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Judge rules intoxication does not mean woman was “unaware” in sexual assault case
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[email protected] | Posted: Monday, March 8, 2010 5:36 pm
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Intoxicated people can consent to sex, even though they might not remember it or might regret it later, a district court judge has ruled.
A 12-person jury convicted Mitchell Gross, 49, of gross sexual imposition in mid-February after an hour and a half of deliberations and a three-day trial. He had been accused of engaging in a sexual act in November 2008 with a 21-year-old woman knowing she “was unaware that a sexual act was being committed.” While Gross did not deny he engaged in a sexual act with the woman, he contended the act was consensual and her idea.
“(Prosecutors) were saying she was so drunk that she was unaware and that he should have known that,” Tatum Lindbo, Gross’ defense attorney, explained.
South Central District Judge Sonna Anderson dismissed the case in a 23-page order last week, ruling there was no evidence the alleged victim in the case was unaware of a sexual act taking place. She dismissed the case in response to motions Lindbo made during the trial.
Defense attorneys typically make Rule 29 motions when prosecutors finish presenting their cases and renew the motions when all evidence has been presented. The motions ask judges to find that prosecutors have not presented evidence to sustain convictions. Judges can rule on the motion immediately or reserve judgment until a later time, as Anderson did in the Gross case.
While the acquittal stands for the moment, Burleigh County Assistant State’s Attorney Cynthia Feland said she has filed a notice of intent to file a motion to vacate the order. She plans to review the trial transcript and try to prove her case again to Anderson. If Anderson does not vacate her order, Feland may request a supervisory writ from the Supreme Court, in which the high court is asked to step in and overrule a judge.
If Anderson does not vacate the order and the Supreme Court will not step in, the case will be over, as prosecutors cannot appeal an acquittal.
Feland believes the judge overstepped her bounds in acquitting Gross, because the jurors were in the position to determine who was telling the truth in the case.
“Basically, the court’s order stepped into the jury’s province of being the finder of fact,” she said. “In a jury trial, the judge is the ultimate trier of the law, but the jury is the ultimate trier of fact.”
According to background information provided in Anderson’s order, the 21-year-old woman was at several bars on Nov. 26 and became intoxicated, witnesses said. The people driving her home didn’t know where she lived and ended up leaving her at a home that looked like hers in her neighborhood.
The order said the woman wandered into one home, then across the street to another, which was Gross’ home. Gross and others were drinking at his home and allowed the woman to sleep there. She left, then returned later to the home. Gross told police he had at least 10 beers that night.
Gross did not testify at his February trial, but he told police in an interview that he and the woman talked for awhile, then she asked if he wanted to have sex with her. They had sexual contact with each other, and he reported she “responded to him in a manner consistent with consensual sex.”
The woman woke up in the home on the morning of Nov. 27 without memory of what had happened. Later, she became convinced she had been sexually assaulted, Anderson’s order said. After reporting the matter to police, she was able to pick Gross out of a line up.
Though prosecutors proved the woman was drunk at the time of the sexual encounter, they did not prove that she was unaware of what was going on and offered no evidence to dispute Gross’ version of events, Anderson wrote. The woman’s level of intoxication also does not prove she was unaware, she wrote.
“However, it is not a crime in North Dakota for intoxicated persons to have consensual sexual encounters,” the judge wrote in the order. “Persons who are of legal age to consent to sexual relations and are not otherwise mentally infirm still have the ability to consent to sexual encounters, even though one or both may be intoxicated, even extremely intoxicated, may not recall the events clearly, and may come to regret their decision to have sex.”Anderson also pointed out that the woman’s ability to pick Gross from a lineup showed she was not unconscious, asleep or completely unaware during the sexual act. That she does not remember the act later does not prove she was unaware at the time, the judge determined.
Even if prosecutors had proven the woman was unaware, they presented no evidence that Gross should have known she was unaware, Anderson wrote. Gross also was intoxicated, and witness statements show the woman was functioning, though intoxicated. While a sober person may have realized it was not wise to have sex with the woman, “an intoxicated person may not have that level of clear thinking,” Anderson wrote.
Though no similar case was found in North Dakota, Anderson found similar cases in Ohio and in the 7th U.S. Circuit Court of Appeals, and in both cases, the evidence was deemed insufficient to sustain convictions.
Lindbo said she was pleased with the judge’s decision. The state argued that the woman was “too drunk” to consent, but the law says the person has to be “unaware” for the charge to stick, she said.
“That’s not the legal standard,” she said about the contention the woman was too drunk to consent.
Feland believes evidence was presented that the woman was too drunk to have been aware of what was going on and that Gross was not too intoxicated to see that. Gross’ son testified at trial that he and his father had to help the woman into their house due to her level of intoxication and that the woman could not or did not talk to anyone, she said. Gross told police he had to take the woman’s pants, because she had urinated in them.
“For all practical purposes, she was practically catatonic” according to witnesses, Feland said.
Domestic violence and sexual assault advocacy groups issued releases following the ruling, saying it showed North Dakota is in need of stronger statutes dealing with drug- and alcohol-related sexual assaults.
Feland said she did not think the current law was a problem in the case and feels the law is more problematic in cases where the alleged victim’s intoxication level is not as clear.
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Posted in Local on Monday, March 8, 2010 5:36 pm Updated: 5:45 pm. | Tags: Mitchell Gross, Gross Sexual Imposition, Sonna Anderson
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