Thursday, August 18, 2011
Today’s Denver Post carried a front-page story on the investigation of sexual assault cases. Much of the article concerned SANE nurse exams and sex assault kits, but near the end it referred to the sex assault team in the Jeffco District Attorney’s Office. As an occasional visitor to those meetings, I wanted to blog today about the filing of sexual assault cases.
Sex assaults are probably the most difficult cases to screen. When I first started prosecuting, stranger sex assaults were difficult to prove because of problems with showing identification of the perpetrator. One of my first felony cases was of a serial rapist who had raped six women and attempted to rape six others. He would break into their houses shortly before dawn. All the victims were single women, living alone. We had to prove identification through some circumstantial evidence (he was late getting back to community corrections because he was committing an assault, community corrections was revoked and he was sent back to prison when the sex assault stopped until he was returned to community corrections) and hair found on a baseball cap left at the scene. Hair testimony was not terribly strong, but that was all we had. We did not have a good eyewitness identification. Ultimately he pled guilty to six counts and was sentenced to 80 years in prison. Now, DNA testing has made these sorts of cases indefensible.
Consent is the primary issue now in sexual assault cases. Most sexual assaults are committed by someone who knows the victim, often in a social setting where the two might have had a consensual relationship. Bars are a common place for sexual assaults to begin, and drinking is all too often part of the picture. DNA is usually not helpful when the suspect admits having sex, but claims the victim consented.
In Jefferson and Gilpin counties, experienced investigators meet monthly with prosecutors to discuss sexual assault cases with adult victims. (Crimes against children are handled by that unit.) Attendance varies, but there are usually around a dozen people involved. Some cases have been filed, others are still under investigation. The lead investigator will present the case to the group for unfiled cases, and the DA will talk about filed cases.
Unfiled cases make up the bulk of the meetings. Every sexual assault filing does not go to the group, but the most difficult and problematic often find their way there. Problems in cases can vary from lack of physical evidence, to problematic victims, to a credible defense from the suspect. What each case has in common is a victim whose allegation is not wholly unbelievable on its face, making assertions that are without strong corroboration. In other words, close calls.
I don’t believe the media and the community give the district attorney’s office enough credit for seriously considering the filing of criminal cases, especially sexual assaults. Every D.A. understands the ramifications of accusing someone of a sexual offense, and the obligation to only file cases which present a reasonable likelihood of conviction is the paramount consideration. The problem, of course, is deciding which cases meet that high standard.
Lots of factors weigh into making that decision in every case, but for sexual assaults, especially one-on-one allegations, screening cases becomes an art. And like art, evaluation of the likelihood of success is in the eye of the beholder. Here is where the experience on the part of the members of the group gains importance. Those who have tried sexual assaults, or been part of the prosecution team, can best evaluate how all the evidence, or lack thereof, plays in front of a jury. Where consent is involved the strength of the prosecution depends on subtle factors.
And remember, this is not merely a 50-50 proposition. The prosecution needs to prove these beyond a reasonable doubt. How much doubt is there when a defendant testifies in his own behalf and adamantly insists every action he took was with the consent of the victim? How much evidence is necessary to show that statement was a lie? What about miscommunication, misunderstanding, or the failure on the part of the victim to make her lack of consent known? Unfortunately in sexual situations, especially where drugs and alcohol are involved, people do not always directly communicate their desires. I have seen cases where I believed the victim was convinced she said “no” and the suspect equally convinced that one way or another she said “yes.” How to evaluation those?
Juries are extremely suspect of sexual assault allegations. My good friend Anne Munch calls this reluctance an “unindicted co-conspirator.” In other words, the community has no problem believing a man would pull a gun on a 7-Eleven clerk and take all the money, but they are more skeptical that a man would drug a woman’s drink in order to have his way with her. Jury appeal is a legitimate factor in determining the likelihood of conviction. Experienced prosecutors and investigators know this.
The sex assault team weighs all these factors out. It is not uncommon for the team to ask the investigator to continue investigating trying to determine if there is corroboration one way or the other. Outcry, prior offenses, credibility, level of intoxication, all of these and more are part of the equation. Many times this requires asking the victim some very difficult questions which may lead her to think no one believes her. But it is never a question only of belief, mostly a problem of proof.
This is not to say that the D.A. files only “slam dunk” cases. A reasonable likelihood of conviction is not that high. Prosecutors understand that many cases are defensible, that does not mean they are unfileable. Tough cases get filed and tried.
Every person on the sexual assault team wants to convict the guilty and exonerate the innocent. If only making that determination was easy.
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