Archive for Monday, March 16, 1992

IN RAPE CASES, ODDS AGAINST PROSECUTION

March 16, 1992

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When it comes to prosecuting rape cases, Christine Kenney knows the numbers aren't in her favor.

Kenney, an assistant district attorney for Douglas County, explains it succinctly: "Ninety-nine out of 100 times, it's his word against hers."

Translated, that means a prosecutor often is faced with trying to build a case without corroborating witnesses. Without such witnesses, convincing a jury that the accused is guilty beyond a reasonable doubt can be a difficult proposition.

It becomes a "very high burden" for the jury, says Douglas County Dist. Atty. Jerry Wells.

The burden also weighs on prosecutors who have to make the decision of whether to take a case to trial.

In rape cases, often the decision is made not to go to court a situation that presents a certain irony. While rape victims more and more are being urged to report the crimes, the odds aren't good that a suspect will be arrested, let alone convicted.

A Journal-World review of rape cases in Douglas County in 1991 showed that 46 rape reports were filed with local law enforcement agencies, up from 27 in 1990, but only one of those cases got to court and resulted in a conviction. One other rape prosecution last year stemmed from a 1990 incident.

OFFICIALS SAY that prosecution is especially difficult in cases of so-called "date" or "acquaintance" rapes, where the victim knows the rapist. Those cases, Wells and Kenney say, often boil down to the testimony of the victim versus that of the accused.

But other factors make rape cases especially difficult to prosecute.

In recent interviews with the Journal-World, local prosecutors, police and other officials described some of those obstacles that explain why few rape cases get to court.

The issue of consent presents a common problem for prosecutors, especially in cases of date rape, which police believe are increasing.

Kenney said that consent is "not much of an issue in stranger rape" but in date rape, "jurors get hung up on consent."

Dennis Prater, a Kansas University law professor, agreed with Kenney. He said that rape cases in which the victim and rapist are strangers are much easier to prosecute.

"THOSE CASES are not hard to prosecute because consent is not one of the defenses," said Prater, who was in private practice before becoming a faculty member at KU.

With acquaintance rape, consent is a key issue, and Prater said it's an "impossible situation when there are two people telling different stories."

Douglas County District Judge Mike Malone echoes the views of Kenney and Prater. With date rape, he said "the issue is never identification. The big issue there is consent, and that becomes very difficult for the jury."

Prater also said that another difficulty in prosecuting rapes is "there are often inconsistencies in the rape victims' statements."

Prater pointed out that the inconsistencies may be explained by the trauma a victim suffers in an effort to survive, victims may push the details of the rape to the back of their minds. They may have a hard time recalling specifics and often don't remember details until later. When they do, their memories may conflict with what they previously recalled.

BUT EVEN if the inconsistencies can be accounted for, it works against prosecuting the case. "Those inconsistencies cause the jury to doubt the veracity of the victim's statement," Prater said.

A prosecutor may be able to overcome that hurdle by getting an expert opinion that the victim is suffering from rape trauma syndrome, Prater said. However, he said, an expert witness for the defense could be called and testify that the victim is not suffering from rape trauma syndrome, which has been compared to post-traumatic stress disorder suffered by soldiers.

Another problem for prosecutors involves physical evidence and whether it is conclusive. There are a lot of ways evidence can go wrong, Wells said. For example, even if the victim said the rapist ejaculated inside her, tests for evidence of sperm could come back negative.

Kenney said prosecutors want to make sure that an investigation is thorough before they consider introducing a case in court.

"We don't want to throw the victim into a situation that may be chaos," she said.

ALCOHOL ALSO can debilitate efforts to prosecute a rape case. If alcohol is involved in a rape incident and Kenney said that many of the cases reviewed by the district attorney's office last year involved alcohol the memories of the victim and suspect may be unreliable. The victim may not recall what the rapist looked like or may not remember important details such as where or when the rape occurred.

Prater said it's fair to say that "if the woman has ingested a significant amount of alcohol, a jury is less likely to find that the sexual intercourse was without consent."

Charlene Muehlenhard, an associate professor of psychology and women's studies at KU, said there is a double standard concerning alcohol as a factor in rape cases. When men are drunk, they are found to be less responsible for rape, she said, but when women are drunk, they are determined to be more responsible.

Another cause for the few number of rape cases that reach court is the reluctance of many victims to put themselves through what they believe will be more trauma.

VICTIMS OFTEN decide not to tell anyone, including police, that they were raped. Others may decide to report they were raped but later decide they don't want to go through the process of prosecution in open court.

Wells, noting that public awareness and education about rape is improving, said that may be helping some rape victims overcome their reluctance to come forward.

At times, a prosecutor may have to tell a woman that evidence isn't sufficient to go to trial, even if she wanted to pursue charges. Although Wells said it is difficult for him to summarize victims' reactions when prosecutors tell them they don't have a case that will stand up in court, he said that "some are upset. Some aren't. Some of them are relieved."

Muehlenhard, who directs the women's studies program at KU, points out another factor that works against prosecuting rape cases.

"Often women do not recognize rape as rape,'' she said. ``They do not label it is as rape." Many people still only think of rapists as a "stranger in a dark alley," she said, adding that most victims do know their assailants.

Muehlenhard said even if women recognize rape as rape, "they might not want to talk about it."

WOMEN, SHE SAID, often think that they will be blamed and that police won't be sensitive. So instead of coming forward, many women decide not to talk about being raped.

If a rape victim won't talk or is unwilling to testify, it's virtually impossible for prosecutors to successfully prosecute a case.

Although Wells, working with his assistants, makes the final decision about whether a case will go to court, he said he would not pressure an uncooperative victim to pursue charges. The only exception he could see is if police had solid evidence of a serial rapist and the testimony of a victim could put the rapist in prison.

When a case is strong enough to take to court, prosecutors and investigators are delighted.

One of the cases that went to court in Douglas County last year involved a woman who was raped by a man in her mother's neighborhood. What made that case a prime candidate for prosecution was that "Laura," whose story appeared in Sunday's Journal-World, knew her assailant, got medical attention shortly after the rape and gave police a detailed description of the incident. She also had not destroyed evidence by showering or changing clothes.

The man who raped Laura was convicted. In cases like Laura's, in which the district attorney's office believes there's enough evidence to go forward, the victim is notified that charges will be filed.

OF THE two cases that reached court last year, the suspects in both cases were convicted. The man who raped Laura was found guilty by a jury on charges of rape, aggravated kidnapping, aggravated sodomy and aggravated assault.

In the other case, the accused pleaded no contest to rape and aggravated sodomy, and his case never went to a jury.

Sarah Russell, director of Rape Victim Support Service, Douglas County's 24-hour rape crisis center, said she understands the difficulties of getting a case to court. So she's ecstatic when things go well for the victim.

"It's a real joy," she said.

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