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New Times / Cover Story

The following article was posted on May 7th, 2014, in the New Times - Volume 28, Issue 41 [ Submit a Story ]
The following articles were printed from New Times [newtimesslo.com] - Volume 28, Issue 41

Life after rape: New Times investigates local sexual assault cases from report to prosecution, and the lack thereof

BY COLIN RIGLEY


FIGHING TOGETHER
Assistant District Attorney district attorney candidate Tim Covello thinks sexual assault cases must be attacked through cross training between prosecutors and outside organizations. While some cases require plea agreements, Covello urges going to trial when the evidence supports it.
FILE PHOTO BY STEVE E. MILLER

SOMEONE ELSE’S SHOES: Think we treat sexual assault the same as other crime? Read “The Rape of Mr. Smith,” originally posted in the American Bar Association Journal (.pdf file).

When we say that Jane was sexually assaulted, we get to take a pass.

We don’t have to think about the next morning when she woke up, vomited, and took a shower because she “just felt gross.” We don’t think about the guy who lured her outside when all she wanted to do was sit quietly in the corner of the party, after she’d had too much to drink, and wait for her ride home. We don’t have to picture the guy trying to kiss her despite her resistance, or wonder what was going through her mind when he became more aggressive.

“He just kept going for it,” Jane remembers, speaking on condition of anonymity, “and pulled out his dick and pushed my head down and made me go down on him.”

As someone who has been sexually assaulted in the past (twice by her ex-boyfriend, she said) and who now works with other sexual assault survivors, Jane knows the signs, she knows what to do, and she knows what not to do. But when it happened to her, it didn’t matter.

“You think at the moment that you’ll fight your way out of it, but I was just so incapacitated,” she said, fighting back tears.

In the end, she was only able to keep him from pushing her against a fence and pulling down her pants, but he forced her back down and didn’t let her go until he finished. Afterward, Jane said, he wanted to talk about his life, she remembers. It took her so off guard that she stood by awkwardly for a few minutes, dazed by the fact that he seemed to think nothing was wrong, and left the party immediately. When she got home, she cried; when she woke up she vomited and took a shower; when it was all over, she told a few friends but decided not to go to the police.

When we say that Jane was sexually assaulted, we want to assume that it’s so much simpler than it really is, and that the monsters that prey on the innocent are punished for their crimes. When we assume this, more often than not, we’re wrong.

“It’s just the way the justice system is,” Jane said. “You need ‘beyond a reasonable doubt,’ and that’s just so difficult with sexual assault cases.”

In 2012, the year Jane was assaulted, there were 16 reported rapes in San Luis Obispo, according to records obtained from the SLO Police Department. Of those cases, just one resulted in an arrest.

No one was prosecuted for rape.

If Jane had been robbed at gunpoint, or assaulted in a way that didn’t involve sex, she said she absolutely would have gone to the police.

“It’s so much easier,” she said of other types of assault. And in SLO County, based on existing data, if she had gone to the police to report a robbery, there’s a greater likelihood her case would have been cleared—meaning officials took some form of action they consider final—than if it were a sexual assault.

In fact, in the three-year period between 2011 and 2013, there were 61 reports of rape made to SLO PD, from which the department netted seven arrests. And of those seven arrests, less than half of the suspects ever set foot in court, while four suspects haven’t been prosecuted.

“Sixty one down to three; that seems too low to me,” said Kim Lonsway, a SLO County resident and research director for End Violence Against Women International. “Especially what we know about underreporting, those 61 are just a fraction of what actually happened.”

Approximately 13 to 18 percent of women are sexually assaulted, according to “Dynamics of Sexual Assault: What Does Sexual Assault Really Look Like?” a November 2012 report by End Violence Against Women International. The vast majority know their attackers, yet only 16 to 19 percent report to law enforcement.

In SLO, police received 126 reports, but made just 16 arrests for crimes including rape, attempted rape, and fondling between 2011 and 2013. Yet the biggest problem is that the city is not some outlier. In fact, out of most police agencies in the county, the department was among the most open with its records of sexual assault cases.

“Obviously, we want to do the best we can for people who are victims of these types of crimes,” said Capt. Chris Staley of the SLO PD.

But when most cases involve disputes over whether the victim consented, and many times alcohol is involved, it becomes increasingly difficult to make an arrest, let alone prosecute.

“If you have a victim who says, ‘Hey, this is what happened’ or ‘I don’t remember,’ and you have a suspect who said at that time that ‘this was OK’ … it can be challenging,” Staley said. “It can be a complicated process.”

Out of the 16 arrests mentioned earlier, only nine were ever prosecuted. In other words, of the reported sexual assaults for three of the most egregious sex crimes, a little more than 7 percent of the attackers ever faced a judge.

“For some people, a rape or a sexual assault can break them, and they’ll never recover from it,” said Jennifer Adams, executive director of RISE.

Further data from the state Department of Justice indicates that SLO County clears fewer sexual assault cases than some neighboring areas. Compared to both Santa Barbara and Monterey counties, SLO County has a lower average clearance rate. While Santa Barbara County cleared an average of 40.3 percent of cases (based on reports between 2003 and 2012), and Monterey County had an annual average 35.6 percent clearance rate, SLO County cleared only 31.3 percent of reported attacks. The statewide average was 43 percent over the same 10-year period, while Los Angeles County, by contrast, cleared 57.9 percent of cases. (Of course, Lonsway said, clearances can range from an arrest with no prosecution, to cases where victims decide not to push forward.)

Additional data from the Department of Justice show that SLO County residents were more likely to report rape than residents in any other adjoining county, based on the available crime reporting from 1999 to 2009. Here, an average of 34.4 residents per 100,000 reported being raped every year, while Santa Barbara, Monterey, Kern, and Kings counties all reported lower averages. For example, Kings County reported the lowest 10-year average of 23.3 rapes per 100,000, while nearby Ventura County reported just 16.1. To put the numbers in context, SLO County reported about half as many forcible rapes per year as San Francisco County, which has more than three times the population.

In SLO County, based on those numbers, residents were more likely to report being raped than robbed.

It’s important to remember that these numbers don’t necessarily paint a complete picture of what’s going on. According to Lonsway, many factors can contribute to reports of sexual assaults, which doesn’t always indicate that one county is more rape-prone than another—only that more or fewer reports are recorded.

“Reporting rates can vary pretty dramatically based on what the [police] agency’s doing,” she said.

The county Public Health Department has provided 31 Suspected Abuse Response Team (SART) exams to victims of sexual assault thus far in the 2013-14 fiscal year. Over the past five fiscal years, the department issued 230 exams.

But the numbers only tell a small piece of the story.

“The only way to truly know what’s happening is to track from the report all the way to the outcome,” Lonsway said.

 

The price of information


CULTURE OF INEQUALITY
Victim blaming and inequality between men and women contribute to the problems associated with cases of sexual assault, says Jennifer Adams, executive director of RISE.
PHOTO BY HENRY BRUINGTON

If you want access to information about the cases handed off to the SLO County District Attorney’s Office, it’s going to set you back $4,418: roughly the cost of dedicating an IT employee to the task for an estimated 40 hours.

This was the response when New Times asked for cases the office has received from local police departments. But while the District Attorney’s Office didn’t have immediate access to information, other agencies in the county simply refused to provide it.

New Times sent multiple public records requests to every police agency in the county, including every city police department, the Sheriff’s Department, Cal Poly, and Cuesta College.

Some departments—like those in Arroyo Grande, Atascadero, and Pismo Beach—provided annual breakdowns of sexual battery and rape reports. Others—such as San Luis Obispo, Grover Beach, Cal Poly, and Cuesta College—provided detailed breakdowns of specific crimes and dates. A few departments—such as Morro Bay, Paso Robles, and the Sheriff’s Department—simply provided gross amalgamations of sex crimes reported over the last five years. Morro Bay, for example, would only provide an annual breakdown of the numbers for a $53 minimum fee.

In total, over the past five years, there were 429 reported cases of sexual battery and rape—approximately 86 per year—across all agencies except Grover Beach and SLO. There were 268 reports in Grover Beach for a wider range of penal code violations, and 444 in SLO.

Beyond the broad data about arrests—which Lonsway believes provide a poor picture of successful enforcement against sexual assault—only SLO and Grover Beach provided enough information to draw any substantive conclusions about sexual assault cases. But the lack of available local information shouldn’t be much of a surprise.

“No one does that in a systematic way, only during research studies—or investigative journalists,” Lonsway said. “That’s the only way you’ll see tracking from beginning to end.”

After receiving the initial responses from every department, New Times again sent public records requests, this time for the names of all suspects arrested in connection with reported sexual assaults. Nearly every department unilaterally denied the request citing case law that only requires law enforcement agencies to provide recent arrest information.

However, both the SLO and Grover Beach police departments provided the requested information—the Sheriff’s Department gave names of people arrested for sex crimes within 60 days of the request.

In all, we were able to obtain 32 names associated with cases stretching as far back as three years.

In Grover Beach, there were three arrests. One suspect was arrested on charges of fondling and penetration with a foreign object, but never prosecuted. In the other cases, Julius Russell pleaded no contest to annoying or molesting a child under 18, in exchange for dismissal of two other charges. He was sentenced to two years’ probation, a fine, 20 days in jail, and forced to register as a sex offender, according to court records. In another case, Jonathan Hallabrin was charged with three misdemeanors and eventually committed to a mental health institution for a maximum of two years.

This was the pattern in SLO as well, where some cases died before reaching the court, and the remaining often resulted in plea agreements. Roughly half of the cases were never prosecuted. Of the six cases now closed, only one resulted in prison time: Domingo Burciaga was sentenced to two years in prison on a no contest plea for one charge of lewd or lascivious act on a child, allowing him to avoid prosecution on two other counts of forcible oral copulation and oral copulation of a person under 18.

The other cases often resulted in probation ranging from three to five years, and about a year in jail, minus time served and time off for good behavior.

Of the 10 cases provided by the Sheriff’s Department, covering people sent to the county jail over the first two months of the year, two of the arrests haven’t yet resulted in any prosecution. Four cases were ongoing as of press time, three cases resulted in no-contest pleas, and just one received a guilty verdict at trial.

“What we are learning from that as a community is that even in cases in which there have been criminal justice proceedings started, that you can recover from being somebody who sexually assaults someone else,” said Jane Lehr, an associate professor in the departments of Ethnic Studies and Women’s and Gender Studies, and the chair of the Department of Women’s and Gender Studies at Cal Poly. “You’re learning that we are very willing to drop down to a lesser charge, which is dropping down the horrificness of the experience.”

In two cases of attempted rape, both Javier Diaz and Bryan Kwanghyun Kim received probation and one year in jail after pleading no contest to lesser charges. Kim, for example, originally faced eight counts after he was arrested on suspicion of breaking into the room of an ex-roommate and climbing naked into her bed while she slept. Local media widely reported the initial incident, but the aftermath of the case vanished from public view. Kim was jailed with bail set at $1 million, and he initially argued that he should be freed from custody during the trial, telling a probation officer: “I am prepared to fight this case. I want to fix this problem and not run away from it.”

According to court documents, the victim responded, “He is a predator. If he gets out I don’t know what I will do to keep myself safe. He tried to rape me. I was terrified.”

Kim remained in county jail and later pleaded no contest to two counts of attempted rape and penetration with a foreign object, resulting in one year of jail time, minus 181 days already served; five years’ probation; and lifetime registration as a sex offender. Yet under California Penal Code, Kim could have faced two, four, or six years in state prison just for the attempted rape charge; and a conviction of penetration with a foreign object when the victim is unconscious or sleeping can be punished with three, six, or eight years in prison.

However, Adams of RISE said that many victims of sexual assault prefer plea agreements to a jury trial, during which they’ll be scrutinized by attorneys and jurors.

“They don’t want his life to be ruined—even though their life has been dramatically altered and they are going to have to spend a significant amount of time healing and moving on,” she said.

What victims want, she explained, is to know that their attacker acknowledges he did something wrong, and that people believe that they were assaulted.

Dan Dow, a deputy district attorney and one of two candidates poised to replace outgoing District Attorney Gerry Shea, said most victims are cooperative when prosecutors opt for a plea, even if it means lesser charges.

“Probably the ones who have been more upset are the ones where we haven’t been able to file the cases at all,” Dow said. “And I can’t blame them for being upset, because it feels like a reaction to them, and it really isn’t intended to be at all.”

He added that prosecutors have an ethical obligation not to prosecute cases in which they don’t believe they have enough evidence to obtain a verdict.

Assistant District Attorney Tim Covello—also a district attorney candidate—said in a written response to New Times that sometimes “plea agreements are a necessary part of our system.”

“However, charges should only be filed when the prosecutor believes there is sufficient evidence to go to trial,” Covello added. “Consequently, a significant reduction in charges should only be made when the factual circumstances indicate that it is necessary.”

Both candidates were asked how the District Attorney’s Office can better handle sexual assault cases. Covello said the office should strengthen its collaboration with the County Public Health Department’s Sexual Abuse Response Team, while also cross training regularly with police, RISE, the Women’s Shelter Program of San Luis Obispo, and Cal Poly’s Women’s Safety Committee.

“We also need to make sure that every prosecutor understands that his or her fidelity is owed to the case, the sexual assault victims, and the people of this county above his or her own interests,” Covello said in a written response. “I believe the public needs to better understand the dynamics in sexual assault cases, that human trafficking and the commercial exploitation of children are a real threat to our community, and that it [is] critically important to support agencies and programs like RISE, the Women’s Shelter Program of San Luis Obispo, and the SAFER program at Cal Poly.”

Currently, the District Attorney’s Office dedicates twice as many prosecutors to drug cases as sexual assault, with three deputy district attorneys assigned to handle sex crimes. If elected, Dow said he would add more prosecutors to handle sexual assault cases, as well as shift how the office handles tough cases. He wants to implement a new policy that would require a prosecutor, before he or she decides to reject a case, to involve the entire team and discuss the case in detail.

“They’re too important for us to make a wrong decision,” he told New Times. “That’s the hardest thing that we ever do, in my opinion, is to have to tell a victim that we can’t file a case where we know that they’ve been victimized. And you know, by the way that they present [themselves] and that they’re appropriately emotional and very disturbed about what happened to them. It really tears your heart to say that you can’t file that case.”

 

We’re part 
of the problem


BURDEN OF PROOF
In prosecuting sexual assault cases, Deputy District Attorney and district attorney candidate Dan Dow says prosecutors often face a difficult burden of proof: consent. If elected, Dow said he would add additional prosecutors to the office’s sex crime team.
PHOTO BY HENRY BRUINGTON

In May of 2011, two Cal Poly students reported that they were raped. In the online comments section of a Cal Coast News article about the cases, a user named “KeelyK” wrote: “Maybe the girl … wasn’t even blacked out. She could be lying and we’d never know if she was just drunk or blacked out.”

This is the type of comment that contributes to the low rate of reporting in sexual assault cases.

“The things that people put on social media and media sites, and what they think they can comment on and the judgments they pass, it’s pretty hateful,” Adams said.

Combined with increased scrutiny of victims who pursue charges and the difficulty in proving a lack of consent, many victims often decide it’s simply easier to remain silent. And considering the typical societal response to sexual assault reports, it’s hard to blame them.

“All those jury members come out of this culture that says, ‘What did she do; why was she there?’” Adams said.

Victims understand that the burden is on them not just to identify their attacker, but to prove that they were, in fact, victimized. In essence, we’ve created an environment where victims know they’ll be disbelieved and therefore choose not to report.

Compounding the difficulties in overcoming victim blaming is the tricky legal matter of whether a victim consented to sex. Prosecutors must not only prove that a sexual act wasn’t consensual, but that the attacker couldn’t have had a reasonable belief that there was consent.

“In a culture of inequality, people tend to believe male stories—men’s stories—before women’s stories,” Adams said.

In one such case that Dow worked on, but ultimately couldn’t prosecute, “I believe that it was without the victim’s consent, but to be able to prove it to 12 jurors, to the proof level of beyond a reasonable doubt, that the suspect didn’t have a reasonable belief that the victim consented is next to impossible.”

Asked about the low prosecution rates for sexual assault cases, Covello said regular cross training and coordination with other agencies would help encourage victims to come forward.

“Low prosecution rates certainly could be a deterrent to victims, and the District Attorney’s Office should do everything in its power to ensure that cases that can and should be prosecuted, are prosecuted,” he said.

But in the end, these challenges all play into a cycle in which police can become frustrated that their cases aren’t prosecuted, prosecutors are frustrated that they don’t have enough evidence to get a conviction, and victims fail to report, knowing what going public can entail, Lonsway said.

“So everyone’s looking downstream and ultimately that comes back to us as community members.”

She argues that a good way to improve sexual assault prosecutions is to encourage a deeper coordination between prosecutors and police agencies.

“There should be a feedback loop,” she said. “That will improve not just this case, but the next one.”

Last year, for example, reports of sexual assault in San Luis Obispo increased dramatically, a trend that local officials believe is actually a positive sign resulting from the 2013 Start By Believing Campaign, coordinated by several agencies in conjunction with police and prosecutors. But still, there are likely many victims who choose to stay silent.

Jane, the sexual assault survivor introduced earlier in this story, said she was previously assaulted by her ex—twice—but didn’t make a report to police. The first time, she said they had a fight at a local drive-in movie theater. She left the car, but her ex chased her down and convinced her to come back, where he forced her to have sex without a condom. Jane didn’t want to have sex, she said, but she was so worried that he would leave her—as is often the case in abusive relationships—that she didn’t fight it, but neither did she give consent.

“He came inside of me and told me I was going to have his children,” she remembered. Jane cried the whole time, she added, which her ex told her he thought was “hot.”

“It happens to so many people,” Jane said. “And you probably know someone who has been sexually assaulted—they just haven’t told you.”

With cases of sexual assault—which victims rarely report, police struggle to make an arrest, and prosecutors worry about pushing a case before a skeptical jury—most of the time, it’s on us.

“I do really want you to hold the mirror up to our community, because I believe it’s on all of us to look inside ourselves,” Lonsway said. “What is it we do when someone comes to us and says, ‘I think I was raped’? What we do at that moment is critical.

“So often, we are the reason they don’t reach out to anybody else.”

 

Contact Senior Staff Writer Colin Rigley at crigley@newtimesslo.com.