In a few days (October 4th) Derrick Rose will stand trial in a civil courtroom. He and co-defendants Randall Hampton and Ryan Allen will defend themselves against an accusation of gang rape that took place in the month of August 2013. Though his co-defendants have the very real life stigma and consequence of having the word rapist attached to them if they are convicted in civil court, a trial expected to last eight days, it is millionaire superstar Rose who suffers to lose the most if the jury finds that he did indeed actively participate in gang rape. Endorsements, the privilege of heroism, his reputation will take a fast and furious beating in the super highway that is social media. Perception is reality and Rose’s reality will be a far cry from the MVP and All-Star narrative he has earned the right to cloak himself in these past eight years.
However, this case with all its sordid sexual details is not going to live or die on the attorneys skill in using leverage which includes media manipulation and infecting the jury pool. Already Rose’s side has been fined for “mistakenly” using the accusers name in court, against a court directive. But that is the theater and drama of high profile cases that turns legal maneuvering into a bad episode of Law and Order.
This rape case is like every other rape case before it, minus the wealthy and famous defendant. It will be won or lost on consent and credibility.
Did Jane Doe consent to having sex with Derrick Rose and his friends? Do you believe her?
Though consent can seem as simplistic as a yes or no, it is a layered definition when trying to sort out sexual assault. The accuser must have volunteered to the act of sex with Derrick Rose and his friends. Even if she consents in the beginning, she has the right to change her mind. Consent isn’t just saying yes or no. It is also the body language actions and that is where it all gets murky. What says yes and what says no? Does going into a bedroom with a man mean yes, I want to have sex with you?
One of the ways Derrick Rose and his co-defendants will be judged is whether a reasonable person would have understood the accuser did not want to have sex and yet they continued anyway.
It doesn’t matter that the accuser waited two months before reporting. It doesn’t matter that she chose not to pursue criminal charges. It doesn’t matter that she wants her name withheld (once the civil trial begins her name will be public). What matters are the facts and the perception of the facts and who is telling the truth and who is lying.
The accuser’s contention is she was incapacitated on purpose. If that is true, she couldn’t give consent and Derrick Rose and his co-defendants will have an uphill battle proving they did not rape her. The legal definition of rape differs slightly from the moral definition. According to the law, rape is sex without consent.
Recently, Derrick Rose said he didn’t think he did anything wrong. But once accusations enter the legal arena, it doesn’t matter what he did or did not think. It matters if the accuser was influenced by substances and was therefore incapacitated.
The accusers credibility will be center stage. She is portraying herself as a chaste, naive, small town girl from a religious and pious family who didn’t know much about the culture of athletes. She was away from home and swept up by the big, bad wolf. She didn’t know any better. If the jury believes she is who she says she is, it is bad news for Rose.
Rose will try to prove the accuser is a liar, an ex-girlfriend looking for a payday, a woman remorseful because she had sex with three men. According to reports, the defense has two former friends of the accuser as witnesses. Those witnesses will say that the accuser told them she had sex with Rose and his friends voluntarily. She said she wasn’t raped when asked. One witness will say the morning after the alleged assault, the accuser was “happy and smiling.”
All the witnesses and the accuser will have to stand up to the brutal scrutiny of cross-examination with their lives (previous to this incident) fair game and possibly used against them. If they have every lied about anything before, skilled lawyers will make the leap that they are lying now. It is going to get ugly for all involved.
Particularly Derrick Rose. It is why most legal scholars say he should settle. The collateral damage is more costly than whatever amount of money he may have to relinquish. But if you are innocent, the last thing you want is the perception that something criminal happened and you were a participant. It’s human nature to want to clear your name. The last thing Derrick Rose wants is to be thought of as a rapist first, a basketball player second.
Already, you know the argument. He’s rich. He’s entitled. He doesn’t believe consequences apply to him. He’s a professional athlete, gifted in his sport. He takes. He’s smug and arrogant. In his world of illusions, who has ever told him no? The accuser, that’s who.
In civil court, the burden of proof is not one in which beyond a reasonable doubt must be proven to the jury, as would be the case in a criminal trial. All the accuser has to prove to the jury is that the preponderance of evidence says Derrick Rose raped her.
Did he? A jury will have the last word.
photo via llananba