‘She Didn’t Affirmatively Say No’

Defense lawyers in the coming trial of two high school football players charged with raping a nearly passed-out-drunk 16-year-old girl are expected to argue on the issue of consent.

In the case that has shocked the nation, prosecutors state that the inebriated girl was taken to a number of parties by a group of drunk teenagers, supporting her to walk when she wasn’t physically capable.

The prosecution claims that the group later sexually assaulted the girl while she lay unconscious.

But attorney Walter Madison, who represents one of the accused boys, argues she was drinking voluntarily and left willingly with the group of boys.

As reported by the Cleveland Trader Madison said: ‘There’s an abundance of evidence here that she was making decisions, cognitive choices.’ ‘She didn’t affirmatively say no,’ he stated.

The two high school football players Ma’Lik Richmond, 16, and Trent Mays, 17, will face a judge on Wednesday.

The girl, from Weirton, West Virginia, is not expected to testify in Jefferson County juvenile court when the case begins.

Richmond’s attorney Madison said of the girl: ‘The person who is the accuser here is silent just as she was that night, and that’s because there was consent.’

Others have argued that the Jane Doe was clearly too intoxicated to consent to sex and that this was something that has been confirmed by multiple witnesses.

As reported by the Cleveland Trader, Ohio Associate Attorney General Marianne Hemmeter said at an October hearing: ‘The state doesn’t have to prove that she was flat-lined.’

‘Everybody agrees she’s puking. She’s puking on herself. People have to help her walk. She can’t talk. She’s stumbling,’ Hemmeter added.

Around Steubenville, a football-powerhouse city, some are demanding to know why at least three other teens aren’t facing charges on Wednesday too.

After the athletes’ arrest last summer, one of the many rumors that swirled around town proved all too true: Three boys, two of them members of Steubenville High’s celebrated Big Red team, saw something happening that night and didn’t try to stop it. Instead, two pulled out their cellphones and took video and a photo.

The allegations shocked and roiled the city of 18,000, but prosecutors brought no charges against the witnesses, fueling months of furious online accusations of a cover-up to protect the team — something law enforcement authorities have vehemently denied.

One blogger wrote a post was headlined: ‘Steubenville Big Red Rape Accusations: The Other Perpetrators.’

‘Anyone that they can show had firsthand knowledge and was partly in some way responsible for the event, the rape, they should be charged,’ said Jackie Hillyer, president of the Ohio chapter of the National Organization for Women.

She is among those pressing, at a minimum, for charges of failure to report a crime, which is punishable by up to 30 days in jail and a $250 fine.

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The Ohio attorney general’s office, however, informed the three witnesses in a letter last fall that while they may not have conducted themselves ‘in a responsible or appropriate manner,’ their behavior ‘did not rise to the level of criminal conduct,’ and they would not be charged.

Legal experts said it is clear prosecutors sorely need the witnesses’ testimony to make their rape case because there is little physical evidence against the defendants and the girl may have been too intoxicated to remember much.

‘This prosecutor more than anything else wants to get a conviction of the culprits and he does not want to jeopardize that single-minded goal,’ said Christo Lassiter, a University of Cincinnati criminal law professor. ‘That’s the conservative approach. Above all else, get the main culprit. If you can get the other folks along the line, fine.’

Richmond and Mays go on trial Wednesday in juvenile court in Steubenville.

They are charged with digitally penetrating the girl, first in the back seat of a moving car after a mostly underage, alcohol-fueled party Aug. 11, and then in the basement of a house.

Witnesses said the girl was so drunk she threw up at least twice and had trouble walking and speaking. She was also photographed being carried by the two young men.

If convicted, they could be held in a juvenile jail until they turn 21. They have denied any wrongdoing.

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They were charged 10 days after the party, after a flurry of social media postings about the alleged attack led the girl and her family to go to police.

The scandal brought a barrage of accusations and insinuations, mostly online, with some townspeople supporting the defendants and others complaining that the football team has unusual sway over the city.

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Big Red football is a big deal in Steubenville. The stadium, dubbed Death Valley, sits on a hill above town, and the team is a nine-time state champion, with back-to-back titles in 2005 and 2006. Man O’ War, a red statue of a rearing stallion, shoots flames from its mouth each time a touchdown is scored.

Three students — Anthony Craig and football players Mark Cole and Evan Westlake — testified at a hearing in October, just days after receiving the letters assuring them they would not be prosecuted.

Prosecutors said at the hearing that Cole and Craig would have been charged if they hadn’t deleted the images on their cellphones.

At the same proceeding, Westlake was asked by a prosecutor why he didn’t stop the alleged attack.

‘I was stunned at what I saw,’ he said. ‘I just wanted — I wanted to get out of there and I — I — I didn’t know what to do, I mean.’

The defendants’ lawyers also raised the possibility that the witnesses did not know what they were seeing that night. Under questioning, the teen witnesses said that the girl was able to tell some of the boys the password to her smartphone and that they never heard her say ‘no’ or ‘stop.’

‘So, you don’t consider it a sexual assault?’ attorney Adam Nemann asked Cole.

‘I feel it’s not my place to make that decision on whether it was or wasn’t,’ Cole responded. ‘I can just tell you what I witnessed.’

‘And if this was a sexual assault I’m sure you would have called and told someone, right?’ Nemann said. ’I would assume, yes,’ Cole said.

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Then, in January, a YouTube video was posted featuring another student, Michael Nodianos, apparently cracking jokes about the alleged rape just hours after it occurred, while others in the background chimed in.

NOW is demanding prosecutors charge Nodianos with failure to report a crime, but Nodianos’ lawyer said the young man had no ‘firsthand knowledge of the facts.’