A losing proposition? In 10 years, Douglas County juries haven’t convicted anyone in alcohol-fueled acquaintance rape cases
Rape case outcomes by the numbers
In the past 10 years, 48 men have been charged with rape in Douglas County, but only four were found guilty of the crime. Here’s how those 48 cases were resolved.
3 — Jury trial with guilty verdict
1 — Guilty plea, as charged
13 — Guilty plea, to lesser sex crime
12 — Guilty plea, to non-sex crime
4 — Jury trial with not-guilty verdict
10 — Charges dismissed
5 — Cases pending
About this story
The Journal-World compiled rape charges and outcomes for cases filed in the past 10 years from electronic searches provided by both the Douglas County District Court clerk’s and district attorney’s offices, as filing systems differ between the two. This story focuses on adult-on-adult rape cases. Other sexual assault charges, juvenile cases and cases with victims younger than 14 were not included.
Case narratives were compiled from past Journal-World articles and a review of case files by the Douglas County District Attorney’s Office at the request of the Journal-World. Interviews with the district attorney and a defense attorney also contributed.
The Journal-World traditionally has not named suspects in sex crimes unless and until they are found guilty. Only those convicted are named here.
In the past 10 years, Douglas County juries convicted three rapists who physically overpowered their victims, threatened them with weapons or broke into their homes.
But in the few rape trials involving a drunken victim who had been socializing with her alleged attacker, juries acquitted the accused rapist each time, a Journal-World analysis of a decade of adult rape cases found. More cases of this sort never went to trial, and defendants either pleaded to lesser crimes or saw their charges dismissed altogether.
Alcohol-fueled acquaintance rape cases, including some that went viral after media reports, have gotten national attention this year because of their prevalence at universities, though they’re not limited to college campuses.
When trying them in real court versus the court of public opinion, many barriers stand between a woman’s accusation and imprisoning a man for the serious felony of rape — not the least of which are witness accounts blurred by booze and victims’ understandable unwillingness to rehash a personally violating experience in public. Defense attorneys stress that there’s also the defendants’ presumed innocence.
No elected official wants to be seen as soft on crime or unsympathetic to victims, Douglas County District Attorney Charles Branson said.
That’s why alcohol-fueled acquaintance rapes can be especially frustrating, Branson said. He said many times prosecutors truly believe an illegal act occurred but that the circumstances would be so difficult to prove it was rape instead of drunken sex that it’s not prudent to bring charges or put a victim through the process of a criminal case.
“Somebody’s statement that Suspect A raped me is not ever going to be enough for court,” Branson said.
And for cases that have made it to trial, he said, “Typically what the juries will tell us when they get done with these cases is, ‘We think something wrong happened; we just don’t think it was rape.'”
Some say that’s problematic.
Others, including Lawrence defense attorney Kevin Babbit, say it’s wrong to presume that accused rapists are guilty and that convicting them is just a matter of proving it.
Most people’s “gut reaction” is to assume an alleged victim wouldn’t make such a claim if it weren’t true, said Babbit, who defended two men acquitted of acquaintance rape in Douglas County in the past 10 years, plus several sexual assault defendants who accepted plea deals. He said the justice system depends on the ability to test the statements people make.
“The cost of putting someone who’s innocent in prison is not worth just accepting what someone says and putting them in jail,” he said. “The state has to be able to prove their case beyond a reasonable doubt.”
Since 2005, the year Branson became district attorney, 48 people — all men — have been charged with rape in adult-on-adult cases in Douglas County, according to data provided by the District Court.
Seven defendants stood trial, and juries found three guilty and four not guilty, the Journal-World’s analysis found. All four of the acquitted men were accused of raping acquaintances — including one live-in girlfriend — and at least two of those cases involved heavily intoxicated victims.
Twenty-six of the defendants pleaded guilty (all but one to lesser crimes), 10 had their charges dismissed, and five cases are pending.
Low conviction rates and a high percentage of plea bargains in rape cases aren’t unique to Douglas County, experts say.
Nonetheless, the numbers are “disheartening,” said Kansas University law professor Corey Rayburn Yung, who specializes in criminal law and sexual violence and has published research on rape.
Rape is widely under-reported to start with, Yung said. Low conviction rates can further deter victims from pursuing prosecution.
“The letter of the law is violated far more often when it comes to rape than there are prosecutions and convictions,” Yung said. “That creates a cycle that leaves more rapists out in the street to find more victims, and they’re not deterred. They can get away with it.”
While alcohol-fueled acquaintance rapes may be hard to prosecute, they are real, said Chrissy Heikkila, executive director of Lawrence’s GaDuGi SafeCenter, which advocates for sexual assault victims.
Heikkila said Douglas County prosecutors do consider victims and move forward when they’re sure they have a good case with hope for a conviction.
But when heavy drinking is involved, plenty of reports never turn into cases at all.
“People will present at the hospital and just want to know what happened to them that evening because they woke up with their pants off,” Heikkila said.
“Often times it is just a big question mark, and there won’t be answers.”
Branson estimated his office files charges in about 30 percent of the sexual assault investigations it gets from law enforcement, compared with roughly 40 percent for other crimes.
First, there must have probable cause to believe that a particular suspect more likely than not committed the crime, he said. Second, the prosecution must believe it has a reasonable chance of winning a jury trial, which takes into account past success or lack of it.
In many stranger rape cases, evidence such as torn clothing or injuries often helps prove the defendant did not consent to sex, and DNA might help identify the rapist.
In many alcohol-fueled acquaintance rape cases, it’s undisputed that two people who knew each other had sex. Depending which section of the Kansas rape statute the defendant was charged under, the prosecution must prove that the victim either did not consent, was unconscious, or was too intoxicated to consent.
Either way, intoxication can be a stumbling block.
Juries must consider corroborating evidence to determine who’s telling the truth and what actually occurred, and victim or witness accounts clouded by alcohol make it harder to figure out, Branson said. Jury instructions come with no definition or sample scenarios of incapacitation to help jurors decide whether a victim was too intoxicated to consent.
One rapist accused in the past decade pleaded guilty to rape: Alejandro Perez Cortez. When he attacked a Kansas University graduate student leaving a bar, she stole his wallet, ripped off his necklace and tried to claw him while he raped her, which helped close the case.
Of the 25 other pleas, about half were to lesser sex crimes and half to non-sex crimes.
Descriptions of all cases were not readily available. However, based on past news articles, a number of them involved alcohol and acquaintances.
• Denzel S. Daniels was sentenced to 32 months in prison after pleading no contest to aggravated sexual battery in an April 2010 incident. The 20-year-old victim testified that she and Daniels, whom she knew, were at the same bar that night. Intoxicated, she last remembered a friend helping her to her couch and later awoke to Daniels sexually assaulting her. The friend testified she did not lock the victim’s door after dropping her off.
• Kellen T. Gangel was sentenced to probation after pleading no contest to aggravated battery in a May 2010 incident. The victim, who spent the evening drinking with Gangel and friends, alleged he touched her while inside a vehicle and that later in an apartment she awoke to him molesting her.
• Andrew J. Hansen served more than three months in jail and was sentenced to probation after pleading guilty to aggravated battery in an August 2010 incident. After a night where both had been drinking, the victim claimed Hansen, an acquaintance, sexually assaulted her after she fell asleep at the Delta Chi fraternity house.
Branson defended his office’s approval of plea bargains in rape cases.
“Anytime we have an opportunity to hold somebody accountable for their actions — even though it may not be 100 percent accountable, or it may not be completely classified to the crime that they may have committed — I think it is much better for us, for the public, for survivors to have that degree of accountability from the assailant than it is to let them go,” he said.
Branson said pleas were considered on a case-by-case basis and that his office would press harder for a conviction any time prosecutors believe a suspect is a threat to the public.
However, he said, common rape case factors such as a lack of evidence or a traumatized victim unwilling to testify often make proving the charges at trial unlikely.
Off the hook
Just this month, Branson’s office dropped charges against a KU student and another college-aged man accused of raping two women at KU’s Hashinger Hall over homecoming weekend. They were charged Oct. 9 with rape of a victim incapable of giving consent.
Detailed allegations — including whether alcohol was involved — have not been publicly disclosed, and District Court Judge Kay Huff rejected a motion from the Journal-World seeking release of probable cause affidavits in the case.
Branson said both suspects were arrested and charged at the conclusion of the KU Office of Public Safety investigation because evidence at the time suggested the crime of rape had occurred.
The investigation continued post-arrest, including examination of cellphone and medical records, plus interviews with people with knowledge of the parties’ activities that night, Branson said. After a full review, he said his office determined there was no longer sufficient evidence to take the case to trial.
The case’s dismissal brought the number of men whose rape cases were dropped to 10 in the past decade.
Victim testimony pivotal
In any type of rape case, victims must decide whether to pursue criminal prosecution.
GaDuGi is victim-led and instead of pushing for or against prosecution tries to inform victims to empower them to make their own decisions, Heikkila said. That includes the realities of taking a case to court.
“We really try to be honest about the process,” she said.
“There’s no guarantee for justice, and it doesn’t look like TV.”
Douglas County District Court’s experienced victim-witness coordinators help navigate the process, but taking the stand is key to trying a case and many victims don’t want to.
At trial, victims must tell their story before the judge, attorneys, jurors and onlookers, he said. All their actions — personal, sexual actions — will be gone over “with a fine-tooth comb.” A typical defense involves attacking the victim’s credibility or motivations.
On many occasions Branson said the court has reached pleas or dismissed cases because, at a final meeting with a victim, she decides she can’t take the stand.
“Is it frustrating? Yes. Is it gut-wrenching? Yes. Does it make you angry sometimes? Yes,” Branson said. “But … you can’t force them into something.”
Going through a trial and losing can be shattering for victims, Branson said.
This 2009 Journal-World investigation looked at the number of adult sexual assault reports in Lawrence, only a sliver of which ever result in criminal charges. The Journal-World found more than 450 sexual assaults were reported in a five-year period, with the majority of cases involving acquaintances.
As an example, Branson cited a 2013 rape trial in which a Haskell Indian Nations University student said a man whose child she had babysat raped her while she was passed out drunk at a party.
Branson prosecuted that case himself and lost.
Jurors indicated in post-trial interviews that they thought the woman did not act appropriately for someone who had just been raped, Branson said. They didn’t believe someone could get in bed with an intoxicated person without waking them up, and didn’t understand why the woman didn’t scream for help while she was being raped.
“That was probably one of the hardest verdicts I’ve had to sit through,” Branson said. “Because perceptions of how a rape victim should act prevented a rape victim from getting justice.”
In that case Babbit defended the suspect, who said the sex was consensual.
“Of course the victim advocate is going to believe everything the person told them … and of course the prosecution felt that, or presumably they wouldn’t have tried the case,” Babbit said. “But the person sitting beside me, my client, certainly felt it was not true.”
Rape trials are difficult for everyone, Babbit said, especially in an acquaintance-style case that hinges on corroborating people’s stories.
When the only information available may be someone saying you raped her and you saying you didn’t, Babbit said, “you just can’t imagine the stress and the difficulty of someone who’s sitting in that chair who’s innocent.”
Jury perception problems?
The standard sentence for someone with no criminal history convicted of rape is more than 12 years in prison, Branson said.
Branson thinks jurors struggle with that, because it means someone who dragged a jogger into the woods and violently raped her faces the same penalty as a man who raped an intoxicated woman he knew. Most people perceive stranger rape as more serious, Branson said.
He said “healthy public dialogue” is needed to help broaden understanding about what qualifies as rape under the law.
Yung, the professor, said he, too, thinks more public awareness is needed to successfully try acquaintance rapes.
“When the focus is on consent, that’s where all the cultural factors come in,” Yung said. “If the jury’s not receptive toward that more modern view of the law, it’s not going to matter what the rule is on the books.”
Babbit vehemently disagrees.
“The jury pools you receive here in Douglas County are highly educated,” he said.
Instead of approaching cases like they’ve seen on TV, Babbit said, jurors here are “unusually adept” at being able to follow a judge’s instructions and apply the law.
RAPE CASES TRIED BY JURIES
In the past 10 years, seven of the 48 men charged with rape in Douglas County stood trial. Three were found guilty and sent to prison, while the other four were acquitted. Here are summaries of each jury case, plus the case of the one man who pleaded guilty to rape as charged.
Robert E. Grey
Date of offense: May 1997
Location: Secluded area near Lawrence High School
Date of verdict: May 9, 2014
Description: A KU student was abducted at gunpoint from the Naismith Hall parking lot and driven to a secluded area near Lawrence High School and raped. The case was cold for 10 years until law enforcement matched a small fingerprint found on the victim’s car and DNA from her sex assault exam with Grey’s. Grey said his DNA was found on the victim because they had consensual sex in the parking lot of a bar the night before.
Grey was found guilty in 2009, then awarded the second trial because of prosecutorial misconduct in the first one.
Date of offenses: July 1994 and September 1995
Location: 800 block of Maine Street in 1994, and 1000 block of Ohio Street in 1995
Date of verdict: May 16, 2008
Description: The 1995 victim said a man broke in to her Ohio Street home while she was sleeping and attacked her, for which Elkins was convicted of one count of rape and one count of aggravated sodomy. Elkins was convicted of three counts of rape and two counts of aggravated sodomy in connection with the 1994 attack, all involving the same victim on the same night. The case was cold for almost a decade, until one of the women contacted authorities to ask whether new DNA testing technology she’d heard about could be used. DNA matched Elkins.
Randy D. Coffey
Date of offenses: December 2005 and April 2006
Location: Coffey’s apartment south of Lawrence
Date of verdict: April 28, 2008
Description: Coffey was accused of physically overpowering two women and raping them on separate occasions. One night in 2005 he twice raped a woman who was staying with him, who was hired to drive him to work in the Kansas City area. In 2006, while he was free on bond from the earlier attacks, he raped a longtime female friend who came to his apartment early one morning to collect money he owed her. The defense argued the sex was consensual and that the women suffered no trauma and had other motives to accuse Coffey.
FOUND NOT GUILTY
Date of offense: Oct. 7, 2012
Location: Apartment near 23rd and Louisiana streets
Date of verdict: April 26, 2013
Description: The woman, a Haskell student, spent an evening drinking with friends, including a man she was romantically interested in. After a bar where they were partying closed, the group went to the man’s apartment for an after-party, where she had consensual sex with him and fell asleep in his bed.
While the heavily intoxicated woman was passed out, the man’s girlfriend arrived and discovered them in bed. He left to take the angry girlfriend home. While he was gone, the suspect — who lived across the hall and had been in and out of the party, and whose child the woman had babysat — entered the bedroom and had sex with her. Prosecutors said she woke up to him on top of her, pushed him off, left distraught, called a friend to pick her up and went to the hospital, where she underwent a sexual assault examination and police were contacted.
The suspect said he went back to the party to get a drink when the woman, naked, came onto him and agreed to sex. The defense argued that witness statements corroborated the suspect’s story, not the woman’s.
Date of offense: March 9, 2008
Location: Woman’s room in Gertrude Sellards Pearson Hall, KU campus
Date of verdict: Aug. 20, 2009
Description: The woman, a KU student, and suspect, visiting Lawrence from out of town, had been together earlier in the evening, and the woman posted flirtatious photos with him to Facebook. They returned to her dorm room, where the woman’s friends — who said she was unconscious due to intoxication — put her to bed. The friends later opened the door, saw the suspect having sex with the woman and intervened.
The woman said she did not recall anything besides him being in the room with her and that she did not consent to sex, prosecutors said. The defense argued that the sex was consensual and evidence did not support rape because her clothes were not torn, she had no injuries and his DNA was not found on her or in the room. The man said the woman later changed her story because she didn’t want another man she was interested in to find out.
Date of offense: April 2, 2006
Location: Woman’s home in 100 block of Arkansas Street
Date of verdict: Nov. 30, 2007
Description: The suspect came to the woman’s home that night with some other friends of hers. The woman went to bed because she wasn’t feeling well, leaving guests in the living room. The suspect went to sleep on the couch and later went into the woman’s bedroom. The woman said she awoke in bed to find the suspect having sex with her, which she did not consent to. The suspect claimed the sex was consensual. The case file does not specify whether the people involved were drinking.
Date of offense: June 3, 2007
Location: 1600 block of West Sixth Terrace, home of suspect and alleged victim
Date of verdict: Nov. 28, 2007
Description: The alleged victim said that during an argument with the suspect, her live-in boyfriend, he became enraged, cut her with a knife, threatened to kill her and held a knife to her throat and repeatedly raped her. The suspect said he was “horse-playing” with the knife and that the sex was consensual. The jury found him guilty of another charge connected to the incident, criminal threat, but found him not guilty of rape.
PLEADED GUILTY AS CHARGED
Alejandro Perez Cortez
Date of offense: August 13, 2009
Location: Outside Wilde’s Chateau, 2412 Iowa St.
Date of plea: Dec. 30, 2009
Description: A KU graduate student was leaving Wilde’s Chateau, a bar, when a man put his hand over her mouth, forced her into her car and raped her. During the attack the victim stole the suspect’s wallet, ripped off a necklace he was wearing and attempted to obtain his DNA by scratching him, which helped lead to his arrest and conviction.