Skip to main content

Opinion: Steubenville case shows how the rules have changed

By Ric Simmons, Special to CNN
March 17, 2013 -- Updated 1850 GMT (0250 HKT)
STORY HIGHLIGHTS
  • Verdict shows that the way society views sexual conduct has changed, Simmons says
  • Law struggles to define a person is too intoxicated to consent, he says
  • Case also shows how social media affect criminal cases

Editor's note: Ric Simmons teaches criminal law, evidence and criminal procedure at The Ohio State University's Moritz College of Law. He is a former New York County assistant district attorney and a graduate of Columbia University School of Law and Stanford University.

(CNN) -- The Steubenville, Ohio, rape case has made national headlines because it represents a perfect storm of inappropriate sexual conduct, high-school football heroes, social media and viral YouTube videos.

The case reached some level of closure on Sunday as Judge Thomas Lipps handed down the juvenile equivalent of a guilty verdict and sentenced the two defendants to what could be years in a juvenile correctional facility as a consequence of their actions on August 11 and 12 of last year.

Two teens found guilty in Steubenville rape case

This verdict is a consequence not only of the defendants' actions that night, but also of decades of change in how society views sexual conduct -- and how the law has evolved in response to this change. In this case, a high school girl went to a party and allegedly drank so much that she began slurring her words and was occasionally unresponsive. Two football stars at the party are accused of taking advantage of her impaired state and engaging in sexual conduct with her.

Ric Simmons
Ric Simmons

A few decades ago, this behavior would probably have been considered inappropriate or "ungentlemanly." Today, it brings protesters into the streets and creates a nationwide outcry about sexual abuse.

The law has evolved as societal norms have changed. Lots of sexual conduct occurs when one or both participants are intoxicated to some extent. The question that the law needs to answer -- but at times struggles to answer -- is at what point one person's intoxication is so severe that she (or he, in theory) is legally unable to give meaningful consent.

Ohio law, like that of many states, sets this line at the point at which the victim's "ability to resist or consent was substantially impaired" by alcohol. But how impaired is "substantially impaired"?

In most cases, this question will be answered by a jury. (In the Steubenville case, the question was decided by the judge because the case was in juvenile court.) This could in theory be a fine line, though after hearing from the witnesses in the Steubenville case, most people today would agree with the court that this victim was well over that line.

Teens treated girl 'like a toy,' prosecutor says

Atty: Victim wants 'normal' life back

A second lesson from this case is how the ubiquity of social media affects the way criminal cases are investigated and prosecuted. The Steubenville case was a dramatic example of this phenomenon: The victim only knew that a crime had been committed against her because she was featured in online photos and posts. Much of this online material was inadmissible in court. (For example, the infamous 12-minute video in which a person at the party jokes about the rape did much to increase public outrage, but would be rejected as hearsay in court.)

But the famous photo of the victim in which she is being carried by her wrists and ankles at the party was critical to establishing her level of intoxication. The prosecutor also admitted the texts in which one of the defendants stated "she (the victim) was like a dead body" and "she could barely move." These texts went a long way toward establishing that the defendants knew that the victim was so impaired that she was unable to consent. (Statements made by a party in the case are exempt from the hearsay rule.)

A generation ago, in a case that came to represent a different example of changing social norms, four police officers in Los Angeles were brought to trial for assaulting Rodney King only because a bystander happened to have a video camera with him and was able to record the abuse. At the time we thought: What a lucky coincidence for the prosecutor! And what bad luck for the police officers! But today we should all assume that anything we do could be caught on camera or video.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



Meanwhile, many of the things we "say" to others are actually communicated by text, e-mail or online posting. Digital communication is so commonplace, especially among the younger generation, that those who engage in it are often not aware that they are creating a permanent record of their impressions, opinions and beliefs which could later be used in court.

In short, the Steubenville case has demonstrated how the rules have changed. Alcohol will still be present at parties and will still be an element in many sexual encounters -- but now prosecutors, judges and juries will impose their own standards for the acceptable level of impairment. And when we commit crimes, the world -- and more importantly, the future jurors in our case -- will be watching.

rape trial focuses on text messages, cell phone pictures

The opinions expressed in this commentary are solely those of Ric Simmons.

ADVERTISEMENT
Part of complete coverage on
August 18, 2014 -- Updated 1242 GMT (2042 HKT)
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
August 18, 2014 -- Updated 1310 GMT (2110 HKT)
Julian Zelizer says the left mistrusts Clinton but there are ways she can win support from liberals in 2016
August 19, 2014 -- Updated 1149 GMT (1949 HKT)
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
August 16, 2014 -- Updated 1734 GMT (0134 HKT)
Mark O'Mara says the way cops, media, politicians and protesters have behaved since Michael Brown's shooting shows not all the right people have learned the right lessons
August 17, 2014 -- Updated 1523 GMT (2323 HKT)
Retired Lt. Gen. Mark Hertling says the American military advisers in Iraq are sizing up what needs to be done and recommending accordingly
August 15, 2014 -- Updated 1941 GMT (0341 HKT)
Marc Lamont Hill says the President's comments on the Michael Brown shooting ignored its racial implications
August 15, 2014 -- Updated 2146 GMT (0546 HKT)
Joe Stork says the catastrophe in northern Iraq continues, even though many religious minorities have fled to safety: ISIS forces -- intent on purging them -- still control the area where they lived
August 14, 2014 -- Updated 2226 GMT (0626 HKT)
Tim Lynch says Pentagon's policy of doling out military weapons to police forces is misguided and dangerous.
August 15, 2014 -- Updated 1315 GMT (2115 HKT)
S.E. Cupp says millennials want big ideas and rapid change; she talks to one of their number who serves in Congress
August 14, 2014 -- Updated 2357 GMT (0757 HKT)
Dorothy Brown says the power structure is dominated by whites in a town that is 68% black. Elected officials who sat by silently as chaos erupted after Michael Brown shooting should be voted out of office
August 14, 2014 -- Updated 1149 GMT (1949 HKT)
Bill Schmitz says the media and other adults should never explain suicide as a means of escaping pain. Robin Williams' tragic death offers a chance to educate about prevention
August 15, 2014 -- Updated 1505 GMT (2305 HKT)
Nafees Syed says President Obama should renew the quest to eliminate bias in the criminal justice system
August 14, 2014 -- Updated 2024 GMT (0424 HKT)
Eric Liu says what's unfolded in the Missouri town is a shocking violation of American constitutional rights and should be a wake-up call to all
August 13, 2014 -- Updated 1922 GMT (0322 HKT)
Neal Gabler says Lauren Bacall, a talent in her own right, will be defined by her marriage with the great actor Humphrey Bogart
August 15, 2014 -- Updated 1056 GMT (1856 HKT)
Bob Butler says the arrest of two journalists covering the Ferguson story is alarming
August 13, 2014 -- Updated 2035 GMT (0435 HKT)
Mark O'Mara says we all need to work together to make sure the tension between police and African-Americans doesn't result in more tragedies
August 18, 2014 -- Updated 2006 GMT (0406 HKT)
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
August 13, 2014 -- Updated 2308 GMT (0708 HKT)
Michael Friedman says depression does not discriminate, cannot be bargained with and shows no mercy.
August 12, 2014 -- Updated 1251 GMT (2051 HKT)
Mary Allen says because of new research and her own therapy, she no longer carries around the fear of her mother, which had turned into a generalized fear of everything
August 12, 2014 -- Updated 1959 GMT (0359 HKT)
Gilbert Gottfried says the comedian was most at home on the comedy club stage, where he was generous to his fellow stand-up performers
August 12, 2014 -- Updated 2054 GMT (0454 HKT)
Iris Baez, whose son was killed by an illegal police chokehold, says there must be zero tolerance for police who fatally shoot or otherwise kill unarmed people such as Michael Brown
August 12, 2014 -- Updated 1246 GMT (2046 HKT)
Maria Cardona says as he seeks a path to the presidency, the Kentucky Senator is running from his past stated positions. But voters are not stupid--and they know how to use the internet
August 13, 2014 -- Updated 0219 GMT (1019 HKT)
Gene Seymour says the shock at the actor and comedian's death comes from its utter implausibility. For many of us over the last 40 years or so, Robin Williams was an irresistible force of nature that nothing could stop.
August 12, 2014 -- Updated 1951 GMT (0351 HKT)
Soledad O'Brien says the story of two veterans told in a documentary airing on CNN shows the challenges resulting from post-traumatic stress
August 12, 2014 -- Updated 1525 GMT (2325 HKT)
LZ Granderson says we must not surrender to apathy about the injustice faced by African Americans
ADVERTISEMENT