When allegations first surfaced that several Stuebenville High School football players had been involved in the rape of a young woman from a neighboring town, Steubenville High School volunteer football coach Nate Hubbard suggested the victim was making the whole story up to avoid punishment for getting drunk and missing curfew. On the eve of the trial of two of the football players charged in the attack, that’s essentially the same argument the lawyer for one of the young men is making. 

In some ways, arguing the victim consented is the only defense available. Attorney Walter Madison, who represents one of the young men charged in the rape, laid out his defense strategy to the Cleveland Plain Dealer. Madison argued that there is an “abundance” of evidence showing the victim voluntarily drank a lot of alcohol and willingly drove off in a car with a group of boys, including the two football players charged. That evidence, Madison claims, points to consent to whatever happened next. “There’s an abundance of evidence here that she was making decisions, cognitive choices,” Madison told the Plain Dealer. “She didn’t affirmatively say no,” Madison continued, taking a swipe at the victim, who is reportedly not testifying at the trial. “The person who is the accuser here is silent just as she was that night, and that’s because there was consent.”

She didn’t affirmatively say no, therefore, the defense implies, she must have said yes. And if she didn’t consent, they suggest, then why isn’t she testifying?

It’s a routine strategy employed by criminal defense attorneys in defending clients against rape charges: undermine the prosecution’s case by discrediting the accuser. Cast enough doubt on the accuser, shame her sufficiently for engaging in the sex act to begin with, and the issue of consent becomes muddied, even if the case involves a girl being carried around by her wrists and ankles by a self-proclaimed “rape crew.”

Had Madison’s statements been made in the courtroom, at some point prosecutors or the judge would presumably remind Madison of the obvious, legal truth: Under the law, a victim doesn’t have to resist or say the word “no” for a rape to occur. And presumably prosecutors or the judge would also remind Madison that, under the law, a person under the influence of drugs or alcohol, voluntarily or involuntarily, is not at fault for being sexually assaulted. What does matter, as far as the law is concerned, is whether her ability to consent was “substantially impaired” and whether the young men knew it. 

This issue of “substantial impairment” is what Madison was arguing before the press, and what he will be arguing in trial. Normally attorneys preview arguments to the press to help sway public opinion and press their opposition toward resolution. But here? The two young men charged are being tried in juvenile court, which means no jurors to educate or sway. Instead, attorneys will make their case to Judge Tom Lipps, a juvenile court veteran with decades of experience dealing with teenagers and who took the case over after a prior judge with ties to the community and the football program was recused. 

Madison will make that argument in the face of a mountain of evidence, taken mostly from social media from the time of the attack, that shows the victim passed out and at times in various stages of undress. Madison will make that argument, despite the fact that witnesses to the crime, who have not yet been charged, told police that while the victim wasn’t “passed out,” she also “wasn’t there to say yes or no,” slipping in and out of consciousness, at times completely unresponsive when the boys touched and probed her. And Madison will make this argument in the face of a now-infamous 12-minute window, which several other teenage boys talk about her being raped.

Which brings us back to the question: Why preview the defense arguments to the press? Blatant victim-blaming is a risky strategy in any rape case, let alone one that has drawn national attention and protests in support of the victim. Here, it looks to be the only defense Madison has got.

And that, right there, is the problem. Victim-blaming and shaming remain the principal defense against a rape claim in both a court of law and the court of public opinion. Madison’s arguments to the press may do little to change the outcome of the legal case pending before his clients, but they went a long way toward guaranteeing that another tragic crime like the one in Steubenville will happen again.