August 16, 2007 4:41 AM PDT

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.

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23 comments

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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?
Posted by SeizeCTRL (1333 comments )
Reply Link Flag
So they can file a civil suit
against the guy. That is how they tried to get Michael Jackson, let their kids sleep over with him and then turned around and sued him in a civil court.

The parents are at fault, I'd never let my kids sleep over at an adult's house like that.
Posted by Troll Hard (182 comments )
Link Flag
timing is everything
In the article, its not very clear, but it does say that the myspace page was created AFTER the incident. This is the key point in the courtroom. If the myspace page was created after the incident then it can't have any bearing on the defendents knowledge or beliefs at the time of the incident. Therefore its not allowed in court.

I agree the parents should be held accountable as well. The problem is its not always a crime to have bad judgement as a parent. I think what the court is punishing this guy for is the being wreckless part. Basically he didn't make the effort to confirm the age before any action took place.

By the way, I saw a waitress a few weeks ago who looked 14 to me, she said she was 22. I can't tell anymore. 14 to 25 - I can't tell the differences anymore. But that's not an excuse to play dumb and get some out of bounds nookie.

The myspace try got him some press, but it sounds to me like his lawyer got tired of arguing with his client about submitting it and so did it anyway.
Posted by baike (39 comments )
Link Flag
Parents Still haven't Learned Much
Wonder if they have looked up their little girls profile/page/blog on My Space since she now is bragging about having an adult relationship and is perfectly legal for more of the above.

Parents need to get back into the game and pay attention to what their kids are doing for God's Sake.
Posted by tketcher (26 comments )
Link Flag
Parents should share the blame
I'm not excusing this guy's crime either but, *** pretty much sums up my initial reaction. As parents, we have a responsibility to keep our children out of harm's way. That isn't always possible because sometimes things can happen which aren't preventable. However, this crime was preventable. The parents used horribly flawed judgement which resulted in their daughter being violated in a way she may never forget.
Posted by TennMom1 (42 comments )
Link Flag
Re: Parents???
I'd have to agree with you that I'm in shock that the parents would let their children spend the night at this mans house to begin with.

I mean it might seem a bit less shocking if he had a daughter they went to school with, or were friends with, but even then I doubt I'd have allowed it if they were my children.

Charles R. Whealton
Charles Whealton @ pleasedontspam.com
Posted by chuck_whealton (521 comments )
Link Flag
rape
When it comes to rape, believe this or not, more than half the time, its someone they already knew and not a total stranger.

I have a friend that has a daughter that's 11 and one fine day while I was cleaning out her machine of spyware, I ran into some pictures her daughter took of herself and her cousin and OMG! I immediately told my friend, "These pictures are not the kinds of pictures an 11 year old should be taking of herself!" You can only guess where her daughter was uploading those pictures to...myspace.
Posted by thedreaming (573 comments )
Link Flag
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?
Posted by frootbat31 (1 comment )
Reply Link Flag
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.
Posted by enigma.live (48 comments )
Reply Link Flag
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.
Posted by drhamad (117 comments )
Reply Link Flag
statutory
from the evidence presented, that's what it is.
there is no evidence presented that force, compulsion, coercion, etc was used.
there is evidence on a lack of ability to make an informed consent. the evidence is the date of birth of the victim.
:"Still, 13 to 18 is a fairly extreme difference."
my question is...what difference? o. the ability to be fully informed of the cisnequence of the decision to have the encounter. it is assumed that people under age x cannot have that ability, and that people at age x have that ability uless it is interfered with by mental defect, such as may be produced by intoxication or health.
this is a cnet story for one reason: the game by the defene counsel to introduce doubt into he juror's minds about how the victim presented herself to the defendant, hoping to have sowhere to go on appeal.
:"But this girl seems to have been holding herself out as an adult"
and that's actually an example of lack of information.
lots of people here work under bosses who hold themselves out as competent to make decisions...how often is that true?
Posted by bridge solution (42 comments )
Link Flag
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.
Posted by Sparky650 (50 comments )
Reply Link Flag
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.
Posted by NoVista (274 comments )
Reply Link Flag
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.
Posted by dmm (336 comments )
Reply Link Flag
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.
Posted by Maelstorm (130 comments )
Reply Link Flag
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!
Posted by Hoser McMoose (182 comments )
Reply Link Flag
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.
Posted by s.maglothin (1 comment )
Reply Link Flag
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."
Posted by boopiejones (81 comments )
Reply Link Flag
 

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