DA: Rape charge dismissed against a UNCC student - | WBTV Charlotte

DA: Rape charge dismissed against a UNCC student

(Source: Mecklenburg County Sheriff's Office) (Source: Mecklenburg County Sheriff's Office)

Nearly two months after he was charged with second-degree rape, the charge has been dismissed against a University of North Carolina at Charlotte student.

According to the Mecklenburg County District Attorney, the charge was dropped against 18-year-old Joshua Arford. The dismissal comes before Arford was indicted on the charge.

Arford was initially charged in mid-February after he was accused of raping a female classmate. A search warrant says he met the 19-year-old at an off-campus party where she became intoxicated and left willingly with Arford to go back to his dorm.

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In her interview with police, the student said her recollection about the intercourse was “fuzzy.” Due to her level of intoxication, a sworn statement was not able to be taken at that time. The warrant says a blood alcohol level test at the hospital registered .206-percent.

Police said it was determined that the victim was missing several items of clothing, and was not wearing her own clothes when she was met by a friend outside the residence hall before going to the hospital.

"The DA's office didn't feel like they could make their case, so they dismissed it," Arford’s attorney, Adam Seifer with SeiferFlatow Law Firm, said.

According to paperwork filed by the DA's office, there was "insufficient evidence to warrant prosecution."

The DA's office included the following narrative with the dropped charge:

"The victim and the defendant met at a college fraternity party. They spent time together throughout the evening which ended up with them kissing each other. They both consumed a large quantity of alcohol with all witnesses confirming that both the victim and the defendant were intoxicated. They were driven home to the defendant's dorm room by a designated driver. Once inside the dorm room the victim remembers engaging in consensual sexual intercourse with the defendant until it began to hurt. After telling the defendant to stop she reported to the sexual assault nurse examiner that, "I believe he stopped but I don't know". She did not have any injuries. Two days later the victim spoke to investigators and told them that she believed she wanted to have sex with him but during the act she changed her mind. She was unable to articulate whether any additional sexual contact took place once she told him to stop. The defendant did not speak to investigators.

There are three theories that the state can proceed under to prove second degree rape. The first requires that the act be by force and against the will of the victim. Because the victim told investigators that she wanted to have sexual intercourse with the defendant and that the act began as consensual the State cannot proceed under this theory. Therefore, the State is required to proceed under either a theory of mental incapacitation, or prove that the victim was physically helpless. Mental incapacitation cannot be used when the victim has voluntarily caused her incapacitation. The theory of physical helplessness requires that the victim be unconscious or physically unable to resist. In our case the State has no evidence of this. The victim has a number of memories of the evening, all witnesses reflect that was conscious, and phone records show significant activity during and around the time frame in question.

The State has the burden to prove each element of the crime charged beyond a reasonable doubt. Given the law, and the facts above, the State cannot meet this burden. Therefore, the undersigned is taking a voluntary dismissal of this charge."

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