Rape Case Dropped After Defendant Produces Tape : Justice: The man, a free-lance photographer, is exonerated. Perjury charges are weighed against one woman.

Charges against a North Hollywood photographer accused of sexually assaulting two women were abruptly dropped halfway through his trial Wednesday after he produced a videotape showing that one of the victims was apparently a willing participant.

Herbert Drye, 32, put his head down on the defense table and cried when Van Nuys Superior Court Judge Darlene E. Schempp dismissed the charges at the request of the district attorney’s office. Drye, a free-lance photographer, faced more than 40 years in prison if convicted on the seven sex-related charges involved in the two separate incidents.

The tape “completely exonerated” Drye in one of the assault cases and cast doubt on the credibility of the other, said Drye’s attorney, William S. Pitman.

However, Schempp sentenced Drye to a year in jail for violating his probation on an unrelated conviction for having unlawful sex with a minor. The judge also ordered Pitman to turn the videotape over to prosecutors, who will consider filing perjury charges against the woman shown in the videotape.

The incidents for which Drye was being tried occurred last year at North Hollywood homes that he also used as photo studios.

A 22-year-old woman told authorities that Drye sexually assaulted her in May after she went to his photo studio, had drinks and posed nude for photographs he said he would sell to a German magazine. While that case was being investigated, a 24-year-old woman reported to police that Drye had sexually assaulted her after she went to his home on a date in December.

Drye was arrested and charged with sexual battery and rape with a foreign object in the first case, and with two counts of rape, two counts of rape with a foreign object and one count of false imprisonment in the second incident.

A jury trial began last week and both women testified that Drye had attacked them. The defense was presenting its case Monday when Drye testified that he had consensual sex with both women and had even made a videotape of the first incident.

After Pitman offered the tape as evidence, Schempp and prosecutors viewed it privately. Deputy Dist. Atty. Lori Dery then asked the judge to dismiss all charges.

Dery would not discuss the contents of the tape because it was not entered as evidence. But she said the tape, along with other credibility and evidence problems, prompted her to seek dismissal of the charges in the second incident as well.

Pitman said the tape shows that the first woman was a willing participant. He would not elaborate.

It was unclear if the woman knew she was being videotaped. She had told investigators that Drye videotaped part of the photo session but apparently did not realize the video camera was on for a longer period of time.

Dery said the videotape came as a surprise. During the investigation, police searched Drye’s belongings but did not find it, she said.

After Schempp dismissed the case, Dery asked the judge to jail Drye for violation of probation. Drye had been placed on one year probation last year for a misdemeanor conviction of unlawful intercourse with a minor.

Schempp said she determined that Drye had violated his probation based on the testimony of the 24-year-old woman.