Charges against a Warren man charged with rape will move on after a motion that sought to have two of the charges dismissed was denied.

Judge Gregory Hammond heard argument on a motion for Writ of Habeas Corpus on Thursday in the case of Jason Michael Lee.

Lee, 43, was charged with criminal attempt – rape unconscious victim, criminal attempt – sexual assault, criminal attempt – indecent assault person unconscious, rape unconscious victim, sexual assault and indecent assault person unconscious after the alleged March incident.

According to the affidavit of probable cause, the alleged victim was out with several people in Youngsville on the night of Saturday, March 11. They all returned to her residence in Youngsville at about 3 a.m., Sunday, March 12. The victim told police that she had gone to bed naked at about 4 a.m. and that some of the others were still awake.

She told police she awakened between 9 and 9:30 a.m. to find the defendant on top of her.

After pushing him off, the victim said she woke her husband, who was sleeping in another room, who then came into the bedroom, kicked the bed twice to waken Lee, and told him to get out.

The victim told police she and her husband drove to Corry Memorial Hospital that day and reported the alleged assault.

State police conducted follow-up interviews. “Other evidence was obtained which indicates a sexual offense occurred,” police said.

At issue in Thursday’s hearing were the elements of two of the charges – rape unconscious victim and sexual assault – that require sexual intercourse.

Lee’s attorney, Colin McHenry, argued that the elements of those charges require penetration and raised issues, based on the alleged victim’s preliminary hearing testimony, regarding whether penetration occurred.

“What we have here… is the alleged victim providing a guess,” McHenry said, citing the testimony.

District Attorney Rob Greene, though, argued that the definition of sexual intercourse includes “penetration however slight.”

Hammond ruled that the prosecution met its burden at the preliminary hearing and denied McHenry’s motion.