The Hofstra Rape Hoax has people talking about date-rape all over again. Emily Bazelon has some interesting commentary here. Glenn Reynolds and Ann Althouse have some great comments here. Let's not dwell on the abstract; let's look at the concrete. Let's examine a real-life date-rape case. (A defendant has consented to have his case details made available, though he does not want to be personally identified.)

In State v. Anonymous, the defendant went out drinking with the complaining witness (CW) and her best friend. They drank most of the night. Between the three of them, they drank less than 1/2 a bottle of Captain Morgan. Around midnight, the defendant and CW had sex.

The defendant stayed overnight. He left the next morning after the CW angrily told him to leave. A review of police reports, private investigator reports, and medical reports revealed the following:

The complaining witness' (CW's) best friend was in the room – and conscious – during the sexual intercourse.

The friend told police that she, "heard kissing noises"; did not hear any "screams"; or other "unusual sounds"; and said: "I would have done something if I had though there was anything wrong."

The CW, depending upon whom she was talking to, testified: "I was passed out the entire time"; " I woke up but couldn’t move"; "I screamed"; "I tried fighting him off"; "I was in and out of consciousness"; "I was kind of aware but not really."

Even if we took the CW at her word, and that she had truly been in-and-out of consciousness, how could she have known she didn't consent? Isn't it interesting that a woman lacks the awareness to consent, but nevertheless has the awareness to realize she did not consent? Maybe there's a grey line in between awareness and consent. Maybe.

Then again, if the defendant had been drunk: How could he have formed criminal intent? Think about it. If everyone is drunk, how can we say a woman was too drunk to consent; but that the man wasn't too drunk to form intent? If everyone is drunk, then everyone should be presumably equally infirm. Feminists, however, do not want equality.

Thus, if a drunk man has sex with a drunk woman: The drunk man had the mental state to know he was committing rape. The drunk woman lacked the mental state to consent to sex.

Incidentally, there was substantial evidence indicating that the CW should not have been taken at her word:

The defendant stayed the night after having committed such a horrible misdeed.

The defendant and CW worked together the next day.

The CW told police that there was "no way [the defendant] could have gotten any signals that I wanted to sleep with him." But...

...The CW’s best friend told police, "[The CW] was flirting [with the defendant] the entire night."

the entire night." The CW had showed the defendant her breasts earlier that night.

The CW omitted that material fact in her previous discussions with police. After the defendant naively talked to police, revealing facts about the case: The CW admitted that she had "lifted up her shirt in front of the defendant, but didn't really mean to show her breasts."

The CW omitted that material fact in her previous discussions with police. After the defendant naively talked to police, revealing facts about the case: The CW admitted that she had "lifted up her shirt in front of the defendant, but didn't really mean to show her breasts." CW admitted she was "ashamed" for having gotten drunk and "felt bad about having to explain to her mom" why she was sick (re: hungover).

What were the "bad facts" for the defense? Every case has them, right? There must have been something to the case?

The medical reports revealed no physical trauma. No signs of any vaginal tears or damage. The examining physician said that the CW cracked jokes during the exam.

No ripped clothing. No roofies or date-rape drugs. No bruises. No screams. No one was saying no. In fact, according to the defendant, the CW initiated sexual contact.

The CW had shown her breasts earlier, asking the defendant if he liked them. The CW also vaguely told police that she "sat on [the defendant's] back." (The defendant told police she was straddling the small of his back, grinding her vagina on it, after he had laid on his stomach to fall asleep.) The CW's best friend corroborated the defendant's story.

Incidentally, the defendant said that he and the CW had been making out. Police did not take a DNA swab of the CW. Wouldn't that have been relevant, exculpatory evidence?

The CW wanted to make it seem as if she feel asleep, only to awaken to a beast mounting her. Why not run a DNA swab through her cheek, to see if she had the defendant's post-French-kissing saliva? The police, naturally, did no such investigation. Proof that a police investigation is about confirming guilt rather than finding the truth.

After the complaint was made, the Special Victims Unit – tasked with people who are specially trained to believe rape victims – refused to file charges. SVU prosecutors didn't believe the CW. They wouldn't file. That should have ended the case.

Nevertheless, the CW's family knew the District Attorney himself. Charges were filed. The realpolitik of criminal law: Guilt or innocence matters less than personal relationships.

The Chief Deputy Assistant District Attorney (the #3 man in the DA’s office) was initially assigned the case. He was an ornery prosecutor who won the office's tough cases.

The Chief Deputy wanted to dismiss the case. The DA would not let him. Rather than proceed with the case, the Chief Deputy recused himself. The District Attorney re-assigned the case to some flunkies and were told that they could not dismiss the case.

The defendant, if he had lost at trial, would have been given a minimum 4-year prison sentence. Added to that would have been lifetime registration as a sex offender.

Did the defendant go to trial, vindicating his rights? Surely he did. He was acquitted. Then the State Bar investigated the DA's office, asking why the case was ever filed.

Only people who have never walked inside a criminal courtroom aren't rolling their eyes.

The defendant instead took a deferred adjudication deal. With deferred adjudication, the charges are dismissed after a period of court supervision. Deferred adjudication is not the same thing as an outright dismissal. It’s not a not-guilty verdict.

Still, in the criminal system, it's as close to an outright dismissal as you can get without risking prison, and sex-offender registration. Plus, legally, it's a dismissal. One who accepts deferred adjudication can truthfully claim that he has never been convicted of a crime. It was an unsatisfying end to a horrifying case.

That case completely changed my view on how the criminal justice system treats date-rape cases. I used to buy into the feminist line about date-rape. I read Real Rape in college. And believed it.

Live that case for a few years, and you'll see the nakedness of feminism. It's scarier than Andrea Dworkin at your bed side.

You might say that the case described, above, is an aberration. If only.

A couple of years later we had a similar case come in. (The defendant in that case would rather not have his case details put out there.) Talk to some criminal defense lawyers. Almost all have seen a similarly marginal case ruin a young man's life.