Raped Again?

It's important to note that the Bryant case revolves precisely around the still-disputed fact of consent: unlike Cavallo and certain Orange County T-shirt makers, the judge and jury in the Bryant case have yet to decide whether the alleged victim agreed to have sex with Bryant. That's what the case is about. But in Cavallo's world, it seems, there's no question: women who claim they've been raped—by Haidl or Bryant—are liars.

Nevertheless, it's tempting to compare the Haidl and Bryant trials; both involve wealthy defendants, sex and the question of consent. But there are four key distinctions. First, in Bryant's situation, the girl was an adult—not, as in the Haidl case, a minor, who can never give legal consent. Second, there's no videotape of what happened in Bryant's Colorado hotel room. Third, no one has accused Bryant of drugging the alleged victim. Finally, and perhaps most critically, Bryant's alleged victim remained conscious throughout the incident.

No, the better comparison for Cavallo involves the landmark 2002 decision in People v. William Raymond Dancy. In that Santa Clara County case, Dancy gave alcohol and drugs to a woman he'd had sex with on previous occasions. On this occasion, the victim blacked out, and Dancy began intercourse.

Dancy's lawyers argued there could be no rape if the defendant believed the victim would have consented if conscious. Cavallo should note that the court was unambiguous in its rejection of Dancy's assertion.

"A man who intentionally engages in sexual intercourse with a woman he knows to be unconscious harbors a wrongful intent regardless of whether he believes that she has or she actually has consented in advance to the act," state appeals court justices ruled. The California Supreme Court concurred.

In short: a woman has to have the ability to say "no" throughout the sexual encounter.

Faced with such a solid legal obstacle, Cavallo and the other seven defense lawyers have adopted a two-pronged strategy: block admissibility of the DVD by claiming that law enforcement doctored the images and, absent that long shot, convince at least one of 12 Orange County jurors that men aren't responsible for sex when they think an unconscious, underage girl really, really wants it.

rscottmoxley@ocweekly.com.

Additional links to related stories:

--"The Tank Workers: As scandal engulfs the Sheriff's Department, Carona fires his high-profile assistant," March 26, 2004