In Rape Cases, Who’s on Trial?

The evidence against the three teenagers seemed overwhelming: a videotape that prosecutors said captured them sexually assaulting a 16-year-old girl who was knocked out by drugs and alcohol.

But jurors were persuaded by an aggressive defense that portrayed the girl as a deceitful would-be porn actress.

The outcome last week of the two-month-long gang-rape trial -- a hung jury -- is the latest to provoke debate in the legal community over how far attorneys should go to defend clients charged with sexual assaults. Like the approaching Kobe Bryant trial, the gang-rape case put the spotlight on the alleged victim -- leaving some to think that she was the one on trial.

Sexual-assault experts say that increasingly harsh sentences for rape encourage defense lawyers to stretch the limits of legal ethics to defend those accused of sex crimes.

When the tactics are successful, victim advocates said, it gives defense attorneys in future cases more license to gratuitously attack accusers.

“Once you trample boundaries, it becomes OK for the next guy to trample them too,” said Dawn Foor, executive director of the Orange County Sexual Assault Victim Services.

“If public sentiment had been keeping lawyers leashed to a certain extent before, this case shows that restraint doesn’t pay.”

Advocates and attorneys agree it is a constant struggle to balance justice for defendants and the interests of alleged victims.

When defense attorneys believe a false rape accusation has been made, their job is to expose that by whatever means necessary -- within the boundaries set by the trial judge.

“This girl was not a victim,” said Joseph G. Cavallo, one of the defense lawyers in the Orange County case. “I have a duty to my client to show the jury that, so I’m going to do what I have to do to win my case.”

Jurors in his case, which ended with a mistrial declared June 28, were split on all 24 counts against Gregory Scott Haidl, Kyle Joseph Nachreiner and Keith James Spann, all now 19. On four counts, they were leaning 11 to 1 in favor of acquittal. Prosecutors said that they would refile charges.

The case received national attention in part because Haidl is the son of Orange County Assistant Sheriff Don Haidl, at whose Corona del Mar home the sex took place.

Before the trial started, Cavallo filed legal motions calling the alleged victim a “slut” who craved group sex.

“The complaining witness was undiscriminating in her sexual encounters and was willing to do anything with anybody if it met her needs and desires,” Cavallo wrote in one brief. The defendants, he wrote, “conducted themselves accordingly.”

Cavallo toned down his statements in front of jurors, taking pains to tell them he didn’t think she was a slut -- just a “wild girl” who drank a lot, used hard drugs and slept around.

The other defense attorneys agreed, telling jurors that she called the shots on the night of the alleged rape, then manipulated police into believing she was a victim. “She basically created an atmosphere that resulted in this occurring,” said Peter Morreale, Spann’s lawyer.

Prosecutor Dan Hess, in his closing statement, acknowledged that the alleged victim -- known as Jane Doe during the trial -- had gone through a hard time on the stand and asked jurors to focus instead on the defendants. “It’s not Jane Doe who’s on trial here,” he said, “although you might think so by the way the defense has presented their case.”

One juror, who identified himself only as Jeff, said defense attorneys made him question Jane Doe’s credibility through their cross-examination.

“It’s very evident in a number of areas that she is lying,” said Jeff, 39. “It was less what the defense said about her and more what she did to herself on the stand.”

In the Bryant case, the Lakers superstar is accused of raping a 20-year-old desk clerk at a Colorado resort. Bryant, 25, has pleaded not guilty and said he and the accuser had consensual sex.

Since charges were filed last summer, Bryant’s lawyers have asked the judge to allow them to introduce at trial evidence that the accuser had multiple sex partners in the days surrounding the incident.

Rape-shield laws require that judges determine in advance what information about an accuser’s past is relevant and necessary for the jury to hear.

Veteran Denver defense attorney Jeralyn Merritt said that too often the public thinks defense lawyers are attacking an accuser’s character when instead the issue is their credibility. In rape cases that hinge on consent, she said, witnesses’ credibility is crucial.

Lawyers in the Orange County case acted appropriately when presenting evidence that Jane Doe frequently lied to her parents and originally misled police about details of the alleged assault, said Merritt, treasurer of the National Assn. of Criminal Defense Lawyers.

“The defense attorney has an obligation to bring out any facts to the jury that support his or her client’s defense,” she said. “The defense lawyer is not needlessly attacking the victim of a rape. They’re going after that person because her story doesn’t ring true.”

The courtroom ordeal is believed to be one of the reasons rape remains so widely underreported. Advocates for victims of rape and sexual assault worry that the media crush surrounding the Bryant and Orange County cases will make the problem worse.

“Every time a rape case gets a lot of attention, it does freeze the will of many rape victims to report and come forward,” said Patti Giggans, executive director of the Los Angeles Commission on Assaults Against Women. “The message we’re hearing on our hotlines is that victims don’t see the point of reporting. It’s messy, and they just want to get better and put it behind them.”

She and other advocates prepare accusers to have their lives put on display, telling them that it’s the defense’s job to do so. When the penalties are so severe -- the defendants in the Orange County case would have faced up to 55 years in prison if convicted -- pressure on lawyers increases.

“When it’s high-profile and your reputation is out there in front of everybody, the stakes are higher,” Giggans said. “Often a zealous attorney will try anything to get their client off.”

Alleged victims are told not to take the attacks personally, said Foor of the Orange County program, although she added that it’s difficult for most of them not to do so.

“We truly try to disillusion them from the fact that everything will be great and they’ll get this glorious justice,” she said. “Just because you’re a victim doesn’t mean people have to be nice to you.”

An advocate from her office accompanied the teen in the Orange County case on each of the four days she testified in the trial and has been in close contact with her since the alleged rape was reported two years ago. After the jury deadlocked, Foor said, an “atmosphere of gloom” settled over the office.

“We really felt this would be a case we could use to show people that this treatment of victims is unacceptable and doesn’t result in letting the defendants off,” she said. “Now we’re kind of grieving with the girl. I know she’s very sad. It’s things like this that make you think you can’t change these attitudes.”

Only in sexual-assault cases, she said, are the victims blamed for what they did or said leading up to the crime.

“Maybe she shouldn’t have gone over there, but those things shouldn’t have been done to her,” Foor said, referring to the girl driving from her Rancho Cucamonga home to the defendants’ party. “People lose sight of that.”