Rape cases where the defense is consent can be the hardest cases to prove. The recent allegations against quarterback Ben Roethlisberger reveal this ugly truth. A close examination of the complaining witness' police statement explains why the prosecutor decided not to file a case..
She initially told the police (her handwritten statement is online at: http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger1.html) that she was at a bar and at one point Ben made "crude, sexual remarks." After these remarks, Ben asked her and her friends to go to his "VIP" area at the back of the bar. She and her friends agreed. There, she and her friends were offered free, numerous shots of booze, and presumably they drank them. After this point, she was 'escorted' to a side hallway and sometime after that, Ben allegedly forced her to have sex..
Now imagine a jury of Georgians from the small town of Milledgeville where this occurred. A defense attorney would certainly try to pick a jury that would not be sympathetic to a young woman who makes the choices she made before the alleged assault. If this were Seattle, it would be harder to pick such a jury. And yet even in Seattle, a certain part of any community, e.g, some older people, might judge her harshly..
The jury would be asked in closing by the defense attorney to determine her credibility, where there is little to corroborate her version that he forced her to have sex. After all, the star quarterback would be presumed innocent, as all criminal defendants are. And the prosecutor would have to prove beyond a reasonable doubt that she did not consent. The prosecutor would have to contend with arguments like this: "Despite Ben's crude sexual remarks, this young lady and her friends agreed to accompany this celebrity quarterback to his VIP room. Were they football 'groupies' or just naive young women? Was she so drunk she doesn't remember if she consented? . . " and so on..
Careful prosecutors don't like cases without substantial proof. Here, apparently the young woman did not want to prosecute, given that her privacy and life would be picked apart not just by opposing counsel but by the media. With these difficulties in mind it is not surprising they declined to prosecute. Although our legal system is far from perfect, it does not appear to be an unreasonable decision. In the end, this whole affair is more of a cynical reflection of our culture of celebrity than an indictment of the legal system..