Melinda Henneberger

Too drunk to drive but OK to consent to sex? Texts in KU false rape case tell a story

We’ve heard a lot about the texts from a KU law student that convinced cops in Lawrence that she was lying about being too intoxicated to consent to sex with a classmate in the early hours of Sept. 28, 2018. She wasn’t, police say, and thus wasn’t raped.

But texts the man she accused sent that night — texts that prosecutors argue are hearsay and should not be seen by the jury that will decide whether to send her to jail for years for filing a false report — tell a story that’s highly relevant. No surprise they want those messages kept from the jury, because they undermine this whole unbelievable case.

At 11:04 p.m. on Sept. 27, according to a defense motion filed on Thursday, in response to a state motion to keep this and other evidence off-limits, he messaged a friend that she was too drunk to drive: “We at sandbar man lol we got on the road and she was so f____ up I was like hell Na.”

One friend answered, “Lmao thank God cause she was really lolo.”

Another friend texted the man, “She looked f____ up yo.” And the second friend told him in another text, “You didn’t even look tipsy.”

A police investigator testified in a preliminary hearing that none of the man’s texts changed anything, or were of any particular interest. And that’s literally true, because after seeing her texts, they just weren’t interested in his.

Their view of that night goes like this: She willingly slept with her boyfriend’s closest buddy, and then lied that she’d been raped.

The story she told police, according to them, was somehow supposed to punish the man she wanted to keep in her life, or else make him more jealous or maybe just less upset, though not one of these reactions really tracks with how you’d expect someone who’d just learned such a thing to respond.

Lawrence investigators testified in a preliminary hearing that they decided she couldn’t have been raped because texts she sent while still in the situation and still under the influence said things like “LOL” and “He’s actually really good at sex, though.”

According to prosecutor Eve Kemple, someone who has texted, “LOL” is “not someone who was suffering from stress and fear.”

And she wasn’t in a blackout, either, Kemple said, because “clearly you were cognizant enough to even use correct grammar and quotation marks.”

Investigators have testified that they did not check her bar tab or interview witnesses about how much she had to drink that night. Nor did they put any stock in video footage of her stumbling into a bar.

She never once used the word “rape” in those first hours, and instead kept obsessing about how her sometime boyfriend would react. So obviously, she could not have been assaulted in a blackout, no matter what she and her bruises said.

The nurse who did her hospital “rape kit” examination the next day documented not only vaginal tearing but bruising on her neck, arms and legs. She says she woke up feeling like someone was putting pressure on her neck.

Douglas County District Attorney Charles Branson told The Star that, “Any type of bruising or hemorrhage or anything like that in a sexual assault exam, those artifacts, bruising and hemorrhaging, can be there with normal sexual intercourse.”

According to cops, prosecutors and the man she accused, this was a night of rough but fully consensual sex.

Only, it’s impossible to fully investigate whether she’s lying about being drunk without also investigating whether she was drunk. It’s impossible to say she lied about being raped without also fully investigating whether she was raped.

The state has asked for and gotten more time to prepare its case so that it can rebut expert testimony on how rape victims respond — how the brain attempts to protect us from trauma by initially denying and minimizing events — and how alcoholic blackouts impair memory. It will be interesting to see who Douglas County prosecutors find who might offer alternative expert views on that.

Now the trial will start in January, just two days before the woman would otherwise be held blameless because they failed to give her a speedy trial.

Prosecutors may well end up wishing that had been the result.

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