The Counsellor's Corner

How do you feel about rape charges being filed when the victim has neither been located nor identified. This unusual set of circumstances took place in June when the L.A. County D.A.'s office finally caught up to Damien McKinney who had been the object of a nationwide search since 1996. At that time he fled the state while free on bail with fraud and forgery charges pending. The Hawthorne Police Department located McKinney in May of this year as they learned he had returned to South Central Los Angeles. When they arrested him, they found a video tape which is what has led to these charges. On video McKinney appears to sexually assault a young lady whose age is being estimated at approximately 16 years old and she appears to be drugged and/or unconscious. He has sex with this girl for approximately 20 minutes. Obviously the police are still attempting to find her, however so far they have had no luck. She is being described an African-American woman with long, dark braided hair, 5'6" and 140 lbs.

The D.A.'s office acknowledges "we may never locate her, we may never be able to use her in court. But the video is so appalling, we feel it can stand alone and sustain a conviction."

How? If she looks sixteen, perhaps she was 18 and of an age at which she can give consent. I think it's important to note that McKinney has not been charged with statutory rape here. Statutory rape would encompass consensual or sex without consent with a minor. I believe the D.A.'s office knows that they cannot prove this young lady is a minor and therefore statutory rape charges were not filed.

Similarly, how are they to prove this is rape? There are people having sex today in many unusual ways under many unusual circumstances; far more unusual than this one. What if the woman is 18 and this is a game they play? That may be unlikely and it certainly would be a strange game; however the burden of proof in a criminal case is to prove guilt beyond a reasonable doubt. A defendant in a criminal case is presumed to be innocent and is not obligated to call any witnesses or put forth any witnesses or other proof in his behalf. Were I defending this case I would allow the prosecution to put on its case and I would not have the defendant testify. Should a jury overcome the presumption of innocence and find someone guilty of rape beyond a reasonable doubt when the only evidence is a video of a man having sex with someone who "looks" 16 and "appears" to be unconscious?

Why is this case being filed now? In a felony situation such as this, the D.A.'s office has three years to file criminal charges from the date of the alleged crime. How are they going to prove when the video tape was made? If it were made four years ago, the statute of limitations wipes out this case.

I can understand a video being so appalling that it leads one to want to take action, however, for those of you who watch "The Practice," there was an episode last year depicting some pretty hard-core sado-masochistic behavior which was consensual. That behavior was far more egregious than the behavior described in this case.

The point I want to make is that when a criminal case is filed, it needs to be done in good faith and only when the prosecutor feels he can meet the burden of proof. This case has more questions than answers, and to put any individual in a position where his liberty can be taken from him off an unexplained video tape and no other evidence causes me a great deal of concern.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.