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Accuser, former Erie County official testify about night of alleged rape

ALBANY – After a night of heavy drinking with co-workers, the 28-year-old children's services employee stepped off the elevator on the 11th floor of her Albany hotel. Erie County's top social services administrator was waiting for her.

It was shortly after 1 a.m. on Dec. 6, 2017. She and others had just spent hours drinking with Commissioner Al Dirschberger, who kept buying and handing out glasses of liquor to staffers during their visit to Albany for a conference. Hotel video shows he followed her to her room, and she let him in.

What happened in the woman's hotel room is at the heart of Dirschberger's rape trial. Jurors in Albany County Court heard the final day of testimony Thursday, with Dirschberger serving as the first and only defense witness.

The woman has accused Dirschberger of raping her in her hotel room while she was intoxicated. Dirschberger testified that the two engaged in consensual sex and that she invited him in.

"Why don’t you come back to my room?" Dirschberger said she asked him that night.

"Really?" he said he answered. "What do you want to do?"

The woman said she was going to walk an intoxicated female co-worker back to her room first, Dirschberger told jurors. Then he said she told him, "Meet me back at my room — 1104."

"I kind of had an idea it would lead to something," Dirschberger told jurors.

Dirschberger's accuser recalled something totally different.

The woman testified feeling intoxicated, intimidated and traumatized by Dirschberger. She said he repeatedly asked and pressured her for her room number. She expected they would simply talk but said she was sexually assaulted instead. When he finally left the next day, she said she hesitated to tell her boyfriend the truth.

"I didn't know how to tell someone I loved that I had been raped," said the woman, who is not being identified because The Buffalo News does not identify alleged victims of sexual assault without their consent.

Neither side disputes that Dirschberger ordered and purchased drinks for staffers and others on the first night of an Albany conference. Both sides agree that Dirschberger encouraged two female staffers to join him at the hotel bar afterward for multiple rounds of drinks and shots, which he purchased. And both sides agree that a group of people, including Dirschberger and the woman, then headed for Bombers Burrito Bar where Dirschberger and the woman spent nearly half an hour at one end of the bar in quiet conversation that was not overheard.

But after they returned to the Renaissance Hotel, their stories sharply diverge.

His version

Dirschberger said he and his employee primarily talked about work for much of the night but their behavior became more flirtatious as they spent more time together at Bombers. Though Dirschberger had provided the woman many cocktails during the night, until she switched to water at Bombers, he said, "I didn't think she was intoxicated. Everyone was having a great time."

"As we were leaving, she said, 'You should see my room,' " he recalled.

The woman had received a free room upgrade when she checked in. She offered him her room number without prompting, he said. Hotel video shows him lingering near her door before he went to wait by the elevator while she dropped off her co-worker on a different floor.

"It felt like forever," he said. When she appeared, he said he told her, "I didn't know if you were going to make it."

They went into her room, sat on the couch and talked about ordinary things for a short time until they got closer and began touching and kissing, he said. Dirschberger then testified before jurors in great detail about how they undressed and made it to the bed. He then gave a lengthy and descriptive breakdown of how they had sex three times, how long each encounter lasted and what related, consensual sexual touching occurred.

He said she verbally expressed her pleasure, was conscious throughout, cuddled with him and agreed to later meet him for lunch to figure out how they should proceed.

"She was participating," he said, adding that she told him that their sex was "amazing."

When she later accused him of rape in a phone call recorded by police, he said, "I was in shock."

Her version

While Dirschberger described the entire encounter as mutually passionate and consensual, his accuser recounted the time with Dirschberger in her room as "terrifying" and traumatic.

She said Dirschberger had repeated asked for her room number.

When she deflected his question, he said, "Why do you keep trying to change the subject?" she recounted. Eventually, she said, she believes she told him what floor she was on.

"I was extremely uncomfortable, and I would not have invited him to my room," she testified.

She testified that she was looking for Dirschberger's assistance in getting into a Ph.D. program and was too intimidated by his status and influence as her boss to object to all the drinks he was giving her and his behavior back at the hotel. She said she did not recall everything that happened after he entered her room and that she wasn't sure if she was conscious the whole time.

Based on her glimpses of memory, she said, she recalled the two of them sitting on the couch, then recalled him on top of her in bed and penetrating her.

"I remember it really hurting," the woman said. "I remember saying no. I remember telling him to stop."

During another sexual encounter, she said she flinched and tried to pull away, pressing upward against the bed.

"When you tried to pull your body away, what did he do?" asked the prosecutor.

"Kept going," the woman answered.

She said she recalled saying no "many times" because of the pain she felt. But she had gaps in her memory about all that occurred during the night. She said she did remember Dirschberger getting dressed in the morning and saying something like, "I hope work isn't weird, but I know you have good boundaries."

A female friend who came to see her later that morning and the nurse who examined her at the hospital testified that they saw blood and physical signs of injury on the woman consistent with sexual trauma.

"It hurt to walk," said the woman, who appeared nervous, spoke quietly and occasionally cried during her two days of testimony.

Contradictions

Dirschberger's defense lawyer, James Knox, tried to cast doubt among jurors by suggesting the woman felt remorse for her actions after receiving a message from her boyfriend saying he missed her. Feeling remorse over something you thought felt right at the time, but turned out to be a big mistake is a common human failing, he said, but not a crime.

He also called attention to the fact that when the woman stepped off the elevator on the 11th floor, video footage does not show the woman appearing shocked at seeing Dirschberger. Instead, she walked up to him, spoke to him and appeared to reach up with her left hand and touch his arm instead of simply turning in the other direction and heading directly to her room.

The woman testified that she was nervous to see Dirschberger but was trying to stay calm because he was her boss and had influence over her career.

Prosecutor Jennifer McCanney poked holes in Dirschberger's testimony, too.

Dirschberger said he never shared sensitive personnel information about a supervisor he was planning on "getting rid of," didn't provide any drinks that weren't asked for, and was never intoxicated, despite witness testimony to the contrary. And even though he initially said in his recorded call to the woman that he was was intoxicated and didn't remember everything that happened, he was able to reconstruct the evening's events in granular detail on the witness stand.

The accuser, meanwhile, could not account for how Dirschberger knew where her hotel room was. The defense questioned some aspects of her testimony that were inconsistent, as well as her inability to remember much of what occurred in her hotel room when she recalled many other events of the evening.

She responded that she was both intoxicated and suffered a traumatic experience, making her memory lapses understandable and common.

The case has now been left in the hands of the jury.

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