The prosecution will face significant challenges on the issue of consent. The state must prove beyond a reasonable doubt that Johnson "knowingly" had sexual intercourse "without consent." Acknowledging the difficulty of the case and its importance to the Missoula community as the three investigations into sexual assault issues continue, Missoula County Attorney Fred Van Valkenburg (whose son writes for ESPN.com) has assigned three lawyers to the trial.
Among the problems the prosecutors will face on the consent issue will be statements that the woman made in the days after the incident. In addition to telling her friend the next morning that she thought she had been raped, she told the friend that she didn't want to report the rape because she "felt responsible."
In another statement, she suggested that "this whole situation is my fault because I feel like I gave Jordan mixed signals which caused him to act in the way he did."
Before she made her decision to accuse Johnson, she also said: "Maybe it was the clothes I was wearing that day, us making out, or me taking off my shirt that made Jordan think that I wanted to have sex."
In addition to what promises to be fierce cross-examination from Johnson's attorneys on these statements, she also said in a written statement, "Anything I did that night could have given Jordan the idea that I wanted to have sex, but in no verbal way did I tell him that I wanted to. Granted, I probably would have had sex with him in a consensual way in the future, but I did not want to have sex that night."
Even as she considered the filing of a rape charge, she told yet another friend, in a text: "I don't think he did anything wrong to be honest." And she said she knew that her accusation "will hit him like a ton of bricks."
