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U.Va. Innocence Project and child advocacy group trying to free teen they say was wrongfully convicted of rape
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The girl was a special-education student at the time of the incident and was classified as "borderline" mentally retarded, her mother said. She has had noticeable physical problems with both her gait and eyes since birth, physical challenges her mother attributes to a form of cerebral palsy.
The boy has no physical handicaps. He was enrolled in special-education classes early in his schooling but resisted staying in them, according to his father, Edgar Dulaney. School records from Spotsylvania and Stafford counties show the boy consistently failed the annual Standards of Learning tests.
The boy's IQ is only seven points higher than the girl's, according to information from Sousa and records from the juvenile justice system.
Those facts are germane because a court transcript shows Olsen prosecuted the case from the standpoint that the girl lacked the ability to consent to a sexual relationship.
"The commonwealth's theory in this case was physical helpless [sic] and mental incapacity," Olsen said during a September 2008 Stafford Circuit Court hearing in which the boy's then-attorney, Joseph T. Brown of Fredericksburg, sought to win his release.
The boy's parents had hired Brown after Rafferty made an unsuccessful appeal to introduce the girl's recantation.
The judge denied Brown's motion, saying his court did not have jurisdiction to decide whether the boy should be released. The family then contacted the Innocence Project.
Sousa and the attorneys now representing the boy said Olsen met the girl, but never interviewed her, investigated her abilities or looked into her background. The attorneys and the boy's father also said neither Olsen nor Rafferty investigated or presented to the court any information about the boy's limitations.
Upon receiving custody of him, Department of Juvenile Justice workers assessed the boy's intellectual abilities and evaluated him psychologically.
They noted that he "lacks normal assertiveness skills," according to information provided by his current attorneys, Deirdre Enright, director of the Innocence Project at the University of Virginia Law School, and Andrew K. Block Jr., legal director of JustChildren, a program of the Legal Aid Justice Center in Charlottesville.
The girl has been described in evaluations as "overly aggressive with poor impulse control."