The date-rape ‘doctor’ they could not convict

Only 19 percent of rapes reported
Think most women would behave differently — that in the same situation, they would jump up and call 911? Think again. According to government estimates, a mere 19 percent of rapes, including stranger rapes, are ever reported in the first place. As Valliere notes, women who have been sexually assaulted find so many reasons not to call police, including denial, shame or their hazy grasp of the facts due to drugs or alcohol. Many survivors assume they won’t be believed. Still others, such as Marie and Leigh, are mortified into silence by what they see as their complicity in their own attacks. “I brought myself to this situation,” Leigh explains, voice surging with emotion. “And I had done it not once, but twice. Who in the world’s gonna believe that?”

Leigh never called the police. Instead, she did her best to move on. She forced herself to date again on Match.com — “I didn’t want to be afraid,” she says — where she soon met a man and fell in love. In September 2006, Leigh had been engaged for three days when she got a call from an FBI agent. “He said in a voice mail that it’s about a man I dated from Match,” she recalls. “And I knew, immediately.” Leigh met with the agent in his Philadelphia office and poured out the story she’d been holding back for so long. It was only then that Leigh learned who Jeffrey Marsalis really was and why investigators were so keen on speaking with her.

The agent told Leigh that Marsalis had recently been tried for the rapes of three other women. The first accuser had called the police in March 2005 — roughly two weeks after Leigh’s attack. She was a 25-year-old pharmacist, a religious woman who had been saving her virginity for marriage until, she would testify, she had blacked out during a date with Marsalis and had awoken underneath him. In a surprising turn of events, when police showed up at Marsalis’s apartment with a search warrant, the building’s 29-year-old manager had blanched — and blurted, unprompted, that Marsalis had drugged and raped her, too. Up in Marsalis’s apartment, law enforcement collected his computer; they realized they had an even bigger case when they found “The Yearly Calendar of Women,” listing some 58 first names, and other files with contact information. Among them was a 27-year-old lawyer who told an uncannily similar tale.

The following January, all three of the women had taken the stand in Commonwealth of Pennsylvania v. Jeffrey Marsalis. By uniting them in a single trial, the Philadelphia district attorney’s office had hoped to prove a pattern of predation, to erase any doubts a jury might have. But during the weeklong trial, the case had come undone. For one thing, the defense denied that Marsalis drugged the women, and there was no physical evidence to support that accusation. Police had found a syringe of liquid diphenhydramine in Marsalis’s apartment, a drug that can cause powerful sleepiness, and theorized that he’d used expired medications he’d had access to at school or work. But testing was not completed and the syringe was not introduced as evidence. Plus, none of the accusers had gotten a toxicology screening — which presumably wouldn’t have turned up anything anyway, because the drug would have left their system quickly. It was the behavior of the women, however, that the defense used to truly torpedo the case. The apartment manager had become friends with Marsalis. The attorney had gone on to have a short relationship with him. Neither had immediately called police or gone to a hospital for a rape-kit exam. As for the pharmacist, she had waited more than a month to make a report.

The jury had acquitted Marsalis on all counts. Even so, moments after the jury read the not-guilty verdict, Marsalis was rearrested right in the courtroom: He had new charges to face. Already in custody during his first trial, he was denied bail again and sent immediately back to jail.

The second trial
Prosecutor Joseph Khan urged Leigh to join this second trial, for which they planned to combine the strongest cases among Marsalis’s long list of accusers. Marie, too, was contacted by the D.A.’s office. She was reluctant, but they told her that her story was compelling enough to bolster the other cases. “I wouldn’t have done it if it was just me,” Marie says. “But because I could help the others, I felt it was something I had to do.” So the two women joined five others to face down Marsalis in court. They had safety in numbers; no way could they lose this time.

“Jeffrey is a playboy,” said defense attorney Kevin Hexstall, speaking to the jury in June 2007. “You don’t have to like him for that, but you got to respect and understand the fact that’s all he is.”

The core of the defense’s theory was simple: All seven women were lying. Each had gotten drunk, had consensual sex with Marsalis and regretted it. Then, when authorities called them and revealed that Marsalis had lied about his profession, they felt betrayed and cried rape as revenge. “This is not the forum for that!” Hexstall told the jury in his closing argument. “Throw a brick through his car window, slash his tires. Get online and tell the rest of the world he’s not a doctor.... You don’t come up with this kind of nonsense and play with this man’s life!”

The jury sat rapt. “Let’s think about what some of the real patterns are, and some of the real similarities in these cases,” Hexstall boomed. “All of these women wanted to date Jeffrey Marsalis,” he said. “They all went out drinking. Nobody said, ‘Let’s catch a movie, we want to go to a ball game, let’s just have dinner, let’s meet in the park, I just want to talk.’ They all went out with Dr. Jeff, and they all went out drinking alcohol.”

Although rape-shield laws protect women from having their sexual past discussed at trial, acquaintance-rape defenses continue to “play into these myths about how ‘good’ women act versus ‘bad’ girls,” Long says. “And that it’s the risky behavior of the ‘bad’ girls that somehow invites a rape.” Trials often hinge not on the behavior of the defendant, but rather on whether the woman did enough to protect herself from his advances. From that point of view, Marsalis’s seven accusers had done everything wrong. “We were definitely on trial,” Marie comments drily. “If it was the 1600s, it would have been a stoning.”

The women’s composure may not have helped their standing with the jury. Although a couple of them became emotional during their testimony — including Marie, who blotted her eyes and took breathers — most, like Leigh, kept it together. But experts say many jurors expect women to weep when they are talking about a rape. “If you don’t cry, it means nothing happened to you,” says Legal Momentum’s Schafran. “Of course, if you cry too much, you’re too hysterical to be believed.” (Hexstall reminded the jury that one woman had cried while testifying about her abortion, but not while discussing the alleged rape — proof, he claimed, that the sex had been consensual.) The fact that many of the women had continued to function in their everyday life was further evidence that nothing had occurred. “Rape is the only crime where victims aren’t allowed to be OK,” says psychologist Valliere, who points out that in cases of car theft, for example, the theft’s emotional impact doesn’t factor into the verdict — only whether the car was taken against the victim’s will. “But if someone is raped and seems OK, we say, ‘Could that really have been a rape?’”

It’s a given, too, that no one on a rape jury has any real insight into the crime or its consequences, because during the jury-selection process lawyers routinely weed out almost anyone who admits to real-life experience with sexual assault. Clouding matters further, Pennsylvania law forbids the use of expert testimony to explain the behavior of rape victims (a policy state legislators are trying to change, as a result of outcry over this case). So the Marsalis jury had little context in which to understand the lurid, difficult-to-digest details they were hearing.

Judge Steven Geroff also wouldn’t allow witness testimony from yet another accuser, a woman who had worked with Marsalis at an Idaho ski resort. And in one final confusing stroke, right before jurors headed into the deliberation room, they were read a jury instruction — antiquated and misleading yet still standard in Pennsylvania — saying in part that the women’s failure to immediately report their assault “should be considered” in the jury’s decision.

When the jury returned after five days, it proclaimed Marsalis not guilty of eight of the nine counts of rape he was facing. They had deadlocked on the remaining charge, unable to decide whether Marie’s second, violent encounter had indeed been a rape. Instead, the jury opted to find Marsalis guilty of two counts of the lesser charge of sexual assault. One assault conviction was for Marie’s second attack. The other conviction was for the case of a 26-year-old advertising exec who, upon waking in Marsalis’s bed in the middle of the night, had driven herself home; when Marsalis had called to apologize for “things getting out of hand,” she had refused to see him again. She was the only one of the seven women who had called police — albeit four years later, after she saw a TV news report of Marsalis’s courtroom rearrest.

The jury isn’t talking, but courtroom observers have a theory about why the jury chose to believe these two women above the other five: Their behaviors fit best with the rape-victim stereotype. Both had welled up while testifying and described lasting emotional damage. They were also the slightest physically of the accusers; in a parade of strikingly put-together women, they may have come across as most vulnerable. And so the jury seemed willing to acknowledge that something had happened to them — although whatever it was, it didn’t rise to the level of rape.

A third trial
As for the other five accusers, including Leigh, the jury concluded that no crime at all had been committed against them.

“Twelve people looked me in the face and called me a liar,” Leigh says softly, hugging her knees at the kitchen table of the apartment she shares with her husband. “I put myself out there. I told them every terrible detail. And they said no.” Even Marie, who had the most positive verdict, felt cheated, especially when she realized she’d have to endure a retrial on the hung rape charge. As she watched footage of jurors sprinting from the courtroom, some shielding their face, Marie became enraged. “If you’re going to make a decision that affects people’s lives, tell us why you decided what you did,” she demands. “Don’t go running out of there, hiding your face like you’re ashamed!”

In the end, Marsalis took a plea deal to avoid a retrial: Prosecutors agreed to drop Marie’s remaining rape charge in exchange for Marsalis pleading no contest to a charge of “unlawful restraint” for yet another accuser who had not been part of either trial. “They used my hung charge to get some vindication for her, which she wouldn’t have gotten otherwise. So that made it worth it,” Marie says.

Although Marsalis faced as little as community service, at his sentencing hearing, Judge Geroff delivered a stronger message than the jury had: He sentenced Marsalis to 10.5 to 21 years behind bars plus four years probation, the maximum allowed, and noted that he’ll face mandatory Megan’s Law registration for the rest of his life. “What you were was a wolf in sheep’s clothing,” Geroff told Marsalis from the bench. “Your lifestyle was a fantasy. What’s happened to your victims is reality.” Seated together in two rows at the front of the courtroom, a group of Marsalis’s accusers smiled with relief, some through tears. The sentencing softened the blow of the disappointing verdict; finally, their combined efforts had yielded something. “At least he’s locked away, and I know he won’t do this to anyone else. Without all of us there, that might not have happened,” Leigh says. “And of course, all this isn’t even over yet,” she adds.

Because in January, Marsalis heads to a courtroom to be tried for rape a third time. Court documents filed by the D.A. in the Philadelphia cases describe the accuser’s story: Back in late September 2005, shortly before his first trial was to begin, Marsalis made his way to Idaho, where he took a job as a security guard at a ski resort. There he invited a 21-year-old coworker to join him for a drink at a local bar. Over beers, she told him she wasn’t interested in him romantically — she was a lesbian. Marsalis ordered another round and handed her a kamikaze. She noticed a sugary-looking residue at the bottom of the glass; when she drank it down, however, it tasted bitter, not sweet. The rest of her story unfolds in a now-familiar way: She awoke the next day in Marsalis’s bed, feeling sore and nauseated. He graciously walked her back to her dorm, chatting the whole way and leaving her with the suggestion that they “hang out sometime.”

Instead, this accuser did something unusual: She contacted the police. Then she had a rape kit done. The prompt investigation turned up eyewitnesses who said they had seen Marsalis dragging her, barely coherent, out of a taxi while she mumbled, “No, I’m going to stay here.” And when police confronted Marsalis, he initially denied having sex with her. “She is more of a manly type of a woman for one,” he told police. “If I was going to have sex with somebody, wouldn’t I have picked someone who is some drop-dead gorgeous woman? You think?”

This case has it all, it seems, everything to erase doubt from the mind of a juror: prompt reporting, physical evidence, eyewitnesses, Marsalis’s inconsistent statements to police and, because of the accuser’s sexual orientation, no dating behavior to confuse a jury. In other words, her case bears no resemblance at all to a typical report of nonstranger rape. And that is exactly why experts predict that this time around, the woman taking the stand will finally win.

More on sexual assault  |  women's health

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