In Tarrant County, acquaintance rape cases often die in grand jury room
Police, victims stunned as Tarrant grand juries reject acquaintance rape cases
08/19/2012 12:01 AM
08/22/2012 2:50 PM
First of three parts
This article contains descriptions of sexual behavior.
In the universe of crime, acquaintance rape can be the most difficult to prove. He says sex was consensual. She says it was not. Often, there is precious little evidence, such as physical injuries or witnesses, to point one way or another.
But not this time. In this Arlington case, there were photos.
In 2007, after a night of drinking and drug use in her home, an Arlington woman happened upon her digital camera in the car of a man from the party. Scrolling through the pictures, she recognized several shots from the previous night, then came across a few she didn't. In those, she was passed out from the drugs and alcohol. The man was having sex with her and taking pictures as he did.
"She freaks, which any person normally would," said Sgt. Tim Pinckney, who heads the adult sex crimes unit of the Arlington Police Department. "She had no idea that took place."
The woman reported the assault to police. Within hours, she was at John Peter Smith Hospital in Fort Worth for a sexual assault exam.
"In my opinion, that case was proof beyond a reasonable doubt," Pinckney said recently. "The photographs clearly showed she was unconscious [and unable to consent to sex, one legal definition of rape]. You couldn't ask for better evidence. We got an arrest warrant, and he was picked up."
What happened next stunned Arlington detectives and incensed the victim and her family. When Tarrant County prosecutors presented the case to a grand jury, it died behind the panel's closed doors.
"It was no-billed," Pinckney said, using the legal term for when a grand jury declines to return an indictment.
Pinckney said he could never find out why.
"You know, I wish I had an answer to that," he said.
So do other detectives and many Tarrant County rape victims. Over the last four years, a Star-Telegram investigation has found, Tarrant County grand juries have rejected more than half the acquaintance rape cases presented to them by prosecutors. Some no-bills came in cases like the one in Arlington, where police had obtained incriminating photographs. In others, alleged rapists had confessed. In one no-billed case, Fort Worth detectives had obtained photographs and a confession. A few years ago, one grand jury rejected every case in which the victim had been drinking, a Fort Worth detective said.
Stubborn myths about nonstranger rape, by far the most common form of sexual assault, probably contribute to the dismal numbers, local authorities and national experts say.
Many in the general public, including potential jurors and grand jurors, still think of acquaintance rape as "drunk sex" or "date rape." The crime is generally regarded as less serious than stranger rape, and the rapists less sinister and less guilty. Much of the onus for acquaintance rape remains on the victim and her behavior. And there lingers a widespread belief that false rape allegations are often made to exact revenge on a lover or to save face with angry parents, though study after study shows that less than 10 percent of all rape reports are false.
But because grand juries are notoriously sympathetic to the state, the presentation of the cases by Tarrant County prosecutors and other aspects of the system have also been called into question. Sex crimes detectives say prosecutors almost never call them to testify about their cases before grand juries.
Rape victims rarely tell their stories in that forum. A program to educate grand jurors about the myths of acquaintance rape was discontinued several years ago because some state judges believed that panel members were being "brainwashed" in favor of the state.
The Tarrant County no-bill statistics stunned some national criminal justice experts.
"If you're telling me there are photos and a confession and there is a no-bill, that's shocking to me," said Jennifer Gentile Long, a former prosecutor and director of AEquitas, a Washington-based group that trains prosecutors about sexual assault cases. "That seems like an outlier. What's that old saying: 'A grand jury would indict a ham sandwich if a prosecutor told them to?'
"Certainly at trial it can be difficult, because myths get in the way. But at a grand jury hearing, when you're putting forth evidence and putting up elements and there is no defense? Those should be going through."
After learning of the Star-Telegram's findings, Tarrant County District Attorney Joe Shannon assigned prosecutors to analyze the 141 no-bills, attempting to determine "why some of them were problem children, problem cases."
In many cases, the victim was uncooperative or changed her story, Shannon said. In others, the victim and alleged perpetrator had just met -- cases that the district attorney said did not qualify as acquaintance rape. Consent was often an issue. Prosecutors could not determine why several others were no-billed, Shannon said.
"You've raised an interesting question, and we want to look at them," he said. In light of the findings, Shannon said, his office will invite detectives to testify before the grand jury in sexual assault cases.
"It's real easy to do," he said. "I have no problem with that. This is the first time I've heard they [the detectives] have been crying about it."
Shannon's office also said last week that in six Fort Worth cases where police had obtained confessions, the victim declined to pursue the case or there were other extenuating circumstances.
The district attorney otherwise defended how his lawyers handle acquaintance rape cases. He said prosecutors reject less than 5 percent of the cases presented to them by police because "the tie goes to the victim."
In all cases, Shannon said, Tarrant County prosecutors present the evidence necessary for grand jurors to make informed judgments.
"When [grand jurors] first come in, I give them a message," the district attorney said. "One of the things I tell them is that, 'Look, you'll get some calls here that are easy calls. You'll get some calls that are tough calls. You make the decision based on what you see and what you feel. You chop the wood and let the chips fall where they may.'
"I don't have any way of knowing what they're going to think in a given case, nor do I try to, nor do I try to dictate what they do."
At least one other Texas city, however, tries things differently and has seen results.
In Austin, detectives are called to testify as a matter of course. And other new practices have been implemented in the past eight years.
The city's no-bill rate in acquaintance rape cases is 13 percent. That's still relatively high compared with other crimes, but understandable given the difficult nature of the cases, experts and detectives say.
Tarrant County's no-bill rate -- 51 percent-- is not.
"I have a hard time with that," said Fort Worth police Sgt. Cheryl Johnson, the former supervisor of Fort Worth's adult sex crimes unit. Now head of homicide, Johnson continues to consult regularly with sex crimes detectives.
"I don't know if it's the people on the grand jury, because the reality is that the general public has a skewed perception of sexual assault, the whole myth of what rape really is," she said.
"That perception of, you know, 'She shouldn't have gone to his house' or 'She shouldn't have been out drinking.' Or whatever the case may be. I don't know why so many cases are no-billed."
'My word against hers'
The Star-Telegram's findings are even more striking in light of new research on the nature of the acquaintance rapist and the emotional toll the crime takes on victims.
Studies now show that the typical perpetrator is not a drunken college boy who misunderstood a girl's intentions, but a serial predator. He is often charming and particularly adept at identifying vulnerable victims, then taking advantage of them with impunity.
"We're actually told [by suspects]: 'It's my word against hers. There's nothing you can do,'" Johnson said. "They know if they take it down to the issue of consent, not whether the sex happened or not, it's much harder for a case to be proven."
Acquaintance rape victims, who often blame themselves and sometimes find that even friends and relatives are skeptical, suffer emotional trauma often more profound than in stranger-rape cases, experts say. Small wonder that a fraction of sexual assaults are reported to police, less than 1 in 5, according to a recent Texas survey.
Among those who did not come forward is Ashley, a 23-year-old from Fort Worth. She suspects that she was drugged at a party in Dallas three years ago, when she found herself on the floor of an apartment with a man on top of her. She said she felt paralyzed.
"I couldn't move at all," Ashley said in an interview at the Women's Center of Tarrant County, where she now receives counseling. "It was really painful. When I woke up the next morning, my underwear were on backwards and there was blood everywhere."
The next day she confided in her roommate.
"She kind of brushed it off: 'Oh yeah, that's happened to me before,'" Ashley said. "It was really weird. I was just, 'Oh, God, what if everyone is like that? What if the most important people in the justice system react in that way?' I didn't want to have to face the fact that some people would not believe me, that I would have to defend myself."
For the small minority of acquaintance rape victims who do report their assaults, the criminal justice system is a funnel from which comparatively few cases emerge, the Star-Telegram investigation found.
For four years beginning in 2008, an average of 569 rape cases a year were reported to the Rape Crisis Center in Fort Worth. (Part of the Women's Center, the crisis center is notified about every reported county rape and assigns a rape crisis volunteer to support each victim.)
But Tarrant County prosecutors eventually filed criminal charges in less than 20 percent of those reported cases, according to statistics obtained by the Star-Telegram.
Much of the attrition is explained by the number of victims who initially report their cases and then choose not to pursue them, detectives say.
"I would say in 30 to 40 percent of the cases, people don't want to pursue it or they don't get back in touch with us," Johnson said.
In other cases, Johnson said, investigators cannot build a case that they believe will stand up in court.
"It's very difficult [to tell the victim] because they feel like they are being victimized again," she said. "That's not what we're trying to do. We do everything we can to try and prove a case, and sometimes we have to tell them that we believe them but it does not meet the legal requirements and there is nothing that we can do."
That makes sex crimes detectives even more passionate about the cases they feel they have proved and about those where victims are willing to move forward.
In most of those cases, a magistrate has reviewed the evidence and issued an arrest warrant. Prosecutors review the case and file formal charges if they feel the evidence is strong enough. By Texas law, all felony cases must then go before a grand jury, but that's where the state holds almost all the cards.
The 12-member panels, selected by district judges for three-month terms, are often older and stricter than the general public and theoretically more inclined to indict.
Defense lawyers are not present. Instead, in each grand jury session, the prosecutor decides what evidence the panel will hear. He or she may summarize evidence in 20 to 30 cases a day involving a wide variety of crimes.
Grand jurors retire to deliberate in private, with nine votes needed to return an indictment. They generally spend just a few minutes to decide each case, then return their decisions en masse.
Since 2008, Tarrant County grand juries have no-billed only 11 percent of all felony cases, according to statistics obtained by the Star-Telegram.
Acquaintance rape cases have been rejected more than four times as often.
Those no-bill numbers, and the way the cases are presented, leave Tarrant County prosecutors open to criticism, national experts say.
"I can certainly imagine a scenario where if a prosecutor is not confident in a case, he or she can present it in a certain way to a grand jury to sort of coax a result," said Roger Canaff, a former special-victims prosecutor in New York and Virginia who now lectures nationally on the prosecution of nonstranger rape. "That's more difficult to do when you have detectives testifying.
"Prosecutors are human," he said. "They're looking at a case that they don't believe they can win, [that] they don't want to take to trial. It's unfortunate, but it's very easy for them to sort of channel that doubt to the grand jury. So even while they're asking for a true-bill, there's sort of a wink and a nod thing going on.
"It's like, 'If you don't true-bill this, it's not going to be heartbreak for me.' I really believe that."
Canaff calls nonstranger sexual assault the "last frontier of crime."
"It's one of the last crimes where there is still a tremendous amount of victim blaming, where people don't understand the dynamics of it," he said. "People kind of assume that whatever this woman got, she had it coming, because she was dressed in a certain way or she led a guy on. They don't understand how predators operate. They don't understand what victims go through in these situations."
That's why experts advocate that new grand juries be at least briefly educated on the complexities of the crime. That occurred for years in Tarrant County. Deborah Caddy, director of the Rape Crisis Center in Fort Worth, had a few minutes with each new panel to discuss common myths and misconceptions.
"I felt like it was important," Caddy said recently. "I don't know empirically that it was successful, but I know that at the end of those sessions, we always had lots of good questions."
In the early 2000s, Caddy said, a prosecutor notified her that her grand jury sessions would be discontinued.
"Several judges complained that it was an attempt to brainwash grand jurors with things that were not legal facts, by people who had a, quote, cause," Shannon said.
Weak cases stymie prosecutors
In the recent interview, Shannon said most of the Tarrant County no-bills were not about stubborn myths among grand jurors or about the way the cases were presented by his office, but about the weakness of the cases. The recent analysis by Shannon's office showed that in 50 cases, the victims were uncooperative, recanted or changed their story.
In 22 cases, Shannon said, the victim had met the accused shortly before the alleged assault -- minutes before in some instances. In his opinion, those cases didn't fit the category of acquaintance rape.
"We had one where a lady was drunk at a Sonic," Shannon said. "She was stumbling There is a guy there. ... He meets her there on the parking lot and they have sex in the back of the car. He didn't use a weapon. There wasn't any threat of serious bodily injury or harm. But that doesn't fit the idea of acquaintance rape. That's one.
"Swingers. People going to swingers parties," he continued, explaining why he feels the cases are sometimes hard to prove. "They meet someone at a swingers party and they have sex and here comes a rape allegation."
The issue of consent made 26 other cases problematic, according to the prosecutors' analysis.
"For instance, a young woman who said she was sexually assaulted, then after the sexual assault, sent a picture of herself, unclothed, to the offender, and sent texts that were inappropriate by any stretch of the imagination," prosecutor Christy Jack said.
Still, as weak as it was, prosecutors took that case to the grand jury.
"Even with those pictures, even with those circumstances," said Jack Strickland, a senior prosecutor. "This woman is entitled to at least have her story presented to the grand jury. This would be a much different enterprise if you found that we filed only 8 percent of the sexual assault cases. But it's not. We're filing a boatload of cases and working them up and presenting them to the grand jury."
The prosecutors said that, in seven other cases, there was no obvious reason why a grand jury would return a no-bill.
"The grand jury vote is secret," Strickland said. "They don't provide us with a reason why they no-billed cases."
'The most vicious crime'
Sgt. Johnson is one of many who would really like to know. After she spent five years in patrol, her first job as a Fort Worth detective was in adult sex crimes in 1994. Her eyes were quickly opened.
"When I started working on these cases, I saw the impact that it has on the victims and their families," she said. "I just think, other than murder, it's the most vicious crime that can be committed. It's very intimate and it's very degrading, and it truly changes people's lives forever."
Johnson later worked in crime scene investigation and homicide, but investigating sexual assault has remained one of her professional passions.
Under her supervision, Fort Worth sex crimes detectives have received advanced training in how to interview rape victims and suspects. Detectives have been trained to use unconventional methods to confirm the use of force or to resolve issues of consent.
Over the years, Johnson said, she also has come to accept the inherent frustrations of acquaintance rape investigations. But in some cases, exasperation lingers.
"If there is a confession, how can it be no-billed?" she asked.
That has happened several times in the past few years.
"Actually admitting that he used force or that she was completely incapacitated," Johnson said. "It just depends on the case but, yeah. Sometimes even so much that, 'I knew it was wrong and I did it anyway. I knew she didn't want to have sex. I held her down and had sex with her.' It can be that blatant of a confession."
In another Fort Worth case, Johnson said, a woman said that a few days after she passed out at a party, she received photographs on her cellphone depicting her being raped.
In addition, the accused later confessed. That was one of the 279 cases of sexual assault filed by the district attorney's office since 2008, according to records obtained by the Star-Telegram. Sexual assault is a second-degree felony in which the victim did not suffer a serious physical injury and the attacker did not use a deadly weapon. In those cases, the victim and the assailant almost always know each other in some way.
But the Fort Worth case with the incriminating photographs and a confession was no-billed on Aug. 24, 2010, among the 141 sexual assault cases rejected by grand juries the past four years.
Through an open-records request, the Star-Telegram obtained excerpts of six statements in which an alleged rapist admitted an element of the crime.
"He stated he called out to a friend who brought his camera phone," read one statement. "They took videos of the victim while she was unconscious. The victim was completely naked. He stated he used his finger to penetrate the victim's vagina three or four times."
After learning that the Star-Telegram had obtained the statements, prosecutors responded with explanations. In this case, the victim "did not want to prosecute because she did not believe she could go to court. The detective told the DA's Office that if we wanted the victim to testify, to give her a week 'to let her sober up.' [The victim] reaffirmed on the day the case was presented to the grand jury that she did not want to prosecute."
That is typical of cases that are no-billed, prosecutors say.
But Canaff said that also raises questions.
"If someone is willing to endure a sexual assault examination and the initial criminal investigation, by the time they get to the DA they're pretty far along," the former prosecutor said. "There is always attrition. Circumstances in a victim's life change. They become terrified of trial.
"But if there is an unusual amount of attrition at that stage, it suggests that they are not being met with much support, sympathy or skill by the district attorney's office. It's indicative of something missing at that stage."
Detectives said that they have not been told in recent years why the cases did not move forward. When they've asked, they say, prosecutors have responded by citing the secret nature of grand jury proceedings.
"I wish we could get more input as to why they're no-billed," Johnson said. "I wish that if there was any question in the cases, we would be called to testify if we could help clarify something."
In eight years as a sex crimes detective or supervisor, Johnson said, she was called to the grand jury one time.
Pinckney, the veteran Arlington detective, has never testified before a state grand jury, nor have any detectives in his unit.
As such, they have no way of knowing what evidence is being presented or how cases are laid out.
"We testify in cases that go to trial," Pinckney said. "What's the difference? They [grand jurors] are making a decision on a case we have investigated. If that would help them make a sound decision about whether to indict or not to indict, I don't know why we wouldn't."
Prosecutors say detectives haven't been called because their testimony is not necessary.
"Detectives may, frankly, overestimate their own value to the process, particularly if they have submitted a thorough report," Strickland said.
"If a detective or a witness in some way feels that they get to come to the grand jury and make a jury argument, the grand jury is not going to sit still for that. If they think their report is insufficient and they can salvage it in some way by making an emotional appeal before the grand jury, that's not going to fly."
'How could this happen?'
Last year, the University of Montana in Missoula launched an investigation into allegations that two female students were gang-raped by male students. The investigation spread from those two victims to several others on campus.
By the time the Justice Department announced its own investigation this spring, the number of cases under scrutiny had grown to 80 rapes across Missoula in the past three years. Most of the cases involved acquaintance rape.
In letters to the Missoula Police Department and local prosecutors, the Justice Department alleged that "each agency has failed to investigate reports of sexual assaults against women because of their gender or in a manner that has a disparate impact on women."
David Lisak, a University of Massachusetts psychologist and one of the nation's leading experts on nonstranger sexual assault, said he sees similarities between Missoula and Tarrant County.
"There's probably something very parallel going on," Lisak said. "It doesn't mean that Missoula and your county are the two counties in the United States where this is happening. It's two out of thousands of communities. There are a very small number of localities where there are markedly better situations. But it's a handful. What you're investigating is really the norm."
That means tens of thousands of rape victims across the nation, the minority who do report the crime, are re-victimized by the justice system.
Austin was recently cited by Human Rights Watch as one of the few American cities that has taken steps to change that.
Sex crimes detectives testify before the grand jury, and grand jurors receive a brief orientation on acquaintance rape. In each case, victims are on hand to answer grand jurors' questions. A Travis County prosecutor is assigned to the Austin Police Department's adult sex crimes unit. Only a small number of senior prosecutors present rape cases to Travis County grand juries. In Tarrant County, those cases are presented by more than 35 lawyers.
Shannon said he would be willing to consider new ways of handling the acquaintance rape cases.
"Obviously, we're open to suggestions to improve our craft all the time," the district attorney said. "We're more than happy to do that. The main thing is that we want a fair result. We're not out to convict everybody, but what we want to do is separate the wheat from the chaff. Anything that will help us do that, that's great. I have no problem with it."
A major fear now, sex crimes detectives say, is that stories like this one will further discourage victims from reporting rapes. The detectives can point to some acquaintance rape cases where indictments have been obtained, convictions returned and prison time assessed.
"There is good and bad, but we are committed to every case," Johnson said. "We encourage the victims to come forward so we can catch predators, so that [victims] can have a voice in the system. And hopefully it will help in their healing and turn them from a victim to a survivor, which is the ultimate goal."
Another is to prevent experiences like that of the Arlington woman who, in 2007, found proof of the assault in her camera. When her case was no-billed, Pinckney said, the victim wondered, "How could this happen?"
"The victim didn't feel like the system had worked," Pinckney said. "You know, you try to explain to them whatever the process is. In this case, we tried to get answers. Was there something we did? Were there other dynamics that played into this? The prosecutor basically said, 'We don't know why the grand jury did what they did.'"
Because of confidentiality laws, none of the victims in the no-billed cases were identified, so it was impossible to locate them. But Ashley, the Fort Worth rape survivor, knows how they must have felt.
In the months after her assault, she would rarely leave her dorm room.
"It made me feel so unsafe, I didn't want to go out in the city at all," she said. "Whenever I saw a reference to rape, I would have panic attacks galore. I had the worst night terrors, like I was being set on fire."
She dropped out of college but is getting help at the Women's Center.
On a recent afternoon there, she was asked to consider a hypothetical: What if she had reported her case and police had found her attacker and obtained a confession? What if the case then had died before a grand jury?
"I would have a horrible reaction to it," she said. "I would probably never trust the justice system again. I probably would have a hard time trusting people. I would spiral even further into depression because it would feel like you were betrayed or something.
"It's just repugnant and horrible," she said. "I think one of the reasons people don't report is that they hear the stories. I've heard a lot of stories. The last thing you want to do is go through all of that and then be told it's not a case."
Staff writer Darren Barbee contributed to this report.
Tim Madigan, 817-390-7544; Twitter: @tsmadigan
About the series
Part 1: In Tarrant County, more than half of all acquaintance rape cases since 2008 have died behind the closed doors of a grand jury. National experts are shocked, victims outraged. Many wonder why justice isn’t being done.
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