Gang-rape case in Richmond focuses on force
Demian Bulwa
Chronicle Staff Writer
Monday, January 10, 2011
A central legal dispute in the case against several men accused of gang-raping a 16-year-old Richmond girl is whether she was forced into sex or whether, as defense attorneys contend, she drank so much alcohol that no force was required.
Some observers of the case, which returns to a Martinez courtroom today, have wondered why such a distinction would be made between two horrifying scenarios. California law generally prescribes the same punishment for a rape with force - three, six or eight years in prison - as it does for the rape of a person who can't resist because of intoxication.
The Contra Costa County district attorney, however, is seeking sentences of up to life in prison for five of the six defendants under the state's "one strike" rape law, which imposes longer sentences on first-time offenders in cases with egregious circumstances.
Burden of proof
To put the men away for life under the 1994 law, prosecutors must prove the men in Richmond acted in concert, used force and inflicted serious injury.
No one disputes that the girl was terribly abused in a courtyard outside a homecoming dance at Richmond High School after drinking enough to bring her blood-alcohol level to 0.35 percent - more than four times the state's legal limit for driving. One defendant admitted to punching her during the incident on Oct. 24, 2009, another to urinating on her.
But at a four-week preliminary hearing that ended last month with Judge Gregory Caskey sending the defendants to trial, attorneys argued over the nature of the violence, the level of the girl's drunkenness and the extent of her injuries.
Prosecutor Dara Cashman said it was true that force may not be needed to rape a heavily intoxicated person. But that does not mean an intoxicated person cannot be forcibly raped, she said, nor does it mean the victim has to be aware of the force or remember it.
Repeated punches
In this case, Cashman said, the defendants ripped off the girl's underwear. One suspect, 20-year-old Manuel Ortega, repeatedly punched her while attempting oral sex - blows that one witness said had knocked the girl unconscious.
Cashman said the girl had moaned, kicked and screamed for help - "ample evidence the victim did not consent." Citing police reports, she said the girl had been badly injured and could not fully open her mouth the next day.
Assistant Public Defender Jack Funk, who represents Ortega, said that what happened was "reprehensible." But he said the case had been magnified because of media coverage and public outrage, even though it was similar to other alleged rape cases involving young people and alcohol.
Mainly bruises
The girl's injuries, Funk said, were primarily bruises. He acknowledged that Ortega had struck her while attempting oral sex, but said the blows were not proof of a forcible gang rape.
"You've certainly got some application of force," Funk said in an interview. "But any fair view of the evidence shows that it was not done to cause her to submit, because she was basically incapable of resisting."
Another defense attorney, Ernesto Castillo, agreed, saying during the preliminary hearing that Ortega had not used violence to overcome the girl's will. "It was done, really, gratuitously," he said.
An advocate for victims' rights said she was troubled by the defense attempt to draw a distinction and by the message sent by laws that make some rapes more serious than others.
"If you rape an unconscious person, that is forcible - because you penetrated her. The distinction is a false distinction," said Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis and Clark Law School in Portland.
Left to wonder
"The person who was unconscious and learns later that she was raped will always wonder what happened to her," Garvin said. "She doesn't know the details, so she will imagine everything possible."
The six defendants in the Richmond case are scheduled to make their first court appearance today since the preliminary hearing and to hear new charges filed against them.
The five who face up to life in prison are Ortega; John Crane Jr., 44, of Richmond; Jose Montano, 20, of Richmond; Marcelles Peter, 18, of Pinole; and 17-year-old Ari Morales of San Pablo.
Elvis Torrentes, 23, of Richmond, faces lesser charges. A seventh defendant was released with no charges after the preliminary hearing.
Nearly all the men will have to be tried separately because of laws that protect them from being implicated by co-defendants who can't be cross-examined.
Complicating matters, some attorneys need to be replaced, including Cashman, who retired last month, and Funk, who plans to retire in March.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/01/10/BAMD1H55H7.DTL
