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Ruling in Bend Rape Case Draws Spotlight

By Mackenzie
Published On: Jun 11 2012 07:30:27 AM CDT
Updated On: Jun 11 2012 11:25:46 AM CDT
BEND, Ore. -

Thomas Bray is charged with raping a woman he met online. Now, he and his lawyer, Stephen Houze, just got one step closer to being able to use her online activity against her.

"Her privacy has been violated over and over," said Jennifer Coughlin about her client, only referred to as "Jane Doe".

Coughlin represents Bray's accuser in her $2 million civil lawsuit against him. She says talk of the defense getting her client's Google records should have been silenced in January. That's when Deschutes County Circuit Court Judge Michael Adler ruled Bray and his lawyer could have the woman's search information if she said they could -- but she said no.

"At that point, she was instituting her constitutional right to refuse a discovery request. It should have been over at that point," Coughlin said Monday.

But it wasn't. In December, after several motions by the defense, Judge Adler ordered the prosecution to retrieve the Google records. In retaliation, the woman appealed the ruling to the Oregon Supreme Court -- but not soon enough.

"There's a brief window of time in which to appeal a crime victim's rights, and unfortunately that window was missed," said Coughlin.

The woman missed the deadline of seven days from the ruling, so the Oregon Supreme Court refused to hear her case. Coughlin says at the time of the ruling, her client did not have a lawyer or anyone to explain this to her.

"Most crime victims don't know about it and can't possibly appeal to the Oregon Supreme Court in seven days," said Coughlin.

Now, Bray's defense team does not need his accuser's consent -- but they do need to get their hands on a search warrant, which would mean going through District Attorney Patrick Flaherty.

Flaherty told me he would have to prove the woman's Google records are part of an ongoing criminal investigation. Since she's not charged with any crime, Flaherty said that would be nearly impossible.

Where does Google stand on all of this? The search engine giant repeatedly has said they could not and would not give the woman's information to anyone. They cite the Federal Electronics Communications Privacy Act, which says they would have to have her consent to do so -- and they don't.

Another hearing on the issue is set for later this month -- and Houze wants the case dropped if he can't get the search warrant for the online search records. He's argued that information would prove the sex was not rape -- but consensual. That's because the 23-year-old, only identified as "Jane Doe," Googled the words "Oregon law" and "rape" before calling police to report Bray had beaten and sexually assaulted her.

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