Trial Will Center on Destroying ‘Will to Live’ : Legal test: In a case that could set a precedent, prosecution will argue that the trauma of an elderly woman’s rape hastened her death, but defense contends her terminal ailments were the cause.

Mary Lee Ward, 79, died one month after being raped in the middle of the night by a stranger she had chased out of her swimming pool.

The official cause of Ward’s death last May was congestive heart failure and pneumonia, and she had been found to have lung cancer shortly before dying. No one claimed Ward died from physical injuries sustained during the attack.

But now, her alleged rapist is charged with her murder and faces the death penalty if convicted.

In the first case of its kind in Orange County, prosecutors will argue that Ward’s death was hastened by the rape because she lost her will to live with the trauma and humiliation she suffered, said Deputy Dist. Atty. David La Bahn.

“This issue is, ‘Did the rape accelerate her death?’ and I believe that it did,” La Bahn said. He said that after the attack, Ward fell into a deep depression that also contributed to her death.

“I believe that, but for the rape, she would have lived more than one month,” he said.

Many legal experts are skeptical that the “will-to-live” theory can withstand the scrutiny of a judge and jury. Rape counselors say the prosecution underscores the lasting trauma rape victims suffer long after their assailants have fled.

A prime example of overzealous prosecution is how Deputy Public Defender Leonard Gumlia describes the case against his client, Jose Alonso Garcia, 20, who was captured by Orange County sheriff’s deputies in the midst of attacking Ward on May 22, 1992. Garcia has pleaded not guilty to the charges.

“There is just no proof her life was shortened by this,” Gumlia said. He believes Ward’s age and her existing medical conditions caused her death on June 23.

“She was terminal at the time of the rape,” Gumlia said. Ward’s cancer was earlier misdiagnosed, he said, meaning several weeks had passed before she even began treatment for the lung cancer that had spread to other body parts by the time of her death.

Three days after Ward’s hospitalization following the attack, nearly a liter of fluid was taken from her cancerous lung, indicating she was severely ill at the time, Gumlia said. His defense will focus on Ward’s ailing condition.

While prosecutors haven’t decided whether to seek the death penalty, Gumlia said his client still could face life in prison without the possibility of parole if convicted. Gumlia said his client could get about 40 years in prison if convicted of only the sexual assault charges.

Gumlia and La Bahn said they could recall no similar case in Orange County--and possibly the state. A conviction in the case could set legal precedent if it is upheld by a higher court, officials said.

To prove Garcia was responsible for Ward’s death, there must be evidence of a “proximate cause” link between the rape and her death, legal experts said. The prosecution will have the burden of presenting psychological evidence that Ward began rapidly deteriorating after the rape, and more importantly, as a direct result. The defense must prove that such a link does not exist.

“Basically, it will come down to a battle of the psychological experts on both sides,” said Edwin Shneidman, professor emeritus of thanatology--the study of death and dying--at UCLA’s School of Medicine.

Shneidman, who has written extensively on the topic of death and suicide, said anecdotal tales abound of people who seem to live or die at will.

There are stories of the mother who holds on until her long-lost son returns, or the seemingly healthy husband who dies shortly after his wife passes away, he said.

“The problem is, I don’t think it is more documentable than at this anecdotal level,” said Shneidman, who recalled a recent medical study of the frequency with which elderly people die on their birthdays--indicating the will to live on for that last celebration.

“I can believe that the trauma of the rape could kill her, might hasten her death,” Shneidman said. A key issue will be the mind’s ability to sustain or reject life, he said. “The turmoil set free by her mind could have been overwhelming. A jury will have to decide whether that is murder.”

Experts expected to be called by the prosecution declined to comment on the case before the trial, scheduled for later this year.

The connection between death and a violent act is not always clear, but there is longstanding legal precedent clarifying that area to a degree, said USC law professor Michael H. Shapiro.

In one noted state case, two men were convicted of first-degree murder in the 1969 death of a man who suffered a fatal heart attack about 20 minutes after being robbed, Shapiro said. It was successfully argued that the stress of the robbery triggered the fatal attack, making the robbers responsible for the death.

The Ward case could break new legal ground because prosecutors hope to show that the emotional--not physical--injuries suffered by Ward led to her death.

Legal experts said bringing such ambiguous perceptions into the courtroom could mean dangerous legal precedent.

“I think that for most people, if their healthy grandmother were brutally raped and died one month later, there would be an intuitive feeling that there is a connection,” said retired Orange County Municipal Court Judge Russell Bostrom, now a professor of evidence and criminal law at Western State University, Irvine.

“But trying to prove that link beyond a reasonable doubt, not based on physical injury, but some amorphous concept of ‘will-to-live,’ is a bit of a stretch,” Bostrom said.

Key to documenting Ward’s decline will be testimony about Ward’s behavior and mental state both before and after the attack, Shneidman said.

Ward told a rape crisis counselor shortly after the assault that she did not believe she could survive the attack, La Bahn said. But Gumlia said he has evidence Ward rejected group therapy counseling.

“She rejected treatment of the very condition the district attorney now says caused her death,” Gumlia said.

But rape counselors said that sometimes the trauma is so profound that the victim feels she can’t freely talk about it, especially elderly women for whom rape is often more traumatic, said Gail Abarbanel, director of the Rape Treatment Center at Santa Monica Hospital.

“It’s been said nothing is worse than rape, not even murder, because if you’re killed you don’t have to live with the trauma,” she said.

Barbara McDowell, director of the Women’s Center at Cal State Fullerton, said she believes this prosecution--even if it fails--could raise positive awareness about the impact of rape.

“I believe that a violent rape, especially against an elderly woman, could be the crowning blow that could destroy the will to live,” McDowell said. “Rape is easily that destructive.”

Ward was an assistant apartment manager at a Stanton housing complex, where she collected rent and handled complaints.

Ward, a widow with no children, was awakened about 2:30 a.m. on the morning of the attack by the sound of splashing in the pool. She went outside to order Garcia from the water and then returned to her apartment to call 911, officials said.

Garcia followed, officials said, and began attacking her as her cries for help were recorded by the emergency operator. Deputies arrived to catch Garcia in the act of raping her, officials said.

Donald Murphy, an elder at the Jehovah’s Witnesses Kingdom Hall attended by Ward, said she was forever changed after the attack.

She refused to return to her apartment, and moved to another home--but once panicked at the sight of a male groundskeeper outside her sliding-glass doors, Murphy said. Friends purchased a phone and had the 911 number programmed into it to give her a sense of safety.

“She lost all sense of security,” Murphy said. “Before, she was a feisty, cantankerous woman who lived independently and wanted to do everything on her own.”