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Drunk sex or date rape: a Tinker jury decides

  • Published
  • By Brandice J. O'Brien
  • Staff Writer
TINKER AIR FORCE BASE, Okla. --  Guilty or not guilty? Airmen and Sailors at the base theater were presented with that question June 28. Following an hour-long presentation about a controversial criminal case, attendees in the packed theater were asked to act as a jury.

Brett Sokolow, attorney and managing partner at the National Center for Higher Education Risk Management in Pennsylvania, asked the makeshift jury if what happened that fateful night 14 years ago was a case of drunken sex or date rape.

"I'm not here to tell you what I think about sexual assault and I wouldn't presume to tell you want you should be thinking about sexual assault," said Mr. Sokolow. "Sexual assault touches every high school, middle school, college and military base in this country. This case is one of the most compelling cases of sexual assault that I've ever come across."

Mr. Sokolow, one of the attorneys in a civil suit following the criminal case, told the jury the story of Amy and Todd. He spent roughly 15 minutes briefing the would-be jurors about the case basics. He then allowed the audience to ask questions about the case. When the pertinent information was given, he asked for a verdict and allowed people the opportunity to share their thoughts.

"I've done this presentation 1,900 times and in all those presentations at all those college campuses, schools and military bases, I've never once had a jury vote unanimously on this case," Mr. Sokolow said. "It's not going to happen here today. This is a controversial issue; it divides people and it's going to divide you."

The story begins with Amy, a 5-foot-4-inch 125-pound woman who, with her friends, was looking for a party. Although underage, she wanted to get really drunk. She and her friends found such a party at a local apartment and immediately she downed five 12-ounce cans of beer. Soon thereafter, she meets Todd, a 6-foot 200-pound guy, who is roughly the same age as Amy. They both attend the local university.

Todd -- not knowing how much Amy drank, but knowing she is intoxicated -- drinks three beers and cuts himself off for the evening. He has estimated that's the amount Amy drank. Amy continues to drink, but switches to Jell-O shots, made with grain alcohol. She downs five of them; they were handed to her by Todd.

In the course of three hours, Amy has ingested five beers and five grain-alcohol shots, and has been physically ill. Todd escorts her back to her campus housing when it is clear Amy can hardly stand on her own.

At her apartment, she invites him in and he reluctantly follows. She passes out and he sits by her side, making sure she is alright. When she awakes, they kiss. Yet, she soon rushes to the bathroom, where she is again physically ill. When she returns, they again kiss and have sex. In the morning, Todd writes a note, signing his name and phone number before he leaves.

When Amy wakes up, she has no recollection of the evening before. She calls Todd who informs her of the evening's events. She cries. Prior to the evening, Amy was a virgin.

Amy talks to the cops, has a rape kit done and charges are pressed.

Through the course of question and answers, the jury learns through forensic analysis estimates Amy's blood-alcohol level is .34. She was four times the drunk-driving limit and did indeed blackout. Amy is a drinker by trait and has a high tolerance for alcohol. While she had never been as drunk as that fateful night, she does drink three to four times a week.

The jury learns Todd, has repeated the story at least six times -- five times to officials and once to Amy -- and each time he told the story it was the same.

Todd, a math major and athlete on the yearbook staff, had worked as a bartender in a previous job and said if Amy came into his bar and requested another drink, he would have served her; because he had no way of really knowing how drunk she was, she was a good actor. The jury also learns Todd and his friends made the grain-alcohol shots and even though Todd was a bartender, he didn't know anything about grain alcohol, including the fact that it was illegal in the state he lived in. Lastly, out of approximately 60 people who attended the party, only five females, Amy and her friends, drank the grain-alcohol shots.

The jury was asked to vote guilty or not guilty to second-degree sexual assault. Meaning, should Todd have known or did he know Amy was incapacitated? If the jury thought "yes," Todd needed to be found guilty. If "no," then they should vote not guilty.

By a show of hands, the Tinker jury voted 70 percent not guilty.

The audience proved vocal and Airmen and Sailors eagerly defended their opinions. Some said Todd's actions were premeditated and he was guilty. Others said he had a chance to take advantage of her while she was unconscious and didn't, therefore he's not guilty. Another person said not all the pieces of the story are there since it's only Todd's story, therefore he is not guilty.

At the real case, a jury of 12 -- five women and seven men -- voted Todd guilty. They had argued for eight hours. They determined Amy was incapacitated; Todd didn't know but should have, and convicted Todd.

At 21 years old, Todd served 18 months in a medium-security prison, is a Tier 3 -- the highest level -- sex offender because he participated in serving her grain alcohol which was illegal in that state, and was expelled from college. He did attend community college and earned an Associate's Degree, but was not able to find a job.

Amy dropped out of school, after attempting suicide. She went through years of therapy and later filed a civil suit against Todd's friends -- who were convicted of lesser criminal charges, the local beer distributor, apartment landlord and university. Mr. Sokolow represented the university and attended the criminal trial in preparation for the civil suit. The case was settled and Amy received $1 million, but never cashed the check.

"For me, this case is not 'guilty or not guilty,'" Mr. Sokolow said. "This is about a scene from the frontlines in which the lives of two people are destroyed by the decisions both of them made that night. My hope in sharing this case with all of you is to encourage you to make different decisions.

" ... You may think you're making a good judgment call that night and it's not your fault, but it will be left up to 12 people who never met you, weren't there and will substitute their judgment for yours. Is it worth it?" Mr. Sokolow asked. "If not, my advice to you is walk that person home, tuck her into bed and the next morning when you're both good and sober and still want it, you'll still get it."