ARLINGTON, Va. (AP) - Marv Albert's case should be dismissed because his indictment does not specifically say the sportscaster penetrated his accuser during oral sex, according to a defense motion released Tuesday.
Albert is accused of biting the back of a woman with whom he had a 10-year sexual relationship and forcing her to perform oral sex. His trial on forcible sodomy and assault and battery charges is to begin Monday, and he could be sentenced to up to life in prison if convicted.
Penetration is a key part of the crime of sodomy, defense lawyer Roy Black argued.
"The indictment completely fails to allege the essential element of penetration," Black wrote in the motion. "This defect is fatal to the indictment and requires dismissal."
The May 19 indictment charges that Albert "did by force, threat or intimidation engage in an act of sodomy, to wit: fellatio" with his accuser.
Sodomy, either forcible or consensual, is a crime in Virginia.
Arlington County prosecutors claim Albert attacked a 42-year-old Vienna, Va., woman during an encounter Feb. 12 in his room at the Ritz-Carlton Hotel.
Albert, NBC's lead basketball announcer, had broadcast a Washington Bullets game a few hours before the incident.
A source close to the case told The Associated Press shortly after Albert's arrest in May that the woman claimed Albert became angry when she refused his request for three-way sex involving another man.
In the motion, filed under seal Sept. 10 to Circuit Judge Benjamin N.A. Kendrick, Black claimed the indictment should have provided details of the penetration if prosecutors plan to argue at trial that it occurred.
Assistant Commonwealth's Attorney Theo Stamos said prosecutors will argue at a hearing Thursday that the indictment is sound and they are not required to be more specific.
Another motion made public Tuesday asks Kendrick to rule on Black's constitutional challenge to Virginia's anti-sodomy law after the trial begins.
At a hearing Sept. 4, Black argued that the anti-sodomy law is an invasion of Albert's privacy and that he should not be prosecuted for engaging in consensual sex if the charge against him is that he forced his accuser.
Prosecutors, however, contended that Albert could not have expected privacy if Albert anticipated a man joining the couple.