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Presumption of guilt

Was Zach Higgins convicted of rape based on the evidence — or because of his past?

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Editor’s note: It is CL’s policy to withhold the name of a victim of sexual assault.

The young woman was in trouble. Her father was on his way to Atlanta to pick her up and bring her back to their Fayette County home. He had just found out, through her roommate at Georgia Tech, that she’d been hanging out in her dorm room with her boyfriend. That wasn't allowed. More importantly, the woman’s family deeply disapproved of him.

Once she was back in Fayette County, the woman got into an intense discussion with her parents. They wanted to know why she continued to see someone they didn’t want her to see.

“My parents were asking me why I was acting that way,” the young woman later told a Fayette County jury. “And I just told them because I felt like I wasn’t worth anyone better. And they kept asking me why, until it finally came out.”

She told her parents that her insecurity stemmed from another boy and an incident that occurred almost three years earlier, at the beginning of her junior year at Sandy Creek High School. The two had worked together at a local pizza place, and she admittedly had a crush on him. He showed up at their house one night, while her parents weren’t home. She said at first, they were watching TV. Then, after they started kissing, he forced himself on her.

Upon hearing her story, her parents drove her straight to the police department, where she hand-wrote a statement, dated April 21, 2008, describing the events of that night in 2005:

“I told him that’s enough, he should leave, and I’ll talk to him another day,” the young woman wrote. “But he ignored me and said, ‘I’ll take my pants off, and then you.’ So he unzipped his pants and pushed them down. And that’s when I froze, and I kept telling myself there’s no way he’s going to do that.

“Then he pushed me onto the couch and took my pants off, telling me that it’s OK, that I’m going to like it, that he’s going to show me how. Then he penetrated. And I just stared the whole time and felt like I was going to throw up.”

Dylan Benson remembers the day his friend Zach Higgins, who Benson describes as “a big goofy punk-rock kid,” was charged with rape. Benson and some friends were over at Higgins’ house. Higgins wasn’t home at the time, but word traveled fast.

“We found out that he got arrested, and we were like, ‘What?’” Benson recalls. “We all thought, ‘Oh, this will blow over.’”

Benson, along with a handful of other young people who’d known Higgins in high school, were familiar with the three-year-old incident involving the young woman. But when they first heard about it, they’d been told — some of them, allegedly, from the woman herself — that what happened between Higgins, who was 17 at the time, and the woman, who was 16, was consensual.

At Higgins’ rape trial in late March, his defense relied on the testimony of four students who, like him and the victim, had attended Sandy Creek High School. The witnesses told the jury that the woman had laughed and smiled when her encounter with Higgins came up, as it sometimes did, during the ride to school from swim team practice, or in the hallway before the homeroom bell, or while sharing a music stand in orchestra class, or at the pizza place where she and Higgins continued to work after that fateful night.

Three of the four who testified went so far as to say that the woman bragged to them about having sex with Higgins.

In addition to the four former high schoolers and the young woman herself, there was only one additional witness who took the stand at Higgins’ trial, a county investigator who testified for the state. At the prosecutor’s request, Investigator Beth Suber merely read aloud from a court document that had been filed in 2002 — three years before the incident between Higgins and the young woman took place.

Suber’s testimony, Higgins’ lawyers would later claim, tore apart his defense. On March 24, Higgins was found guilty of rape and aggravated sodomy. For his crimes, the 21-year-old was sentenced to 35 years in prison without the possibility of parole.

Higgins’ trial lawyer contends that the evidence in support of his client couldn’t overcome a dark moment from his past — a prior sexual offense that the jury was allowed to consider because of a quirk in the law.

In the overwhelming majority of criminal prosecutions, a defendant’s prior convictions, history of arrests and any other unsavory acts from his past can’t be brought up at trial, because they can destroy his presumption of innocence. But under Georgia’s “bent of mind” rule, evidence of past acts can be admitted if the evidence proves the defendant has a psychological proclivity to commit a certain type of crime — anything from DUI to child molestation.

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