Defense attorney in rape case: Alleged victim wanted 'rough sex'

Prosecutors say the alleged victim in an Ohio University student rape case was held against her will for some 11 hours and subjected to repeated, brutal violations in her dormitory room.

The attorney for the male defendant says the two students had had consensual sex before, that the woman wanted the sex this time, and that she liked it "œrough."

Former OU student Matthew Kulchar, 21, went on trial in Athens County Common Pleas Court Tuesday, on charges of rape, kidnapping and evidence tampering.

Authorities allege that on Sept. 28, 2008 "“ his 20th birthday "“ he constrained a female OU student in her dorm room in Boyd Hall and raped her repeatedly.

The evidence-tampering charge stems from an allegation that Kulchar, while in OU Police custody and handcuffed to a chair, sent a text message to an OU student friend, asking the man to dispose of a pair of "Spongebob Squarepants" boxer shorts that Kulchar allegedly thought could be potential evidence against him.

In opening arguments, Athens County Assistant Prosecutor Rob Driscoll said Kulchar raped the woman repeatedly, despite her asking him repeatedly to stop. Driscoll said the woman was badly hurt in the process, as a tampon she was using was shoved up into her body.

"(The alleged victim) told him to stop many times," Driscoll told the jury. "He didn't care. He knew what he wanted, and he was going to get it." Driscoll alleged that Kulchar was "extremely violent," that he "terrorized" the woman, and restrained her from leaving, taking her room keys, and accompanying her to the bathroom when she said she needed to go.

Defense attorney K. Robert Toy, who represents Kulchar, flatly called the alleged victim a liar. Toy said the woman and Kulchar had had a prior sexual relationship, and that she enjoyed what he called "rough sex."

"No rape happened," Toy told the jury. "No kidnapping happened, and no tampering with evidence happened." Indicating the alleged victim who sat in the courtroom, Toy declared, "this lady right here is not telling the truth."

Driscoll acknowledged that Kulchar, who is originally from Peru, and the woman had had a prior sexual encounter, after a night out dancing at an uptown Athens bar. The prosecutor claimed, however, that the woman had told Kulchar the sex was "a mistake," and that she wished to just be friends with him in the future.

He acknowledged that on Kulchar's birthday, the woman got together with him, and smoked some marijuana with him. He alleged, however, that at some point, the woman made it clear that she did not want to have sex with Kulchar, but that he simply ignored her pleas and raped her repeatedly.

"She was asking him to leave, and he told her no," Driscoll told the jury. "(She) told him, 'Stop.' Unequivocal. 'Stop. (I) don't like this.'"

Driscoll also stressed a phone conversation, apparently recorded by OU Police, that the woman had with Kulchar the day after the alleged assault.

In the conversation, he said, Kulchar says the word "sorry" more than 30 times.

Showing a transcript of the conversation, Driscoll drew attention to passages in which the woman told Kulchar that "that got pretty far last night," and asked him, "Why didn't you stop when I said no?"

Kulchar replied: "I don't know; I'm stupid. I'm sorry... I am really sorry that I hurt you."

The transcript also showed, however, that the woman near the end of the exchange told Kulchar, "hey, my phone is about to die... I'll call you later."

TOY WAS SCATHING ABOUT the charges against his client, calling the alleged victim's story a clear fabrication. "This woman is making up a story, and you have to figure out why she's doing it," he said.

Testimony will show, Toy told the jury, that the woman pursued Kulchar sexually, and that on a prior occasion in March 2008, the two had engaged in sex that involved scratching and biting "“ which left Kulchar with deep scratch marks down his back, and prompted a friend to ask him if he had been "mauled by a cougar."

"This was rough sex that she initiated, and that she enjoyed," Toy claimed.

That June, Toy alleged, the women "rekindled" her relationship with Kulchar, and contacted him some 26 times during July and August, based on phone records.

On Sept. 28, according to the attorney, the woman sent a happy-birthday text message to Kulchar, leading him to call her and ask if she wanted to come and spend time with him for his birthday. They then had consensual rough sex, he alleged.

Toy pointed out that the date of the alleged rape was Homecoming Weekend at OU, and the dorms would have been full of people and busy. He stressed that there's no evidence the woman ever tried to flee, seek help from anyone in the dorm, or lock Kulchar out after he briefly left the room.

Driscoll claimed in his opening arguments that the women did begin to compose a text message to a friend while Kulchar was out, but was too nervous to send it, and dropped the phone when he returned.

Toy questioned whether an allegedly violent, hours-long sexual assault could have occurred in a crowded college dorm without being noticed, and also pointed out that the woman apparently fell asleep with Kulchar after the sex.

Even Kulchar's texting a friend to dispose of his underwear, Toy said "“ which he acknowledged apparently happened "“ wasn't a crime, because the boxer shorts weren't evidence. All they could be used to prove, according to Toy, is that the two had sex "“ a fact that Kulchar readily admits.

The alleged victim "wants you to leave your common sense behind, and think something's green that's blue," Toy told the jury.