The Thin Blurred Line

On the night his life changed forever, Andrew Luster and a friend drove north to a bar in Santa Barbara called O’Malley’s. Especially on weekends, the bars and clubs along State Street, where O’Malley’s is located, overflow with tourists and with students from UC Santa Barbara, many of whom fully expect, as a pretty blond 21-year-old named Carey did on that warm Friday night in July 2000, to “get messed up.”

Until that night, Luster’s famous heritage had served him well. He had a trust fund of nearly $1 million and a $600,000 cottage on the beach in Mussel Shoals, a Ventura County community. He was 36, handsome, with thick dark hair, green eyes and a trim, toned body from years of boating and surfing. He took fishing and surfing trips to Mexico and Costa Rica and slept with a string of beautiful young women. Usually he didn’t brag about how he got his money, but on that summer night at O’Malley’s, he wanted to impress Carey, so he says he casually mentioned that he was related to the legendary cosmetics tycoon Max Factor.

What happened over the next 12 hours, after the couple left O’Malley’s together, is hotly debated. But three days later, Ventura County sheriff’s deputies arrested Luster at his house and charged him with drugging, kidnapping and raping Carey “Doe.” (Her last name is being withheld under a Times policy of protecting the identities of sex-crime victims.) The graphic evidence investigators found at Luster’s house--16 videotapes in his bedroom that allegedly show him having sex with other women, some of whom appear drugged, almost comatose--led to additional criminal charges by two women Luster had dated in the past.

His status as a great-grandson of Max Factor became a liability for him overnight as the media played up the celebrity angle. The kidnapping charge, the possibility that Luster was “a clear and present and immediate danger to women,” plus the fear that he might flee, led a judge to set his bail at $10 million. Unable to come up with the $1-million bond, Luster sat in jail for five months. In all, Luster was charged with 87 counts of kidnapping, drugging, sodomy and rape. Prosecutors alleged that Luster is a serial rapist who drugged three unsuspecting women with the illegal substance gamma hydroxybutyrate (GHB) and, without the knowledge of his two former girlfriends, videotaped them in various sexual acts. If convicted, he could spend the rest of his life in prison.

The defense, however, claims that this was never a GHB-induced rape case. “Plain and simple,” says Roger Diamond, one of Luster’s lawyers, “this is a case about prosecutorial misconduct and we plan to get to the bottom of it.” The defense claims that prosecutors have withheld key evidence, altered witness statements and coached the three women complainants who, Luster’s lawyers claim, are “gold diggers” out to get their client’s money.

In interviews last March, before the judge imposed a gag order, Luster and his defense team denied all of the charges against him. The women consented to have sex, Luster said, and if the two videotapes now being used as evidence were viewed in their entirety, they would show that the women knew they were being videotaped.

He also contended that he never gave any of them GHB. “My life has been ruined because police and prosecutors jumped to conclusions,” he said. “They wanted to make me their GHB poster boy. They’re doing this to punish me for my lifestyle, which doesn’t fit in with their conservative values. In 20 years I haven’t gotten anything except a few speeding tickets. Had they thoroughly investigated [Carey Doe] before charging me, they would have discovered she lied” about how things transpired during their encounter. But, Luster said, “they allowed the case to go forward to boost their careers.”

Two and a half years after Luster’s arrest, his case still is not resolved. He remains under limited house arrest, an electronic-monitoring device attached to his ankle, as he waits for his trial to begin in the coming weeks. The high-profile case once seemed solid, but at this point it’s hard to predict how a jury might react to some of the evidence that has emerged since the charges were first filed.

As the pretrial debate between Ventura County prosecutors and Luster’s defense team continues, Luster’s case opens a window on the persistent problems that arise when the criminal justice system is confronted with accusations of drug-induced sexual assault. These cases often present difficult challenges, including physical evidence that vanishes quickly from the human body and built-in cultural biases against men and women who sometimes get caught up in a partying lifestyle. Such cases also often hinge on the meaning of “consensual” and the ability of a jury to sift the truth from a subculture of sometimes easy sex, performed in a haze of drugs and alcohol, that obscures traditional meanings of guilt and innocence.

By the summer of 2000, authorities in Southern California and elsewhere around the country considered GHB--along with Rohypnol, or “roofies,” and a variety of other central nervous system depressants--as a drug linked to sexual predators and their crimes. GHB is clear and odorless, with only a slightly salty taste. This makes it hard to detect in drinks or food, and it can be synthesized easily in a home lab with recipes that are available on the Internet. With GHB, a four-hour groggy period usually ensues, sometimes followed by in-and-out amnesia. (Former LAPD narcotics officer Trinka Porrata says that Ecstasy, another popular drug on the club scene, also “can compromise a woman’s judgment,” even though it is not a depressant but a stimulant.)

An average of 50 drug-facilitated sexual assaults are reported to the Los Angeles Police Department’s rape special section each year, says Det. Jesse Alvarado, “but there are so many more that go unreported. Many women don’t want to go through the emotional trauma of a criminal investigation, and these drugs make women often not remember what happened to them.” Most of the reported cases never make it to trial (last year only six did) because of a lack of hard evidence. GHB vanishes from blood in four hours and from urine within 12.

When L.A. County Deputy Dist. Atty. Mary Hanlon Stone got the 1998 case of George and Stefan Spitzer, identical twins who were dubbed the “Rohypnol Romeos” for using roofies to drug women they had met and then forcing sex on them, she had little physical evidence to work with. “These cases are complicated because evidence is disappearing every minute,” she says. “Women often don’t realize they’ve been sexually assaulted and don’t go to a hospital in time when it would be critical.”

Stone was able to win a conviction by building a strong circumstantial case around the testimony of more than a dozen female victims and seven boxes of Rohypnol found in the twins’ Marina del Rey apartment.

“I tell people they should pee in a cup right away,” says Porrata, who now teaches law enforcement and high school and college students how to recognize and avoid drug-facilitated rape. (She also is a prosecution expert witness in the Luster case and declined to comment on the upcoming trial.) “These are hard cases to prove, and cops who don’t understand the phenomenon are a big part of the problem. Most rape investigators don’t even have enough training. If they did, they’d know to rush a victim to the hospital. As it is, most police don’t respond to these situations as drug-induced rape cases. They think of the woman as some drunken bimbo.”

Most cases of drug-induced sexual assault “are alcohol-related,” says Alvarado. “A woman can just as easily get drunk and not remember what happened. As long as someone does not give their permission, that’s rape. In sex cases, there are only two defenses: it wasn’t me or it was consensual. Consent is the hardest thing to prove, particularly with the use of drugs, because the victims can’t remember whether or not they gave consent. Sometimes there’s a very thin line between what’s true and not true.”

As the Luster case demonstrates, a partying lifestyle can easily blur that line. Andrew Luster moved to Mussel Shoals 19 years ago after graduating from Windward School in West Los Angeles so that he could be close to his “true love”--the ocean. His freewheeling lifestyle weakened his already tenuous ties to the Factor family, which is involved in the arts and philanthropy.

“For me, it’s not about chasing dollars or fame,” he said last spring. “I’m not a high-profile guy, nor am I some wild party animal. I’m a nobody, really. Just a humble surfer who’s had a few girlfriends.” He doesn’t have to work--his investments provide an annual $55,000 income. But over the years he has dabbled in real estate, played the stock market and started a number of small businesses, including a surf accessories company.

A former surfing companion who asked not to be identified says he was not surprised by Luster’s arrest. He ran around with a crowd of “chicks who are into sex and drugs,” the surfer says. In this beach crowd, explained Luster’s defense investigator, Bill Pavelic, “sex is nothing more than entertainment for a few hours.”

There were other ways in which Luster didn’t fit the Factor mold. “In a sense, Andrew isn’t really a Factor,” says Fred Basten, coauthor of “Max Factor’s Hollywood Glamour, Movies, Make-up.” Based on Luster’s lineage, Basten notes that Luster “doesn’t have [Factor’s] name or his blood.”

Luster’s mother, Elizabeth, was adopted by Freda Factor, the oldest daughter of Max Faktor Sr., a wig maker for the imperial family who fled Russia in 1902 and smuggled his family aboard a ship bound for America, where his name was misspelled as Factor at Ellis Island. In 1909 they settled in California, where Factor specialized in theatrical makeup for screen legends such as Joan Crawford and Lana Turner. He later expanded the company into a multimillion-dollar international cosmetics firm. Factor died in 1938, and in 1973 the family sold the company to Norton Simon Inc. for $480 million--it is now controlled by Procter & Gamble--and the proceeds have been passed down through four generations in trust funds.

Luster’s father, a psychiatrist, died from emphysema-related surgery when Luster was 9, leaving his mother to raise him and his younger sister. He has two children, ages 8 and 11, by a former girlfriend who brings them for weekend visits.

Andrew Luster met Carey Doe at O’Malley’s sometime after 1 a.m. on that Saturday in July 2000. By then, according to court documents, she had consumed three beers, two Long Island iced teas and a Cosmopolitan. Like many her age, Carey, a third-year UCSB student, had experimented with drugs. She had taken Ecstasy and smoked marijuana three times prior to that night, she told police. She said she sometimes got so drunk that she vomited.

Carey told police that she felt strange after dancing with Luster. She later suggested to friends that perhaps she had been given a spiked cup of water at O’Malley’s, because she does not remember agreeing to leave with Luster or that she and her friend David got into Luster’s green Toyota Forerunner and headed back to his house in Mussel Shoals.

According to various accounts, it was after 2 a.m. when the group arrived at Luster’s house. The beach was dark except for flickering lights from an oil rig up the coast. Carey later told police that she walked onto the pier, took off her dress, handed her money and ID card to Luster, and jumped into the surf.

A few minutes later, she swam back to shore and climbed out, shivering in only her thong underwear. One of the men helped her out (accounts differ about which man) and they went back to Luster’s house, where she took a shower. Luster got in with her and they had sex. Again, accounts differ. Was it consensual, as Luster maintains, or was Carey so out of it that she was in no condition to give consent? Luster took several photos of her in his living room that night and Luster’s defense team claims those photos were taken sometime after she took a shower. One of those images is expected to become pivotal evidence in Luster’s defense. It shows Carey fully dressed and smiling.

By the time Luster drove Carey and her friend David back to her apartment near Santa Barbara on Saturday morning, she claims Luster had raped her two more times. Before they parted, she told police, she gave him her telephone number.

“There is a strong cultural bias against women who get drunk and, say, rip off their clothes in the middle of the street,” says Porrata. “It’s not a pretty picture and predatory men hide behind that bias. Women who party like the boys and drink and take drugs voluntarily complicate these cases because their behavior fuzzies the issue of consent, but it still doesn’t mean they give their consent.”

Carey went to the police the following Monday to report that she’d been raped by Luster. A series of tests at a local hospital found no trace of drugs in her system, according to Luster’s defense team. But details of her account convinced detectives that she’d been drugged with GHB, although the defense claims that none was found in searches of Luster’s home and vehicle.

Without proof of toxicity “prosecutors take another road and try to find other victims to weave a tapestry of stories,” says Deputy Dist. Atty. Stone. In the Spitzer twins case, the prosecution urged other victims to come forward in news articles, “and 23 women came out of the woodwork,” Stone says.

Even when other alleged victims come forward, drug-aided rape cases can still be “hard sells to juries because jurors look for inconsistencies in the women’s statements,” says jury consultant Lara Giese. Giese worked on the John Gordon Jones case, a high-profile GHB criminal case that was tried in Long Beach and ended in an acquittal on all 30 counts of drugging and raping nine women. (In July, Jones was ordered to pay $5.3 million in civil damages to one of his accusers. One of his defense lawyers, Richard Sherman, is co-counsel on Luster’s defense team.)

Dubbed “the limousine rapist,” Jones, a successful computer company owner, frequented Hollywood nightclubs, where he met women and took them back to his house in a limousine. As in the Luster case, some of the women who accused Jones of drugging and raping them had dated him in the past, which, says Det. Alvarado, “is always a complicating factor. In the Jones case, some of the victims had issues; they were party girls.”

As jury expert Giese knows, jurors tend to care less about a victim who has an alternative lifestyle, and it also didn’t help that no GHB was found in Jones’ possession. “The gold-digger theme came through,” Giese says, “because some of the witnesses’ accounts may not have been completely true.” For example, some of the women testified that they’d been locked in Jones’ various bedrooms and then raped, but jurors doubted their credibility when they went to his house and saw no locks on the doors.

“Women can end up jeopardizing their own cases and hurting the credibility of cases--and women--that are real,” Giese says.

Adds Alvarado: “We always proceed from the position that the woman is telling the truth, but sometimes the evidence doesn’t hold up. Some women use elaborate fabrications for various reasons. The last thing I want to do is hurt an actual victim more, but I also don’t want to put a rape arrest on an innocent man.”

In Luster’s case, the defense is counting on one witness in particular, Carey Doe, to create reasonable doubt in jurors’ minds. When Bill Pavelic, who retired as an LAPD detective after 19 years, joined Luster’s defense team, he first concentrated his investigative efforts on Carey, “because without her there is no case.”

After Luster was arrested, new details emerged that cast doubt on Carey’s initial story, particularly her claim of having been kidnapped and drugged. Luster told detectives that on the drive back to his house, he saw Carey perform oral sex on her friend David in the back seat of his car. Detectives went back to the UCSB student and asked if this were true. She denied having sex of any sort with David.

Initially reluctant to share details, David eventually told detectives his own version of events. He said he had memory gaps that night, but that Carey “may have” performed oral sex on him. When pressed further, David recalled that Carey lifted her dress, straddled his lap and that intercourse “probably” happened.

Prosecutors said they could not talk about details of the case because of the gag order, but tests they conducted on DNA samples, including semen found on Carey’s clothing, raised even more questions about what happened. The tests showed that one semen sample tested positive for Luster, another for David, and a third for an as-yet unidentified person whom Pavelic believes was Luster’s friend who accompanied him for their night on the town.

“We will show that over the course of 72 hours, Carey had sex with at least three men,” Pavelic says. “So why would she just single out Luster? There is only one answer. She did it hoping to get his money.”

Anthony Wold, the lead prosecutor in Luster’s case, argued against having the third semen sample tested because, as he said during a court hearing: “It’s irrelevant. This is not a case about identification. We know who did this.”

It’s not clear what connection, if any, those tests had on the prosecution’s decision just before Luster’s June 2001 preliminary hearing not to pursue the kidnapping and drugging charges stemming from the events at O’Malley’s involving Carey Doe. He still faces rape charges in the Carey Doe case, and drugging and rape charges involving the other two women, both of whom have filed multimillion-dollar civil suits alleging severe emotional distress. An attorney for one of the plaintiffs says nothing is expected to happen on those cases until the criminal cases are concluded. When contacted by telephone, one of Luster’s accusers declined to comment and Carey did not respond to a message left for her with co-workers. The Times was unable to locate the third woman.

The most relevant issue, says Trinka Porrata, is an understanding of the issue of consent. “It doesn’t matter if a woman has consensual sex with 10 guys on the football team but not the 11th,” she says. “It still doesn’t mean sex [with the 11th guy] was consensual. Even prostitutes get raped.”

Luster’s defense strategy of attacking Carey’s behavior comes as no surprise to women’s-rights advocates. “In these cases, the burden of proof is still on the woman instead of the man,” says Patricia Bellasalma, executive vice president of the Los Angeles chapter of the National Organization for Women and a civil rights attorney. “Sexual assault laws now say that a woman’s past can’t be used at trial, but lawyers still find ways to get it in. Another problem is that the public still operates on the old idea that if a woman didn’t go to a bar and drink, she wouldn’t get into trouble.”

Prosecutors are banking on the two sexually explicit videotapes to help win a conviction. “He can’t get around these videotapes,” Wold said in a court document.

Suggesting that prosecutors don’t intend to use all of the 16 seized videotapes during the trial, Pavelic says, “You have to ask yourself why.” He concludes: “The other tapes establish that women knew they were being taped.”

The tapes--edited versions of two have been shown in court but never to the public--allegedly show two of Luster’s former girlfriends drugged and in various sexual acts. At Luster’s preliminary hearing, the women testified that they had no memory of the taping or of having given their consent for sex. Luster’s defense maintains that both women are motivated by shame and greed.

As the battle between Ventura County prosecutors and Luster’s defense lawyers intensifies in the days leading up to trial, the case has refocused attention on a number of basic ideas. “Women need to be more aware that these drugs are out there,” Alvarado cautions, “and if they think they were sexually assaulted, they need to get a urine sample immediately.” On a broader level, Bellasalma believes that instances of drug-aided sexual assault will not decline “until the culture accepts that women, and not the public domain, have ownership of their bodies.”

As for Andrew Luster, he sat quietly at the counsel table during a pretrial hearing in September, occasionally swiveling in his chair to smile at people who had come to lend support. He appeared noticeably older and heavier than he had at his preliminary hearing in June 2001. As usual, his mother sat in the front row and shook her head whenever prosecutor Wold said something about her son that she didn’t like.

Outside in the hallway, some longtime courtroom observers began to make their bets, while others declined, knowing the outcome of this case is too close to call.