Internet Lawyers - Question for story
 

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Let me preface this by saying that I am not a criminal lawyer and what I know of criminal law was from studying to pass the (not Massachusettes) bar and from watching a criminal trial that was not about rape ... If anyone more qualified reads this, please feel free to jump in with better advice!

However, the whole double jeopardy thing is at issue when the lesser offense does not have any additional elements that are separate and distinct from the more serious offense. (Example, Offense 1 requires ABC, Offense 2 requires ABCD). This may or may not be the case with sexual assault and rape -- I just don't know.

The bigger issue is ... the story just isn't very plausible because a rape charge or sexual assault charge is defined that way not by the victim (victims aren't the ones who decide what charge to bring and whether to bring it). Rather, the victim would report the facts to the police ... and then the local prosecutor would decide whether the facts constitute an assault, a rape, etc. So victim-ignorance is never really an issue. If the prosecutor bungled and prosecuted a rape as a sexual assault for whatever reason, the victim's knowledge of the law relating to rape would still have no bearing (she can't go out and get a lawyer to change the charge or anything... she has to convince the prosecutor to change his/her mind).

I am not a criminal lawyer, I just play one with minimal adult supervision.

What skylark said is pretty much correct. :) I've clerked for two different prosecutor's offices (one juvenile division in a big city, one everything in a county seat) and generally what happens is something like this.

1) Virginia Victim calls up the cops and says "Steve Suspect just assaulted me!"
2) Cops come over, take a rape kit of Victim, interview her.
3) Cops write a big long report detailing everything they did, then generally say "we recommend charging Suspect with 2nd degree sexual assault."
4) Prosecutor reviews the police reports, decides how to charge the Suspect based on the evidence, and writes and files a formal complaint listing the charges against him.
5) Prosecutor and Defense Attorney fight about this for a while then either settle or have a trial.

In a case like this, he probably would have been tried for rape and sexual assault and the jury only found him guilty of sexual assault (since you said he was tried.) Otherwise, sometimes they'll cut a plea where if he please to sexual assault the prosecutor will drop the rape charges.

It's pretty much crazy talk - there was a case at Boston University somewhere around 2000-2001 that involved digital rape that presupposed some of the elements you're including (drugging, lack of surety of actual crimes, and even some consensual interaction) that may be illustrative of how it was handled by police/the state, you could probably search old Daily Free Presses (campus paper) and local press reports for a little more information, but I think the moral of the story is going to be similar to what our two lawyer-friends have told you. IIRC, the charges were not found credible after a LOT of inquiry, but that should give you an idea of how to proceed - it was somewhat high-profile for a little while.

In MA, the digital rape provisions are very clear and very strict, so it would be stunning if a report of being drugged and "touched" (yet not having clear recall) wouldn't include an investigation of digital penetration. Additionally, you might want to read up on rape exam methods a little more - I believe that there are some techniques to look for evidence of even digital penetration outside of the usual hair/DNA evidence (such as slight tearing or etc.).

I don't want to sound harsh, because while the scenario sounds kind of like an awkward Rex Morgan plot here, it likely makes much more sense in context - however, I think if you look up similar cases in MA, you'll find that digital rape is always on the table from the start.

As far as the likelihood of new charges, I'll let the real attorneys handle that - however, with only her "new recall" (how did this occur, by the way? What is the statute of limitations on sex crimes in MA? etc etc etc) you may want to consult with someone with law enforcement experience as to whether that would be enough to re-open . . . I get the feeling that it wouldn't be, unless you had a hotshot movie star lawyer willing to take the case for free and see it to its ultimate stunning conclusion in about 95 minutes' time.