Meet former Westminster, California, police detective Anthony Nicholas Orban.


He was just a normal law enforcement officer, until one night he had a yearning for a woman.  No woman, apparently, had a yearning for him.  And so he took matters into his own hands.  Well, to be more precise, he took his semi-automatic service weapon into his own hand and shoved it into the mouth of a waitress under the ill-conceived assumption this would make him more attractive.  It did not.

From the Los Angeles Times :

“He was a highly trained officer who wanted to have sex. He had sex on the mind. Don’t forget that,”  Deputy Dist. Atty. Debbie Ploghaus told jurors in her closing arguments earlier this week.

The woman, then 25 and working as a waitress at Ontario Mills Mall, testified that Orban chambered a round in his semi-automatic service pistol, shoving the barrel deep into her mouth as tears rolled down her cheeks. “He said if I cried, he would kill me,” the victim told jurors. “Then he pulled the gun out and said, ‘I think we’ll continue this in the desert.'”

At trial, the defense was a variation on the twinkie defense; Zoloft made me do it.

Defense attorney James Blatt had argued that Orban was rendered “unconscious” by use of the antidepressant, and therefore was not responsible for his actions in the brutal 2010 attack in Fontana.

A defense psychiatrist testified that Orban had stopped taking the prescribed antidepressant, then resumed it at full dose, provoking a psychotic break during which he was not fully aware of his actions.

The prosecution ridiculed the defense as “baloney.”  After all, it’s outrageous to suggest that drugs created to be mind-altering might be, well, mind-altering.

The jury didn’t buy it.

The jury of eight women and four men began deliberations late Tuesday and reached the verdict Wednesday morning. It found the defendant, Anthony Nicholas Orban, a Marine veteran of the Iraq War, guilty of two counts of rape, two counts of forced oral copulation, two of sexual penetration with a foreign object, one count of making a criminal threat, and a sentence enhancement of using a firearm in commission of a kidnapping.

The underlying facts, of Orban going out to a bar to get drunk and find a woman, suggests that what came later wasn’t the product of a psychotic break.  His conduct was calculated, not merely to commit a rape but to do so in a way that would prevent his getting caught by taking his victim to the desert where he could rape her unobserved. 

But that doesn’t mean that the ingestion of the SSRI sertraline hydrochloride played no role, and more importantly, should be so easily dismissed.  The prosecution argued that raping women wasn’t a side effect of Zoloft, which may be accurate as far as it goes. But disinhibition, the inability to control impulse, is a  known side effect, and disinhibition gives rise to an individual acting upon his worst impulses without the control of rational thought.

In other words, it’s quite possible that Orban’s conduct was affected by Zoloft.

The twinkie defense, and its various permutations, has been the subject of such enormous public ridicule as to be easily rejected by a jury despite medical testimony to the contrary.  In a way, it’s much like false confessions, something that jurors refuse to accept because it fails to comport with their experience.  After all, they’ve taken medicine and it never made them rape anyone.

On the other hand, the defense is facile, a ready excuse for inexcusable conduct.  Is society prepared to give every Zoloft user a free rape?  Or worse?  Not likely.

That a defendant who has otherwise demonstrated no inclination toward criminal conduct suddenly engages in something horrendous, as did Orban, seems to suggest that this isn’t his character, but his medication, at work.  But this too is a slippery slope, since accepting the premise that mind-altering drugs can cause an otherwise law-abiding person to engage in a terrible act doesn’t change because of an alleged propensity. If it’s the drugs, it’s the drugs. If it’s not, it’s not.  Guessing games don’t prove anything either way.

This is a particularly difficult issue, since drugs (which can include all manner of things that alter a brain’s chemistry) can obviate the mens rea, and most of us remain of the belief that it’s the intent rather than the mere outcome that distinguishes a crime.

But how to know?  As more mind-altering drugs become available (and are even sold over the counter), and as more people take drugs to achieve their personal level of “normal,” this problem becomes more acute.  The answer, unfortunately, remains elusive, and to the extent that drugs are a very real defense to the formulation of criminal intent, are increasingly unlikely to be accepted by a jury.