Judge allows drug charges in rape trial

A Philadelphia judge said on Friday that charges of drug-facilitated sexual assault could be used in the trial against the Penn Neurosurgery professor accused of rape.

Judge Rayford Means denied the motion by the defense to quash charges that professor Tracy McIntosh used the drug Nebutol -- an hypnotic sedative -- to rape a 23-year-old woman in his Hayden Hall office last spring.

In April 2003, McIntosh turned himself into police. He was charged with false imprisonment, indecent assault and rape at his arraignment last July.

He has been on leave from the University since the allegations surfaced.

Last Friday, defense lawyer Tom Bergstrom attempted to argue that "there is simply no evidence" that McIntosh drugged the woman, who is the niece of McIntosh's good friend.

Bergstrom called the claim "prejudicial" and based on speculation.

This was the second time the defense attempted to dispel this charge. Judge Carolyn Temin issued a continuance on the motion in September so that more evidence could be gathered.

Means will be the judge who presides over the trial, which is scheduled to begin April 13.

"I'm bound by Judge Temin's previous rulings," he said.

As a result of the hearing, Assistant District Attorney Gina Smith will be allowed to use evidence to show that McIntosh, who had access to Nebutol through his laboratory, used the drug to rape his accuser.

According to the prosecution, the defendant and the complainant went together to several bars on the night of the incident. After she left the table at one bar to use the restroom, she continued to drink alcohol but began to go in and out of consciousness and to projectile vomit.

Smith argued that the nature of the symptoms and the timetable during which they occurred in addition to the fact that Nebutol, to which McIntosh had access, was missing and unaccounted for from McIntosh's lab were substantive facts to be presented during the trial.

Bergstrom said that the charge required a leap of logic for which evidence could not be provided. There were no eye witnesses, and cold pills and food poisoning can cause similar reactions, he argued.

In his ruling, Means said this aspect of the case would come down to a "battle of the experts."

It is now the role of a fact-finder the judge or jury to determine whether a hypnotic sedative was used in the alleged rape.

Smith has until today to decide whether to demand a jury for the case.

Smith said she was "satisfied that the judge had followed the law."

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