Plea Bargain Still Best in Rape Case That’s a Real Wobbler

I’m writing this because I have to. Tomorrow is the first day of what will be one of the most sensational criminal trials of the year in these parts, luring at least one national TV news magazine to the county courthouse, and I guess that’s the duty siren I hear going off in my head.

It’s not a pleasant sound.

It won’t be fun watching three teenage boys at the defense table fighting for their futures because of 20 minutes or so of videotaped debauchery in Corona del Mar with a teenage girl they thought they could reduce to a sex object.

Nor will it be pleasant on whatever day that the girl, 16 when the alleged rape occurred in July 2002, testifies about her previous sexual encounters with the boys. Or as she listens to her friends, whom the defense has indicated it will call to testify about her.

And it promises to be especially unpleasant when the jury finally sees the videotape showing the boys penetrating the girl -- apparently unconscious -- with, among other things, a pool cue and a juice bottle.

The defense likely will argue that those parts of the tape are but extensions of a consensual sexual romp involving the four teens, including the opening minutes of the video when, the defense is expected to claim, the girl was willingly involved in sex play.

The prosecution may simply point to Section 261 of the California Penal Code, which defines rape. One of several circumstances under which the crime can occur, according to a subsection, is “where a person is at the time unconscious of the nature of the act, and this is known to the accused.” Presumably, that implicitly refers to a victim’s inability to give “consent,” but that part of the code doesn’t use that word; rather, it refers to an unconscious victim being “unable to resist.”

In other words, do any other details matter if the girl was unconscious? According to the letter of the law, it won’t.

I’m not so sure a jury will see it that way.

By the time they deliberate, jurors likely will have heard that the girl had had sex with all three boys the day before the videotaped incident. They will have been told she’d had sex with one of the defendants -- her boyfriend -- earlier in the day of the alleged assault. And that using a pool cue on herself was not a novel experience for her. And that she’d agreed to have sex on videotape with her boyfriend a week earlier. They’ll probably also hear that she got off work the night of the alleged incident and drove to Orange County from San Bernardino County, arriving minus her underwear.

Will 12 jurors, even mindful of the penal code, convict the boys of a crime that the jurors know will mean years in prison? They’ll be told not to consider the possible sentence, but some will.

When I suggested this 15 months ago, contending that jurors will have trouble convicting the young men, many readers reacted angrily. One phone message still echoes: “You must be a horrible person to have written something like that.”

Some said I was implying that rape laws didn’t apply to sexually active young women. I said nothing of the sort; nor do I believe that.

What I wrote was an appeal that the two sides reach a plea bargain. Nothing in the column defended the boys’ actions. In fact, I referred to the fact that they might have doped her -- something prosecutors are no longer claiming. And since that column, the judge dismissed the “enhancement” that charged the boys with, in essence, intending to harm the girl. Those charges, had they stuck, would have guaranteed decades of prison time if the boys were convicted.

The boys committed a foul deed -- but I have to wonder, given what they knew about the girl and their experience with her earlier that night: Did it even occur to the boys that they were committing a crime?

I doubt they did. And that matters to me, because it relates to their criminal intent.

The penal code suggests that intent doesn’t matter.

So be it, but I doubt that 12 jurors will come to agreement on that. Anything is possible, and the videotape -- likely to repel jurors -- is clearly a wild card. But I think too many life’s experiences and ambiguities will fog up the jury room.

This remains a case crying out for a plea bargain. The boys deserve punishment for their callousness; society should not permit a social norm where unconscious girls are treated as inflatable sex toys.

But years in prison for the boys? Given these specific circumstances? I still say no, and by the time this wholly unpleasant trial ends, I think at least some of the 12 jurors will reluctantly agree on that.

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Dana Parsons’ column appears Wednesdays, Fridays and Sundays. He can be reached at (714) 966-7821 or at [email protected]. An archive of his recent columns is at www.latimes.com/parsons.