EX-VANDERBILT UNIVERSITY FOOTBALL PLAYERS, BRANDON VANDENBURG AND CORY BATEY ON TRIAL FOR ALLEGEDLY RAPING AN UNCONSCIOUS NEUROSCIENCE STUDENT

Of the four men charged with raping a female neuroscience student while she was unconscious at a dorm at Vanderbilt University in June of 2013, two are in the midst of a trial; Brandon Vandenburg and Cory Batey are charged with five counts of aggravated rape and two counts of aggravated sexual battery. The other two men charged, Brandon Banks and Jaborian “Tip” McKenzie, are expected to testify on behalf of the state; it is not known what they expect to receive, regarding leniency, (if any) from the state in exchange for their testimony. Prosecutors have presented a video that graphically depicts Vandenburg carrying the victim from a car into the dorm building and through one hallway. Incriminating remarks and gestures are made. The prosecutors have characterized the event as a night of partying, drinking, and later, the alleged rape. In opening remarks, the lead prosecutor, Tom Thurman, said about the defendants, “They not only violated the laws of this state but the very principles of human decency.” Defense attorneys are expected to shift the jury’s attention to the physical evidence, particularly the lack of DNA evidence linking the defendants to actual acts of penetration, one of the elements of the charges. Moreover, although voluntary intoxication is not a defense in this type of rape case, they likely will suggest that all of the youthful “participants” were engaged in a night of drinking and carelessness; in this sense, although the voluntary use of alcohol cannot be used to negate “sexual” intent (rape is a general intent crime), it can help to explain the totality of the circumstances in a general sense. All of the defendants are presumed to be not guilty.

COMMENT: First-degree aggravated rape in Tennessee requires penetration of the victim by the defendant or the defendant by the victim (e.g., you can’t force a person to give you oral sex, etc.), and usually some degree of force, injury, or coercion; the act can also be accomplished where the victim is too young to consent or mentally incapable of providing lawful consent. Frequently, the defendant must be aware of the mental deficiencies to be found culpable because it may not be so clear in some circumstances. In this case, the state will likely argue that the “victim” (Lawyers will often object to labeling the complaining party as a “victim” because they feel this hasn’t been proven yet) was blacked-out from alcohol use and therefore not capable of providing consent. They will use the video and the co-defendants’ testimony to establish the other necessary elements of the offense.

UPDATE 1: Brandon Vandenburg and Cory Batey were each convicted of 4 counts of aggravated rape, two counts of aggravated battery, and one count of attempted aggravated battery; Vandenburg was also convicted of tampering with a witness and another related count. The jury took about 3 hours to reach a verdict in the case. Both men were taken into custody. Sentencing is scheduled for March 6th.

UPDATE 2: Vandenburg loses appeal- will serve a 17-year sentence. The appeals court also rejected challenges from Batey and Banks last year.

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