SOUTH BEND — It was an unusual start to a trial.
The two men charged with rape didn’t show up.
Of course, they legally have a right to face their accuser, but not an obligation.
The attorney for one of the men, Len Zappia, asked that the trial be rescheduled.
“This jury is going to say, ‘They’re not here, they must have done it,’ ” Zappia told St. Joseph Superior Court Judge Jerome Frese.
Frese denied the request, stating that the men knew when the trial was scheduled. But he did tell the jury they could not consider the men’s absence when determining guilt or innocence.
Later, police told the court the men’s passports were activated. Officials believe they returned to Kenya, their nation of origin.
And thus, testimony in the rape trial began.
Deputy prosecutor Tom Sanders laid out the scene that night. The story begins at a party in the Irish Hills apartment complex in January 2010. A group of friends, immigrants from Kenya studying at Indiana University South Bend, gathered to watch a football game. They drank, danced and played cards.
The woman who later accused the two men of raping her was visiting her stepsister in South Bend. She joined the party, drinking margaritas.
The woman became intoxicated, so her sister, Sheila, and a couple of friends took her back to her sister’s apartment and put her to bed. Two of the men also went to Sheila’s apartment for some food.But Sheila and two friends left the apartment to retrieve a phone and camera the group had left behind.
When the three women returned, Sheila said she opened the door to the bedroom and saw her two male friends from the party. One was on top of her sister, she testified. She said she heard her sister screaming.
The other two friends there at the time testified they also saw the men in the room. One was on top of the woman, they said. But they did not hear screams, the two women testified.
All parties involved were intoxicated, the evidence showed. Witnesses had trouble remembering some details of the night.
The woman alleged rape. The defense attorneys argued it was consensual sex, perhaps regrettable because of the alcohol, but consensual.
More than three years after the party, the woman took the stand in March.
She woke up in a dark room and saw two men there. One was mumbling something incoherent into her ear, she testified.
One man held her arm down, she said. The other began having sex with her.
“I kept like trying to move away, trying to gain some strength to push them away, and when I couldn’t, I kept calling my sister,” the woman testified, her voice shaking.
“Did you try to free your arm?” Zappia asked on cross-examination.