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Originally Posted by Jen
Well, my big issue comes because the victim is drugged, so she doesn't really recall some of what happened until much later. She tells the police what she knows, but it's not everything that actually happened.
They find no evidence of rape when they do a rape kit. So it's just her word initially that he touched her sexually, but she doesn't remember actually being violated sexually until much later.
Even then she doesn't think it's worth telling, because she assumes it's not rape, since there was no penis involved and he's already in jail for assaulting her, this is just more of that assault, so she thinks. Then a year or more later, she discovers maybe (this is where the question comes in) it would have made a difference if she'd said something?
Does that make sense or am I talking crazy talk? =)
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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.
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.
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