My friend was accused of a crime I don't think he committed. What does he do? What do I do?

July 25, 2007 7:12 AM

My friend has been accused of rape, which I think is absurd. Need legal advice for him (especially from anyone familiar with the U.S. military court system) and emotional advice for me.

I tried to keep it simple but it’s such a messy story….

I became friends with this guy, who is enlisted in the military) last fall. He is married and has a child. He doesn’t live with his wife, and he goes back and forth as to whether he ought to divorce her. He has not exactly been faithful – and I’m one of several instances of this. We had a relationship of sorts for a few months, but it’s over now. We tried to remain friends, but currently our only contact is a phone call every few days.

What happened, as he explained it to me at least, is this: he went out for drinks with a girl, they got ridiculously drunk, and then they came home, and passed out. When they woke up in the morning everything seemed fine. Then a few days later, she was claimed he had raped her. He has no memory of having sex with her at all, much less taking advantage of her. I completely trust him and don’t believe he would be capable of doing something so horrible (and I’ll admit to usually being the sort of person who too quickly leaps to the defense of the alleged victim, not the accused, probably because of things female friends of mine have experienced).

So the possibilities here are:
- He didn’t do it and that girl is making it all up
- He’s a liar and I’m an idiot for believing him for so long
- And here’s the wild card: could he have been asleep (previously on AskMe)? His wife has told him that he tried to initiate sex with her in his sleep and I’m reasonably certain that he attempted to do this with me one time – I asked him about it in the morning and had no recollection of it. I know there’s not a lot of research out there on this yet, but the previous AskMe question about it makes it look pretty common (and there was a Newsweek story a month or so ago about this too). Maybe this is completely ridiculous, or maybe it explains why he doesn't remember doing anything with her. I don’t know. If it matters, I think he also suffers from some level of PTSD, which may have messed with his sleep patterns in some way – he says the sleep-sex didn’t use to happen before he went to Iraq (neither, incidentally, did the teeth-grinding in his sleep).

The thing is, it’s being tried in military, not civilian, court, and as I understand it, there’s a lot more burden on him to prove that he didn’t do it than there would be in civilian court, in which case it’d be more up to the girl to prove that he did. As far as I can tell it’s one of those he-said-she-said things, with no physical evidence, and yet his lawyers seem to think he’s pretty much screwed. They thought about trying to use the sleep-sex thing as a defense, but it seemed like such a shot in the dark, what with the limited research out there right now, that it would be too big of a risk – if convicted, he not only could spend a few years in jail, but would also lose his rank, his family’s health insurance, his education benefits, everything he’s worked for. So they’re thinking about making some sort of deal in which he’ll be charged with something smaller (indecent acts, I think?), plead guilty, serve a shorter sentence, and keep all of his benefits, etc.
We were hoping to find some fancy civilian lawyer who might have a better shot at getting him out of all this, but that has proven to be much too expensive to be feasible.

Meanwhile, I am torn between trying to extricate myself from this very messy situation I’ve gotten myself into (I know I was wrong to get involved with a married man, and I hated keeping things secret from family, friends, coworkers, etc., and I wish I could move on with my life) and on the other hand I want to be there for this very sweet, lost boy who has been a very good friend to me and who is getting royally screwed by the system. I know he’s made some pretty major mistakes in his life, and I’m sure a lot of you aren’t feeling too much sympathy for either of us. All I can say is that he’s very young (early 20’s) and very scared, and he’s worked so hard to overcome so many things to be where he is now (he’s essentially an orphan, his whole family is completely fucked up (drugs, trouble with the law, etc.), and he doesn’t really have any sources of support other than me) that it seems especially unfair for everything to be taken away from him now. He wants to fix things: to resolve or peacefully end things with his wife, to be a good father, to get a degree, to get out of the military and get another job, and to make a difference in the world. And so I hate it for him that this crime that he didn’t commit is going to set his plans back so severely.

I would do anything to help him, but I feel completely lost. So here I am.
I’m not even quite sure what my question is. Maybe it’s a bunch of questions.
What should he do? Is it worth pursuing the sleep-sex defense, or is it much too risky, and he should just make a deal (the latter seems more practical, but it’s so painfully unfair…).
Is there something else that can be done that he hasn’t thought of with regards to his defense?
Does this sound more or less like how a military court works, or is there maybe something he’s not telling me? As much as I trust him, I get scared occasionally that I’m being completely naïve in some way.
How do I deal with the stress of constantly worrying about my friend, who is almost certainly going to jail?
Do we just both deserve this mess? Even though he didn’t rape anyone, is this life catching up with him for all the mistakes he’s made, and with me for getting involved with him?
Help.

posted by anonymous to law & government (30 comments total)

I don't know if he did it or didn't do it or what, but if his lawyers think he's screwed, then he needs to get new, better lawyers. If that means selling everything he owns or mortgaging a kidney, then so be it.
posted by Optimus Chyme at 7:27 AM on July 25, 2007 [1 favorite]

IAN(his or your)L.

He should spend whatever he can to get a lawyer who is experienced trying sexual assault cases before military courts.

You should not get further involved. You are not a doctor or a lawyer, and you don't need to be giving him legal advice. In fact, it is illegal.

As for your coping process, you should consider therapy, and maybe during that therapy you might come to be a little less sure of his innocence. You have to realize that you are somewhat biased, right? Your certainty of his innocence and your willingness to go to the mat for someone who you slept with a few times while he was sleeping around on his wife strikes me as problematic.
posted by jcwagner at 7:36 AM on July 25, 2007 [1 favorite]

What should he do? .... Is there something else that can be done that he hasn’t thought of with regards to his defense?

I imagine a lawyer would answer that better than people on the Internet. If you think his lawyer isn't that great, you can look into helping him find a better one. As Optimus Chyme says, if he current lawyer thinks he is doomed, look into hearing other opinions on the case.

You sound quite mixed up. At times you talk about how its unfair he's going to go to jail for a crime he didn't commit, and at other times you imply maybe he had sex with her while he was sleeping. So which is it?

When they woke up in the morning everything seemed fine.

Maybe your friend filled out more details here than you have told us. Was everything fine because she wasn't screaming "rape"? Was everything fine because they were both fully clothed? Was everything fine because he slept in another room?
posted by chunking express at 7:36 AM on July 25, 2007

if he is innocent, then no, he does not deserve to go to jail. being an adulterous jerk doesnt mean you deserve a long prison sentence for rape.

the problem is, he sounds guilty. the sleep defense sounds weak to me. have you researched PTSD, are such things possible side effects? i don't know, but it sounds like a very odd defense.

only you can decide for yourself whether you believe your friend is innocent, or not. or, whether you will still be his friend regardless. even after he the criminal trial, you may still need to deal with the issue of where you stand with this friend.

in the long run, if things do go bad for him, one key thing you can do is remain supportive while he is in prison. most prisoners lose all friends and family in prison. letters and visits can be so important to prisoners, and most get nothing.
posted by Flood at 7:42 AM on July 25, 2007

You seem to discount the possibility that he could have just been blacked out, not asleep. He may not be lying to you about not remembering what happened, but if you black out, you can do all kinds of things and not remember.

As far as him not being capable of rape, he could have had sex he thought was consensual, but she thought differently afterward (or even at the time).

I agree with others that there's not much you can do to help unless you have some way of getting him a better lawyer.
posted by mcguirk at 7:51 AM on July 25, 2007

"Much too expensive to be feasible"?????

Let's look at the options here. His current lawyers think he's screwed. If they've given up on him already, he has no chance. So, he could:

1) Stick with them and:
- Spend a few years in jail
- Lose his career
- Spend the rest of his life as a convicted sex offender, with all the lovely perks that offers. Seeing his kids' school plays? Not anymore.

Or,

2) He could take on some potentially crippling debt, end up filing for bankruptcy if necessary, but have a good chance of remaining free and keeping his job, and not living the rest of his life with movement restrictions.

I have no doubt that military courts can be more complicated for this, but a complete lack of physical evidence has got to count for a lot, especially if he has no history of this sort of thing.
posted by chundo at 7:54 AM on July 25, 2007 [1 favorite]

IANAL, but personally, I think it's better to stick with the truth. In this case, the truth is that he has no memory of having sex. Creating plausible scenarios in which he thinks that it's possible that he could have had sex and not remembered it...bad idea. That's effectively undermining his own testimony, right?

Nthing that he needs to do whatever he needs to do to get a better lawyer.

The terribly sad truth for women who are raped is that it's difficult to get a conviction for date rape even when there is evidence. If his lawyers think that this is pretty much a lost cause, either they're not doing their job, or there's something damning that you don't know/aren't telling us.

Your experience with his occasional tendency to attempt sleep-sex isn't really relevant, unless this tendency was specifically for you two to get rockingly drunk, pass out, and have sex that he didn't remember. But exploring this hypothesis for a minute: when he did try to initiate, was he able to be easily deterred or distracted? I've known a few guys who would try to fumble into sex while sleeping, but their ability to follow through was pretty much dependent on me to do the work, since they were, y'know, asleep.
posted by desuetude at 8:26 AM on July 25, 2007

The only thing I can assert with certainty is that, yes, you are "being completely naïve in some way". Your naivete actually boggles the mind. Here, in this order, is what you should do:

1. Gain perspective: this is not your spouse, close friend, or family member. Let go of the "we BOTH deserve this" nonsense - nothing at all is happening to BOTH of you. He has legal troubles in response to which he makes an incredibly dubious and illogical claim of innocence, which is not your problem. All that's happened to you is that and some guy you had arguably improper sexual contact with has been accused of additional improper (illegal) sexual behavior. (I say "arguably" because I realize not all people think making a vow to one's spouse and then breaking it is improper). Honestly LISTEN to yourself - you would "do anything" to help some guy you SLEPT WITH A FEW TIMES?!?! GET A GRIP!!!! And just remember - manipulative men (okay, all manipulative people) will try to make you believe that you share in their troubles, and that you HAVE to help them because they are such poor victims and you are a bad person unless you share their guilt, their expenses, etc.

2. Tell this obvious WINNER of a young (?) man - whose participation in your life (to whatever degree that participation is other than screwing you instead of his wife and begging for help when times are tough) can't be helping you in any way - that you wish him the best etc., but you can't commit your time, money, stress, worry, etc. to the legal troubles of a guy you slept with a few years back. Tell him that if he needs someone to worry, help, understand, sympathize with nonsense, work out lawyers, etc. he should call his WIFE. Your obligaiton to this guy begins (if at all) and ends at: "Sorry, Dude, that really sucks. Good luck with it!". Delete his number, his email address, and move on with your life.

3. Obtain therapist who can help you understand why you feel the need to gain codependent emotional self-valuation by becoming involved with married men and instigating yourself as the savior of their legal troubles.

Oh, and the sleep defense is probably going to be a loser. Requires lots of expensive expert testimony that most courts probably won't even admit even if Prince Charming could afford to pay for it, requires the cooperation of the wife to testify in her husbands defense for cheating-rape (sounds like that is so NOT going to happen), and it's not persuasive in the first place. What is it doctors say about four hooves, tail, etc. and assuming its a horse rather than a zebra? I will be surprised if you find one single objective person who is with you in believing this guy was asleep - rather than intoxicated (which he admits he was) - when he attempted to initiate sexual contact. The accuser typically needs to show at least some reasonably persuasive evidence that a crime took place to get to the stage of formal charges being brought - and "well, yes I WAS drunk but it's not the alcohol, you see, I was actually ASLEEP, and even though I was ASLEEP and have no idea what - if anything - happened, I promise I can state with certainty that I was acting out of my own control due to sleep rather than intoxication, just trust me, even though I am a habitual lier whose been cheating on my wife for years" is just ridiculous.

Life/fate is not "catching up with you" for "mistakes". You (and Mr. Wonderful) are each making a series of ongoing, unrelated mistakes in judgment and facing the normal, obvious, expected, usual consequences.
posted by bunnycup at 8:53 AM on July 25, 2007 [14 favorites]

How is "sleep-sex" even a defense? Say that's what happened. So what? It doesn't mean he is any less culpable. Best case scenario, he gets a lighter sentence.

Follow the advice to suck it up and hire the best lawyer you can find. It will be worth it.
posted by feloniousmonk at 8:56 AM on July 25, 2007

Bunnycup nails it. This is his problem, NOT yours, no matter how much (misguided, naive, whatever) sympathy and loyalty you feel for him. He needs to get better lawyers. You need to get away from him and probably see a therapist. That's it.

You (and Mr. Wonderful) are each making a series of ongoing, unrelated mistakes in judgment and facing the normal, obvious, expected, usual consequences.

Seriously, write this out and put it on your wall. Actions have consequences. Stupid actions tend to have bad consequences. Conversely, smart actions tend to have better consequences. You have free will in such matters. Exercise it.
posted by scody at 9:05 AM on July 25, 2007

Do we just both deserve this mess? Even though he didn’t rape anyone, is this life catching up with him for all the mistakes he’s made, and with me for getting involved with him?

Oh yeah. This part. Quit it. This isn't the universe punishing you and so it's all out of your control and woe is you but isn't this romantic that we're in this together honey. Heck, this isn't even happening to you.

It's good to care about your friends. I'll even let you slide a little on some of the concerns raised by bunnycup's point 1. But you really, really shouldn't think about being willing to do "anything" to help him, and the fact that you framed your entire post in "what do we do" is a red flag that you're in over your head.
posted by desuetude at 9:08 AM on July 25, 2007

he's being court-martialed for rape. this is an arcane, specialized area of the law that i cannot imagine anyone here being able to address competently unless he/she is a member of the judge advocate general corps. i'm a retired civilian lawyer and this is way beyond me, however:

i experienced cognitive dissonance reading your account. you tell us the woman didn't claim rape for several days, but on the other hand, his lawyers think he's screwed. in civilian courts, it is extraordinarily difficult to convict a defendant under these circumstances. it sounds like your only source of information is your friend, and i doubt that you've gotten the whole story, because it simply does not add up.
posted by bruce at 9:25 AM on July 25, 2007

"How is 'sleep-sex' even a defense? Say that's what happened. So what? It doesn't mean he is any less culpable."

Actually, that's exactly what it means.

Actions taken while sleeping are not the volitions of a conscious mind and, therefore, were this actually the case, the defendant would lack the appropriate mens rea to have committed the crime.

Proving it is another matter, but if that's actually the case, he didn't rape anybody.
posted by toomuchpete at 9:39 AM on July 25, 2007

Do not get involved.

You obviously have a large amount of emotional attachment to this guy, and are therefore biased. I nth the other posters who say that if his lawyers think he's screwed, and this is a military trial for date rape accused days after it happened, there is evidence you don't know about because it is nigh-impossible to get a conviction under those circumstances. The number of girls who cry false rape and get away with it are far, far, far dwarfed by those who really are raped and never seek, much less find, justice.

If you must do something, the best you can do for him is find him better lawyers.
posted by schroedinger at 9:45 AM on July 25, 2007

Also: this business about "deserving" the mess? What the hell? The universe isn't out to get you. And this isn't your mess. This is his. It is not the two of you against the world. What romantic relationship you had is over, and all that's left is you watching him bounce from chick to chick while his wife waits at home.
posted by schroedinger at 9:47 AM on July 25, 2007

They don't just let any moron be a lawyer nowadays; you have to be pretty smart. My father is one of the smartest people I know, and he defended people like your friend in the military court system for years. Your friend needs to listen to his lawyers (and nobody who is not one, which includes you and all of us).
posted by ThePinkSuperhero at 10:11 AM on July 25, 2007 [1 favorite]

What almost everyone said: not your problem, stay out of it. I wanted to address this:

I think it's better to stick with the truth. In this case, the truth is that he has no memory of having sex.

WTF? We have no idea what the truth is, and neither does the poster. All we know is she has a crush on a guy who is married but "has not exactly been faithful – and I’m one of several instances of this," and he told her a bunch of stuff that sounds like typical desperate male bullshit to me. To assume it's all "truth" is quite insane. Do you also feel like believing that 99% of prisoners are innocent of the crimes for which they were convicted? After all, they'll tell you so themselves.
posted by languagehat at 10:21 AM on July 25, 2007

What bunnycup and scody said. Why are you putting his interests ahead of your own? Each of you needs to start taking responsibility for your actions (and not just after the fact), but whether or not he ever learns this should be no concern of yours.

Sometimes it's hard to admit when a friend (especially one you've had romantic feelings for) is not acting like a real friend would. If your positions were reversed, would he be as worried about you as you are about him? (Hint: no, he wouldn't. Trust me.)

PLEASE take bunnycup's advice (ESPECIALLY part 2), and start putting yourself first. This isn't being selfish; it's being smart. He doesn't deserve to have you in his life, and you need to start learning to value yourself. There is no way this can happen until you follow bunnycup's advice and get away from this guy.

Be strong, and good luck making better choices in the future.
posted by splendid animal at 10:43 AM on July 25, 2007

You should email me. I have some personal experience with an incredibly similar situation, and I might be able to offer some support/advice/etc to you, but I'd rather talk about this over email than on a public forum (hence, I'm sure, why you're anonymous). Someone very close to me spent three years in military prison after being falsely convicted of rape under a very similar circumstance, despite having a team of excellent lawyers and no evidence to convict him other than her word against his. He's currently going through an appeals process, but essentially lost everything he'd worked for and his military career (not to mention his good reputation, etc.) and now has to register as a convicted sex offender.

You're not really in a position to give advice to your friend, and you don't want to get involved in his legal problems. Since you obviously care about this guy and think highly of him, I'd recommend you just continue doing what you're doing: be his friend, be supportive, be there for him. He'll appreciate the hell out of that, since things will only be getting worse for him from here on out.
posted by booknerd at 10:47 AM on July 25, 2007

It is also quite possible that he has competent defense lawyers and given the evidence, his best option really is a plea bargain out.
posted by KirkJobSluder at 10:53 AM on July 25, 2007

If his lawyers are selling him down the river, he should get another. The fact, though, that they're considering a plea bargain means there's most definitely facts that your friend is leaving out of the picture. Ask yourself this: If you were he, wouldn't you spin this in the best possible light for those who knew you in order to get emotional support in a difficult time?

If you are dead-set on interfering in this case, I guess you could volunteer to act as a witness for the he-had-sex-while-he-slept hairbrained defense. And then his wife/friends etc would be very cheerful to see a random woman who had slept with a married man get up and testify on the record. Better idea: take a big step backward and let this trainwreck sort itself out on its own. He doesn't need you, and you do him no favors by interfering.
posted by Happydaz at 11:10 AM on July 25, 2007

Based on what you say - that it's a he said, she said case, I wouldn't think he would have any trouble at all in a military court, where there is still a burden of proof that must be met. It doesn't make sense to me unless he's witholding information from you. I'm no expert, but still it doesn't make sense that someone could simply accuse a soldier of rape a few days after the fact and have a slam dunk case.
posted by xammerboy at 12:10 PM on July 25, 2007

I think it's better to stick with the truth. In this case, the truth is that he has no memory of having sex.

WTF? We have no idea what the truth is, and neither does the poster. All we know is she has a crush on a guy who is married but "has not exactly been faithful – and I’m one of several instances of this," and he told her a bunch of stuff that sounds like typical desperate male bullshit to me. To assume it's all "truth" is quite insane. Do you also feel like believing that 99% of prisoners are innocent of the crimes for which they were convicted? After all, they'll tell you so themselves.

I wasn't assuming it was the truth. I was taking a crack at answering a portion of her question with the scenario that she provided. I should've disclaimer-ed, I suppose. Or perhaps thrown in some invective accusing her of being an idiot instead of more gently suggesting that dude may not be telling her everything.

The "sleep-sex defense" sounded to me like it was presented as a back-up tactic (and possibly invented by anonymous?) not what dude says he thinks he did. And, of course, it's a ridiculous theory. My point in invoking "the truth" was that if he believes that he didn't have sex with the woman, he should stick to his story, not make up lesser crimes of which to be accused.
posted by desuetude at 12:11 PM on July 25, 2007

As for what you can do if you're willing to go the distance the best thing you can do is listening to him. Give him a chance to vent, let him know that there's somebody out there who understands what he's going through and that he's not alone. Talking can also really help people sort these things out and maybe even come to accept their circumstances. So just be there to listen and be, literally, a shoulder to cry on.

As for his defense strategy well, in these matters, by hook or by crook your friend should be prepared to do whatever's necessary for him and his family. Get a second opinion, heck get a third and fourth opinion, hire a private investigator to investigate the accuser, go over the any relevant testimony and try to produce inconsistencies -- anything. And start preparing for the worst.

I must admit though your friend's story doesn't add up. If he doesn't even remember having sex with her why would he admit to it via the sleep defense? But, whatever, he's your friend.
posted by nixerman at 12:21 PM on July 25, 2007

BTW, OP, feel free to ignore the moral grandstanding in this thread. A bunch of Puritan idiots on the green will insist your friend is "bad" because he's an adulterer but you know him far better and more intimately than any of these dorks. He's your friend. If you completely trust him then have faith in that trust and do what you can to help him.

I would do anything to help him, but I feel completely lost. So here I am.

No, the universe isn't out to get you. You don't deserve this and, more than likely, there's nothing you can do about it. Bad things happen. Life is messy. You'll have to accept this and try to make the best of it. Hold on to those you love and hope that, eventually, these things will work themselves out. It may just be that this incident, however it turns out, will be what's necessary to put your friend on the straight and narrow. Or it may be what breaks him and sends him hurtling down into the depths of despair and degeneracy. In that light it's not so much a tragedy as a test.
posted by nixerman at 12:30 PM on July 25, 2007

FWIW, A "Sleep sex" defense does have one recorded instance of success, in a Canadian case. From minimal research (Googled it for 5 mins) I was unable to find any instances where this success has been repeated in a US court (criminal or military tribunal).

"Moral grandstanding" aside, I guess that even criminal defense attorneys have a hard time suggesting with a straight face that a chronic adulterer who got wasted beyond consciousness with a woman, shared a bed with her, ostensibly had sexual relations and got charged with rape was "asleep" and not responsible for his actions rather than "intoxicated". This is significant because, if I remember the oh-so-long-ago BarBri review correctly, (voluntary) intoxication is no defense to the crime of rape.
posted by bunnycup at 12:45 PM on July 25, 2007

I wasn't assuming it was the truth. I was taking a crack at answering a portion of her question with the scenario that she provided. I should've disclaimer-ed, I suppose.

Might have been a good idea, but I apologize for having misread you.
posted by languagehat at 1:01 PM on July 25, 2007

What KirkJobSluder said --

It is also quite possible that he HAS competent defense lawyers and given the evidence, his best option REALLY IS a plea bargain out.
posted by salvia at 4:45 PM on July 25, 2007

Here's a UK case where the sleep defence also led to acquittal.
posted by biffa at 2:35 AM on July 26, 2007

Sleep murders.

Even if he manages not to get convicted of rape, he'll probably get nailed by an adultery or other charge and a subsequent dishonorable discharge.

When I did volunteer work in a rape prevention program I was told that false accusations of rape occurred 2% of the time. Subsequently I've heard stats as high as 8%. However, I think you have to face the possibility that he is not innocent. If he drank to the point of blackout, he could have done anything, and how would he know? Have you been around him while he was seriously intoxicated?
posted by BrotherCaine at 5:46 AM on July 26, 2007