@hawkeye10,
That gang rape occured in California. This is the law in California regarding consent.
Quote:
According to the California penal code, sexual assault occurs when sexual contact is non-consensual. Consent for sexual contact means that an individual is a willing participant in the act.
An individual is unable to give consent if incapacitated by the influence of drugs or alcohol or they suffer from a mental or physical disorder that makes them incapable of offering consent.
http://www.ehow.com/about_6623976_definition-california-law-sexual-assault.html
So someone who is extremely intoxicated would be legally unable to give consent. Therefore, sexual intercourse with that person would be considered rape. Someone who is extremely intoxicated may not be able to offer resistance, and that would also be rape under California law.
That will probably be an issue in the gang rape. They may have a blood alcohol level which was taken when the girl was hospitalized and that would enable them to estimate her blood alcohol level at the time the assaults took place. They may also have witnesses who saw her consuming alcohol and saw the amount she ingested, and one defendant has already reported she was so drunk she didn't know what she was doing. So they can generate evidence from a variety of sources to try to determine whether she was incapacited and therefore incapable of offering consent. When the police found her she was unconscious and her pupils were unresponsive to light, suggesting a comatose state from an extremely high blood alcohol level.
Since the girl was only 15, she was legally unable to give consent simply based on her age.
The sexual assault charges in this case so far are rape and rape by force in concert. So the girl's physical injuries and physical condition will be used to establish force along with eyewitness testimony.
I think if the defense tried to allege that this was consensual "rough" group sex between this girl and a group of males, on school grounds, with onlookers, in the middle of a dance, just before she was supposed to call her father to pick her up, it would never pass the laugh test. The situation is not a credible scenario for consensual sex. It will be interesting to see what sort of defense they present.
Hawkeye, you are so biased against rape victims, I think if they had found this 15 year old shot, stabbed, and with poison in her bloodstream, you'd probably suggest she had commited suicide after consensual rough group sex.
I want to see a fair trial in this case. I suspect that they will produce a great deal of evidence during the trial. This is only a preliminary hearing, they just need to present enough evidence to be able to move forward with a trial.
Consent may be almost a non issue in this case. She was only 15 and she was very intoxicated, so the defendants can't just claim "she wanted it", that it was consensual--there is no valid legal consent in this case. The main prosecution evidence will have to involve tying each of those defendants to the actual rape and physical assaults.
They may have photos, they just haven't said that yet. They may also have witnesses who weren't involved in the actual rape, since a lot of people were watching, and they can identify who raped her. And some of the defendants may rat out the others in order to get a plea deal.
The preliminary hearings are still continuing, so a little more evidence may come out prior to trial.