After two mistrials, Atascadero rape case goes back before jury — now in the #MeToo era

The San Luis Obispo County District Attorney’s Office is taking a Paso Robles man to trial for the third time for an alleged rape they say he committed against his then-girlfriend’s aunt after a night of heavy drinking more than six years ago.

But much has changed in the 30 months since Rian Mabus last faced a jury, not the least of which is a changing climate about what constitutes sexual assault and how much validation may or may not be given to alleged victims.

In this case, the alleged victim in the case is a 44-year-old woman from Tehachapi who testified before two past juries that Mabus, 34, raped her while she was “blacked out” from alcohol in her niece’s Atascadero apartment over Labor Day weekend 2014.

Mabus, a former U.S. Marine who initially denied the sexual encounter occurred until authorities confronted him with DNA evidence, has testified that the incident was consensual and that the woman — whom The Tribune is identifying only as Jane Doe — initiated the contact after other members of their party went to sleep.

Though the first jury acquitted him on a charge of rape of an unconscious victim, both juries have split over whether Mabus committed a felony charge of rape of an intoxicated person, leading to two mistrials after more than a month of combined court hearings and testimony.

The third go-round in the case will look substantially different from the earlier trials.

The Superior Court judge who presided over both of the previous trials has since retired. Mabus is being represented by a new defense attorney after his prior public defender was appointed to the SLO bench. And a new deputy district attorney has taken over the prosecution.

It appears from pre-trial briefs that many of the same witnesses are expected to again testify to many of the same facts.

In a case where SLO jurors have twice disagreed — some angrily — over Mabus’ guilt, the case could hinge upon whether jurors in the #MeToo era will believe the woman’s testimony beyond a reasonable doubt.

Jury selection for the case began Tuesday morning. Opening statements are expected Thursday.

During his second trial in June 2017, Rian Mabus sits motionless as a jury foreperson tells Superior Court Judge John Trice that they can’t reach an agreement on whether Mabus raped his then-girlfriend’s intoxicated aunt. Joe Johnston

‘Elephant in the room’

Steven Rice, Mabus’ public defender, said in an email Monday prior to jury selection that the facts of his client’s case are not comparable to other cases cases of alleged sexual assault associated with the #MeToo movement, which involve men and women who exploit positions of power to commit their abuse but has since broadened into a more concerted effort to hear and believe victims.

In this case, Rice said, Mabus has testified consistently in two trials that the sexual encounter with his accuser, previously a stranger, was consensual.

“I believe the #MeToo movement has had an effect on the conversations people have about sexual assault and is certainly the elephant in the room when these types of cases go to trial,” Rice wrote. “It is something I believe we need to talk to potential jurors about. However, I do NOT think that the #MeToo movement fits into the facts as they have been presented in the case against Rian Mabus.”

Rather, Rice said the issue in the case against Mabus remains whether or not the sexual encounter between two adults was consensual, specifically as it relates to the alleged victim’s level of intoxication and ability to consent.

“It is the job of the district attorney to prove beyond a reasonable doubt that Rian Mabus did not actually and reasonably believe that the accuser was capable of consenting,” Rice wrote.

In response to a question about why the agency chose to pursue the case a third time, Assistant District Attorney Eric Dobroth said Wednesday the decision to retry the case was “based on the severity of the allegations” as well as conversations with members of the 2017 jury, a majority of whom favored a guilty verdict.

Asked whether the SLO County DA’s Office has seen any tangible difference in sexual assault cases since the #MeToo movement and the highly publicized rape case of former Stanford swimmer Brock Turner, Dobroth said his office has not compared local data from late 2017 to present.

However, Dobroth said that broader statistics indicate a significant increase in the number of sexual assault-type crimes reported to law enforcement and non-law enforcement authorities.

He cited a 2018 U.S. Department of Justice report on criminal victimization that said the percentage of rapes or sexual assaults that were reported to police rose from 23% in 2016 to 40% in 2017.

A contentious case

During the past two trials, the aunt testified that she, her 16-year-old daughter and her daughter’s 16-year-old boyfriend traveled to San Luis Obispo County to stay at her adult niece’s Atascadero apartment for the night with her, her 13-year old son and Mabus, who was the niece’s boyfriend.

On Aug. 31, the group ate dinner, and the adults began drinking cocktails while the teenagers watched TV, with Mabus mixing the drinks, according to testimony.

Doe testified that she consumed about five drinks over several hours, and became very intoxicated, running several times to vomit in the bathroom, where she claimed she lost consciousness. When she regained consciousness, she testified, Mabus was having sex with her on a bed in an unoccupied bedroom in the apartment.

Mabus testified that he initially denied to authorities that he and Jane Doe had sex on Aug. 31, 2014, until DNA results came back positive, fearing it would hurt his relationship with Doe’s niece, he said.

He eventually admitted to the sexual encounter, but testified that it was consensual; Doe initiated contact with him when he went into the bathroom after the remainder of their party had gone to sleep, he said.

Twelve jurors in the first trial in July 2016 acquitted Mabus of an additional felony charge of rape of an unconscious person, and hung evenly on the rape of an intoxicated person count.

During two days of heated deliberations in the second trial, the judge admonished the jury after a confrontation between two unidentified jurors and excused one juror due to a “breakdown in communication.” In the end, however, the jury again deadlocked on Mabus’ guilt.

The jury foreperson told the judge that two polls were taken: Eight jurors voted “guilty” and four voted “not guilty” in the first poll; in the second, nine voted “guilty” and three voted “not guilty.”

One juror who voted not guilty told The Tribune after the mistrial was declared that the main disagreement came over determining the extent of Doe’s intoxication and how that would affect her ability to consent to sex.

“It’s hard to get 12 people to decide on one thing,” the juror said.

As in the second trial, jurors this week will not be informed of the existence of the previous prosecution attempts.

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Matt Fountain is The San Luis Obispo Tribune’s courts and investigations reporter. A San Diego native, Fountain graduated from Cal Poly’s journalism department in 2009 and cut his teeth at the San Luis Obispo New Times before joining The Tribune as a crime and breaking news reporter in 2014.