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Volatile '99 case a test for candidate

A dancer says she was raped at a frat party. A prosecutor decides not to pursue sex assault charges. Now he's running for governor. Amid uproar, was Rod Smith right?

By ADAM C. SMITH
Published June 25, 2006


[AP photo]
Rod Smith was the prosecutor who didn't pursue rape charges after viewing a video from that night. "I got it right," he says.
[Times files]
Lisa King appeared in a documentary, Raw Deal: A Question of Consent, which debuted at Sundance Film Festival in 2001.

A rowdy group of university men hire a pair of strippers for a booze-fueled party. Hours later, one of the strippers turns up outside a fraternity house half-dressed and distraught.

"They raped me," she says.

The college community is swept into a national controversy with tough questions about class, justice and reasonable doubt. Stark divisions open over whether to believe the woman, and whether an ambitious prosecutor responded fairly.

This isn't another story about the Duke University lacrosse team. This case involved the Delta Chi fraternity at the University of Florida in 1999. The Gainesville prosecutor who drew picketers and second-guessing from all sides was Rod Smith, now a strong contender for governor.

"I knew that this was not going to be a routine case," Smith, a Democrat, said recently. "All those antennae that you get from your experience handling cases had gone off."

Indeed, the case was among the most politically charged of Smith's career. Today, the cable networks chronicle developments in the eerily similar Duke case. Meanwhile, a pair of young filmmakers hope to capitalize on the attention of the governor's race with statewide showings of their 2001 documentary film about the Delta Chi controversy.

So in an election where female voters can make or break a candidate, Smith could find himself explaining his decisions of seven years ago. Even if it's only a minor part of the campaign dialogue, the Delta Chi case offers a glimpse of how a man who wants to be governor handled one of the most volatile controversies of his career.

Unlike prosecutor Mike Nifong in Durham, N.C., Smith assessed the conflicting evidence and declined to pursue rape charges. And unlike the Duke case, investigators had hours of videotape that graphically documented much of what occurred that February night.

Many viewed the tapes and saw clear consensual sex. Others saw obvious sexual battery. How could the same footage produce such differing perceptions? Consider some of the quotes preserved on tape:

 

* Among the less vulgar comments from the accuser during the sexual activity: "Bring it on, bring it on." And: "You don't do nothing to me I don't let you do - remember that."

 

 

* From a giddy fraternity member narrating the scene as it was taped: "This is what you call rape of dirty white trash."

 

* * *

After 27-year-old Lisa King emerged from the Delta Chi House on Saturday morning, her mother phoned the campus police department and a veteran sex crimes investigator interviewed King at the hospital. King, a mother of two, owned an escort and exotic dancer business called "Secret Passions." She said that after the Delta Chi performance before dozens of young men and after the other dancer went home, she asked to sleep on a couch at the frat house because she was too drunk to drive home.

She wound up raped, she said, while others videotaped the assault. Officers went to the fraternity house to question the man she accused, Mike Yahraus. Police said that he insisted the sex was consensual and retrieved for them the videotape.

The tape showed the dancers in a common room simulating sex among dozens of Delta Chi members, and later King and several men in a hot tub and in a dark bedroom. It showed her masturbate one man, and it depicted rough sex with Yahraus. She several times taunted and hit Yahraus, and at one point chastised him for trying to "outmuscle me."

The main investigator, Alice Hendon, concluded the tape showed consensual sex. Police records show Hendon briefed Bill Cervone, the chief assistant state attorney in Smith's office, on the case the following Monday morning. Smith said he was briefed after the allegations first surfaced. Hendon confronted King with the tape and the inconsistencies in her account, then arrested King for filing a false report.

An uproar ensued as the case moved into Rod Smith's office for prosecution.

The campus and Gainesville area chapters of the National Organization for Women held regular pickets outside Smith's office. Hundreds of people signed petitions. Critics attacked the police and accused Smith's office of being more concerned about the false report charge than thoroughly investigating a possible sexual battery.

"It shook up our conception about what a woman who gets raped is about. The perfect rape victim is white, middle-class and who has someone break through their window. But Lisa was a stripper, someone who had no problems simulating sex with men," said Heather MacLeod, a county victim-advocate who worked with King.

In an interview last week, MacLeod said officials in Smith's office refused to see what were clear scenes of rape. She acknowledged, though, that prosecution might have been impossible.

Stephanie Seguin, president of Gainesville Area NOW, said Smith failed to ensure a thorough investigation from the start.

"It is the state attorney's job to make sure that justice is being served," she said. "He never made sure that a proper investigation was happening."

Smith said he assigned some of his most experienced investigators in sexual crime cases (mostly women) to conduct their own investigation. He met local feminist group leaders and discussed the evidence at length with King's defense attorneys.

To this day, he won't answer whether he thinks Lisa King was raped.

"I absolutely concede there is some gray area in that tape," he said last week, and noted that he teaches law students (as a part-time professor at UF) that sexual battery is a subjective act judged against an objective standard.

"In other words, I can never determine if a person was sexually battered in their mind. I can only go to the objective evidence and whether I believe it is provable beyond a reasonable doubt," Smith continued. "I believe there was conduct on the tape that raised serious questions regarding whether or not she could even be characterized as a victim. But I was unwilling to say she was not. I was simply willing to say that, based upon that evidence, it was not a prosecutable case."

In May 1999, more than two months after the incident, Smith announced his decision. He dropped the false report charges against King and instead charged her with operating an escort service with an expired license. He said he worried about sending the wrong message by pursuing the false report charge.

"It is difficult for a sexual assault victim to come forward; they rarely do so," he said at the time. "This office will not take an action that might, inadvertently, dissuade or discourage victims from reporting sexual assaults."

Smith also charged six of the fraternity members with soliciting a prostitute and lewdness charges.

Ultimately, all the people charged wound up on probation and paid fines of a few hundred dollars. King, who is now a nurse living out of state, declined to comment through an attorney. She has a negligence suit pending against Delta Chi and several of its members.

Smith's announcement did nothing to quell the controversy. Media outlets had filed public records requests to review the videotapes, and because Smith declined to classify King as a victim the tapes weren't exempted from public records laws.

Smith's office consulted with defense attorneys, who wanted the tapes kept private, and together they put the question to a judge. Circuit Judge Chester Chance reviewed the tapes and ordered them released with a blunt order: "There is nothing contained in either of these tapes which would cause this court to believe that the petitioner, Lisa Gier King, was a victim."

Critics were outraged, again. They charged authorities with victimizing King a second time, as requests for copies of the tapes flooded the state attorney's office.

"Law enforcement and the judicial system failed me and failed to do what was right and just. Instead they just did what was easy," Lisa King said at one rally. "They thought I was an easy target because I was a dancer. They thought I would go home with my head hung low in shame. I am here to tell you that I am not ashamed. I was raped."

But that was a hardly a consensus view.

An American Civil Liberties Union panel conducted its own investigation of the matter at the request of local feminist groups. The ACLU concluded that both the police and prosecutors acted properly. One ACLU reviewer, Dan Glassman, noted that his only criticism of Smith's office was that it did not pursue the false report charge against King.

King's lawyer, Craig Dethomasis, said last week that campus police mishandled the case by charging King, which killed any chance of a rape prosecution. But he doesn't fault Smith. In fact, he enthusiastically supports Smith for governor.

"He brought a very polarized argument to a reasonable conclusion," Dethomasis said of Smith, who was elected state senator the following year. "He showed me in that case and certainly many, many others I've worked with him on that, No. 1, he listens to all sides, and No. 2 he's ethical and takes his oath seriously. He thoroughly evaluates what he can prove beyond a reasonable doubt."

* * *

A pair of 22-year-old filmmakers made a splash in 2001 when they debuted their documentary at the Sundance Film Festival. Raw Deal: A Question of Consent, used extensive footage from the Delta Chi tapes, and a number of interviews of people sympathetic to her side.

Smith declined to talk to the filmmakers and is seen on the film scurrying from the camera.

"They were, in my view, doing the wrong thing - trying to profit off of this circumstance," Smith said. "I have not seen the movie, but folks have told me my back side doesn't look too glorious in it."

Director Billy Corben said he's planning to show the film throughout the state this summer.

"With the Duke case and with state Sen. Rod Smith campaigning for governor in 2006, Raw Deal is more relevant than it ever was," he said.

Meanwhile, the Smith gubernatorial campaign has readied itself for any political fallout. Smith talked at length about the case with Patricia Ireland of Miami - who in 1999 was national president of NOW. She's backing Smith for governor, and firmly defended his actions and decision not to pursue rape charges.

"I don't think there's a prosecutor in the state that would have taken that to court," Ireland said. "The guys would have wound up looking vindicated, and she would have come out looking smeared. It would have been very ugly."

In hindsight, Smith says he wishes his office had been closely involved earlier and had fended off the false report charge. But given the circumstances, he said he would not have done things differently.

"I got it right," Smith said. "It wasn't easy, but I got it right."

Times researcher Caryn Baird contributed to this report. Adam C. Smith can be reached at asmith@sptimes.com or (727) 893-8241.

[Last modified June 25, 2006, 06:31:06]


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