Sex­ual con­sent key to Der­rick Rose case

Daily Local News (West Chester, PA) - - SPORTS - By Brian Mel­ley

LOS AN­GE­LES >> Months be­fore Der­rick Rose took the stand to de­fend him­self in a law­suit claim­ing he and two friends raped an ex-girl­friend while she was in­tox­i­cated, the NBA star was asked if he un­der­stood the word “con­sent.”

“No. But can you tell me?” he asked at a de­po­si­tion in June.

Rose came to court last week with a much bet­ter grasp of the word that is cen­tral to the $21 mil­lion civil case, though his in­ter­pre­ta­tion of the con­cept could prove costly.

No one dis­putes the New York Knicks player and his friends had sex with the wo­man in her apart­ment Aug. 27, 2013. The ques­tion is whether she gave her con­sent — as the men claim — or whether she was too in­ca­pac­i­tated to do so — as she in­sists.

There is no com­monly ac­cepted def­i­ni­tion for con­sent, which is at the heart of a “patch­work quilt” of evolv­ing laws on rape and sex­ual as­sault that in some cases re­quire an af­fir­ma­tive agree­ment be­fore sex, at­tor­ney Re­becca O’Con­nor said.

“It is murky, and I think that’s where we’re see­ing a lot states try to clear the weeds, if you will, and take this on and make it clear,” said O’Con­nor, a vice pres­i­dent at the Rape, Abuse & Incest Na­tional Net­work. “It’s so com­pli­cated we can never just say it’s black and white.”

Rape was once de­fined as in­ter­course with force against a wo­man’s will, said Matt Lyon, a law pro­fes­sor at Lin­coln Me­mo­rial Univer­sity. Re­form ef­forts in some states led to rape be­ing de­fined more by the non-con­sent of the vic­tim than a use of force by the per­pe­tra­tor.

States such as Cal­i­for­nia have gone fur­ther in de­cid­ing that con­sent can be with­drawn dur­ing sex and that a vic­tim can be too in­ca­pac­i­tated to agree to the act.

“One of the big crit­i­cisms against the mod­ern­iza­tion is the ‘he said, she said,’” Lyon said. “It’s so easy when it’s clear there was force used, but here the wo­man may say it was rape though there’s no phys­i­cal ev­i­dence of force or that it was done against her will.”

That is the sit­u­a­tion in the Rose case, where the wo­man said she blacked out and felt drugged af­ter a night of drink­ing and hang­ing out at Rose’s Bev­erly Hills man­sion. With no phys­i­cal ev­i­dence, the case — which pro­ceeded to clos­ing ar­gu­ments Tues­day — hinges as much on her cred­i­bil­ity as that of the three men.

The wo­man said she went home from Rose’s place, vom­ited and woke up around 3 a.m. to find Rose, Ryan Allen and Ran­dall Hamp­ton hav­ing sex with her against her will.

Rose may have been tripped up by the word “con­sent” in his video­taped de­po­si­tion, but he tried to re­cover at trial by defin­ing it as both par­ties be­ing in agree­ment. He also con­nected dots he felt out­lined con­sent, in­clud­ing the wo­man’s racy texts that started 17 hours ear­lier say­ing he made her “horny.”

“Maybe she sent sug­ges­tive texts or emails, but that doesn’t prove she con­sented to it at the time,” said Evan Lee, a law pro­fes­sor at the Univer­sity of Cal­i­for­nia, Hast­ings Col­lege of Law. “A wo­man may be will­ing to have sex 23 hours in the day, but if he has sex in that 24th hour when she’s not will­ing, then that’s rape if he knows she doesn’t want to.”

NICK UT — THE AS­SO­CI­ATED PRESS

Der­rick Rose ar­rives at Fed­eral Court in Los An­ge­les, Tues­day.

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