2 Charges Dismissed at Rape Trial
North Haverhill — A judge has dismissed two of the seven felony charges against the former Dartmouth College student charged with raping a fellow student last spring.
After prosecutors had concluded their case on Tuesday, the defense team made a motion to have all the charges against Parker C. Gilbert thrown out.
Judge Peter Bornstein agreed to dismiss two, both having to do with the use of physical force in commission of the alleged assault.
Concerning one of the two counts that were dismissed, Bornstein said, “Although the jury could find that the defendant’s actions ... were offensive and perhaps misogynistic ... at least with respect to this indictment, the state has not proven that the defendant committed the criminal act.”
Prosecutors allege that Gilbert entered the accuser’s unlocked dorm room in the early morning hours of May 2 and began to sexually assault her while she slept.
The defense argues that the sex was consensual “clumsy, awkward, drunk college sex.”
At the outset of the trial, Gilbert faced seven separate charges of felonious sexual assault, all related to that one night. The charges broke down into a few categories.
∎ Three of the charges alleged that Gilbert used physical violence to force sex acts — involving vaginal, anal and oral penetration — during the course of the assault.
∎ Two of the counts allege that the woman indicated by speech or conduct that she did not freely consent to sex with Gilbert.
∎ The other two charges allege the woman was “physically helpless to resist” because she was sleeping when the assault began and that Gilbert used concealment or the element of surprise to force himself on the woman before she had an adequate chance to flee or resist.
Bornstein chose to dismiss two of the charges that alleged Gilbert overcame the woman through the “actual application of physical force, physical violence or superior physical strength.”
Bornstein acknowledged that the woman testified that Gilbert pinned her hands behind her and placed his hands or fingers in her mouth and her head was pushed back on the bed. But Bornstein said that the state has acknowledged those actions came after a portion of the alleged assault had already occurred.
The woman has testified that prior to being restrained, she said, “No, I’m tired. I want to go back to sleep” and “No, no don’t do that.”
While the woman might have been frightened or intimidated and expressed pain, Bornstein said, those circumstances are insufficient for the jury to find beyond a reasonable doubt that physical force was used.
Following Tuesday’s ruling, five counts of aggravated felonious sexual assault and a misdemeanor criminal trespassing charge remain standing against Gilbert.
Tuesday was the seventh day of the trial, and the prosecution rested, allowing the defense to call four witnesses, including two Dartmouth students, a retired FBI investigator and a sexual assault nurse examiner.
Charla Jamerson, of Fayetteville, Ark., was called by the defense to analyze the medical exam that was done by sexual assault nurse examiner Elizabeth B. Morse at Dartmouth-Hitchcock Medical Center.
Morse testified on Monday and used photographs to point out numerous bruises and lacerations on the accuser’s body.
Defense attorney Robert Cary asked Jamerson if she saw any injury to the woman’s mouth.
Jamerson said no.
The accuser testified last week that Gilbert had put his fingers in her mouth.
“If the fingers had went into the mouth with pressure, I would expect to see some injury to the tongue or the gum,” Jamerson said.
Cary showed Jamerson and the jury numerous photographs of markings the accuser’s body and asked Jamerson to evaluate them. Jamerson said she saw no bruising, no lacerations and no swelling, only redness.
On Monday, Morse had pointed out bruises and lacerations to the jury. Jamerson, however, said she did not think the markings were consistent with bruises, but instead “skin discoloration.” She did notice areas on the body that had redness, but in some areas on the woman’s body, Jamerson said, the redness could be from a variety of things, including acne that has been scratched and reddened.
When Grafton County Attorney Lara Saffo began cross-examination, she asked Jamerson what type of file she was given by the defense.
Jamerson said that she was given the accuser’s medical record in this case, not the criminal case file.
Saffo questioned Jamerson’s analysis of the accuser’s mouth.
Saffo said that the photo Jamerson analyzed of the accuser’s mouth was meant to be an identifying picture, not as an image purporting to show injuries.
Jamerson said she had not seen any photos of the inside of the accuser’s mouth.
On Monday, Morse also testified that she didn’t notice any injuries to the accuser’s mouth.
“Is it also fair to say that the absence of injuries doesn’t prove lack of force,” Saffo said.
“Correct,” Jamerson said.
“And lack of injuries doesn’t prove consent?” Saffo said.
Jamerson is being compensated $150 an hour for her expertise.
The defense also questioned Bruce Koenig, a forensic examiner specializing in audio, video and still images.
Koenig has worked for the FBI and part of his job was to analyze sound. He was hired by the defense team to conduct an audio analysis of the room where the alleged assault occurred.
Koenig explained that he collected voice samples, including the accuser’s voice during an interview with police. He also gathered recordings of whispered speech from a database at the University of Illinois.
The analysis wasn’t done in the accuser’s dorm room, but in a room in Thomas Hall, which is part of the same cluster of dorms as Berry Hall, where the accuser live. Koenig placed a speaker in one room and a microphone that was attached to a digital recorder in another room.
He said during the test, when the speech volume was loud, it was very clear; at normal volume it was mostly understandable, although some of the words could not be determined; and the quietest speech tested was difficult to understand.
“This basically shows that all of the samples by the speech of that we used and the whispering were audible,” Koenig said. “You heard speech, but you couldn’t in every case understand it. Except for the quiet speech, it had reasonable intelligibility in the second room.”
Gianna Guarino, a junior at Dartmouth, was Gilbert’s undergraduate student adviser on his dorm floor.
Defense attorney Cathy Green asked Guarino if she remembered seeing the accuser dancing with Gilbert at a sorority party in February 2013.
Guarino said she did see the accuser come up to Gilbert and dance aggressively with him.
“Was it unusual to see women at Dartmouth dancing in that matter?” Green said.
“No,” Guarino said.
Last week during the trial, Green had asked the accuser if she remembered going to the same party in February 2013 and if she remembered seeing Gilbert and if she recalled dancing with him by pressing her body up against him simulating sex.
The accuser testified she didn’t remember seeing Gilbert at the party and she didn’t remember dancing with him.
The trial will resume on Wednesday at 9 a.m. in Grafton Superior Court in North Haverhill.
Sarah Brubeck can be reached at email@example.com or 603-727-3223.