Athlete faces rape charges

After a judge threw out a grand jury indictment last month, Orange County prosecutors said Tuesday that they have re-filed charges against a minor league hockey player accused of raping a sleeping woman in 2006.

David Jeffrey McKee, 26, is accused of raping a woman in July 2006 while she slept in a Newport Beach summer rental after she went out drinking with McKee and his friends. The men were all minor league hockey players in town for the Anaheim Ducks hockey camp.

McKee was indicted by a grand jury last year that charged he raped an intoxicated and unconscious woman. The alleged victim had apparently drunk alcohol before falling asleep and waking up while someone was having sex with her.

However, a judge threw out the charges March 19, siding with McKee’s defense attorney, Allan Stokke, who argued that prosecutors did not present enough evidence for the defense to the grand jury.

Stokke pointed to statements made to police that appeared to contradict what the victim told police the morning after she asserted she was raped.

“The court believes that the strength or weakness of this case rests upon the testimony of the victim,” wrote Judge Patrick Donahue.

If the jury had known about the inconsistent statements, Donahue added, it may not have found probable cause to indict McKee.

Prosecutors are claiming the woman was so drunk she could not consent to sex, and that she was also unconscious or unaware of what was going on at the time.

“I have a hard time understanding she says she remembers the event and describes the event, and they’re charging the case as if she’s unconscious at the time,” Stokke said.

Prosecutors compared the night to a “Girls Gone Wild” video, in which the woman’s friends were having sex with the various men in the home’s showers and in an alley. Only the victim, who had worked nearly 14 hours that day, went to bed without continuing to party.

The woman testified she woke up lying on her stomach about 4:15 a.m. in the dark. She said a man was having sex with her and shushed her when she started to move. She testified she didn’t resist out of fear.

When the man finished having sex with her and left the room, the woman said it took her a few minutes to realize what had happened was real, and not a “sex dream.” She then went into the living room and shouted for all of the men to leave.

By all accounts, McKee had to go back into her room to get his shirt, according to court documents.

While the day after the rape, police reports show the woman said she was not drunk “at all” and had control of all her faculties, she testified to the grand jury that she still felt the effects of the alcohol.

Prosecutors said it’s clear she could not resist because of the alcohol, considering the man was able to take her clothes off and turn her over for sex without waking her.

In court documents, Stokke argued his client could be exonerated because of an “honest and reasonable, but mistaken belief that the victim was able to consent.”

McKee is scheduled to be arraigned April 20. After that, prosecutors will have to present their case to a judge, who will determine if there’s enough evidence for McKee to stand trial.