September 25, 2009 by ANN GIVENSfirstname.lastname@example.org
The Hofstra University student who prosecutors say falsely accused five men of tying her up and gang-raping her in a dormitory bathroom will not face criminal charges as long as she admits she lied, gets psychological help and does 250 hours of community service, under an agreement she signed Friday with the Nassau County district attorney's office.
Prosecutors say they considered, but rejected, bringing criminal charges against Danmell Ndonye, 18, of Manhattan, who was publicly identified by the district attorney's office for the first time.
Under the agreement, announced Friday afternoon, prosecutors in District Attorney Kathleen Rice's office said they were able to specify the terms of Ndonye's punishment, rather than leaving it in the hands of a judge. She has no criminal record.
Any of the crimes she might have been charged with are misdemeanors, which, because of her age, would have carried a maximum jail sentence of 6 months, prosecutors said. In practice, people who do not have prior criminal records almost never serve jail time upon conviction of misdemeanors.
"There exists no perfect solution to this case, only our best attempt at holding her accountable while encouraging real victims to come forward and accusers to tell the truth, so that we can avoid incarcerating an innocent person for even one minute," Rice said in a statement Friday afternoon.
Previously, Rice had declined to identify Ndonye, citing the ongoing investigation.
If criminal charges had been brought against Ndonye in connection with the Sept. 13 incident, a judge would have been required to give her youthful offender status, which means that her record would have been sealed at the time she was sentenced, prosecutors said.
But Rice, in her statement, said, "Because of the youthful offender provision in the law, a misdemeanor charge doesn't hold this girl accountable, and it wouldn't require that she get the treatment that she needs."
Prosecutors say if Ndonye does not follow through on her end of the agreement, they could use her sworn admission that she lied as evidence in a criminal case against her.
Bruce Barket, a Garden City attorney hired earlier this week to represent Ndonye, said his and his client's primary goal was to avoid a criminal prosecution, what he called "an extremely difficult," expensive and unnecessary process that would have served nothing more than to create a "circus" at every court appearance.
"They took a very, very difficult situation, and we were able to fashion a reasonable and quick resolution that I think satisfies everybody's concern," Barket said Friday afternoon. "It was a very difficult time for everybody involved, and there was virtually no chance that the young woman was going to serve any jail time."
Ndonye sought counseling before she hired an attorney and had seen a therapist twice since last week, according to Barket. In addition, she is no stranger to community service, he said, having done volunteer work with AIDS patients in the past.
In the statement that the young woman signed Friday, she says she had sexual contact with four of the men, prosecutors said. She says she did not have sexual contact with Rondell Bedward, 21, of the Bronx, the only one of the men who is a student at Hofstra.
Jim Cohen, a criminal law professor at Fordham University, said Friday that while agreements of the kind Ndonye signed are unusual in high-profile cases, they happen somewhat frequently in less-publicized cases.
In some drug cases, for example, prosecutors defer charges against people who promise to get treatment and later drop the charges as long as the defendants are not again arrested.
In the end, Cohen said, the agreement accomplishes the same thing that a criminal prosecution would, but may send a message to real rape victims that they are safe telling their stories.
"The difference between this and a conviction is like the difference between dusk and twilight - I don't think there's much of a difference at all," he said.
The statement of guilt that Ndonye signed as part of her agreement with prosecutors will be strong evidence in any civil lawsuit that the wrongly accused men file against her. But it is no stronger than a criminal conviction would have been, Cohen said.
Ndonye also made a new statement to police after she first admitted that she had lied, though it was not immediately clear whether that statement would be available for use in a civil case.
Jamie Bogenshutz, executive director at YES Community Counseling Center in Massapequa, said that at first glance, the decision not to prosecute the woman appears to be a positive choice.
"When there's an opportunity to avoid a jail sentence and provide somebody with help, it's always a good thing," Bogenshutz said.
Ndonye had told police that she was gang-raped in the early morning hours of Sept. 13 after a man she was dancing with at a fraternity party stole her cell phone, then lured her into bathroom in Estabrook Hall, where his friends were waiting. She told police that five men used a rope to tie her in a stall and raped her.
Four men - Bedward, Stan Felipe, 19, and Jesus Ortiz, 19, all of the Bronx, and Kevin Taveras, 20, of Brentwood - were arrested and arraigned on charges of first-degree rape. Authorities still were seeking a fifth man when the case took a marked turn.
The fifth man had taken a video of a portion of the bathroom incident with a cell phone. On Sept. 14, the district attorney's office learned that such a video might exist.
On Sept. 16, prosecutors who were interviewing the young woman told her that the incident may have been videotaped. Her story crumbled, and she soon admitted that sex with the men had been consensual.
Within hours, charges against Bedward, Felipe, Ortiz and Taveras were dropped and they were released from jail late that night.
This week, according to Rice's statement, prosecutors learned of more evidence about the early morning hours of Sept. 13 - including a second set of still images recovered off the phone of one of the men involved in the encounter. The images depict similarly consensual portions of the encounter, the statement said.
In addition, prosecutors also have obtained security video from Hofstra that Rice's statement said contradicts many aspects of the girl's original statements to police.
After Ndonye recanted her story, Hofstra officials suspended her pending an internal judicial process.
At that time, the university retracted its suspension of Bedward, a Hofstra junior, and said it would assist him in returning to campus, including living in a different dormitory if he so chose.
The district attorney's handling of the case had brought criticism from Rice's election opponent, former Nassau prosecutor Joy Watson.
Watson, who was in charge of sex-crime prosecutions under former District Attorney Denis Dillon, said Sunday that Rice should have charged the young woman "immediately."
"A crime was committed, and there's no question who committed the crime . . . I prosecuted cases in the past where we had false allegations made, and arrests were made immediately," Watson said.
At the time, Rice's spokesman Eric Phillips said the district attorney "doesn't make snap judgments or let political expedience replace diligent fact-finding in investigations, so it's disturbing to hear that a candidate without the facts running for such a serious office would attempt to politicize and score political points on an issue like this."