High Variance

Sex, Drugs, and Tough Decisions

I spent this week as a juror in a rape trial. It was heavy. We had a really consequential decision to make and not a lot of evidence to go on:

  • The testimony of the defendant and the alleged victim. They both said they met each other at a bar and within a few minutes they went into the men’s bathroom to do some coke. They both said they had sex. The defendant said it was consensual. The alleged victim said she was raped. The one person they said disrupted the encounter never took the stand.

  • Some photos of bruises on the defendant’s right arm taken 48 hours after the incident. These were consistent with bruises one would get from someone restraining her from behind, but the defendant did not remember being held like this. They were also yellowing which implied the injury might have occurred earlier than the incident.

  • A medical report from an exam two days after the incident. There were no injuries beyond the arm bruises, but that wouldn’t be inconsistent with rape. The statement taken at the time was very similar to what the defendant said on the stand, but did differ in some important ways. In the statement she says she was “very drunk” and did not remember actual sex. On the stand, she said she was not very drunk, was well aware of what was happening, and did remember actual sex.

After two days of deliberation, at least 11 of us thought it was more likely that the defendant committed rape than not. But our job was to presume innocence and only convict if the evidence convinced us beyond a reasonable doubt.

Could we come up with a plausible scenario that was consistent with the evidence AND consensual sex? It didn’t have to be his story, but it couldn’t be her story. Was it plausible that she lied about what happened? Could it be that she went along with it willingly (but not enthusiastically) and then regretted it? Could it be that she thought her friends or her boyfriend would hear about what happened? Could it be that she felt that the high price of saying it was rape was lower than the high price of her boyfriend finding out that she had consensual sex in a bar bathroom while he was away with his friends for the weekend? Yes. I think it’s unlikely, but plausible. Every other person on the jury thought it was at least plausible too. So we rendered a Not Guilty Verdict.

We followed the rules given to us by the judge and did our job. And we let a man who probably raped a woman go free. It doesn’t feel good, even though I’m also sure we didn’t put an innocent man in jail. I don’t want my girls to grow up in a world where, if a man is alone with a woman (in a bathroom, in a car, in bedroom, …), it’s just not that hard for him to rape her and get away with it. Especially if she’s drunk and scared. Is the burden of proof too high? Do we need to change the legal definition of consent? What can we teach our daughters to protect them? These are the questions I’m struggling with in the aftermath of this trial.

When you spend three days trying to imagine exactly what happened between a man and a woman in a bar bathroom, it haunts you. This isn’t like watching a movie. You’re trying to imagine yourself there. You’re thinking hard about what’s possible, what’s plausible, what’s likely, and what you know for sure. And we literally spent several hours each day for three days doing this. I wasn’t in that bathroom, but these scenes are seared into my memory. We intently studied the faces of the defendant and victim on the stand in the court room looking for clues and insights into their credibility. There are so many details I’ll never forget.