Too much here to respond to individually. Instead, here is a long and tedious legal post that I would recommend skipping or blocking if you are bored to death with this stuff by now.
(1) All that has been filed is a felony complaint. The purpose of the felony complaint is to commence the case. It basically functions as notice to the defendant and a summons to appear in court. It also serves as grounds to set bail or hold someone in jail. But that part of it is not relevant here because the court did not deem TSJ a flight risk and did not set bail. There is not a high standard of proof to sustain a felony complaint. Basically all you need are sworn allegations. The felony complaint also does not necessary reflect the charges that will later be brought. The charges may be more serious or less serious. That depends on what the prosecution can establish in the grand jury.
(2) The nature of what this case actually involves in terms of the factual allegations will likely only become clear after it is presented to the grand jury. (As I said in an earlier post, the police or DA could have issued a press release that provided some explanation of what crime they believe occurred but they opted not to do that, which is a judgment call I find highly questionable and unprofessional, but in any event, that’s what they did.) Grand jury proceedings are always secret. But if they vote to induct, the charges in the indictment (which is not secret) will be an indication of what actual crime or crimes are being alleged. That’s the roadmap going forward. Also, the grand jury will typically be instructed to charge every crime that is supported by the evidence, including any less serious charges. That is done for procedural reasons and generally it is not significant in and of itself. If you ever look at an indictment for a murder case, there will typically also be numerous weapons possession counts tagged on too. It doesn’t mean the prosecution thinks they can’t prove murder or want to plead the case out with a weapons charge. The indictment is meant to be inclusive of everything. Every defendant has a constitutional right to be charged by a grand jury indictment for all felony counts. A person cannot be convicted of a crime at trial that was not charged in the indictment (unless the charge is by definition a lesser-included offense).
(3) People love to point out how easy it is to get a grand jury to return an indictment. That’s sort of true, but it’s more nuanced than that. The standard of proof is not high—all that needs to be shown in probable cause. And the evidence isn’t challenged. There is no defense attorney present to object or cross examine witnesses. There is no judge present. It is 100% the prosecutor’s show. It is not, in other words, like a mini trial. The purpose to demonstrate to the satisfaction of the grand jurors that evidence exists that, if true, would establish every element of the crime being charged. This is sometimes referred to as the legal sufficiency or prima facie case requirement. But there is a check on prosecutorial excesses. The defendant can file a motion for the court to review the grand jury transcript and dismiss any counts that were not adequately supported by evidence.
(4) The significance of the grand jury in this instance is that the Kansas prosecutor must produce evidence that, if true (meaning, if we assume all the witnesses are telling the truth and all the evidence is valid) would establish a forcible rape as defined by statue and cases interpreting it. This is the reason I am still highly dubious regarding this “misrepresentation as rape” theory that is floating around. Misrepresentation is not force and it is not fear. It just isn’t. Unless there is case law in Kansas that says it is. Which I very highly doubt, because that would be far out of line with the legal definition of forcible rape in every other jurisdiction that I am familiar with. That interpretation would also contradict the plain language of the statute. I don’t have a lot of confidence in this Kansas DA based on how they have proceeded so far, but nevertheless, I’d would be absolutely shocked if they are not holding in their hand a sworn deposition from the accuser in this case that says, in sum and substance, “I did not consent to the sexual contact but the accused engaged in that sexual contact by force despite my objections.” Whether that claim is credible or that 12 jurors would believe it is a different question to be resolved much later at trial. But if the accuser claims it, then it can be charged. Then you put it to the grand jury.
(5) I keep seeing references here to the prosecution’s “misrepresentation as rape” theory. There is nothing to suggest the misrepresentation version originated with the prosecution or police. In fact logic would tell us it’s the opposite, that the “misrepresentation” theory sounds much more like a defense (which could be true or not, we don’t know) that somebody close to TSJ has put out there and that the internetverse then picked up and ran with. I would be absolutely flabbergasted if it turned out that “misrepresentation” was the theory of criminality that the police and DA are operating under. Especially the police—they are going to expect the victim to tell them she said stop and the alleged perpetrator kept going anyway and overcame the victim’s attempts to resist. That’s the common thread in every forcible rape case. For some reason, this one is different? Why?
(5) In any event, likely none of these legal questions will be resolved in the short term. Unless the Kansas DA does a sudden about face and drops the charges. But I haven’t seen or heard anything to would give us any reason to expect that. The felony complaint is something that gets filed at the end of their deliberative process, not the beginning. Absent some reason to think otherwise, it must be presumed the Kansas DA is ready to go forward with whatever they have.
