Updated Thu, Feb 20, 2014 10:07 am
A rape charge levied against an Albany woman is being debated through attorneys on both sides of the case with differing opinions on how rape should be defined in the case.
The debate, shown through court documents, follows the unsealing of documents explaining the charges against Jennifer Davidson.
Davidson, 37, is facing two counts of rape and one count of kidnapping for an alleged incident involving a 10-year-old girl.
A search warrant recently unsealed in the Athens County Common Pleas Court detailed the offense for which Davidson is scheduled to face trial in May.
Det. John Deak, with the Athens County Sheriff's Office, wrote in the search warrant that the 10-year-old victim in the case told children services officials that Davidson had allegedly picked her up from her mother's residence on May 26.
The two then went to a store in The Plains where Davidson allegedly stole a device used for sexual stimulation, the child claimed, and the two went to the Stroud's Run area.
Davidson is accused of trying to get the victim to smoke marijuana and blowing smoke into her mouth, according to the search warrant. She then had the child "get on top of her and rock back and forth" before allegedly performing oral sex on the child, Deak wrote.
The child also claimed that Davidson "called a sex line" on viewed pornography on a cell phone.
Davidson allegedly admitted to police on June 6 that she had shown the child her "private parts" and talked to the child about masturbation, the document stated.
A primary part of the debate between the prosecution and defense attorney Glenn Jones is the definition of "sexual conduct," with regards to one charge of rape alleging that Davidson had the child use a vibrator to penetrate her.
In Assistant County Prosecutor Robert Driscoll's proposed jury instructions, he includes in the definition of sexual conduct "the use of an apparatus or device ... handled or manipulated by the victim" and the insertion, "however slight," of a part of the body, instrument or apparatus into the vaginal opening, "without privilege to do so."
The prosecution also stated that they did not need to prove that the juvenile resisted Davidson to prove that a rape occurred.
But Jones said the under Ohio law, "a woman causing another to penetrate the woman's vagina with any instrument, apparatus or object is not/does not constitute sexual conduct," according to his proposed jury instructions.
"Even if you find beyond a reasonable doubt that (Davidson) caused (the victim) to penetrate (Davidson's) vagina with ... specifically in this case a sexual toy, you must find (Davidson) not guilty of rape...," Jones wrote.
Both attorneys discussed the kidnapping charge as well, specifically the stipulation that Davidson had to have removed the child from the place where she was found, and done so by "force, threat or deception."
"It must be established in the case that at the time in question there was, present in the mind of the defendant, a specific intention to remove (the victim) from the place where she was found, or to restrain (the victim's) liberty, to engage in sexual activity, against (the victim's) will," Driscoll wrote.
Jones said the burden of proof to show that the child was released "in a safe place unharmed," as Davidson has claimed, is on the defense.