Douglas County chief assistant district attorney Amy McGowan talks with defense attorney Kevin Babbit as his defendant is shackled outside the Division IV courtroom following the afternoon docket, Wednesday at the Law Enforcement Center.

The criminal justice system can be cruel to those victimized by sexual assault.

Victims are required to revisit what are oftentimes the most traumatic moments of their life by describing their assault to police, prosecutors, defense attorneys and sometimes to a jury of strangers.

The trauma of the system, however, can be a source of healing for victims if they see their offender punished by the courts, said Cindy Riling, a victims advocate with the Douglas County District Attorney’s Office.

“For them to be able to get on the stand and verbalize in front of the accused — ‘this is what you did to me and this is why it was wrong’ — that is very empowering to people,” Riling said.

But the majority of sexual assault victims will never get that opportunity.

Most sexual assault crimes do not lead to an arrest. Of those that do, only a fraction are charged. Of those charged, not all are convicted. And of those convicted, not all go to prison.

Arrest and prosecution

Data from the Kansas Bureau of Investigation show that of the more than 700 sexual assaults reported to law enforcement in Douglas County between 2003 and 2007, slightly more than one in 10 resulted in an arrest. That number includes all sexual assaults against adults and children.

The responsibility for whether an arrest is made in a sexual assault case sometimes rest with the police who take the report, and sometimes with the district attorney’s office after reviewing a case and issuing an arrest warrant.

Douglas County District Attorney Charles Branson said that the arrest numbers are misleading and that it is difficult to gauge how sexual assault cases flow through the criminal justice system.

A statistical measurement for how the system handles such cases isn’t available. However, there’s no denying that the majority of sexual assault cases never lead to a conviction.

Amy McGowan, Douglas County chief assistant district attorney, handles sex crime prosecutions for the county and says the system weeds out many cases that lack strong evidence.

“It gets whittled down,” said McGowan, who estimates that her office is able to prosecute only about one out of four sexual assault cases referred by police.

When the evidence isn’t there, she said, she can’t put a victim through a process she knows has little chance of resulting in a conviction.

“There’s a responsibility to the victim to not file something we can’t see through,” she said.

Difficult to prosecute

Riling sees the frustration of victims who learn that their offender will not be prosecuted.

“To become the victim of a sexual assault and then be told we’re not going to be able to convict that person, we’re not going to pursue that — it’s very delicate because we want to make sure that they understand it’s not that we don’t believe you,” Riling said.

McGowan cites myriad factors in sex crimes that make such offenses difficult to prosecute.

Often, there are no witnesses to the crime, and physical evidence of an assault can be difficult to prove. McGowan said that rape kits are able to yield physical findings that would aid in prosecution only a fraction of the time.

For instance, in “he said, she said” scenarios, proof that sexual intercourse occurred isn’t always enough, McGowan said. For the case to go forward, there may need to be signs of injury, which can be rare in acquaintance rapes.

In some cases the victim is so intoxicated she is unable to give consent or remember what really happened. Unless there are witnesses to help corroborate the victim’s level of intoxication and the offender’s location, very little can be done.

In a justice system that favors right and wrong and black and white, “sex crimes are mostly gray,” McGowan said.

Punishment

Further “whittling” down of sexual assault cases can occur through plea bargaining. McGowan said plea bargaining is used for a variety of reasons, and even in serious crimes such as rape, the prosecutor might not have enough evidence for a conviction on the more serious offense.

The reduction in sentencing from plea bargaining can be the difference between prison time and probation. Judges use a sentencing grid, which, depending on a variety of factors such as criminal history, provides for a wide range of sentences.

For instance, a crime that is reported to police as a rape, which carries a minimum sentence of about 12 years, may end up resulting in a conviction for sexual battery, which could instead mean three years of probation. All sexual assaults, however, require offenders to register on the state’s offender registry for varying amounts of time.

The frustration that someone who committed a rape might not serve prison time is a reality of the system, said Branson, the DA. “The evidence may not allow you to hold an offender 100 percent accountable,” he said.

Even if the case can’t move forward, having the offense on the record can help in the future if the accused were to be prosecuted in another case, McGowan said.

Despite the long odds that a sexual assault victim will see her offender serve an appropriate sentence for the crime, McGowan often sees a strong motivation on the part of victims to proceed.

“They don’t want it to happen to somebody else,” McGowan said.