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Monday, October 28,2013

Grand jury says no charges warranted in controversial uptown public sex incident

By Jim Phillips
Photo Credits: Evan Peter Smith
Photo Caption: Athens County Prosecutor Keller Blackburn announces Monday afternoon that a grand jury declined to recommend charges against two OU students who had public sex in uptown Athens early on Oct. 12.

Neither Ohio University student involved in a public sex act on South Court Street Homecoming weekend will face any criminal charges in connection with the incident, which attracted worldwide media attention after images and video of it captured by onlookers were widely shared through social media.

The man and woman involved in the incident are 20-year-old Ohio University students. A grand jury asked to consider the case on Monday returned "no bills," meaning they found no basis for criminal charges.

Athens County Prosecutor Keller Blackburn said the evidence uncovered by an Athens Police investigation shows that the woman – who claims to remember nothing of the incident, but who filed a police complaint the next day alleging sexual assault – did give consent for the man to perform oral sex on her.

In video of the incident, Blackburn said, the woman "had a smile on her face at one time," and grabbed the man's head in her hands at another. When the man asked if he should stop what he was doing, Blackburn said, "she said, 'No, go ahead, continue.'"

This was confirmed by an independent witness who was on the scene, Blackburn said.

The incident took place against the Chase Bank's brick wall on South Court Street around 3 a.m. on Saturday, Oct. 12, during OU's Homecoming Weekend. The woman filed her police complaint the next day, reportedly after learning of her behavior for the first time by seeing images of it on social media sites.

The resulting publicity around the case, which was picked up as far away as England, included much condemnation of onlookers for allegedly not intervening to stop what was happening, but instead recording it and disseminating the video.

Blackburn, however, said that a thorough investigation by Athens Police suggests no rape took place.

He said the man and woman, who had not known each other before that evening, met in an uptown bar and were drinking together. They left the bar some time after 2 a.m. and began making their way north on Court Street, kissing all the way.

Against the slightly sloped brick wall of the Chase Bank on South Court, the man began performing oral sex on the woman (and according to video, manual/digital sex as well), soon drawing a small crowd. Though the two are seen on video interacting with onlookers, Blackburn said, "neither of them had knowledge that (their sex act) was being video recorded."

He confirmed that a man came out of a nearby restaurant after the sex was concluded, and punched the man involved in the sex act, apparently because the assailant was "disgusted" by the public sex. (He noted that employees from the late-night burrito outlet from which the assailant came also gave the man and woman free burritos and water.)

The man and woman then left together, Blackburn said, and went to his Court Street apartment, where they spent about three hours. They were seen around 6:30 a.m. at an uptown gas station/convenience store.

During that time, Blackburn said in a later news release, "the female was responsive, visualized and screamed out her roommate's name and left with the male, who walked her home. The male provided the female with his cell-phone number via a text message. The male has voluntarily cooperated with the investigation."

Though the law holds that a person can be sexually assaulted if she/he is unable to give consent due to intoxication, Blackburn said the video indicated that the woman was responsive and communicating during the incident.

Blackburn said he considered the possibility of seeking charges such as pandering obscenity against the people (at least two have been identified) who took and posted video, and of public indecency against the male student. He figured these were probably not legally appropriate, however, he said. Blackburn noted that in an age of readily available (and legal) pornography, the contents of the videos might well not qualify as obscenity. And he advised Athens Police against filing indecency charges, he said, because the woman's reported total memory lapse would make proving such a charge against her very complicated, and because the punishment the two people have already suffered in the form of public humiliation is probably worse than anything the law would do to them for the misdemeanor offense.

He added that the woman was tested after the incident and found to be free of any "date rape" type drugs in her system.

Blackburn said there is "a lesson to be learned" from the incident, both about being more careful in public behavior, and not jumping to conclusions based on limited evidence such as Twitter posts.

These days, he warned, "everything we do has the ability of being recorded… We're living in a different world." He also noted that a female OU student who was wrongly identified in online sources as the woman involved in the public sex has had to suffer harassment and threats because of it.

Blackburn acknowledged that there are some people who are insisting that the incident was a sexual assault, and the woman was its victim. But he said he's willing to take their criticism for not treating it as one.

"Justice isn't always popular," he said.

One local group that has spoken out about the incident is Hollaback Appalachian Ohio, which advocates against what it describes as a pervasive "rape culture." A spokesperson for the group said Tuesday that however the prosecutor and a grand jury might describe the Oct. 23 incident, "we would still consider this a sexual assault."

Sarah Fick of Hollaback said group members are "very disappointed" in the grand jury's decision to return a no bill. "It seems that they're trying to pass this off as a normal part of drunken hook-up culture," she said – adding that it's precisely this culture, in Hollaback's view, that is the source of much sexual violence against women. It's unsafe, she said, "it's the opposite of empowering for women... It's also against the law."

Fick also rejected the notion that the woman's spoken statements and apparent responsiveness mean she was not too drunk to consent. "If she was drunk at all, she was too drunk to consent," she said. "If she was too drunk to remember anything, she was definitely too drunk to consent." The outcome of the legal investigation, she added, is "another example of how the criminal justice system doesn't always work" for sexual assault victims.

In the wake of the prosecutor's news conference, Ohio University released a statement indicating that it will take steps in connection with the incident that are separate and independent from those of law enforcement, including an internal investigation.

"Regardless of the grand jury's determination following the criminal investigation, Ohio University is mandated by federal law to respond to allegations such as those that arise out of the incident that occurred during Homecoming weekend on Court Street," the statement said. "The health and safety of our community is of utmost importance."

It went on to say that OU "is following its own internal policies and  procedures to investigate the circumstances relating to the incident. While the details of that investigation are not public, the policies and procedures require careful consideration when we receive reports of alleged sexual misconduct."

OU spokesperson Katie Quaranta added that OU "began to address this issue as soon as we became aware of the student's allegation." She noted that the U.S. Department of Education requires a university to conduct a federal Title IX investigation when such allegations are made.


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So, if the act was consensual, wasn't SOME CRIME committed?  Or is it okay now to have sex openly on a city street?  It would seem to me that if it all was consensual, both the man and the woman should have been charge with public indecency or some other crime. I'm sure there is something on the books that would apply.  



I’m with Eric on this. What’s the deal? Nothing illegal about having sex in public right in the middle of downtown?  Why bother with a strip club on Stimson when you can just hang out on Court Street to watch naked parades and public sex shows.



I am not totally sure but exposure charges must come from a cop actually seeing the crime. Not a lawyer but if someone videotaped me going left of center, the police cannot come and charge me with a tape of a previous crime. Probably just Felony charges allow others to film the person and send it in as evidence.



Colton-- Sorry, but you are misinformed.  I am an attorney and a former prosecutor.  The videotape evidence you describe absolutely could be used against you. 



This isn't so much a victimless crime as a self-victimizing crime for all involved.  

I think the Prosecutor is suggesting that it's time for the rest of us to get on with our lives and let the individuals involved do the same.  The Athens Police have surely watched the videotape enough that they're bored with it, maybe they'll move on too.