Last week, two people were charged with the kidnapping, rape, and sexual battery of a 17-year-old, as well as with a form of child pornography, in an Ohio court. The first, Raymond Gates, is a 29-year-old man, who, after meeting two teenage girls at a shopping mall in Columbus, allegedly invited them to his home, furnished them with a bottle of vodka, and then pinned one of them down and raped her. The second, 18-year-old Marina Lonina, is the victim’s friend, who live-streamed the attack on the Twitter app Periscope. Lonina has said through her lawyer that she was trying to help her friend by recording evidence.
It’s hard to disentangle the many sickening elements of this case. There’s the alleged rape itself—and the horrifying accounts that the victim can be heard screaming in the video, “No, it hurts so much,” “Please stop,” and “Please no.” There’s the choice Lonina made, disturbing whatever her motive, to broadcast her friend’s suffering—along with prosecutor Ron O’Brien’s allegation that she can be heard “giggling and laughing” in the audio. In an interview with the New York Times, O’Brien suggested that Lonina might originally have hoped to stop the attack by pulling out her phone, but that, in his words, “She got caught up in the likes” on social media. He added that she never called 911 but that a friend who saw the live feed contacted the authorities.
Still, it’s confusing to many that Lonina faces the same charges as Gates—and that, like him, she could serve more than 40 years in prison if convicted. Can that be just? Slate asked some legal experts to weigh in on the case.
The decision to charge Lonina as harshly as Gates isn’t an arbitrary one, they explained: The prosecution seems to be preparing to argue that Lonina was an accomplice in Gates’ crime and is therefore guilty of the same offense. The assistance provided by an “accomplice” can be loose—the prosecution doesn’t need to show that Lonina conspired with Gates in advance, though it’s hard to predict at this point what facts may emerge. (It’s also unclear how we should interpret the charge that Lonina snapped nude photos of her friend the night before the assault.) An accomplice may simply have taken actions “that conveyed to the principle actor, ‘Good idea. I support you,’ ” explains University of Virginia law professor Anne Coughlin. In this case, it seems that the prosecution plans to argue “that live-streaming the rape encouraged him.”
The case against Lonina will likely rest on what can be proved about her mental state (or her “mens rea,” in legal terms). Did she intend to amplify her friend’s suffering and humiliation by broadcasting them online; did she psychologically partake in the violence she witnessed? The idea that Lonina was seeking online affirmation could support an argument along those lines by showing that “she’s getting this benefit, this gratification from it,” Coughlin says.
But Lonina’s lawyer, Sam Shamansky, told the Times that his client “was swept up by the gravity of the situation. … And as she immediately told the police, she was filming in order to preserve, not to embarrass or to shame or to titillate anybody.” He points to the fact that Lonina asked her Periscope followers, “What should I do now?” as proof that her intentions were good. He also told the Times that Lonina made “substantial” efforts to halt the attack, though he declined to detail them. This version of events is not impossible to believe: In a moment when the idea that “if you see an injustice, you should film it” rules the zeitgeist, a drunk or frightened 18-year-old might think of turning to the internet before calling the police. That this was an ineffective means of intervention doesn’t make Lonina guilty in the eyes of the law. “We don’t have a bystander obligation,” Northwestern University law professor Deborah Tuerkheimer says. “Legally, you can stand by and watch a crime.”
Of course, Lonina didn’t just watch: She enabled countless others to do so as well, arguably adding another, painful layer to the victimization of her friend. I asked Mary Anne Franks, a law professor at the University of Miami who specializes in cyberlaw and privacy, about the role of the internet in the case: Could Lonina be a stand-in for her elders’ fears about what social media is doing to Kids These Days? Will she get a fair hearing from a jury that is not—generationally speaking—made up of her peers? “If you get a court or a jury that says, ‘I don’t want to understand the internet, so I don’t understand the motive’ … I’m not sure that that’s an unjust outcome in this case,” Franks said. “There are so many things you could’ve done—911 would’ve been easier to call.” Plus, “If you wanted to record it, which is problematic enough, why do it in a way that was live?”
If Lonina’s case goes to trial, it’s likely to take the form of two opposing narratives battling to answer these questions: one in which the 18-year-old took pleasure in the victim’s suffering, and one in which she herself was a victim, too traumatized to know what to do. “One interesting question, and maybe something that the jury will have to wrestle with, is: Is there a middle ground?” says Tuerkheimer. “Is it really as binary as that?” Even O’Brien’s insinuation that Lonina meant well until she got “caught up in the likes” suggests that the truth could be more both-and than either-or. Lonina’s behavior may be appalling in the eyes of many, but it also stretches our perception of what it means to be an accomplice to a rape.