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Good That the Two Steubenville Rapists Have Been Judged Guilty, But Are Dozens More in the Community Getting Off Scot Free?

Who else should be held accountable for the horrible sequence of events during a drunken pre-season Big Red football team all-night celebration?
 
 
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A Scapegoat Is One Who Quietly Takes the Fall to Protect Others

If the rape convictions of two Steubenville, Ohio, juveniles in juvenile court turn out to be the end of the story, as some perhaps hopefully predict, then justice will be partly served but without disturbing much of the Steubenville community cover-up. And that leaves justice mostly obstructed.

The verdict and sentencing of March 17, following a three day trial, leaves little reason to think that Trent Mays, 17, or Ma'lik Richmond, 16, are innocent in any meaningful sense. What they did to a 16-year-old girl from another town was clearly unconscionable as well as criminal. But there is also ample reason to consider the possibility that they are not only guilty but, at the same time, scapegoats - taking the rap so that dozens of others in the community may escape accountability.

Who else should be held accountable for the horrible sequence of events during a drunken pre-season Big Red football team all-night celebration? The criminal possibilities surely include those who watched a felony in progress and did nothing, or those who learned of a felony committed and did nothing - categories that include an unknown number of parents, all the party hosts, perhaps all of the football coaches, and most of the players and their girlfriends, friends, and relatives - all possibly part of a widening circle of knowledgeable bystanders during or after the fact, almost all of whom who did nothing, when they weren't mocking or attacking the victim.

Who Defines a Community's Response? Who Represents It?

This is not to suggest that an entire community of 18,000 people should be condemned for law-breaking and/or ethical failure. But some significant segment of the community might well be ashamed and fearful: since there were some 50 or 60 partygoers on the night of August 11-12, then easily one per cent of the population, 180 people more or less, could be escaping meaningful accountability for their indecent behavior during and after an hours-long, semi-public sexual assault.

To underscore the point about community response, recall that three students did come forward last fall to testify at the probable cause hearing. For that, they were disciplined by Steubenville school authorities, who kicked them off the football and wrestling teams. Having apparently learned an important lesson from their elders, these students refused to testify at the trial without a grant of immunity from the prosecution.

This is not a pretty picture, but it helps to explain why the Ohio attorney general has announced plans to convene a grand jury in April to consider whether there is sufficient evidence to bring charges against those who destroyed evidence, or failed to report a felony in progress, or failed to report a felony after the fact, or otherwise acted criminally to obstruct justice. Similar possibilities apply to the likely crime of providing alcohol to minors.

The State of the Evidence Is Both Detailed and Incomplete

When Juvenile Court Judge Thomas Lipps rendered his "delinquent" verdict, the juvenile court equivalent of "guilty" in criminal court, he did so using a standard of proof of "beyond a reasonable doubt." The evidence before the court was overwhelming that the defendants had committed a series of sexual assaults against the victim, officially "Jane Doe," over a period of several hours, including finger-rape, which Ohio law defines as rape as much as genital rape.

But what we know from the trial is a minimum - we know, beyond a reasonable doubt, that at least this much occurred, before an as yet undetermined number of witnesses, some of whom communicated about it in real time as it was happening, as well as many more who sent around reports, comments, pictures, and video in the immediate aftermath, leaving open the possibility that they committed two crimes before they were finished: watching without reporting one or more felony sexual assaults and/or destroying evidence of a series of felony sexual assaults.

While the trial produced ample evidence for a conviction of the defendants, the full picture of what took place at several locations and en route between them, over a period of probably 6-8 hours, is not yet complete. That was not the purpose of this trial, and the amount of evidentiary detail was further reduced by Jane Doe's limited memory of that night, as well as the defendants' decision not to testify.

Unanswered Question: Was Jane Doe Drugged?

The possibility that someone slipped Jane Doe a date rape drug was raised from the start, as Jane Doe, her family, and others tried to reconstruct what had been done to her. A timely test might have detected traces in her hair, but the police and local prosecutor didn't do any such test.

Most media reports have been content to report that Jane Doe was "intoxicated" and leave it otherwise unexamined. But the timeline established by state prosecutors at trial allows for the possibility in an obvious but only circumstantial manner.

According to the evidence, Jane Doe was drinking vodka with a girlfriend at the first party of the night and was fairly "sloppy drunk," but still more or less navigating on her own. Friends testified that they tried to keep her from driving away with four boys (including the two defendants), but she was not deterred.

In the car she was assaulted. Mark Cole testified that he videotaped the assault and later deleted the recording. The question of a date rape drug was apparently not asked.

After this car ride, Jane Doe's demeanor was demonstrably different from what it had been at the first party. She was mostly inert, carried around like a potato sack, referred to by several witnesses as "dead."

None of this is proof, but what competent attorney would want his client to take the stand and answer questions about a car ride that, at best, reflects badly on him?

If the defendants had testified, they almost surely would have been asked what, if anything, made them think Jane Doe was a willing participant in any of her own abuse. Before the trial, Ma'lik Richmond told ABC News he "felt like she was coming on to me," but he didn't take the stand to state that under oath.

Does Lying Limp and Silent Constitute Consent to Anything?

The defense attorneys used a typical rape-case defense in the trial: that Jane Doe consented to all the activity involving her, both conscious and unconscious. Her consent, they argued, consisted of her never having said "No." No doubt they knew it was a hard sell with a comatose victim.

Trying the case in the media in advance, defense counsel even allowed Richmond to do that pre-trial interview with ABC News in which he also claimed that she "had her arm wrapped around me ... " and that the picture of him carrying her limp body was taken by the girl's former boyfriend, and was "a joke."

Describing the circumstances surrounding the picture, Richmond said, "She was just like laughing, we were all talking, just clowning around and that's when her ex-boyfriend was like, 'let me get a picture of this drunk b****' and that's when we took the picture."

Defense attorneys did not try to put those assertions into evidence, despite being able to call at least three witnesses to corroborate the story. Besides the two defendants, the defense could have called the ex-boyfriend, Cody Saltsman, who still attends Steubenville High School, where he was on the football team with the defendants.

Without this kind of exculpatory evidence, the defense was reduce to arguing, in essence, that because there's no proof that Jane Doe ever said no, or physically resisted, the court should conclude that she consented to everything that was done to her.

The court rejected that argument, as applied to this comatose or semi-comatose girl, that the victim was to blame. The court held, as the prosecution had argued, that consent requires some clear, affirmative act.

Part of the Community Still Blames the Victim

On the day of the verdict, a student disc jockey at the University of Toledo expressed a sentiment apparently still shared by many in Steubenville, when he tweeted: "disgusting outcome on #steubenville trial. remember kids, if you're drunk at a party, and embarrassed later, just say you got raped!" He later apologized and suspended his show.

The university released a statement saying that the DJ's comments were "revolting and directly contradict the values of the University of Toledo. [He] is learning a difficult lesson about the power of social media and the consequences that come with the words we choose."

That lesson was reinforced the next day when Ohio Attorney General Mike DeWine announced the arrest of two Steubenville juvenile girls, 15 and 16, for making online threats against Jane Doe, stating: "Let me be clear. Threatening a teenage rape victim will not be tolerated. If anyone makes a threat verbally or via the internet, we will take it seriously, we will find you, and we will arrest you."

One of the girls, a relative of Ma'lik Richmond, posted on Twitter: "You ripped my family apart, you made my cousin cry, so when I see you bitch it's gone be a homicide."

Both girls are being held until their March 27 hearing, in the same juvenile detention facility that held Mays and Richmond last summer.

The Point of Any Cover-up Is to Keep Truth From Coming Out

While some have claimed that Steubenville officials engaged in a cover-up from the time they first learned of the August 11 assaults, there is little evidence to support the claim. The investigation may have been slow to start, but that was largely because the events were unknown to authorities, and even moreso, unclear to Jane Doe and her family, who needed two days to piece together enough evidence to file a complaint with the police.

Both the police and the sheriff's department were involved with the investigation. There was apparently some difficulty resulting from overlapping jurisdictions, and there is a competence issue raised by the failure of authorities to carry out any lab tests for rape or drug evidence. Nevertheless they did gather the evidence that led to the convictions of Mays and Richmond.

Almost from the beginning of the process, Police Chief William McCafferty was making public pleas for people with information to come forward, and soon he was lamenting the fact that he was getting little cooperation from the public. This is where the heart of any cover-up lies, with those who suppressed information, either directly or indirectly. In spite of the resistance, police arrested Mays and Richmond on August 22, ten days after the event, charging them in juvenile court with rape and kidnapping, leaving the court to decide whether or not to try them as adults.

Prosecutor Stayed on Case Despite Conflicts of Interest

More troubling is the role of Jane Hanlin, the local prosecutor, who supervised the case for weeks despite her glaring conflicts of interest through numerous personal contacts related to the investigation. She's married to a police detective. And her son, Charlie Keenan, was another member of the Big Red football team and a reputed member of the "Rape Crew" clique that reportedly also included Mays and Richmond, as well as Jane Doe's former boyfriend Saltsman and Michael Nodianos, who is the subject of an infamous 12-minute videotape in which he ridicules Jane Doe to the enjoyment of others.

Hanlin did not recuse herself until August 28, when she turned the case over to the state prosecutors who brought it to trial. On the same day, Jefferson County Juvenile Judge Sam Kerr also recused himself from the case for similar reasons of community and football team connections.

Grand Jury Directly Threatens Community Cover-up

Even the earliest online comments last August were riddled with suspicion of a cover-up in Steubenville, given local awareness of the apparent interconnectedness of the Steubenville power structure. Jefferson County Common Pleas Court Judge Frank Bruzzese, for example, owns the law firm that employs Jane Hanlin, who in her other role as prosecutor has an assistant prosecutor who is the judge's son. Not surprisingly, then, the judge declined to empanel and oversee a grand jury, asking the Ohio Supreme Court to do the job.

Judge Bruzzese, in his request for an outside judge, failed to distinguish between an official cover-up that suppresses (or fails to gather) evidence and a community cover-up that withholds evidence. Rather, the judge complained of "a substantial controversy surrounding this case provoked primarily by nameless bloggers making allegations of cover-up. These nameless bloggers, while having produced no evidence of a cover-up, have managed to assemble quite a following locally, nationally and internationally."

The Supreme Court obliged the judge's request on March 21, naming a retired judge from another county, Common Pleas Court Judge Patricia A. Cosgrove. The judge, who served 35 years in public service, including 18 years on the Summit County bench, had retired in August 2011 to care for her husband during a serious illness. She had also served as the court's chief administrative judge, elected to that position by her fellow judges. At the time of her retirement, a lawyer who had practiced before her for years, lavished praise on her:

She's special for a lot of reasons. She has experience. She is intelligent. She made decisions that were difficult, but if the law commanded it, that was the result ...

Maybe above all, she had great judicial temperament. Even if she ruled against you, you knew she did it for the right reason, even if you disagreed. Everything about her is what you would think a person would want if you were going to do a template for a judge in common pleas court.

The Grand Jury Has a Target-Rich Environment

Grand Jury proceedings are secret, but there are some clues as to who will be called by Ohio prosecutors. Attorney General DeWine has made quite clear his dissatisfaction with the 16 people, unnamed, who have refused to cooperate with investigators for the past seven months. Others likely to be called might include any of the 56 people already interviewed and all those who are likely well-known to prosecutors as being involved directly or indirectly in the rape of Jane Doe and its aftermath.

Steubenville City Manager Cathy Davison promptly endorsed the further investigation, saying that the attorney general "wants to make sure that everyone that was involved is held accountable and obviously we do want that to happen."

Implicitly acknowledging the community cover-up, the attorney general issued a statement on March 17, announcing the Grand Jury and explaining in part:

I have reached the conclusion that this investigation cannot be completed - that we cannot bring finality to this matter - without the convening of a Grand Jury ... The Grand Jury could meet for a number of days, and, I should point out, that the convening of a Grand Jury does not necessarily mean that indictments will be returned or that charges will be filed. However, indictments could be returned and charges could be filed ...

And this community needs assurance that no stone has been left unturned in our search for the truth ... Everything that has happened in Steubenville has been very difficult - very, very sad - and very tragic. But let me be clear - this is not just a Steubenville problem. This is a societal problem.

What happened here is shocking, and it is appalling ...

Rape is not a recreational activity. We, as a society, have an obligation do more to educate our young people about rape. They need to know it is a horrible crime of violence. And it is simply not ok.

And After the Grand Jury and the Good Intentions, Then What?

Reading the students' emails is an illuminating if not pleasant experience, and there are hundreds in evidence.

In one that expresses the dominant tone of the exchanges, Trent Mays responds to a friend's inquiry about his activities: "Yeah dude, she was like a dead body. I just needed some sexual attention."

In the courtroom immediately after the trial, Jane Doe's mother spoke briefly to the defendants, telling them, in part:

You displayed not only a lack of this compassion but a lack of any moral code. Your decisions that night affected countless lives including those most dear to you. You were your own accuser through the social media that you chose to publish your criminal conduct on. This does not define who my daughter is. She will persevere, grow, and move on.

The Grand Jury will give Steubenville an opportunity, as a community, to persevere, grow, and move on. And maybe Steubenville, if enough of its people persevere, will make progress on questions of rape and violence to women. And maybe the Big Red football team's Rape Crew will fade to an ugly local memory.

And then maybe the American military can persevere and grow and teach the troops not to rape their fellow soldiers.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

 
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