, unfortunately, not a math geek. I’ve been thinking it would be nice to have one of those charts with graphs and stuff that show the likelihood of being falsely accused of rape, the likelihood of being convicted on false charges, vs. the likelihood of being raped and not reporting, the likelihood of reporting a rape and not being taken seriously, the likelihood of actually being convicted of rape, etc. All put together in a neat chart form so that when some guys start going on the, “OMG! I’m a male, and I want to have sex, but how can I have sex when the ladies might accidentally tell someone it was rape and then I get thrown into jail!” tirade, BAM! Chart.

  69. Jared
    Jared May 28, 2011 at 1:09 am |

    Jill: the quote you’ve provided RE the penal code doesn’t support what you’ve written (nor does the expanded series of quotes provided by Thomas MacAulay Millar). It looks like the law says intoxication only invalidates consent if it was involuntraily taken, regardless of how off your skull you are.

  70. Athenia
    Athenia May 28, 2011 at 11:48 am |

    Vigée:
    I’m sorry to be posting this here if it’s a derail, but I’ve been talking about this acquittal with a friend of mine and he keeps saying that the reason it’s hard to convict men of rape is because of All The Men who are falsely accused.I need some actual data on this statement to be able to argue it effectively, but am having trouble finding it.Does anyone know of any resources?

    I’d look at it differently—how many men have penetrative intercourse with women? Tons, right?

    That’s why it’s so hard to convict rape…..unless, say, you are murdered as well, because one can’t confuse murder with violence in the same way rape is confused with consensual sex.

  71. Ellie
    Ellie May 28, 2011 at 12:41 pm |

    I really wish we as a society were more capable of judging these cases one at a time, instead of letting one rapist go because of an innocent man who was convicted elsewhere.

  72. PrettyAmiable
    PrettyAmiable May 28, 2011 at 7:01 pm |

    Jared:
    Jill: the quote you’ve provided RE the penal code doesn’t support what you’ve written (nor does the expanded series of quotes provided by Thomas MacAulay Millar). It looks like the law says intoxication only invalidates consent if it was involuntraily taken, regardless of how off your skull you are.

    That was actually my take as well. I think I saw this explanation on another blog too. That said, I’m def no law student.

    (PS, I, for one, would love it if the entire penal code was simplified so that I didn’t feel like I needed a JD just to know what’s going on. Though, to be honest, I’m typically also in a “fuck states’ rights” camp).

  73. Kristen J.
    Kristen J. May 29, 2011 at 12:07 am |

    PrettyAmiable: That was actually my take as well. I think I saw this explanation on another blog too. That said, I’m def no law student.

    (PS, I, for one, would love it if the entire penal code was simplified so that I didn’t feel like I needed a JD just to know what’s going on. Though, to be honest, I’m typically also in a “fuck states’ rights” camp).

    From what I understand the officers were indicted under the physically helpless theory. My somewhat fuzzy recollection of NY criminal law (and this is only from helping a friends study for the NY Bar more than 5 years ago…so this is FWIW) is that physical helplessness can apply even where the victim is conscious and able to move. Its been interpreted as somewhat more broadly than the definition above would suggest. The question is I believe a question of fact for the jury. (Techer? in the mid 80s I think is the case, but I didn’t find it with google, so I could be wrong).

  74. PrettyAmiable
    PrettyAmiable May 29, 2011 at 8:15 am |

    Thanks! That it has been interpreted more widely makes me happy. Obviously not in this case, but there you go.

  75. Elisabeth
    Elisabeth May 29, 2011 at 9:58 pm |

    Given the narrowness of the conditions under which someone can be convicted of rape, I can see how the cops got off. The woman voluntarily drank, so it would come down to proving whether or not the woman was “physically helpless.” Even if as Kristen J mentions there was precedent for conscious mobile people to be physically helpless, I could see how the prosecutors could make a “common sense” reading of the statue compelling to a jury. Basically what they would then have to argue is whether or not at the time the woman verbally communicated consent. Since one witness says yes, and the other says she doesn’t remember, it’s not surprising they were acquitted by a jury. In addition to more police training, maybe getting the “temporarily mentally incapacitated” to include voluntary as well as involuntary incapacitation would be good.

Comments are closed.

The commenting period has expired for this post. If you wish to re-open the discussion, please do so in the latest Open Thread.