Archive for Sunday, March 3, 2013

Rape survivor works to change law, abolish the statute of limitations in rape cases

March 3, 2013


Exonerated, but still not free

Joe Jones was the first person in the state to be exonerated of a crime by DNA evidence, but life after prison has been difficult. Now authorities have identified the man they say is responsible.

Joe Jones sits in his small sparse apartment just blocks from the capital building in Topeka. Jones is trying to get his life together these days after spending nearly eight years in prison for a rape but was cleared through DNA evidence.

Three lives intertwined by a vicious crime. One woman's life transformed by trauma, an innocent man imprisoned for a crime he didn't commit, and another who authorities say is responsible. More

Joel Russell, 46, already incarcerated for a sexual assualt, was identified earlier this year as a suspect in a 1985 rape and kidnapping of a Topeka woman. Joe Jones, a Topeka man, had been convicted of the crime, but was released when DNA evidence showed he was innocent.

Joel Russell, 46, already incarcerated for a sexual assualt, was identified earlier this year as a suspect in a 1985 rape and kidnapping of a Topeka woman. Joe Jones, a Topeka man, had been convicted of the crime, but was released when DNA evidence showed he was innocent.

Joe Jones looks back on his life and the choices he made that has changed him.  Jones is trying to get his life together these days after spending nearly eight years in prison for a rape but was cleared through DNA evidence.

Joe Jones looks back on his life and the choices he made that has changed him. Jones is trying to get his life together these days after spending nearly eight years in prison for a rape but was cleared through DNA evidence.

Cindy Hillebrand, 61, knows — thanks to DNA evidence — who grabbed her off a street in downtown Topeka at knifepoint 28 years ago and repeatedly raped her.

His name is Joel L. Russell, a convicted sex offender currently doing time in a Kansas prison for several other sexual assaults.

But because of the current five-year statute of limitation on rape cases in Kansas, there's nothing prosecutors can do about Hillebrand's case.

Future victims, however, may get justice in similar cases, as Kansas lawmakers in both the House and the Senate last week unanimously passed bills that abolish a statute of limitations in rape and sodomy cases.

Kansas is among 10 states that now require a rape to be prosecuted within five years, but under the new legislation, Kansas would join 20 other states that allow rape prosecutions at any time.

The bill also allows for prosecution of a sexually violent crime to begin within 10 years of when a victim turns 18. Current law allows prosecutors to file charges within a year of when DNA evidence identifies a suspect in a sex crime.

The House approved its bill on Friday, one day after the Senate approved its own legislation. Each chamber’s bill went to the other. The content of the two measures are identical.

Hillebrand, who traveled from out of state to speak to lawmakers in favor of the legislation, found herself in the role of advocate following a Journal-World series focusing on her case.

"I've been working so hard on this," said Hillebrand, who's been working with the Kansas Coalition Against Sexual and Domestic Violence, which helped craft the legislation.

After a 2011 Journal-World article on Joe Jones, a Topeka man who was wrongfully convicted and later exonerated by DNA evidence in the 1985 attack on Hillebrand, Topeka police reopened the investigation.

DNA testing in 2012 identified Russell as a suspect in Hillebrand's case. An arrest warrant for Russell was issued, but prosecutors had to drop the case because the five-year statute of limitations in the case had run out decades ago.

The new bill won't help in older cases such as Hillebrand's, but could open the door for prosecutions in future rape cases.

Frustrated that Russell couldn't be brought to trial in her case, Hillebrand focused her attention on ensuring other offenders won't slip through the cracks.

Working on the bill, and seeing it passed, has helped Hillebrand in her own recovery, ongoing for nearly three decades.

"It's the only way I'll get any justice on this," she said.

* The Associated Press contributed to this report.


Scut Farkus 5 years, 3 months ago

I find it hard to believe there is any statute of limitations, much less only 5 years.

KansasLiberal 5 years, 3 months ago

If you report the rape to the police I don't think that there should be a statute of limitations, but the reason for statutes of limitations is to protect the falsely accused. How can anyone defend themselves from an accusation of rape that's 5, 10, or more years old? And if you really were raped, why wait years to go to the police? The current statute of limitations is the best balance between the rights of the accuser and the accused.

George_Braziller 5 years, 3 months ago

One could say the same thing about murder but there's no statue of limitations on that and with DNA evidence available now there's no reason why there should be a statue of limitations on rape either.

George_Braziller 5 years, 3 months ago

"Murder is a much bigger crime than rape." Oh really? It isn't for the victim of rape. If someone is murdered they're dead and it's done. For someone who has been raped it's a trauma and assault they have with them for the rest of their lives.

Joe Jones spent eight years in prison for a crime he didn't commit. DNA evidence is what exonerated him.

jafs 5 years, 3 months ago

What of all the rapes that occurred before DNA testing?

jafs 5 years, 3 months ago

Since they don't meet your criteria, do they still have a sol, and why, if the criteria you suggest wasn't possible for the victims?

jafs 5 years, 3 months ago

That's why your criteria aren't necessary - even without them, we wouldn't have lots of bad convictions.

If a woman went to the police immediately and reported a rape, before DNA testing was in place, I think that's good enough for there not to be a sol on her rape. It's hard to prove these things after a lot of time, and that's enough reason that we wouldn't have a lot of bad convictions.

Also, DNA testing is good, but certainly not the only way to prove guilt beyond reasonable doubt.

jafs 5 years, 3 months ago

Then there's little to no danger of false convictions, and so no reason to create a sol, as I keep saying.

jafs 5 years, 3 months ago

No it isn't.

A false conviction is much, much worse. And, as I've said over and over again, without evidence, prosecutors aren't very likely to try the case.

So, only cases that had some decent evidence, enough to convince prosecutors that they had a chance of winning, would be brought. They don't like to lose cases.

chootspa 5 years, 3 months ago

Lawmakers will at least do one right thing this session.

geekin_topekan 5 years, 3 months ago

Does this include the Republican Party's defined "legitimate rape?"

Cant_have_it_both_ways 5 years, 3 months ago

As long as this law has been on the books, there is a real good chance the left was in charge when it was passed.

Glenn Reed 5 years, 3 months ago

When has the left ever been in charge in Kansas? Really? Was there ever a time in the history of kansas where democrats held enough seats in Kansas government to do ANYTHING with impunity?

jonas_opines 5 years, 3 months ago

The Left the Left the Left the lefttheleftthelefttheleftTHELEFTTHELEFTLEFTLEFTLEFT!!!

Arglebarlgle LEFTLEFTLEFT.

My impression of CHITWay's inner monologue.

Left_of_Lawrence 5 years, 3 months ago

Well, wouldn't it be nice if our Governor can sign this. FYI When Kansas first became a state, it was Liberal. Read the book What's The Matter With Kansas, or watch the documentary with the same title. It's available on Netflix.

Leslie Swearingen 5 years, 3 months ago

Thank you so much for the heads up about Netflix. I have put the documentary in the instant queue. My thing is that rape goes from mild to horrendous by which I mean the woman is raped once and then he man runs away, then there is the cases of continued rape over a period of hours, the age of the victim, does a child or older woman suffer physically more than a twenty something to fifty something. Should the sentencing guidelines be altered accordingly.

If there is DNA evidence then once the databank matches this to someone who has just been arrested then this person should have the rape added to the list of charges.

ebyrdstarr 5 years, 3 months ago

To say that the statute of limitations on rape cases is 5 years is not entirely accurate. As of 2001, the sol has been 5 years or 1 year after the identity of the suspect is established by DNA testing, whichever comes later. This statute applies to any rape allegation where the sol had not yet expired when this statute went into effect, so roughly every rape allegation from 1997 on. It could still apply to cases even earlier than that if the statute of limitations had tolled for any reason, usually because the suspect was not in the state of Kansas.

This woman's particular case is a very rare one. Even other rape cases from the '80s can still be prosecuted now if the DNA matches and the suspect had left the state. (I know of at least one that was prosecuted.) This woman's attacker, though, was in Kansas the entire time, so the statute of limitations expired around 1990.

Most rape cases, though, aren't this kind of stranger rape. They're he said/she said cases where the issues revolve around consent, not identity of the suspect. For these types of cases, a 5 year statute of limitations is reasonable and just. Imagine trying to defend against a he said/she said rape charge 10 or 20 years later. How could you still have any text messages or emails that might provide support for your defense? How could you even establish an alibi because who can say where they were on a specific date that long ago?

For any cases like this woman's case, they are already covered by the current statute of limitations law or the statute of limitations has long expired and cannot be revived. This proposed legislation will probably pass because who can say no to crime victims, but it's totally unnecessary and is aimed at fixing a problem that either doesn't exist or can't be fixed.

Ewok79 5 years, 3 months ago

Now in the day of DNA testing, once the suspect is proven guilty can't just castrate them? Yes, it sounds harsh. But, it might just reduce the number of rapes in the country. Besides, scum-bags like that don't need to reproduce anyway.

Dan Eyler 5 years, 3 months ago

This is a very touchy subject and taking emotion out of it I think Kansasliberal makes some very important points on this topic.

jhawkinsf 5 years, 3 months ago

Perhaps a discussion should be had about what are the benefits and drawbacks of having statute of limitations for any crime. Then we could all better understand whether rape should fall into that category with murder or if it should remain in the category with other crimes.

jafs 5 years, 3 months ago

From my understanding, the reasoning behind sol is that it becomes much harder over time to determine what happened - witnesses forget, get older, etc. and evidence is hard to collect later on.

This actually seems to me that it makes the prosecution's burden harder to achieve rather than the defense, which only needs to show reasonable doubt.

DNA testing and evidence may skew this a little bit, if it's reliable.

I doubt that removing the sol for rape would result in a lot of flawed convictions though - it's not like accusing somebody of rape many years later without evidence easily results in a conviction.

jhawkinsf 5 years, 3 months ago

I'll make my comment very general, not intending for it to apply to any one crime or the other. But it's more my understanding that the reasoning behind having a statute of limitations is so that if someone does commit a crime, and it is a one time instance, that person can get on with their lives without fear that the police will arrest them many years after the fact. It's society's way of saying that we understand there may be a one time, isolated instance of crime, but it shouldn't be the basis for ruining your entire life.

Imagine stealing a car at age 18, going for a joy ride, and then being arrested 40 years after the fact? Imagine spending that 40 years knowing that being arrested is a very real possibility?

Back to specifics, though, murder is seen as a crime of such great magnitude, we've exempted that from any sol. The question in this article is should rape be considered more like murder or more like robbing a bank? Are the consequences of a repeat rapist more like a repeat murderer or more like a serial bank robber? Personally, I'd have no problem at all increasing the sol on rape. Maybe not eliminating it where a "he said she said" incident might come back decades later. But not so short that a true serial rapist would be getting off on technicalities. How about a 20 year statute of limitation.

jafs 5 years, 3 months ago

I never heard anything like that before, and highly doubt that's the reasoning.

Especially since the fear of being arrested is what stops people from committing crimes, in your view, in large part.

Rape, being a violent crime, is clearly more like murder than bank robbery to me. But I'm not sure why we need sol at all, given what I laid out above. It gets harder and harder to prove guilt beyond reasonable doubt over time, so removing the sol wouldn't likely result in flawed convictions, so what's the downside?

Worst case, I suppose, is that people get away with it, which they do anyway with a sol.

And, if prosecutors feel there isn't enough evidence to prosecute, they can always decline to do so, based on that.

jhawkinsf 5 years, 3 months ago

"Especially since the fear of being arrested is what stops people from committing crimes..." It's not the being arrested, it's the punishment. There has to be some correlation between when the crime was committed and when the punishment is meted out. That's why the death penalty has lost whatever deterrence it had, because the penalty comes decades later. The same would be true for any crime. If you told me I could rob a bank today and not be caught for 4 decades, there would be no punishment deterrence. I'm certain to be long dead in 4 decades. Tell an 18 year old, and he'll tell you much the same thing. Know any 18 year olds setting up IRAs or retirement annuities?

The rationale behind the statute of limitation is the same, once significant time has elapsed, either the person has turned his life around at which point punishment would be counterproductive OR there are new crimes that can be used to remove the criminal from society.

jafs 5 years, 3 months ago

Source for your claim?

You're right in a way - deterrence is greatest when convictions are more certain.

jhawkinsf 5 years, 3 months ago

Source for my claim? Me. I'm of the opinion that the rationale behind statute of limitations is as I stated. I don't know of any definitive writing or source.

jafs 5 years, 3 months ago

Ok, thanks.

I think you're way off base here.

jhawkinsf 5 years, 3 months ago

OK, I understand you think that with the passage of time, prosecuting certain individuals becomes harder. But that doesn't explain the government's willingness to basically grant a blanket amnesty after a certain period of time. Surely there must be some cases out there for some crimes where the evidence is so strong that a conviction would be very likely. Yet the government has taken the position that every single crime within that category that deserves a sol will not be prosecuted under any circumstances, ever. How would would explain their rationale for taking such a position?

jafs 5 years, 3 months ago

What if somebody reported their rape years ago, before DNA testing? Why should they be denied their chance to prosecute somebody later on?

You seem to think that simply accusing somebody of rape results in a conviction, often a wrongful one. I tend to think it's much more the other way around, and many rapists get away with it.

Our system is structured with the burden of proof on the prosecution, and that's a serious burden - it's very likely that rapes occur and can't be proven beyond reasonable doubt, and much less likely that somebody is simply accused of rape and found guilty without evidence or proof.

Rape has no grey areas that I can see - if a woman (or man, for that matter) doesn't consent to sex, it's rape. If somebody is drunk, that removes their ability to legally consent as well. Most folks who think it's all fuzzy are guys who have trouble respecting women.

Are there women who accuse men of raping them when it's not true? Sure, that's possible, but there are lots of men who force themselves on women claiming they wanted it as well.

jafs 5 years, 3 months ago

Many people have been convicted of crimes without DNA evidence.

Maybe, but that's not a conviction.

You tell me - I'll bet that it's a small fraction of the rapists that have gone free.

Nope - no grey areas. You must be one of those guys I mentioned. Statutory rape is rape. Differing levels of penalties for differing levels of rape is no different from the same different levels for robbery, or other crimes - it doesn't mean that the issue is all fuzzy or unclear at all.

Don't have sex with underage girls, and don't have sex with women who are too drunk to legally consent. I've had plenty of sex, and never been accused of rape - you?

jafs 5 years, 3 months ago

The two sentences are separate sentences and responses to your points.

  1. DNA evidence isn't required to prove guilt - many people have been convicted without it.
  2. People thinking you did something isn't a conviction in a court of law.

There's nothing grey at all - just as with other crimes, there are differing kinds and levels of rape. Theft and grand theft are different crimes, but that doesn't mean the issue is fuzzy or unclear.

Statutory rape is one kind of rape, just as grand theft auto is one kind of theft.

Certainly you wouldn't say that because we have different categories of theft, that theft is fuzzy and unclear, would you? There are obvious differences between thefts, both in amount and kind (armed robbery, for example).

But if I said that theft is a fuzzy grey area because of that, you (I hope) would rightly tell me I'm wrong.

jafs 5 years, 3 months ago

What emotion?

You seem to be the one getting upset here, not me.

But, I'm fine with ending this discussion here, since we're not getting anywhere. The distinctions that the law makes are in order to be more useful and appropriate, because reality and human beings are complex. We don't have a "one size fits all" approach to rape because there are different kinds of it.

Just as we don't have one with killing somebody - we have different categories, from involuntary manslaughter to first degree murder.

jafs 5 years, 3 months ago

I looked up that case.

It's disturbing, and very possibly true - the victims (if it's true) were children, and children frequently don't tell people when they're being sexually abused.

As far as the guys spending time in jail before being released, it's a problem with our system - we put people in jail before they're proven guilty, and I'm not at all comfortable with that. Seems to me that it should be the other way around - first the trial, then jail time if somebody's found guilty.

I see no problem letting adults claim they were sexually abused as children later on in life - in fact, I think it's probably the only way that the abusers would get found out. So I'm not at all sure that there should be a statute of limitations on child sexual abuse.

In the Mohler case, the prosecution did in fact decline to prosecute, feeling that there wasn't enough evidence to win the case, just as I said.

jafs 5 years, 3 months ago

They can disagree all they like.

That's not what I read in an article about the case. The prosecution complied, after safeguarding the victims' privacy, which makes sense to me. It's common in rape cases for the defense to put the victim on trial, one of the many ways in which rapists get away with it.

After investigating, the prosecution declined to prosecute because there wasn't enough evidence to convict, which will often be the outcome with cases that happened a long time ago, as I've repeatedly said.

jafs 5 years, 3 months ago

Read the article again.

The prosecution was found blameless by a judge - the problem was that the witnesses didn't want to turn over their records. And, as I've said many times, the prosecution declined to prosecute.

I completely understand why victims of sexual abuse wouldn't want to turn over private medical records, knowing that their medical history would in all likelihood be used to put them on trial and humiliate them - that's what's been done for a long time with rape victims.

As I've said before, I find the fact that we put people in jail while awaiting trial problematic, but it's problematic regardless of the crime and/or the sol - I think we should try people first, and then incarcerate them if convicted.

Your attitude towards rape and sexual abuse victims is horrible. Are you really suggesting that children have to report their abuse within five years or lose their chance? If you've ever known people who were sexually abused as children, you know it takes years for them to feel strong enough to confront their abuser, especially if it's a family member. How can you possibly tell a 5 year old child that they lost their chance because they didn't report it before they were 10?

And, even with adults, it's not that easy to do.

jafs 5 years, 3 months ago

And, thus, without sufficient evidence, nobody was wrongfully convicted.

Your conclusion that this case was frivolous and unwarranted seems premature to me - the prosecutor, even though they ultimately declined to prosecute, remained convinced of the guilt of the accused.

I fail to understand your position - first you say there's no evidence, and then that there's no way to defend yourself against an accusation. If the first is true, then that's all you need - the prosecution has to prove guilt beyond reasonable doubt. All you have to do is show reasonable doubt, and the lack of evidence is plenty of that.

Either there isn't any evidence, in which case prosecutors won't proceed, or there is evidence, in which case there's good reason to proceed.

And this case is a particularly odd one for you to hang your hat on - the allegations were that they sexually assaulted young children.

Ron Holzwarth 5 years, 3 months ago

It's rather interesting that in the article and in all of the comments, chimeras were not mentioned even once. If a rapist happens to be a chimera, he can rape with impunity, and the DNA tests used today will exonerate him every single time. He would have to be eventually convicted on the basis of other evidence, overriding the DNA tests, thus forcing the state to pay for the testing for chimerism.

The tests required to detect chimerism are tedious, expensive, and I believe have yet to face court challenge. How common chimeras are is unknown. It used to be said they were "very rare", then it was "rare", then "uncommon." The latest is "unknown," since no large scale studies have ever been done due to their expense, and the fact that chimerism applies to very few individuals.

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