The XX Factor

Why Did NYC Cops Beat Those Rape Charges Despite Good Evidence Against Them?

“I couldn’t believe two police officers that had been called to help me had instead raped me and left me in a pool of vomit in my bed-to die. … I woke up to being penetrated from behind. … I woke up because the action of his penetration was so hard that my head was moving toward the window … like it was going to go through it … because I was so intoxicated, I was dead weight. … I couldn’t say or do anything.”

That’s chilling testimony from the woman who says she was raped by two New York City cops , Kenneth Moreno and Franklin Mata, who had initially been called by a cab driver to help the drunk alleged victim into her apartment. Both cops were acquitted on rape charges yesterday, and they both denied having sex with the alleged victim.  A juror in the case, Richard Schimenti, told the New York Times that the prosecution built “a great case,” but that he and his fellow jurors did not come away with a guilty verdict because there wasn’t enough proof. Which is to say that there was no DNA evidence linking either cop to the alleged victim-although she got Moreno to admit on audiotape that he had not only raped her, but that he also used a condom , which would explain the lack of DNA (before he admitted that he was the only one who had sex with her, he denied repeatedly that he had raped her )*. Furthermore, Schimenti told the New York Post that he had trouble believing the alleged victim’s story, because she was “blacked out” from drinking the night before .

So it turned into a he-said, she-said rape case. Moreno said she made the whole thing up, she said she was raped. The jurors believed him, despite the internal bruising on the woman’s cervix . But let’s say that jurors had believed that sex had taken place. Wouldn’t a woman who was vomiting in her bed be way too drunk to consent to intercourse? Unfortunately, not necessarily. According to New York state sexual assault law, someone is incapable of consent when they are “physically helpless.” The jurors did not believe the alleged victim was physically helpless-“unconscious or for any other reason is physically unable to communicate unwillingness to an act”-because there was video of her walking unaided into her apartment building.

According to University of Colorado law professor Aya Gruber, a lot of courts interpret physically helpless as being completely unconscious, because they’re worried about the slippery slope where every person who had drunken sex could prosecute for rape. However, when “you have a strict line at blackout unconsciousness, it leaves a whole lot of vulnerable people.” Just because the alleged victim could walk to her front door, doesn’t mean she was not too drunk to consent-a lot of people in intoxicated fugue states can still stand upright.

Gruber also wondered whether the jury was less likely to believe the alleged victim in this case because of the “just world” hypothesis . People who believe in this hypothesis think that we live in a fair and orderly universe- one where say, cops are good guys, incapable of raping an incapacitated woman.

According to the Post , the accuser’s $57 million civil suit still looks quite strong . It’s probably cold comfort to her right now, considering this blithe-sounding admission from an alternate juror to the New York Times : “Is it possible they raped her? Sure.”

Photograph of cop car by Chris Hondros/Getty Images

* Clarification, May 27, 2011: Before Moreno said on tape that it was “only him” who had sex with the alleged victim, he denied that he raped her. The post has been edited to reflect this.