After a five-week delay, a Douglas County judge decided Friday that all four men accused of raping an intoxicated woman and posting videos of the incident to social media will face a jury trial.

Lawrence residents Malachi S. Thomas, 23, and Murphy Theodore, 25, and Topeka residents Dionte L. Brown, 21, and Tiger J. Smiley, 21, are all charged with raping a woman who was unconscious or physically powerless to give consent.

The incident, which occurred in March, came to light after an acquaintance said she discovered multiple videos on Thomas’ cell phone.

District Court Judge Sally Pokorny took a brief recess to review her notes, and then delivered her decision to bind the men over for trial along with a reminder to those arguing the case.

“Rape is not a sexual act,” she said. “Rape is an act of violence.”

Pokorny heard testimony from the woman in the videos, witnesses and investigators during a preliminary hearing on June 28. Five brief, graphic videos played in court appeared to show the semiconscious woman being vaginally penetrated by various bottles as a group of men stand watching and making lewd comments. Defense attorneys required additional time for cross examination after the first part of the hearing.

On Friday, attorneys representing the four men made final arguments to the judge citing the lack of DNA evidence, absence of an adequate timeline, and questions as to whether the woman was a willing participant.

The woman, who has worked as an exotic dancer and through an online platform where users pay for content, testified in June that although she was blacked out during the events in the videos, not all of the actions were things to which she would normally consent.

“Stripping is one thing, but sex is another,” the woman said during the June hearing.

Pokorny detailed the reasoning behind her decision going point by point through the charges. She said she wanted to emphasize the lack of control over her body the woman in the video displayed, and reiterated that testimony had described the events taking place over multiple days of “constant consumption of drugs and alcohol.”

Pokorny said it would be up to a jury to decide each man’s culpability, but she stressed that a person’s background or choice of employment did not justify unwanted sexual acts.

“Even a sex worker has the right not to consent to sex,” she said. “Because somebody makes money having sex doesn’t mean people can violate her.”

Video exhibits submitted to the court showed the woman partially clothed and seemingly intoxicated as a man identified by witnesses as Brown inserts items into her vagina. The woman is also groped and slapped on the buttocks, and rubber bands are snapped against her bare skin. In another video, a man identified as Smiley is moving the woman from the floor onto a couch. Onlookers can be heard laughing and making comments throughout the recordings.

The woman testified that she remembered waking up sometime before dawn and finding Thomas having sex with her. She said she recalled later having sex in another room but was unsure whether that encounter took place with Thomas or Theodore.

On Friday, Chief Assistant District Attorney Jennifer Tatum cited a Kansas statute detailing why all four men were liable for the alleged crimes regardless of who took part in which act. According to the law, there is criminal responsibility if a person “advises, hires, counsels or procures the other to commit the crime,” or if that person “intentionally aids the other” in committing the crime.

“This isn’t something that allows us to charge someone who is just present,” Tatum said. “These individuals did much more.”

Thomas is charged with three counts of rape, one count of aggravated sodomy, one count of breach of privacy, and one count of interference with law enforcement.

Thomas remains in custody of the Douglas County jail on a $200,000 bond. On Friday, his attorney, Angela Keck, requested a reduction in his bond to make it commensurate with the other defendants. The judge did not yet rule on Keck’s request.

Theodore was initially charged with two counts of rape and one count of aggravated battery for allegedly shooting the woman repeatedly with a pellet gun.

Based on testimony during the preliminary hearing, the DA’s office has requested that an additional count of rape be added to Theodore’s charges. He is being held on a $175,000 bond.

Brown and Smiley are currently each charged with two counts of rape. Both have been released on $50,000 bonds.

Theodore is represented by Branden Smith; Brown is represented by Hatem Chahine; and Smiley is represented by John Kerns.

Thomas, Brown and Smiley each pleaded not guilty to all charges. Theodore will be arraigned after the charges he faces are amended.

At this time, all four defendants are expected to stand trial together. A status hearing is scheduled for Aug. 16.

All arrestees and defendants in criminal cases should be presumed not guilty unless and until they are convicted.

Andrea Albright (she/her), reporter, can be reached at aalbright (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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