North Haverhill — Judge Peter Bornstein ruled to dismiss two of the prosecution’s eight charges against Parker Gilbert ’16 – the charge of oral penetration, as well as one of two charges of anal penetration – before trial proceedings began Tuesday. Bornstein said that the state failed to present sufficient evidence that Gilbert engaged in sexual penetration of the victim’s mouth by overcoming her through the actual application of physical force, physical violence or superior physical strength.
Based on the complainant’s testimony last week, Bornstein said, evidence was insufficient for the jury to find beyond a reasonable doubt that the defendant was the “actor” in oral penetration. Bornstein also said that the two acts of physical force alleged by the state — that the defendant pinned the complainant’s arms behind her back and that he placed his fingers into her mouth while pushing her head back — occurred after the incident of oral penetration.
Bornstein also granted the defense’s motion to dismiss the charge of anal penetration through the actual application of physical force, physical violence or superior physical strength. Bornstein said that while the complainant may have been frightened and intimidated during the alleged anal penetration, such circumstances are insufficient to prove the use of force. Her alleged pain at the time of penetration, Bornstein said, is also insufficient to prove the use of force.
The defense’s motions to dismiss the additional six charges against Gilbert were denied. These charges are criminal trespass, four counts of vaginal penetration, including one through force, and one count of anal penetration without consent.
Gilbert, 21, had been charged with seven counts of aggravated felonious sexual assault against a female undergraduate student, 19, and one count of criminal trespass for entering her room uninvited in the early morning of May 2, 2013.
The defense began its case just before noon on Tuesday.
Editor’s note (June 15, 2014): Gilbert was acquitted of all charges on March 27, 2014. For a full story, click here.