NEWS- Slumped over: Alleged rape followed party

The night started with festive drinking, but by the early morning hours, a 19-year-old UVA student alleges, she had been raped by a classmate. Details of the incident emerged Thursday, December 11, at a preliminary hearing in Charlottesville General District Court.

The evening of August 29 began when the student and several friends "pre-partied" with margaritas and tequila shots and ended in the early morning hours of August 30, when– drunk, disoriented, and nauseated– she was allegedly raped both vaginally and anally while slumped over a toilet in her own apartment.

The victim– whose identity is being withheld in accordance with Hook policy, and who declined to comment for this article– testified that she had never seen her alleged attacker, Zachary Jesse of Richmond, before that night.

According to her testimony, she had gone to a party at a neighboring apartment where she had begun to feel nauseated. She had entered the bathroom where she had made herself throw up hoping to "feel better." Jesse, another partygoer, allegedly entered the bathroom and, after asking if she was all right and using the toilet, offered to walk her home.

Once back at her apartment, the victim testified, Jesse followed her up the stairs to a second-floor bathroom, and again asked if she was all right as she knelt in front of the toilet. From there, the details become murky.

"He said something about wanting to have sex," she testified, although she said she could not recall the exact wording. "I said 'no' twice. He said, 'Pull down your pants; it will be okay,'" she testified. "The next thing I remember is him pulling out of me vaginally."

Her ordeal, she testified, wasn't over.

"Within a short period of time I felt him enter me again; this time it was anally... I remember screaming," she said.

Sometime during the alleged assault, she testified, he asked her twice, "Is this your first time?" She said she responded, "I don't want it to be."

After the alleged assault ended, the second-year student said Jesse once again asked her if she was all right. "I yelled at him to get out of there," she testified.

No details regarding physical evidence were presented during the hearing, and defense attorney James Roberts– a Richmond lawyer named a "legal elite" in the December 2003 issue of Virginia Business– had few questions for the victim.

Roberts first asked if Jesse had offered or poured her any beverages that night, to which she said no. He asked the victim several times to clarify exactly what Jesse had asked her regarding sexual intercourse, and pointed out her considerable gap in memory between the request for sex and the completion of the act. He also questioned whether she recalled a roommate knocking on the bathroom door to ask if everything was all right and if she recalled answering that everything was fine. She testified that she did not remember that event.

Roberts closed by moving to have the case dismissed. Judge Robert H. Downer Jr. denied the motion, instead certifying the case and sending it on to a grand jury hearing Monday, December 15. In that hearing, the grand jury also certified the charges. A trial date has been set for April 26 and 27, 2004, in Charlottesville Circuit Court.

"I can't say I was surprised," says Roberts of Downer's decision. "The measure of proof is quite minimal for a preliminary hearing. All that has to be demonstrated is probable cause."

Neither Jesse nor his parents returned the Hook's calls, but Roberts says Mr. and Mrs. Jesse are "very concerned about the welfare" of their son.

Assistant Commonwealth's attorney Jon Zug says he was "pleased" with Downer's decision, but not surprised. "I expected it to be certified," he says.

The road ahead, both for the victim and for Jesse– currently free on $20,000 bond– is likely to be long and rocky.

And, come April, the victim will be forced once again to detail her alleged nightmare in a public setting.

It's this humiliation that prevents many victims from pursuing charges in court, says Claire Kaplan, coordinator of the Sexual Health Education Center at UVA.

"There's a huge amount of embarrassment and shame," says Kaplan of rape victims. "There's shock and a strong sense that no one will believe them because they don't quite believe themselves."

And even if a victim is willing to press charges, many times there's no case because it's too difficult to prove the sex was not consensual. Even if physical evidence is recovered during an exam, Kaplan explains, it only shows that intercourse occurred not that it was forced.

When one or both parties have been drinking as is the case in this situation– Kaplan says it's even tougher.

"There's a tendency to place more blame on the victim and less on the perpetrator," she says.

However, in the case against Zachary Jesse, Kaplan says it's likely other evidence exists.

As the victim testified, soon after Jesse left her apartment, her roommate called 911 believing that her friend was suffering from alcohol poisoning. At the hospital, the victim testified, her blood alcohol, hours after her last drink, was .15 nearly twice the legal limit for driving.

Though she said that she did not tell medical personnel about the alleged attack, after she was released from the hospital, she told her roommate she believed that "something happened that I didn't want." She testified that her roommate took her to the UVA health clinic that morning, where, Kaplan says, typical protocol would be to use a Physical Evidence Recovery Kit.

For the Commonwealth's Attorney to take the case, Kaplan says, there must be evidence that corroborates the victim's testimony.

Even with that type of evidence, the outcome of the case is far from certain: Attorney Zug says he's aware of only four similar cases locally in the past decade. In two of those so-called "acquaintance rape" cases, criminal charges were never brought, and in one, a judge threw the case out halfway through the trial.

Whatever the outcome of the current case, Kaplan says she's "encouraged" that the victim has come forward because it highlights flaws in a criminal justice system that she feels is "not set up to address sexual violence or other violence against women.

"The criminal justice system," she says, "will only change when people use it."

Zachary Jesse's September 24 mug shot