K.O.

After a One-Night-Stand a young man is accused of raping a woman in a bathroom. The man vehemently denies it.
But instead of looking for the truth, the court spins it's own version of the truth.

Written by Alexander Rupflin, published on 12th of March, 2022 online. Originally published in
ZEIT VERBRECHEN № 13/2022, 15th of February, 2022.

Translated by @Grzmot

For the protection of the individuals involved, names have been changed.

What really happened in the bathroom between Fabian and Miriam?

It was a normal night at the disco. Miriam wouldn't have caught his eye in the Funpark, if she hadn't pointed her small digital camera at him and shot two photos. He was sitting with his friends, had another woman in his arm, of which he didn't even know the name. She was lean, her hair was blonde and tied in a ponytail with thin lips, but she quickly got out of his arm again and vanished in the dancing crowd. It was supposed to be one of those nights with the hope for an unforgettable evening - And that hope came true. He spotted the girl with the digital camera in the Alpine Fun room of the giant disco. He approached her, introducing himself: Fabian, and you? Miriam.

Miriam is tall, almost 1,80m. But he's still taller than her by almost a head. They yell the usual things at each other, trying to drown out the music. Where are you from? Do you want to drink something?

He smells like vodka-red-bull and wears a necklace with black wooden pearls to show himself off as the cool surfer, but he really is a boy from the village. He think he sees her smiling at him. Contrasting the girl from before, Miriam has more of a round face, that makes her look childlike even though she is nineteen. At the same time she looks incredibly confident; acting like she doesn't take him seriously and is just fooling around. She tells Fabian that she's taking pictures for some website.

Today, he doesn't really remember, what she tells him about herself. He just recently had his twentieth birthday, from a small village nearby, plays football in the state league. He's also in an apprenticeship in a grocery store. That's why he is even here, in this large disco in the middle of an industry disctrict not far from Koblenz. The grocery stores in the region organised a football championship, and he and his colleagues of course are playing. They are sleeping in the guest room of a local school for grocers. Tomorrow, finale, today, party. A colleague's birthday. It's the 20th January 2007, everyone is singing Ein Stern from DJ Ötzi and Nik P.

This night happened so long ago, the Funpark doesn't exist anymore, today there is a Realmarkt there, but Fabian still thinks about those couple of hours that changed his life. Pure hatred rises in him. And every time he talks about it, the same thing happens: He talks faster, louder, until he almost screams, then his lower lip begins to tremble, his voice cracks and fails, until the tears roll. He has cried a lot because of this night, sometimes not even making the effort to wipe away the tears. When he comes back down, he then says things like: "These idiots, what have they done with my life! A convict, for nothing. They continue their life. I can't. I'd need a new one."

Back then, in the wooden room where Schlager play, Fabian orders two drinks. It's by far not his first drink tonight. He loves partying. Why not? He's young and the women like him. Miriam wants to pay for her drink, Fabian insists to cover it.

Later, Miriam will tell the police that in that moment, "the guy" (Fabian) would make a weird pinching move with his fingers above the glass. She had laughed and asked: "What are you doing?" He didn't reply.

They drink, they talk. Then she puts her hand under his shirt to feel his warm stomach. She's bold. he thinks; a party girl. That's how he remembers the moment. She looks incredibly confident, funny, attractive, that makes him a little insecure. He doesn't want to be embarrassed. They kiss, she takes him to her girlfriends, he introduces himself. Time moves along. The two keep their heads close, kiss, talk, kiss. It's two in the morning. Three in the morning. Tanja, Miriam's best friend with whom she lives wants to convince her to go home. Miriam replies: "You're not my mom!" They argue for a bit, ultimately Tanja relents and leaves the Funpark with the others.

What really happened in the bathroom?

Miriam stays with Fabian. They sit in the same wooden room, move tables to two of Fabian's last colleagues, the rest is already sleeping in the guest house. He puts his arm around her shoulder, moves strands of hair out of her face. She's wearing black skirt and tights. Her face looks pale, her eyelids flutter. To him, she seems drunk, but he's the same. One of his colleagues takes a photo of them with Miriam's camera.

Later, Miriam will tell the police that in that moment she felt dizzy, that she had flashbacks to the death of her father, childhood memories came back, that she hit the table with her head multiple times.

The four leave the disco into the cold January night into one of the waiting taxis. Without any conversation between the two, Miriam apparently decided to come with him tonight. She didn't look afraid.

The drive takes fifteen minutes, the other two leave for their room. Fabian tells Miriam (according to him), he wants to buy cigarettes at a vending machine around the corner. Is he looking for an excuse for her to leave? But she waits at the door for him. When he comes back, he realizes that he doesn't have a key, calls his roommate Tobias, who is already sleeping upstairs. Tobias isn't surprised, that Fabian shows up with company, Tobias is his best friend, and when they party, sooner or later there is a woman around Fabian's neck. He is tall, athletic and has a rustic kind of charm. Miriam introduces herself quickly and then they sneak back up into room 112. It's in a sorry state, the plastic sockets yellowed, the curtain a torn piece of red cloth, the mattresses narrow (photos from the investigation prove this).
Miriam undresses, Fabian goes to the bathroom, Tobias falls back into his bed. When Fabian comes back to bed, Miriam is already there, only wearing underwear. They find each other under the blanket, kiss, explore each other blind.

Later Miriam will say that she was nauseous and felt beside herself. She was not able to think straight, nor could she have
said anything to the guy.

Tobias, who wants to sleep, tries to ignore the foreplay, between him and the two there is just about arm-length distance. He's lying on his back, staring at (that is how he tells it today) the ceiling. At some point he loses his patience and says: "At least go to the bathroom!" They do that.

And then? What really happened in the bathroom?

Tobias at least says to this day that he didn't hear any sound from the bathroom. That the two came back after just a few minutes and went back to bed. Except for the lack of decency, nothing had seemed strange to him. At no point did it feel like there could have been a crime happening.

At 22:05 the doctor calls the police

About two hours later all three of them wake up again, Fabian collects Miriam's clothes, she puts them on, says goodbye, stumbling into the grew morning and taking the next bus to her boyfriend Klaus.

They are in a relationship for eight months. When Miriam shows up at his place without any message, Klaus feels weird. Miriam is currently an apprentice, learning to become a paramedic, and is usually very confident. He is very much in her grasp, so much so that he feels like a boy next to her sometimes, and when they argue, her argument always beats his. But today she seems introverted, goes into the bathroom, brushes her teeth for a long time and falls into bed, sleeping till noon. When she wakes up, she asks: "Where am I?" Then she takes the bus home. Klaus, he explains today, can't decipher her behaviour. He didn't ask her back then where she had been. Today, he's unsure if she just had a bad conscience or if she really was under shock. He later discovers blood on his bed. Till the evening, he hears nothing
from her.

On her way home, Miriam writes a couple of messages to Tanja: "You wouldn't believe, how bad I'm feeling. I haven't even known this feeling up to now. I didn't want to at all, but he just didn't stop." And: "He gave me a lot to drink and put something in it, but I was too drunk, so I drank it anyway..."

At that point Fabian and the other boys are already back in the sports hall, playing football. Fabian gets a bunch of dumb statements thrown his way about Miriam, but that's it. His team loses. In the afternoon, he drives home to his parents, where he lives, gets on the couch, sleeps it off. His parents ask, how he has been. He doesn't tell them of the party or Miriam.

Miriam does. She tells Tanja about a gruesome night, complains about pain in her lower body. Tanja convinces her to get to the hospital, the doctor spots redness on the vulva, a almost four millimetre long tear at the entrance of the vagina, a small tear at the anus, a scratch on her neck and haematoma and bruises on her left arm and shoulder blade, lumbar vertebrae and the outer side of her left thigh. No signs of sperm. At 22:05, the doctor informs the police.

"I remember", Miriam goes on record, "It was when I was lying on the ground in the bathroom, feeling his sperm in my mouth and he then pissed in my mouth. Then he told me to turn around. I remember saying "I don't want this." then it blacks out again." She insists, that her memories of the night are in tears and pieces, even though she only drank three beers mixed with cola [ABV 2,4%] and one vodka-red-bull. This statement conflicts with her message just hours earlier.

She says, "the guy" had to give her a date drug, when he handed her the beer-cola. Then he took her with him into the guest house and violently raped her. But she also says: "I absolutely cannot tell, if I, at the time this was happening, wanted it or made the appearance that I wanted it." And she adds: "Actually I don't even know if I can accuse the young stranger of anything." She insists on this while making her statement to the police, that she does not want to file a complaint.

It had to have been a misunderstanding

The police disagree. They hold the statement of the confused looking woman as impressive enough to name Miriam as the "Aggrieved Party" from the first moment on. Not "supposed" or "alleged". The young woman, that is clearly ashamed of what has happened, is designated as the victim of a violent crime. The tight rope between distrust and empathy, that investigators should walk in such cases, is soon left behind. Even Miriams own doubts are ignored. From her statement: "I'd like to state again, that I do not want, that he is wrongly accused of anything. For me, this is all very irritating. I can, like I already said, only accuse, that I was given something, that brought me into this situation."

Only hours later: Fabian is sitting in the large office of his employer at the computer, taking care of financials. His boss approaches him, telling him that he got a weird call from the police. They go into an empty room. Fabian is shocked, what he hears. K.O. drops? What's that? Rape? I never did anything to a woman! Until today, he swears that he did not expect such an accusation in his wildest nightmares. Disturbed, he returns to his computer. It must be a misunderstanding. Or he has been confused for the wrong person. It's all going to get cleared up. Why would she accuse him of rape? There's no motive. The company links him up with an attorney, but he's no criminal lawyer, but civil, specialized in work law. Fabian ignores the call of the police, pushes it away. Does his job, plays football, goes to
parties like nothing happened.

It the start of April 2007, suddenly the police show up at his house with a search warrant. The mother opens, Fabian isn't home. She doesn't understand what is happening. The officers look in his room for drugs fitting of Miriam's descriptions: Benzodiazepin, Gammahydroxybutyric acid and other hypnotics. They don't find anything. In the evening, Fabian finally forces himself to explain the situation to his parents. He swears multiple times that he did not do anything to Miriam. They believe him.

Even after the search warrant Fabian tells himself that the problem is going to disappear, solve itself. He takes no initiative, doesn't find lawyer. Doesn't understand, that the race for the sovereignty of interpretation for the evening has already begun. Even today, Fabian convincingly explains that he's innocent. But if you ask him, what he believes happened that night at the toilet, he stutters, his voice becoming insecure, as if he's looking for long lost pictures in his mind: "It happened so fast in the bathroom...She played with me, yes... But I don't believe... No, I didn't even have proper sex with her. I always was afraid that women could get pregnant, and that's why... I don't remember properly. I didn't rape her!" The wounds in her genital area couldn't be from him. But why does he stutter so badly? And why does he say in his statement back then, that he had sex with her for sure?

Fabian gets to know Jessica. Years later, he'll still call her his dream woman, his soulmate. She's seven years older, he meets her at another party. To most people, she seemed invisible, but to Fabian she was beautiful. Through a friend he gets her number, a few weeks pass, the two are a couple. At some point he's brave enough to tell her of that night. She believes him. Loves him. Surely it will all resolve itself. The two move in together.

Early 2009, two years after that night, Fabian's attorney informs him, that there is a scheduled date for his case to be heard in court. Fabian, that wanted to forget the whole thing, is surprised that a court will even hear the case. The attorney calms him down, worst comes to worst, he'll get a fine. But why a fine, asks Fabian, I'm innocent.

5th March 2009, 9:50 in hall 102 of the state court Koblenz: Only his father is here. Fabian doesn't want Jessica to see him like that and his mother can't bear it. She is back home, at the table, praying. Fabian makes his statement. Miriam hears everything, sitting at the prosecutor's table as joint plaintiff. It's the first time they see each other again. They don't direct a single word towards each other.

In dubio pro reo

What happens then in court, of that tells the written sentence. During the proceedings deeds turn into words that can be fitted into a story. These stories are based on evidence, facts and testimonies. But even looking at it from a willing pointof view, there is no clear picture here, but a blurred one full of assumptions. In such cases, a defendant cannot be convicted. In dubio pro reo - When in doubt, rule for the accused.

But when joint plaintiff Miriam takes the stand as a witness and describes what happened that night, it looks like judge Helga Diedenhofen has no doubts. Fabian immediately gets the impression, that the judge thinks she knows what happened that night. Finally it dawns on him, that he might have to go to prison after all.

The next date of the proceedings, his past roommate Tobias takes the stand. He explains that both of them were drunk, but not so much that they had no idea what was going on, that Miriam immediately undressed herself, that Fabian brushed his teeth first. That they both disappeared into the bathroom for only a couple of minutes and that he didn't hear anything. The court does not believe a single word of the statement, ruling it as a helping out a friend.

But how can it be, that on the bed that Miriam shared with Fabian is clean, without any blood stains, but on Klaus' bed there are? The court doesn't seem to be interested. Also strange, how Miriam could approach the bathroom on her own (as written in the sentence), but exactly then and there fell into a "coma-like deep sleep", approximately three hours after she had consumed the allegedly spiked drink. The usual time where typical substances used are full effective, is just about three hours. Considering this problem, the court avoids concrete statements about time in it's written verdict.

No one looked at the CCTV footage of the disco. The driver of the taxi that the four took home, was never asked anything.

On the last day of the proceedings, expert testimony is heard from Bianca Navarro-Crummenaur. She is a coroner in the victim's ambulance in Mainz and is supposed to determine if Miriam was under the influence of a daterape drug that evening. Neither in her blood nor urine could they find traces in 2007, though such a substance usually disappears after twelve hours. The exper has nothing but Miriam's testimony to determine, if her description of her state fits K.O. drops. And the expert states that her description is "very classic". She never spoke with Miriam and according to protocol, did not ask her a single question during the proceedings.

Under lawyers Navarro-Crummenauer is known for taking the testimonies of the alleged victims a bit too much into her reports for courts. A few years later a family files a complaint against her in civil court, because in her report she found indicators of child abuse, where there were none, and the court took the kids away from the parents, until the misunderstanding was cleared up. Fabian's attorney already files motion to dismiss her report due to bias in 2009, but the court denies it. And so a conflicting story is built brick by brick in hall 102, full of ideas, assumptions and prejudices about an alleged occuring of a crime.

The verdict: Six years prison

After four days in court the verdict: Six years for Fabian. Rape under use of a dangerous tool and dangerous assault, the "tool" being the K.O. drops, of which Fabian allegedly didn't know anything of, but according to the court, he was carrying on him through the entire weekend. Even though the visit to the disco was a spontanous decision made that evening.

Even though the verdict is not in effect yet, Fabian is already in cuffs, going to jail, the court believes he might flee. He looks around the room, looking for help. For the first time in his life, Fabian sees his father cry.

Eleven days he sits in a jail in Koblenz. Then his attorney manages to get him. The appeal remains, like most appeals, without effect. The only thing that could prevent Fabian from prison would be a quick resumption of the proceedings due to new evidence that could prove his innocence. Finally he realizes that severity of his situation and asks one of the most known criminal attorney and experts for the resumption of proceedings for help. It's too late.

It's the 29. April 2010. Fabian's grandmother's birthday. With Jessica he goes to local retailer, searching for gifts. When they get into the car, a police patrol stops them from getting out of the driveway. Bystanders stare, a second time Fabian gets cuffs around his hands. In panic, Jessica calls Fabian's mother, then goes into a screaming fit.

Again, jail in Koblenz. The prison sentence is served. Months and years pass. In the meantime, a request for resumption is denied. The parents and Jessica visit every week. They cry and make plans to get him out. His father writes letters begging for his release, even to the pope. Fabian gets increasingly worried what his girlfriend does out there. Where she goes, who she meets? He asks her many questions, writes accusatory letters. He is now regarded as psychologically unstable, psychotropic drugs from which he becomes so fat that he is disgusted to see his own reflection.

In december 2012 Fabian's worries turn real, he becomes a letter from a stranger, telling him to keep his dirty lips of Jessica. Fabian collapses, the guards have to get him to the medical ward, they worry he will commit suicide. A bit later, he receives a letter from Jessica, she dumps him.

After four years, Fabian is released on good behaviour. He does not feel anything, the medication has made him numb. He says: "I was in prison for nothing and nothing again." How is he supposed to be relieved?

He learns to breathe again

He moves back to his parents and tries to keep going where he stopped four years ago. But no one is listening to DJ Ötzi's Ein Stern, in the village discos they no play Mein Herz from Beatrice Egli. At a local festivity Fabian meets a woman and jumps into a new relationship, not having dealt with the Jessica yet. The people in the village greet him, but half-heartedly. No one talks to him more than necessary. He feels how they talk behind his back. Realizes, that the court didn't just sentence him but also his parents and his younger sister.

The new girlfriend leaves him as well and Fabian has a final and complete mental breakdown. He drowns without dying, doesn't leave his room anymore. Carries day and night the jacket of his father, a packed travel pack ready to go. "Dad?", he asks. "They won't bring me into prison again, right?" Sometimes he sleeps in the bed of his parents, at the foot of it. Other days he believes, his family wants to poison him. Psychologists meet him. Diagnose anxiety disorder and a severe depression.

Another year passes. One day Tobias comes to visit. The two talk for a long time. Tobias quickly understands that Fabian didn't age a single day. Tobias now thinks about building a house, founding a family, Fabian is still the boy from back then, living in the past on loop. Tobias convinces Fabian to visit the local football court, like they did back then before everything happened. The smell of the wet grass, the memories of the cheering, the hugging-each-other, the feeling safe, all those emotions rise in Fabian again, in that very moment.

He learns to breathe again. In the weeks after he starts getting out of the house, starts working as a tiler, even goes independent soon after. Until today he fights for a resumption of the court case. It's also hatred that drives him: "Hate against the people here, that can't open their mouth in front of me anymore. All my supposed friends. I shot goals for them, every game, thirty five goals in a season. When I got arrested, we were three or four games from getting into the next championship. And when they made it, they drove through the streets, cheering and celebrating, even though I was in prison." He sobs. "I'll never be able to close this chapter of my life, but I hope that one day I can prove my innocence and that I didn't fight for no reason."

In the spring of 2021, Fabian's father dies from a heart attack. He would've loved to show him the acquittal black-on-white. Fabian is now thirty-five.

Miriam, it appears, is now married and mother. She herself does not want to retell her version of that night. When ZEIT VERBRECHEN reached out to her, she did not answer. Her then-boyfriend Klaus, who she left later, says, that Miriam got through that time better than a lot of other women, but that she had always been incredibly strong. But that he doesn't want any assumptions made based on those words, under any circumstance. If new evidence appears, Fabians attorney wants to file another request for resumption of the case.

At least until then, the question will remain: What really happened in that bathroom between Fabian and Miriam?