OCTOBER
7, 2002
Sunday Magazine
THE THIN BLURRED LINE
The bizarre California
case of the great grandson of
cosmetics tycoon Max Factor accused of rape illustrates
that the distinction between consensual sex and
sexual assault can evaporate in a haze of hard partying.
By
Mary A. Fischer
On the night his life changed forever, Andrew Luster and his friend
Mike each drank a beer and then drove north to Santa Barbara to meet
women. That’s easy to do, especially on weekends, as tourists
and students from UC Santa Barbara gather on State Street. The bars
and clubs overflow with young people, many of whom fully expect, as
21-year-old Carey “Doe” did on that warm July night in 2000,
to “get messed up.”
Until that night, Luster’s famous heritage had served him well.
He had a $4 million trust fund and a $600,000 cottage on the beach in
Mussel Shoals, a community that lies between Los Angeles and Santa Barbara.
He was 36, handsome, with thick dark hair, green eyes and a trim, toned
body from years of running and surfing. He surfed, took diving rips
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 July night, at a bar called O’Malley’s, he wanted
to impress the pretty blonde named Carey, so he casually mentioned that
he was a great-grandson of 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 this much is clear; three days later
Ventura County sheriff’s deputies arrested Luster at his house
and charged him with drugging, kidnapping and raping Carey Doe. (The
court does not allow the disclosure of witnesses’ real names.)
The graphic evidence investigators found at Luster’s house led
to additional charges by two more women Luster had dated in the past.
Police confiscated 16 homemade videotapes in his bedroom that showed
him having sex with various women, some who appeared drugged, almost
comatose.
Overnight, Luster’s ancestry became a liability for him as the
media played up the celebrity angle. Convinced that Luster was a “serious
threat to women,” a judge set his bail at $10 million, and he
sat in jail for five months, unable to come up with the $1 million bond.
At his preliminary hearing in June 2001, Luster was charged with 87
counts of kidnapping, drugging, sodomy and rape. Prosecutors allege
that Luster is a serial rapist who drugged unsuspecting women with the
illegal substance gamma hydroxy butyrate (GHB) and, without their knowledge,
videotaped them in various sexual acts. If convicted, he could likely
spend the rest of his life in prison.
The defense asserts this never was a GHB case and 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 an exclusive interview last March, before a gag order was imposed,
Luster told me all the charges against him are “false.”
The women consented to have sex with him, Luster claimed, knew they
were being videotaped and 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. In 20 years
I’ve never even had a speeding ticket. Had they thoroughly investigated
[Carey Doe] before charging me, they would have discovered she lied”
about how things transpired in her encounter with him but, Luster said,
“they allowed the case to go forward to boost their careers.”
* * *
It’s been two-and-a-half years since Luster’s arrest, and
his case is still not resolved. He remains under house arrest, an electronic-monitoring
device attached to his ankle, as he waits for his trial to begin early
next year. The high-profile case once seemed like a slam dunk, but it
no longer has a predictable outcome as layers of investigative mistakes,
personal agenda and media sensationalism are peeled away like so much
makeup. As the pre-trial debate between Ventura County prosecutors and
Luster’s defense team rages on in Courtroom 43, both sides would
agree on one thing: Luster’s case opens the window on the persistent
problems that arise when the criminal justice system is confronted with
accusations of drug-induced sexual assault.
These cases present a challenging set of problems that include vanishing
physical evidence, overzealous prosecutors, take-no-prisoners defense
attorneys and built-in cultural biases against opportunistic men and
lonely women who get caught up in a partying lifestyle. Beneath the
surface, the foundation of these cases often rests on the meaning of
“consensual sex,” and the ability to sift the truth out
from a subculture of easy sex, performed in a haze of drugs and alcohol,
that obscures traditional meanings of guilt and innocence.
* * *
In the summer of 1998 authorities in Southern California, and elsewhere
around the country, were on high alert as GHB and a variety of other
central nervous system depressants replaced Rohypnol--“roofies”--as
the new drugs linked to sex crimes. Drugs like GHB, Adavan and Ketamine—commonly
called “Special K”--were ten times more powerful than Valium
and could render a person unconscious for a “35 to 40-minute zombie
period during which time someone can move you around like a pretzel,”
says former LAPD narcotics officer Trinka Poratta. The four-to-eight-hour
groggy period that usually ensued, followed by in-and-out amnesia, made
these drugs the perfect foil for sexual predators. Ectasy was another
worrisome club drug. Although it is a stimulant, “it can compromise
a woman’s judgment,” adds Poratta.
GHB, in particular, was a big concern. It was clear and odorless, with
only a slightly salty taste, which made it harder to detect in drinks
or food, and it could be easily synthesized in a home lab with ingredients
purchased over the Internet.
In Los Angeles, an average of 50 drug-facilitated sexual assaults are
reported in the city each year, “but there are so many more that
go unreported,” said Detective Jesse Alvarado of LAPD’s
rape special section. “Many women don’t want to go through
the hassle of a criminal investigation, and it’s the nature of
these drugs that make women often not remember what happened to them.”
Most of the reported cases, however, never make it to trial (last year
only six did) because of a lack of hard evidence. Most of these powerful
sedatives slip quickly from the system, vanishing from blood in four
hours and from urine within 12.
When L.A. Deputy D.A. Mary Stuart Hanlon got the 1998 case of George
and Stefan Spitzer, identical twins who were dubbed the “Rohypnol
Romeos” for their practice of using roofies to drug women they
were dating and then forcing sex on them, “there was no physical
evidence,” she said. “These cases are complicated because
evidence is disappearing every minute. Women often don’t realize
they’ve been sexually assaulted and don’t go to a hospital
in time when it would be critical.” Hanlon was able to win a conviction
by building a strong circumstantial case around the testimony of 15
female victims, seven boxes of Rohyphnol found in the twins’ Marina
Del Rey apartment and 20 homemade videos showing them having sex with
at least 12 different women, some who appeared unconscious.
“I tell people they should pee in a cup right away,” says
Poratta, now a consultant who instructs law enforcement and high school
and college students about drug-facilitated rape. (She is also 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”
said Detective Alvarado, “but 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 sometimes there’s
a very thin line between what’s true and not true.”
* * *
As the events of that July night in 2000 demonstrate, the partying lifestyle
can easily blur that line. It was after 1 a.m. when Luster met Carey
Doe at O’Malley’s. By then, she had consumed three beers,
two Long Island Ice Teas and a Cosmopolitan. Like many people her age,
Carey, a third-year UCSB honors student, had experimented with drugs.
She took Ectasy and smoked marijuana three times, she told police. She
said she sometimes got so drunk on alcohol that she vomited and passed
out. Two weeks earlier, she said she “hit it off” with a
boy named Jon. They drank, she said, “messed around” at
his apartment and then passed out.
After dancing with Luster, Carey later told police he must have spiked
the cup of water he gave her with GHB, otherwise she would have been
better able to resist what happened next. She said Luster forced her
and her friend David into his green Toyota Jeep and headed back to his
house in Mussel Shoals. Luster moved there 19 years ago after graduating
from the Windward School in West Los Angeles so he could be close to
his “true love”—the ocean.
His freewheeling lifestyle made his ties to the Factor family, which
is involved in the arts and philanthropy, more tenuous than ever. “For
me, it’s not about chasing dollars or fame,” he told me.
“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 to remain anonymous said he was
“not surprised” by Luster’s arrest. The cosmetics
heir ran around with a crowd of “chicks who are into sex and drugs,”
the surfer said. In this beach crowd, explained Luster’s defense
investigator, Bill Pavelic, “sex is nothing more than entertainment
for a few hours. Sex to them does not mean what it does to you and me.”
There were other ways in which Luster didn’t fit the Factor mold.
“In a sense, Andrew isn’t really a Factor,” said Fred
Baston, co-author of Max Factor’s Hollywood: Glamour, Movies,
Make-Up. “He doesn’t have his name or his blood.”
Janet Factor, ex-wife of Davis Factor Jr. added: “Hell, Andrew
isn’t even Jewish.”
Andrew’s mother, Elizabeth was adopted by Freida Factor, the youngest
daughter of Max Factor, Sr., a wigmaker who fled Poland in 1904 and
smuggled his family on a ship bound for America. They settled in California
where Factor specialized in theatrical makeup for such screen legends
as Joan Crawford, Lana Turner and Greta Garbo. They expanded the company
into a multi-million dollar international cosmetics firm. The family
sold the company in 1973 to Revlon for $480 million—it is now
controlled by Proctor & Gamble—and the proceeds have been
passed down through four generations in trust funds.
Luster’s father, a psychiatrist, died from an emphysema-related
surgery when Andrew was nine, leaving his mother to raise him and his
younger sister Amy, 35, who has an established psychotherapy practice
in West Los Angeles. Luster has two children, ages 6 and 10, by a former
girlfriend who brings them to visit him on the weekend.
* * *
When the group from O’Malley’s arrived at Luster’s
house it was after 2 a.m., and the beach was pitch-black except for
flickering lights from an oilrig up the coast. Carey later acknowledged
she walked onto the pier, took off her dress, handed her money and ID
card to Luster, and jumped into the cold surf.
A few minutes later, she swam back to shore and climbed out, shivering
in only her thong underwear. Luster helped her out and they went back
to his house where she took a shower. He climbed in with her and they
had sex, but details of that encounter would differ. Around 3.a.m, Luster
snapped a photo of her in the living room, smiling—and the image
would become pivotal evidence for the defense. The next day, before
Luster drove Carey and her friend David back to her apartment near Santa
Barbara, 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,” said
former detective Poratta. “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.”
When Carey went to the police three days later to report Luster had
raped her, a series of tests at a local hospital showed no trace of
drugs in her system. But details of her account convinced detectives
she’d been drugged with GHB, although none was found in searches
of Luster’s home or jeep.
Without proof of toxicity “prosecutors take another road and try
to find other victims to weave a tapestry of stories,” says Deputy
D.A. Hanlon. In the Spitzer twins case, news articles urged other victims
to come forward “and 23 women came out of the woodwork,”
Hanlon said. After Luster was arrested in June 2000, detectives circulated
flyers with his photo in bars in Santa Barbara, and TV news anchors
urged viewers to call the sheriff’s department if they had any
related information. The national press picked up the story and reports
followed of there being victims “around the globe.”
Even when other alleged victims come forward, drug-facilitated rape
cases can still be “hard sells to juries,” said jury consultant
Lara Geis, “because jurors look for inconsistencies in the women’s
statements.” Geis worked on the John Gordon Jones case, another
high-profile GHB case that ended in an acquittal in July, 2001. One
prosecutor who asked not to be identified is still not sure whether
Jones’ exoneration on all 28 counts of drugging and raping seven
women had to do with actual innocence, or “good lawyering”
on the part of his lead attorney, Milton Grimes.
Dubbed the millionaire limousine rapist, Jones, a successful computer
company owner, frequented Hollywood nightclubs where he met women who
he then took 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 Detective Alvarado, “is always
a complicating factor. In the Jones’ case, some of the victims
had issues; they were party girls,” he said.
As jury expert Geis knows, jurors tend to care less about a victim who
has an alternative lifeystyle, and it also didn’t help that no
GHB was found in Jones’ possession. “The gold-digger theme
came through,” Geis said, “because some of the witnesses’
accounts may not have been completely true.” For example, some
of the women testified they’d been locked in Jones’ various
bedrooms and then raped, but jurors doubted their credibility when they
went to his house and saw there were no locks on the doors.
“Women can end up jeopardizing their own cases, “ Geis says,
“and hurting the credibility of cases—and women--that are
real.”
Adds Detective Alvarado: “We always proceed from the position
that the woman is telling the truth, but sometimes the evidence doesn’t
hold up,” notes Detective Alvarado. “ 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.”
There is always the potential of false accusations, says drug specialist
Poratta, “but the percentage is small. Most men get away with
this crime. That’s the far bigger problem. The SOB claims it was
consensual.”
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, an LAPD detective for 19 years, joined Luster’s defense
team, he first concentrated his investigative efforts on Carey, “because
without her there is no case,” he said. “She’s a fake
and the prosecution knows it.”
After Luster was arrested, new details emerged that cast doubt on Carey’s
initial story, particularly her claim of having been kidnapped and drugged
with GHB. Luster told detectives that on the drive back to his house,
he saw Carey perform oral sex on her friend David in the backseat of
his Jeep. Detectives went back to the UCSB student and asked if it was
true. “No, not that I’m aware of,” she said. “What
about any other sex acts?” they asked. “Oh, God, no, no,
no,” she exclaimed. She and David “barely knew each other.”
David provided more details to detectives. He said he had memory gaps
that night, but acknowledged that Carey “may have” performed
oral sex on him. When pressed further, David recalled that Carey lifted
her dress, straddled his lap and, because they were in that position,
intercourse “probably happened.”
DNA tests proved that it did happen and prosecutors later dropped the
kidnapping charge. Like Monica Lewinsky’s infamous blue dress,
the red one Carey wore that night had semen stains on it. The tests
confirmed that one semen sample tested positive for Luster, another
for David, and a third for an as-yet unidentified person who Pavelic
believes was Luster’s friend Mike.
“We will show that over the course of 72 hours, Carey had sex
with at least three and possibly four men,” Pavelic said. “So
why would she just single out Luster? There is only answer. She did
it hoping to get his money.” (Two of the alleged victims in Luster’s
case have filed multi-million dollar civil suits alleging severe emotional
distress and the third, Carey Doe, is expected to if he is convicted
at trial.)
Anthony Wold, the lead prosecutor in Luster’s case, argued against
having the third semen sample tested because, as he said in court records:
“It’s irrelevant. This is not a case about identification.
We know who did this.” (Prosecutors said they could not talk about
details of the case because of the gag order, nor would they allow the
three women complainants to be interviewed.)
The most relevant issue, says Trinka Poratta, 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 said. “It still doesn’t mean sex was consensual. Even
prostitutes get raped.”
Luster’s defense strategy of attacking Carey’s behavior,
and trying to dissect her past, 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,’ said Patty Bellasalma, executive
V.P. of the L.A. Chapter of NOW 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. What that
says is that women are not free to socialize with men without fear and
without assuming the risk.”
Prosecutors are banking on the two sexually explicit videotapes seized
from Luster’s bedroom to help win a conviction. “He can’t
get around these videotapes,” prosecutor Wold said in a court
document. Police took 16 sex tapes of various women into custody, but
used only two as evidence. “You have to ask yourself why,”
investigator Pavelic said. “The other tapes establish that women
knew they were being taped.”
The tapes, which have never been made public, allegedly show two of
Luster’s former girlfriends drugged and in various sexual acts.
At the preliminary hearing in June 2001, the women testified they had
no memory of the taping or of having given their consent for sex. Luster’s
defense maintains that both women are “strawberries”—a
party culture term for women who readily have sex with men who will
give them drugs--and that they’re testimony was motivated by shame
and greed.
* * *
As the battle between Ventura County prosecutors and defense lawyers
intensifies in Courtroom 43 in the weeks leading up to Luster’s
trial, the case has refocused attention on a number of basic ideas.
“Women need to be more aware that these drugs are out there,”
cautions Detective Alvarado, “and if they think they were sexually
assaulted, they need to get a urine sample immediately.” On a
broader level, NOW executive vice president Patty Ballasalma believes
instances of drug-facilitated 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 pre-trial
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 did at his preliminary hearing a year ago. As usual,
his mother, Elisabeth Luster, sat in the front row and shook her head
whenever prosecutor Anthony Wold said something about her son that she
didn’t like.
Outside in the hallway, a court watcher expressed what some observers
have thought over the months: You have to wonder what old man Factor
would think about all this.
* * * *
Story update: During his trial, Andrew Luster fled the country and,
in absentia, jurors found him guilty of most of the charges. Luster
was later captured in Mexico and is now serving a 30-year prison sentence.
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