THE ACCUSED
Jody Foster, 1988
(Sarah is sworn in.)
Judge: State your name.
Sarah: Sarah Tobias.
Judge: Please be seated.
Prosecution: Miss Tobias, on the night of the rape at the Mill--
Objection. These men are not on trial for rape.
Prosecution: Your Honor, it is imperative that the Jury understand what was happening to Miss Tobias before, during, and after the rape.
Judge: Miss Murphy, you may continue your line of questioning, but be brief.
Prosecution: Thank you, your Honor. Miss Tobias, can you please tell us what happened that night at the Mill?
A: Well, my boyfriend, my boyfriend and I had kind of a fight, so I got in my car, and I drove to see my girlfriend Sally at the Mill. I figured she'd be getting off work and we could talk.
Q: She works there?
A: Yeah, she's a waitress just like me. So anyway, she was on a break, we were sitting in this booth, talking. And this guy, Danny, sent over a couple of drinks. She knew him, so we took the drinks and he sat down, and we started talking. He was funny, you know, he had a line.
Q: So what happened next?
A: A bunch of guys went into the backroom to play pinball. So me and Danny went in, and we started playing with this guy, Bob. And after I finished my turn I went to go have a smoke, you know, smoke a little pot, and somebody put some money into the jukebox and this song I really liked came on the jukebox, so I started to dance, and then Danny comes up and he starts dancing with me, real real close, you know, tight close, and he kissed me.
Q: I'm sorry, Miss Tobias. Could you please speak up?
A: He kissed me.
Q: Did you try to stop him?
A: No, I let him kiss me, because I figured he was drunk and he was stoned and that he would kiss me and he would leave me alone. And then he put his hand up my shirt and he grabbed at my breast. I tried to push him away, but he kept pulling me closer, he put his hand on my throat. He's a really strong guy you know, and the next thing I knew--
Q: Please go on, Miss Tobias.
A: He was squeezing my throat with his hands, and he pushed me down on the pinball machine. And he ripped my shirt, he lifted my skirt, he pulled down my underpants really really hard. I wanted to move, you know, I wanted to move, but he was holding me down really hard, and he was jamming, he was kissing me very hard and he was jamming his hand up my crotch. I heard a bunch of people yelling, "Hold her down, hold her down," and then the big guy, Kurt, held my arms down, and I could hear them yelling and clapping and cheering, and then he put his hands over my mouth, over my face, and I shut my eyes. He was inside of me, and then--and then they switched. I could hear them saying, frat boy, frat boy, and then Bob was inside of me, and there was all this yelling and clapping and laughing, and then I heard 'em calling for Kurt, needledick, needledick, and then they switched again, and Kurt was inside of me, and they were yelling Kurt Kurt Kurt, and there was all this chanting, and…..
Q: Please continue, Miss Tobias, what did they chant?
A: Something, uh, "Poke that pussy."
Q: The room was full of people cheering this on?
A: Yeah, and I kicked him. I kicked him really hard and I ran out into the road and this guy picked me up and took me to the hospital.
Q: No further questions, your Honor.
Defense: Miss Tobias, my name is Ben Wainwright. Now, I know this isn't easy for you, so I'm going to ask you only a handful of questions. Now you have testified that all the men present were strangers to you and you've also testified that while you were on the pinball machine, that you mostly kept your eyes closed. Is that right? Your eyes were closed?
A: Yes, sometimes.
Q: Is it fair to say you can't tell us who applauded or who shouted? Is that fair?
A: I don't--
Q: Is it possible that only one person shouted?
A: No, there were different voices.
Q: So at least two then. Could it have been only two?
A: No, they overlapped.
Q: Miss Tobias, you testified that you were assaulted by three men, is that right?
A: Yes.
Q: Okay, is it possible, and I'm just saying possible, that the only ones who shouted were among your assaulters?
A: No, no, the voices were coming from further away.
Q: Okay. Miss Tobias, you had had several drinks, you had smoked marijuana, the TV was playing, the jukebox was playing, you were in a room full of noisy videogames and pinball machines, you had your eyes closed sometimes, and you were being assaulted. Now, given these conditions, can you truly say how many voices you heard and where those voices were coming from?
A: No.
Q: Is it fair to say then that you can't tell us who applauded or who shouted, is that fair?
A: Yes, that's fair.
Q: Miss Tobias, while you were on the pinball machine, did you at any time cry help or rape?
A: No, I tried, but they were covering my mouth, they were kssing me, and they had their hand all over my mouth. I kept saying no.
Q: No?
A: Right, no. No. I said no.
Q: Not "rape," or "help," or "police," but "no?"
A: Right, no.
Q: Did anybody hear you?
A: I don't know.
Q: Well, did you signal to anybody in the room? Say, a hand signal?
A: No, my hands were pinned down, right?
Q: Signal to anybody with your eyes?
A: No.
Q: Were you struggling?
A: Yes.
Q: Anybody see you struggling?
A: They must have.
Q: Miss Tobias, can you in any way prove to us that someone in that room saw you struggling or heard you say no?
A: No.
Q: No more questions.
Prosecution: Miss Tobias, while you were being gang-raped on that pinball machine, what were you thinking?
A: Thinking?
Q: Yes, what were you thinking? What words came into your head. Three men were repeatedly raping you, holding you down and raping you and their friends cheered….
(Defense attorneys all start to protest and yell.)
Q: And clapped and you lay there naked and defenseless, struggling, weeping, every part of you, what words came into your head? What words?
A: No.
Q: No further questions, your Honor.
Judge: The witness is excused.
……..
Prosecution: Your Honor, the people call Kenneth Joyce.
Bailiff: Kenneth Joyce.
(He is sworn in.)
Prosecution: Mr. Joyce, were you in the Mill the night of the events involving Sarah Tobias?
Joyce: Yes.
Prosecution: Would you please recount for us what happened?
A: Well it was late and me and my friend Bob had been to the game. And then afterwards he took me to this bar he sometimes went to, The Mill. We had been there for a while when this girl walked in, she looked real sexy. She was sitting at the table behind us, talking to her friend. This guy, Danny, he was sitting at the end of the bar, he saw her come in too and he sent the bartender over with some drinks. Then she got up and followed him into the game room and pretty soon they were playing pinball with Bob and getting really loaded.
……..
Q: Mr. Joyce, do you believe that Sarah Tobias instigated that rape?
A: No, I don't.
……..
Defense: Your Honor, my colleagues have agreed to a single summation.
Judge: No objection, your Honor.
Defense: Ladies and gentlemen, the State has charged these three men with a crime, and the State has supported that charge with the testimony of two witnesses: Sarah Tobias, who told you how three men raped her, and she told you how she heard other men shouting encouragement to her attackers. Did she name these other men? No. Did she describe these other men? No. Could she tell you what these other men shouted? No. Her sworn testimony, her poignant heart-rending sworn testimony, was an appeal to your pity. And if her story is true, you should pity her. But even if her story is true and you do pity her, that has nothing to do with this case, because those three men did not rape her. Her sworn testimony is nothing and you must treat it as nothing. Now, if you wish, you can also treat as nothing the testimony of her lover Larry, who told you what kind of woman she is. And you can treat as nothing the testimony of the bartender, Jesse, who told you she was so drunk she could barely stand. And you can treat as nothing the testimony of her friend who told you what Miss Tobias' intentions were when she first saw our clients. Our case does not depend on those witnesses, just as the People's case does not depend on Sarah Tobias. The People's case depends on Kenneth Joyce. If you believe him, you'll convict those three men. And if you don't, you'll acquit them. Do you believe him? Why did Kenneth Joyce testify? Every day for months, he said to himself, I'm guilty. I'm guilty. And finally he was offered a way to purge that guilt and he took it. Kenneth Joyce told you he watched a rape and told you that everyone else in that room watched a rape. How did he know that? Did he read their minds? To solicit a crime, you must first know that it was a crime. Well, who knew it? Kenneth Joyce. You think it matters to Kenneth Joyce who shouted? In his mind, every person in that room was guilty, he told you that and Kenneth Joyce, who is guilty, who did watch a rape and do nothing, will purge himself by bringing down anyone who was in that room. And of course, at no legal cost to himself, while those three men face prison. Do you believe him? Well, if you do, convict. And if you don't, and I know you don't, acquit.
Judge: Miss Murphy?
Prosecution: Ladies and gentlemen, Mr. Paulsen has told you that the testimony of Sarah Tobias is nothing. Sarah Tobias was raped, but that is nothing. She was cut and bruised and terrorized, but that is nothing. All of it happened in front of a howling crowd, and that is nothing, well it may be nothing to Mr. Paulsen, but it is not nothing to Sarah Tobias, and I don't believe that it's nothing to you. Next, Mr. Paulsen tried to convince you that Kenneth Joyce was the only person in that room who knew that Sarah Tobias was being raped. The only one. Now you watched Kenneth Joyce, how did he strike you? Did he seem especially sensitive? Especially observant? Did he seem so remarkable that you immediately said to yourselves, "Of course! This man would notice things other people wouldn't?" Do you believe that Kenneth Joyce saw something those three men didn't see? In all the time that Sarah Tobias was held down on that pinball machine, the others didn't know? Kenneth Joyce confessed to you that he watched a rape and did nothing. He told you that everyone in that bar behaved badly, and he's right. But no matter how immoral it may be, it is not the crime of criminal solicitation to walk away from a rape. It is not the crime of criminal solicitation to silently watch a rape, but it is the crime of criminal solicitation to induce or entreat or encourage or persuade another person to commit a rape, hold her down, stick it to her, make her moan, these three men did worse than nothing. They cheered, and they clapped, and they rooted the others on. They made sure that Sarah Tobias was raped, and raped, and raped. Now you tell me, is that nothing?