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Albert Case Merges Sex, Legal, Social Issues

By Brooke A. Masters
Washington Post Staff Writer
Sunday, September 21, 1997; Page B01

NBC sportscaster Marv Albert's trial on sexual assault charges, which starts tomorrow, is a television talk show's dream: sex, sports and celebrity all wrapped up in one package.

Some two dozen television trucks are planning to park outside the Arlington courthouse for the duration of Albert's trial on forcible sodomy and assault charges. More than 50 media organizations, from the New York tabloids to Court TV, Sports Illustrated and ESPN, have picked up credentials. Brace yourself for daily reports of testimony that is almost certain to include descriptions of oral sex and biting and allegations of rough sex.

But this trial isn't just the biggest media circus seen at a Washington area courthouse since Lorena Bobbitt's 1994 trial for severing her husband's penis. It also could break significant legal ground, law professors and lawyers said.

That's because they expect the case's outcome to turn on two thorny social issues that bedevil jurors and lawmakers across the country:

In an era when most Americans have become more tolerant of unconventional behavior, what sex acts are still unacceptable? And how should the law handle an encounter that allegedly begins as consensual but then goes further than one of the participants wants?

"We're all agreed that when men use violence to coerce women's acceptance of sex, that's wrong. But there's a really difficult gray area between what's violent and what is vigorous sexual activity," said University of Virginia law professor Anne Coughlin. "The underlying cultural mores are ambivalent."

Albert's accuser, a 42-year-old Vienna woman, told police that Albert threw her on a bed, bit her and forced her to perform oral sex after a Feb. 12 argument in his Pentagon City hotel room. DNA tests by the state crime lab have linked him to genetic material taken from bite marks on her back and semen in her underwear.

Albert's attorney, Miami lawyer Roy Black, therefore, probably is going to have to convince a jury that the encounter was consensual. That's how he won acquittal for William Kennedy Smith on rape charges, and his strategy until now, which has included a constitutional challenge to Virginia's consensual sodomy statute, has pointed in that direction.

Black declined to comment on his trial plans. But a consent strategy would face several hurdles, legal observers said. Black surmounted the first one on Thursday, when Commonwealth's Attorney Richard E. Trodden said he wouldn't try to prosecute Albert for consensual sodomy. That means the sportscaster could admit to having oral sex without risking a five-year prison sentence for breaking the sodomy law.

Next, Black has to convince a judge that it would be legally possible for a participant to consent to sexual contact so rough that, according to police, the woman required medical treatment.

Legal experts are divided on that.

"You cannot lawfully consent to serious injury," said Yale University law professor Steven Duke. "Sane people don't do that. If you consent to it, you're sick, and Marv Albert ought not to be able to take advantage of that."

Harvard University law professor Alan Dershowitz countered, "Rough sex is not a crime unless it's unconsented to."

There are few relevant American cases, lawyers said. But Britain's highest court, the House of Lords, ruled in 1993 that the members of a sadomasochism club were guilty of assault, even though the "victims" were willing participants. "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from pain is an evil thing," one of the judges wrote.

Albert's lawyers have to hope that argument won't hold sway in this country, where national surveys have found that 14 percent of men and 11 percent of women reported having engaged in sadomasochism, according to the Kinsey Institute in Bloomington, Ind.

Even if Black convinces the judge that consent is a legally legitimate defense, he then has to prove to the jury that the Vienna woman agreed to the specific acts that occurred in Albert's room in the Ritz Carlton at Pentagon City.

"The more outlandish it seems, the rougher it is, the less likely the jury is going to believe the defense of consent," said Robert J. Cottrol, professor of law and history at George Washington University. "It's so dependent on the jury's and judge's own experiences."

Meanwhile, Trodden's team will be struggling with many of the problems inherent to prosecuting a sexual assault charge involving acquaintances. Lawyers on both sides have said Albert and the Vienna woman had a 10-year sexual relationship.

Juries tend to be more skeptical of complainants who had previous sexual encounters with their alleged attackers, prosecutors and defense lawyers said. And Trodden's task will become even more difficult if the Albert team can show the two had similar kinds of sexual contact in the past.

"If she says, `Yes, I did consent to these sorts of activities in the past,' then the case could fall apart on her testimony," said Alexandria lawyer Blair Howard, who defended Bobbitt.

The forcible sodomy charge also could be jeopardized if Albert's team can show that at least some of the sexual contact was consensual that night, lawyers said. That's because jurors are often reluctant to draw a line midway through an encounter.

Some juries conclude that "once you've started, it's too late," said Georgetown University law professor William N. Eskridge Jr. "That's morally indefensible. It's legally wrong. But that's what happens in the jury room."

Black's efforts to convince the jury that the encounter was consensual may be aided by the state crime lab's DNA report, which includes some genetic evidence that could be used to support the contention that intercourse occurred, defense lawyers said. Albert has not been charged with rape.

"That clearly seems to indicate the possibility that there was consensual intercourse. The prosecution would have to argue that something nonconsensual occurred before or after," said New York lawyer Jack Litman. "That's a tough row to hoe."

Before they start arguing about the facts and the specific sex acts, Black, Trodden and Arlington Circuit Judge Benjamin N.A. Kendrick have to pick a jury. And that's where the celebrity factor may have its biggest impact.

Albert's indictment, the DNA test results and some of the pretrial motions have been national news, leading the defense to complain that they won't be able to choose an unbiased jury.

The media focus "probably hurts us because in any criminal case, all the pretrial publicity is negative," Black said in an interview. "The defense is not heard from until the trial."

On the other hand, Albert, like O.J. Simpson before him, has his personal fame as a broadcaster going for him, legal experts said.

"They might think Marv Albert is a good guy. So he made a mistake. Why ruin his life?" Duke said.

Consider these two recent scenes outside the Arlington courthouse.

One morning after a hearing, Albert, swarmed by journalists, was crossing Courthouse Road to reach his limo. A man in a passing car yelled, "Hang in there, Marv," and gave a thumbs-up sign.

Several days later, after another hearing, two women came out of the courthouse and blinked at the 15 or so television and still photographers waiting for Albert to exit.

"What's going on?" one woman asked.

"It's the biter," the other said with a shrug.

© Copyright 1997 The Washington Post Company

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