The case of two former Ohio State football players charged with rape and kidnapping has become a headline story. As Attorney Brad Koffel discussed on the Joel Riley Podcast, the two Buckeye defensive backs were arrested on Wednesday, February 12, 2020 for felony rape and kidnapping stemming from an incident in a Columbus apartment on February 4th.
According to criminal complaints filed in Franklin County Municipal Court, the accuser claims the incident began with a consensual encounter between her and one of the players. However, the complaints note, the accuser did not consent to a subsequent encounter involving both players, which occurred when she was allegedly restrained and forced to engage in sexual acts against her will.
Both players have been dismissed from the team by Buckeyes Head Coach Ryan Day, and have pleaded Not Guilty to the charges.
Video of Alleged Consent
The case is unique not only because it concerns two collegiate athletes from one of the nation’s top football programs – but also because it involves an accuser who confirms she consented to the sexual encounter with one player, but not the second encounter involving both players. On WTVN Radio, Attorney Brad Koffel told Joel Riley this is not a typical scenario, and that it could pose potential problems in the players’ defense because its adds to the accuser’s credibility.
As discussed in an ABC 6 article featuring Attorney Koffel’s take on the case, the issue is compounded by something that’s become part of a larger trend – a video depicting both accused players telling the alleged victim to state her name and say the encounter was consensual. The tone of the video has also been highlighted by authorities – both players were allegedly laughing while the accuser was crying.
While such videos have become more common and have helped vindicate some would-be suspects implicated in serious sex crime cases, videos of alleged consent are not evidence of consent. In this case, Columbus police officials say the video prompted them to move forward with an investigation and ultimately criminal charges.
Drawing the Line: Consent & Communication
Most believe in the clarity of “No Means No,” but cases like this show there can be confusion on where line is drawn when it comes to consent. That’s due in part to defining the scope and duration of “consent” – consent for this minute, according to Columbus Sgt. David Pelphrey, can be different than consent for the next 10 minutes.
As a means to ensure clarity, advocates say communication is key. That means checking with partners to ensure they’re enthusiastic about what’s occurring, that they understand what’s happening, and that they are agreeing to it. Having proof of communication can also be important.
As Attorney Brad Koffel tells ABC6, he often tells clients to create a paper trailer with persons they anticipate having a sexual encounter with:
“Young people are already sexting. They’re already sending nudes to each other, how hard is it to send a text saying, ‘hey, this is what I want to do’ and she or he says, ‘yep, I want to do that too.’ It may be not a perfect consent or evidence of consent, but it’s better than nothing.”
Still, Attorney Koffel adds, alcohol and intoxication – a very common element in campus rape cases involving high school and college students – can make consensual sex impossible in the eyes of the law:
“Young people who are going to consume alcohol and engage in sexual activity need to be aware that consent can change in the heat of the moment, or the next day, or the next week. There’s no such thing as a drunk ‘yes’, that if she’s intoxicated and the ‘yes’ or the consent is invalidated.”
Attorney Brad Koffel and our legal team at Koffel | Brininger | Nesbitt (KBN) have extensive experience representing clients across Columbus and the state of Ohio in sex crime cases – including those involving young clients, campus sexual misconduct, and Title IX proceedings. To speak with an attorney about a potential case, contact our firm.