Preliminary instructions by judge:

You have been selected to serve on a jury in a criminal case. The defendant, Gordon Gray, has been charged with sexual assault upon Jennifer Holt. The defendant has pleaded not guilty to the charges and denies committing this offense. He is presumed innocent and may not be found guilty by you unless all of you unanimously find that the State has proved his guilt beyond a reasonable doubt. Your task will be to the listen to the evidence and decide this case on the facts, putting aside your biases, prejudices and sympathies.

The state claims that the Defendant had forcible sexual intercourse with Ms. Holt in a Fraternity House on the Indiana University campus against her will when she was too drunk to resist. The defense claims that the sexual activity was consensual. You will have to decide whether the defendant is guilty of a crime, and if so, what crime he committed.

Indiana recognizes four degrees of sexual assault. 1) The defendant committed first degree rape if he compelled Ms. Holt to have sexual intercourse against her will by using or threatening to use deadly force or when armed with a weapon. 2) It is second degree rape if he compelled her to engage in sexual intercourse against her will by using non-deadly force or drugs. 3) It is aggravated sexual battery if he touches her in a sexual manner against her will when her natural resistance has been overcome by intimidation or threats. 4) It is sexual battery if he touches her in a sexual manner against her will. If Ms. Holt consented to the sexual activity, he is not guilty of a crime.


1. Testimony of Jennifer Holt

I am 19 years old. Last year I was raped by the defendant in a fraternity house at Indiana University. At the time I was a freshman at Butler University in Indianapolis. Since then, I have dropped out of college and I live with my parents in Anderson, Indiana. It is just too difficult to be on a college campus.

On April 26-27, 2003, I went to visit my brother, Michael, for "Little 500" weekend at Indiana University. I had heard about this weekend for years from Michael. He said it was a great party weekend. I planned to stay in my brother's room at the Delta Chi Fraternity, and Michael would spend the night with his girlfriend, Susan Lynch. Saturday night, I had dinner with Michael, Susan, and another fraternity member, Gordon Gray. I had not met him before. Michael fixed us up, so I would have a date, and because Gordon had recently broken up with his girlfriend. After dinner, the four of us went to a John Mellencamp concert. Throughout the evening, Gordon was polite and funny, but not threatening, and he did not touch me or make any sexual advances. We returned to Delta Chi about 11:30 pm. There was a wild, noisy party going on -- a band and at least 200 people. There were refreshments, including punch. I danced a lot, and drank a lot of punch. I did not know it was spiked with alcohol. I danced with Gordon, but it really was just a big mosh pit -- you just get in a big group and dance. It's not focused on one person.

At about 1:30 a.m., I began to feel unsteady and ill. I had never been drunk before, so I did not know what it felt like. I just wanted to lie down. I could not find Michael and his room was locked, so I started asking around if anyone knew where he was. I ran into Gordon, who offered to use his key to open Michael's room. We went upstairs, but Gordon's key did not work on Michael's door. He dropped his keys a few times, and I assumed he was drunk. He offered to let me lie down in his room which was two doors down the hall. He didn't leer or anything, so I accepted. I went into his room, and lay down on the bed. I never thought anything would happen because he was Michael's friend and had not seemed interested in me all night. Gordon stayed and talked for a few minutes, but then I asked him to leave because I had a headache. Gordon left, and I fell asleep. A short time later I woke up when the door opened again. Gordon came back into the room and started to talk some more. I don't remember what he said. I was kind of groggy. Then he came over and sat on the edge of the bed and tried to kiss me. I asked him again to leave because I was not feeling well. Instead, he told me to shut up and started pulling at my slacks. I told him to stop, but he just laughed. He shoved me back onto the bed and jerked my slacks and underwear off. I tried to get up, but Gordon took off his belt, held it up, and said he would tie me up and force me to submit to anal sex if I resisted. I realized resistance was futile and started crying. Gordon removed his own pants, put on a condom, and had sexual intercourse with me. Throughout the act, I was crying and begging him to stop. After he was done, he lay on top of me for a few minutes, and said he was sorry. Then the door opened, and Michael entered the room. Michael pulled Gordon out of bed and started hitting him. Several fraternity brothers separated them. The police arrived a few minutes later. I told them I had been raped, and they arrested Gordon and took me to the hospital.

2. Testimony of Michael Holt

On April 26-27, 2003, I was a senior at Indiana University and lived in the Delta Chi house. My sister, Jennifer, visited for Little 500 Weekend. She was going to stay in my room. I had arranged a date for her with a fraternity brother , Gordon Gray. Gordon was one of the few members who did not have a date, because he had recently broken up with his girlfriend. Saturday night, we all went out to dinner, and then to a John Mellencamp concert. Jennifer and Gordon seemed to be having a good time. Sometime around 11:30, we returned to the Delta Chi house. A party was in full swing, with a band and several hundred people. Refreshments included a punch heavily spiked with Vodka. I think I told Jennifer the punch was spiked, but cannot be sure. Susan and I danced for awhile, and then went to her room. About 2:45 am, I went back to the Delta Chi house because I realized I had not given Jennifer a key to my room. When I got there, I couldn't find her. Several fraternity brothers told me they had seen her go upstairs with Gordon about an hour earlier. I went to Gordon's room and opened the door. Jennifer and Gordon were in bed. Jennifer was crying and started to scream. I pulled Gordon out of bed and started hitting him. Several fraternity brothers separated us, and the police arrived shortly thereafter. Jennifer was crying and saying she had been raped.

3. Testimony of other witnesses.

Two members of the Delta Chi Fraternity testified. They are friends of Michael and share a double room in the fraternity house. They both described the party Saturday night as "pretty wild," and corroborated that the punch was heavily spiked with Vodka. They remember seeing Jennifer at the party, but do not recall seeing her with Gordon after midnight. They were surprised, because they thought she was Gordon's date. They said that she was in the middle of the dance crowd most of the night (in an area they called a mosh pit). One remembered Jennifer asking where her brother was at about 1:30 am. Sometime around 2:00, Gordon came in and asked for condoms. One had some, and gave him a box. One asked Gordon if he was going to get lucky with Jennifer, and he replied, "One way or the other" and left. Some time later, they heard a commotion that included a woman screaming, but they do not remember the exact sequence of events. They ran down the hall and found Michael and Gordon fighting outside Gordon's room. Gordon had no pants on, and Jennifer was crying.

Two university police officers testified they responded to a call at 2:45 on the morning of April 27 at the Delta Chi fraternity house. They went to Gordon Gray's second floor bedroom where several students were holding the defendant. One took the defendant into custody, and the other transported Jennifer Holt to the hospital. The officers testified that the bedroom was disorderly. After proper warnings, Gordon told them he had sexual relations with Jennifer, but denied that it was rape.

4. Testimony of Dr. Lynn Hamilton

I was on duty in the Bloomington Hospital emergency room the night of April 26, 2003. Jennifer Holt was brought in by university police officers for an examination. She stated that she had been sexually assaulted. Examination revealed bruises on the upper thighs and slight tearing of the vaginal wall consistent with recent sexual assault but not dispositive. No sperm were present, but patient stated her attacker wore a condom. Patient blood-alcohol content measured at 0.14 percent by weight.

Defendant's case.

1. Testimony of Gordon Gray.

I am a senior at Indiana University. I am a member of Delta Chi fraternity. Last year, over Little 500 weekend, Michael Holt set me up with his sister, Jennifer. I was glad to have the company, having just broken up with my girlfriend. Michael and his date, and me and Jennifer had dinner and went to the John Mellencamp concert. We had a great time. After awhile, Jennifer and I started really flirting with each other. I could tell that she liked me. Then we went back to the Delta Chi house, where there was a great dance band. It was hot and crowded, and we danced for about 2 hours. Jennifer drank a lot of the spiked punch. I told her it was spiked, and offered to get her something non-alcoholic. She said no, that she had come here to really experience things and have a good time. She said this several times, and I realized she was hinting that she might like to have sex with me. She also was dancing in a very provocative way, and rubbing up against me.

At about 1:30 a.m., Jennifer said she wanted to go to her brother's room but didn't have a key. I offered to use mine to see if it would open his door, but it didn't. I said, "why don't we go to my room?" and she said okay. She said she wasn't feeling well, and needed to lie down for a few minutes. I sat on the edge of the bed and we talked for about a half hour. Then I kissed her, and she kissed me back. Then she said, "I know where this is leading. Before it goes too far, do you have condoms?" I ran out of the room, and went down the hall and got some from a fraternity brother. I returned to the room a few minutes later. Jennifer was still in bed. I started kissing her again. Then I started to undo her pants. She told me to stop, so I went back to just kissing her. She was definitely kissing back. A few minutes later I tried again. This time she did not refuse. I pulled off her pants and my own, put on a condom, and we had sexual intercourse. She never told me to stop. I guess I was just in too much of a hurry to wait until we got fully undressed. Afterwards, she started crying and saying we shouldn't have done it. Then the door opened, and Michael came in. He started hitting me. I was arrested. I did not rape her. Mike is a fraternity brother, and I would not rape his sister.

2. Testimony of three fraternity brothers

Three witnesses for Gordon told essentially the same story: They were members of Delta Chi. They were at the party April 15. It was crowded, dark and hot. They remembered seeing Gordon and Jennifer dancing together. Jennifer had her shirt partly unbuttoned and was dancing in a very provocative way. Gordon and Jennifer were rubbing up against each other on the dance floor.

3. Testimony of Diane Jackson

I am a junior at Indiana University. My boyfriend is a member of the Delta Chi fraternity. He and Gordon Gray are good friends, so I know him pretty well. I also know Mike Holt. I was at the Delta Chi party on Saturday night of Little 500 weekend. I am from Anderson, Indiana, and I thought I recognized Jennifer from high school, although I could not remember her name. Around one in the morning we met in the ladies' room, and I asked her if she was from Anderson. She said yes, and we talked for about 10 minutes. She was pretty drunk. She asked a lot of questions about Gordon, like whether he had a girlfriend and whether I knew if he had slept with lots of girls. She said she thought Gordon was a "real hunk."

4. Testimony of David Wagner.

I am a member of Delta Chi. My room is next door to Gordon's. The walls are pretty thin, so I can generally hear what is going on in his room. On the night of April 26, after the party, I went to bed about 1:45. It was still pretty noisy in the aftermath of the party, so I could not fall asleep. I was awake the whole time between 1:45 and 2:45. I could tell that Gordon had a woman in his room, because I could hear murmuring voices followed by periods of silence. I never heard the woman raise her voice, scream, or shout, and I never heard her crying, until the big commotion at the end when Michael and Gordon got into a fight.

Closing arguments.

1. The state emphasized that Jennifer was a credible witness with nothing to gain by lying. The forcible nature of the intercourse was corroborated by the doctor's testimony, and by the fact that others heard Jennifer crying. The defendant's intent was proved by his statement to his fraternity brothers that he was going to get lucky "one way or the other." The belt and the threat to use it constituted a weapon and makes this first degree rape.

2. The defense argued the presumption of innocence and burden of proof, emphasizing that you have to give the benefit of any reasonable doubt to the defense. He argued that the sex between Gordon and Jennifer was consensual and fueled by alcohol. Jennifer participated in the kissing and never said, "No." She could have stopped Gordon any time by telling him. Gordon's testimony was corroborated by the fact that Jennifer expressed romantic interest in Gordon, went to his room voluntarily, and remained there while he went searching for a condom. He suggested that Jennifer only started screaming and claiming rape after her brother discovered them.

3. The state in rebuttal argued that Gordon's denial does not automatically create a reasonable doubt; otherwise every rapist would have to be acquitted when it's his word against hers. The jury must apply its own common sense and experience and examine whose story is consistent with human behavior and whose is inconsistent. Jennifer's is consistent with the way people behave. If this were really consensual sex, they would have been completely nude. The fact that Jennifer was still wearing her shirt and bra, and the defendant still had his shirt on, makes it unbelievable that this was consensual.

Judge's instructions:
It is your duty as jurors to follow these instructions and to apply the rules of law to the facts as you find them from the evidence. The evidence which you are to consider in this case consists only of the testimony of the witnesses. Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence which you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.

A verdict may never be influenced by sympathy, prejudice or public opinion. Your decision should be the product of sincere judgment and sound discretion in accordance with these rules of law.

The defendant is presumed innocent until proven guilty. The state must prove his guilt of every element of an offense beyond a reasonable doubt.

Indiana law recognizes four degrees of sexual assault.

a) First degree rape (IC 35-42-4-1) occurs when a person knowingly or intentionally has sexual intercourse with a member of the opposite sex when the other person is compelled by using or threatening the use of deadly force, while armed with a weapon, or if it results in serious bodily injury to the person. It is an A felony.

b) Second degree rape (IC 35-42-4-2) occurs when a person knowingly or intentionally has sexual intercourse with a member of the opposite sex when the other person is compelled by using or threatening the use of non-deadly force, or by intentionally administering a drug or intoxicant. It is a B felony.

c) Aggravated sexual battery (IC 35-42-4-3) occurs when a person, with intent to arouse or satisfy the person's own sexual desires, touches another person in a sexual manner, when that person is compelled to submit to the touching by using or threatening the imminent use of force, or by intimidation. It is a C felony

d) Sexual battery (IC 35-42-4-4) occurs when a person, with intent to arouse or satisfy the person's own sexual desires, touches another person in a sexual manner without that person's consent. It is a D felony.

Thus, you may return any of five possible verdicts:

__ The defendant is guilty of first degree rape

__ The defendant is guilty of second degree rape

__ The defendant is guilty of aggravated degree sexual battery

__ The defendant is guilty of sexual battery

__ The defendant is not guilty

Your verdict must be unanimous.