crime occurred, Gina’s parents had invited Javier to spend the night at their apartment, in her older brother’s empty bedroom, after a party that both kids attended.
Unbeknownst to the Borracellis, on the way to the party, Gina had filled an empty sixteen-ounce seltzer bottle with her father’s vodka. She and a girlfriend had finished drinking the entire thing by the time Gina and Javier returned home.
I went over the facts with Mercer and invited Mrs. Borracelli to sit down opposite me. She knew the claim — that two days later, Gina told her boyfriend that Javier had forcibly raped her in her bedroom that night, while her parents slept in the next room.
I began by asking Mrs. Borracelli to repeat the story to me, as Gina had related it. I listened, but my eyes were still playing with the letters of the alphabet that Naomi Gersh had scribbled on a piece of paper, trying to make sense of them.
“Did you know Gina had been drinking that night?”
Mrs. Borracelli pulled herself up, looking at me indignantly. “No, not at my house. She’s too young, but for the occasional glass of wine with dinner.”
“Would it surprise you to know where she got her vodka, and how much she had?”
“From Javy, I’m sure. From the boy.”
“That’s not what she told me. I suggest you ask her that directly, and check your own liquor cabinet.”
“I would be totally shocked. I’ll ask, but that would shock me.”
“Does Gina have a drinking problem, do you think?”
“All the girls at her school drink, Ms. Cooper. What’s your point? I can’t police her all the time. You think that means she can’t be raped?”
“Not in the slightest. A great percentage of our cases occur when the victim has been drinking. The alcohol intake often makes them more vulnerable. I’d just expect my witnesses to be honest about it. I can’t help girls who won’t be candid with me. A judge and jury won’t help them either.”
“And my Gina — she didn’t tell you?”
“No, she didn’t. It was the other girls at the party — and Javier’s lawyer — who told me. She denied it completely until I confronted her with what her best friend had said.”
Many of these investigations took more time than a straight-forward stranger rape. In those instances, victims had no reason to dissemble. They didn’t know their assailants and hadn’t spent time together, as acquaintance- and date-rape survivors did before the assault. The latter sometimes tried to make themselves appear more “proper”—to family and to law enforcement — by minimizing their alcohol and drug intake, or the amount of consensual foreplay. In the end, there was often a rape charge, but it was muddied by facts the witnesses foolishly tried to conceal.
“What else, Ms. Cooper?” Mrs. Borracelli was arch now. “Gina said to ask you about other things she told you. She said it was easier for me to hear them from you.”
“Why don’t you stay calm, ma’am? Ms. Cooper isn’t trying to give you a hard time,” Mercer said.
“Whose side are you on, anyway?” she asked. “You’re Gina’s lawyer, aren’t you?”
“No, I represent the state, Mrs. Borracelli. My job is to get at the truth, before I take Javier or any individual to court.”
“I want someone to represent Gina.”
“Ms. Cooper will be the best ally your daughter ever had,” Mercer said, “if she’s forthcoming. You think this boy isn’t telling his lawyer everything that happened that night? You think both sides of this story won’t come out at a trial, if there are two sides?”
The expression on Mrs. Borracelli’s drawn face wavered between confusion and anger.
“Did Gina tell you that Javier was wearing a condom?” I asked.
“So, what difference does that make? I’ve read about rapists. How they carry condoms with them sometimes so that they don’t leave their DNA behind.”
“He didn’t bring any along that night. They weren’t his.”
Javier’s lawyer had told me how his client claimed the encounter became sexual. Not that I didn’t often get total fabrications from the defendants. But frequently I got a nugget of truth that broke down some of the elements of the victim’s story.
“Do you know about the little box that Gina keeps in her bathroom?” I inquired.
Mrs. Borracelli was not so quick to talk. “What box?”
It was Javier’s lawyer who told me to ask the girl about it. Her “box of bad things” is how she’d laughingly described it to her schoolmate.
“It’s a small enameled case she keeps under the sink.”
“I don’t ever look at her things. The maid cleans that room.” I had the feeling that any minute now this entire episode would be blamed on the family maid. I’d be right behind her.
I didn’t need to tell Gina’s mother right then about the marijuana and the rolling papers she hid in the box. “It’s where she keeps a supply of condoms.”
Mrs. Borracelli slumped back in the chair. “You’re saying she gave Javier the condom? Is that what she told you?”
“On her third visit here, that’s what she told me.” Getting a statement from the teenager had been like pulling teeth. I had chipped away at her story with bits of information that came from the alleged rapist and her closest friends.
Gina had admitted that after she and Javier were “fooling around” on her bed, she left the room to undress — he never pulled her clothes off, as her original statement read — and to bring a condom for him from her stash in the “box of bad things.”
This back and forth of deconstructing the evidence went on for another ten minutes. Mrs. Borracelli dabbed at tears with her embroidered handkerchief. Her voice softened as she looked to Mercer as an ally in this.
“But why would she do this, Mr. Wallace? Why would she exaggerate so much?”
“It’s not the first time, ma’am. I can’t answer that.”
“Gina may have given the reason in the texts she wrote, just minutes after Javier left her room.”
Mike referred to that kind of message, which cyber cops had pulled up and printed out for me, as TWI: texting while intoxicated. Rare that the contents of them didn’t come back to haunt the sender.
“But he spent the night in our home. How could he do that if he raped her?”
“You can put all the facts together, Mrs. Borracelli. I don’t think you’ll find that there was a rape. I suppose like most kids, Gina thought there’d be no record of her texts,” I said, removing a sheaf of papers from my file. “But they’re all saved in the memory of the cell phone. I’ve given Gina a copy. I had hoped when she left here last week she would show them to you herself.”
“What do they say, Ms. Cooper?”
Gina had texted Javier after he tiptoed out of her room and went down the hall to sleep. She was giddy with the mix of intoxication and what she described as lovemaking. Her only concern was that he not tell any of the kids at school that they had hooked up, for fear that one of the girls might call her boyfriend — her “real” boyfriend — who was away at boarding school.
“I’m going to let Gina tell you that. I want you to hear it from her. Ask her to show you the photos she sent along with the message.”
Sexting — using the cell device to send photos, in this case, nude shots of herself, usually wound up circulating among school friends and out to the world on Facebook or some other social network.
After Javier left the Borracelli apartment, Gina slept till noon, then kept a doctor’s appointment to get shots for a trip to Africa for which the family was preparing. She mentioned nothing to the doctor, missing an opportunity to be examined for injuries or possible DNA. It was only two days later, when girlfriends began asking her if it was true that she had slept with Javier, that Gina was compelled to come up with a story: that he had forced himself upon her.
Mrs. Borracelli looked defeated. I had been in this unhappy position countless times before, but it saddened me on so many levels whenever it occurred. “I don’t know if she will tell me anything at this point.”
“Why?”
“She said this morning that she didn’t want to see Javier prosecuted.”
I was glad she had reached that conclusion. I couldn’t find any evidence of a crime.
