Police Blotter: MySpace profile becomes part of rape conviction

A correction was made to this story. Read below for details.

Police Blotter is a weekly CNET News.com report on the intersection of technology and the law.

What: Ohio man charged with statutory rape says he thought a 13-year-old girl was actually 18. He notes that her MySpace.com page falsely said she was.

When: Ohio Court of Appeals, Ninth District, rules on August 13.

Outcome: Court says the MySpace page was correctly excluded as evidence and upholds his conviction.

What happened, according to court records and other documents:
On June 21, 2005, two young teenage girls decided to spend the night at the home of Billy L. Gaskins, a Brunswick, Ohio, man who lived in the same apartment complex.

Gaskins was friendly with the family of one of the girls, referred to in court documents by the abbreviation KR, who was 14 years old at the time. KR's parents gave their permission for the two girls and their son to sleep over.

The girls, KR and CM, and KR's brother, JW, who was 9 or 10 years old, went over to Gaskins' apartment around midnight. The girls voluntarily entered Gaskins' bedroom soon afterward, either while he was taking a shower or when he was done. CM was 13 years old and is not related to KR.

That much is undisputed. The stories diverge over what happened next.

The girls say Gaskins was drinking beer and smoking marijuana, and began to massage their backs. CM says he undressed her and raped her. KR backs up her story.

The girls returned to the apartment of KR's family soon afterward but didn't say anything at the time. KR told her mother that she had a headache, and the two girls went to bed. They saw Gaskins in a nearby pool a day or two afterward but didn't speak to him.

Gaskins was arrested after the girls reported the incident a few days later, and a police test showed semen in CM's pajama pants that turned out to be Gaskins'.

For his part, Gaskins denied the charges. He said CM told him that her birth date was August 18, 1987, making her 18 years old at the time (though he later testified that she had told him that her birth date was June 19, 1987). He also testified that CM looked older than KR, who also had claimed to be 18, and that CM had initiated manual foreplay. He said that explains the semen and claims that no intercourse took place.

CM denied that she ever told Gaskins that she was 18 years old.

Gaskins was indicted on July 7, 2005, and charged with rape and unlawful sexual conduct with CM, and unlawful sexual conduct with KR. He was acquitted of the KR charge but convicted of the CM charges and sentenced to 5 years in prison. (Note that this is a shorter prison sentence than some people have received for merely downloading child pornography.)

What makes this case relevant to Police Blotter is that Gaskins insists that he believed CM was 18 years old. He wanted to show the jury CM's public MySpace profile, which claimed that she was 18 and said she had been in a sexual relationship with an adult.

The trial judge refused to admit the MySpace profile as evidence, and the appeals court agreed. On Monday, the Ohio Court of Appeals, Ninth District, upheld Gaskins' conviction and sentence.

Excerpt from Ohio Court of Appeals' opinion:
Appellant contends that the trial court abused its discretion by excluding evidence that CM held herself out as an 18-year-old on a Web site. We disagree.

It is well-established in Ohio that "the admission or exclusion of relevant evidence rests within the sound discretion of the trial court." An appellate court will not disturb a trial court's ruling as to the admissibility of evidence, absent an abuse of discretion and a showing of material prejudice by the opposing party.

At trial, appellant sought to introduce evidence that CM held herself out as an 18-year-old on the Web site MySpace and further that she held herself out as having been in a sexual relationship with an adult. The record reflects the following exchange regarding this evidence:

Appellant's counsel: "I would have liked to question (CM) with respect to (MySpace.com), eliciting testimony about (CM) having a site on (MySpace.com), that she held herself out as being significantly older than she is, perhaps 18 or older, and she would have held herself out as having been in a sexual relationship with someone who is an adult.

"I would offer that, and would like it admitted in order to show that (CM) was holding herself out to the world, including my client, as someone older than she is."

Court: "But you have no evidence he saw this?"

Appellant's counsel: "That is correct."

Court: "You don't know if it was done before the date of the assault?"

Appellant's counsel: "That is correct, Your Honor."

The trial court later reiterated its position on this evidence, stating, "The problem is not what she looked like in February (2006) or October. The problem is what she looked like on June 23rd. That is the relevance, that is the relevant thing. In other words, the state of Ohio is arguing that he was reckless, that either he knew the age of the victims, the alleged victims, or he was reckless with regard to their age. So therefore, what becomes relevant is how they looked around June 23rd, not how they looked in October, not how they looked in February, not how they looked in December, but how they looked around June of 2005."

Here, the trial court permitted introduction of the photographs that were posted on the MySpace Web site. Further, the trial court permitted Appellant's friend, Ms. Harris, to testify regarding the photographs and whether they accurately depicted what CM looked like at the end of June 2005. The court merely prohibited questioning regarding the Web site. Appellant's counsel agreed that he had no proof that appellant ever saw the Web site.

More importantly, neither party disputed that this Web site was created after the incident in question. Whether CM represented herself as 18 years old after the incident occurred is not relevant. This case centers around appellant's belief regarding CM's age at the time of the incident. Accordingly, we find no abuse of discretion in the trial court's exclusion of this evidence.

 

Correction: This story mischaracterized the relationship between CM and KR, as well as KR's alleged involvement in the June 21, 2005, events.

[SeizeCTRL]

WTF PARENTS???

Where's the parental responsibility at here? If any one should be going to jail, it's the parents for letting their teenage daughters and pre-teen son spend the night at some guy's house in their apartment complex.

Now I am not defending this guy, because rape is just flat out wrong... but the myspace page does sound like it would be relevant in this case. If these girls are going around posing as 18 on the internet, dressing all ****** and crap like a lot of teeny booper girls do on myspace... then how is one to know their true age? I've seen some girls who I would have swore was 19 or 20 and amazed that they were 14 or 15... it's crazy now. I don't remember girls looking like that when I was 16.

I would love to know how well the parents knew this guy... also, how old was Gaskins at the time? Article doesn't say.

Seriously *** were the parents thinking letting their kids sleep over?

[frootbat31]

eh?

What I don't get is how these kids ended up sleeping over at this guy's house, supposedly because he 'knew the family', and he wasn't told their ages? This indicates they were not close, and yet the parents said it was okay to let them stay overnight?! What is wrong with them?

[enigma.live]

Protect the Children

We need to protect the children, because they are always innocent, no matter how ******, conniving, lying, thieving, manipulating and should I go on, that they are.

Teen girls looking and acting ****** and like ******, well we need to just protect them and throw any man above the age of 18 in jail for the rest of their lives if they glance at them out of the corner of their eye.

[drhamad]

Sigh

While this guy probably knew they were under 18, since he supposedly knew the family somewhat, I can imagine many cases where how old a girl holds herself out to be to be exceedingly relevant. When people are young, they often lie about their ages to seem older (and conversely of course, when people are old they often lie and say they are younger). With our increasing reliance on online information, including from places such as MySpace, this becomes of supreme interest. The only reason I understand this courts ruling is because the defendant/appellate's lawyer could not even pretend to show that he'd actually seen that site. Even then though, I could imagine it coming in as some sort of evidence showing that the girl often held herself out to be older than she was.

Still, 13 to 18 is a fairly extreme difference.

All this being said, here's my problem with this conviction: the core argument seems to be that he raped her. In that case, why not convict for RAPE? In this case, statutory rape seems to be a cop out, exactly because they cannot prove rape. The argument goes something like "well, we want to get this guy... we have little to no evidence of rape, but statutory rape is a fairly low bar, so let's go that route."

I understand the point of the Statutory Rape laws - protect the children/etc. But the idea is that children don't know enough to make a real decision, and/or feel pressured by adults. But this girl seems to have been holding herself out as an adult (even if not to this guy), and claiming knowledge of sex/sexual matters, etc. I just don't buy the statutory rape claim here. Convict on Rape or nothing.

[Sparky650]

This Is Umm Similar

Back in the 1990's when I was a teen I also had a friend named April. At the age of 13 she also filled out into what looked like a 18 year old woman. She also presented herself off as being 19 and seriously she looked older than that.
At the age of 14/15 she was using fake ID's to get into bars and she did pick up lots of college age guys for sex which she did for several years. Consider how many statutory cases she could've pulled out of the hat in two years since she did this every weekend.
Her mom finally caught her in the act when a guy in his late 20's came by to take her out to a local theme park and he looked older than the age her daughter claimed. She told her mom the guy was 17 but he looked late 20's and he was.

The thing is that just as April this girl might be be able to pull this age manipulation off if she wanted to and if she's claiming to be 18 in one place more than likely she is doing so everywhere.

[NoVista]

Childhood?

It wouldn't surprise me if the parents had 'matured' the girl in those sub-teen beauty pageants. Seen some of this freaky stuff on TV: jewellry, heavy makeup, adult style clothing, etc.

Maybe society, religion, and civilisation have developed a somewhat skewed perception of 'childhood'. A sort of cognitive dissonance that ignores the biological imperative of puberty -- which apparently is happening younger in recent years.

My late wife told me she hit puberty early and was fully developed by the age of 12. Of course, she was a Scorpio ...

People's perception has changed through the ages. Like, 17th century paintings depict children as 'little adults'. As I understand it, the bar-mitzvah traditionally assumes the boy becomes 'a man' at age 13?

I'm sure farm kids in the 19th cetnruy knew alllll about the birds and the bees. And everyone turned a blind eye to youthful experiments as long as there were no unintended consequences.

And now, we tend to prolong 'childhood' and coming of age. Once upon a time in America, 'coming of age' was deemed 21. Adult responsibility.

Now, it's 18. You can vote, you can go to war but you don't have the judgment to drink a beer before 21? How weird is that?

I find it curious the girl waited several days before saying, "Omigawd, I've been raped" but I surmise that the trial judge took that into account. As well, one wonders if this was a jury trial or the bloke copped a plea bargain, thus the sentence.

And the closing correction?! One could read into that, a lot of lying going on, a bloke with diminished responsibility due to alcohol and weed, and irresponsibility of the parents. Or worse.

[dmm]

Drunk and stoned?

What kind of man gets drunk and stoned when he is given responsibility for three minors?

And what were the parents doing? Presumably getting drunk and stoned themselves. What else can explain allowing these kids (one of whom wasn't even theirs!) to spend the night at the apartment of a man who didn't know them well enough even to know the girl's age? Not to mention: where had those parents been for the last 13 years? My 6-year-old knows better than to hang around a man coming out of the shower!

Throw the rapist and the parents all into one cell for a few years. But first, snip everyone's tubes. These people ought not to breed.

[Maelstorm]

Just goes to show you....

From what I understand, sexual assault against children is usually perpetrated by people they know. Just make sure that you know someone before you trust your kids with them. But, not even this helps.

[Hoser McMoose]

Kind of scary for guys

This sort of thing seems a little bit scary. I'm not really worried for myself, because at 29 I have little interest in most 18 year old girls, let alone younger ones pretending to be 18. Also, if CM's story from this article is accurate then it seems like there was more than a simple case of not knowing ages.

However I'm not so old as to have forgotten what it was like when I was 18. If a 13 year old girl had told me she was 16 and she LOOKED 16 (which, honestly speaking, some do) and I had the opportunity to get some action with her, I wouldn't have been stopping her to check for ID or anything! Besides, half the girls I knew in high school had fake IDs anyway! To think that after such a relationship went sour (as most high-school relationships do at some point in time) the girl could have then come back and had me arrested and thrown in jail because she lied about her age? Kinda scary!

[s.maglothin]

Obvious difference between 13 and 18

I don't care what a person's MySpace profile says. People can put whatever they want on their profiles; MySpace is supposed to be used for recreational purposes, and should not be viable as evidence in any case. Secondly, anyone in a non-vegetative state will determine just from looking at a 13-year-old that they are too young to engage in sexual activity, no matter what her physical dimensions are.

[n3td3v]

CNET

did cnet run this because they thought the guy would of got off if the myspace profile evidence had been used?

just because a couple of kids fake their myspace details doesn't mean they should be raped by some drunk/stoned adult.

the myspace stance was just a technical argument to try and get the guy off the charges or get his conviction reduced.

any responsible adult can tell by looking at the folks their true age.

a 13 year old doesn't look like an 18 year old, no matter how much make up and short skirts they put on.

i think the myspace evidence wasn't used because it wasn't relivent under the circumstances, text on a screen on a myspace profile cannot replace the reality of real life.

it was obvious these people were underage, and it was obvious he was drunk and stoned, leading to the rape, not that the 13 year old decided to change her myspace profile, which is a perfectly normal thing for a girl of that age to do.

[boopiejones]

this is lame

say you meet a girl at a bar and end up having consentual sex with her. turns out the girl is only 17, but got into the bar using a fake ID. that is rape???

if someone represents themselves to be older than they really are, there should be no "rape."