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A question of consent

Thursday, March 18, 2010 | 12:01 a.m. CDT; updated 12:03 p.m. CST, Thursday, March 7, 2013

COLUMBIA — It's October 2008, and a woman reports to MU police that she's been raped.

At first, the man she accuses says the sexual encounter was consensual. After several hours of questioning, he shifts his story nearer to that of the woman, according to the police report. OK, he admits: The woman didn’t want to have sex.

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But when police ask whether he considered what he did to be rape, the 19-year-old seems surprised at the word — even though he acknowledges feeling that he did something wrong, according to the police report.

No charges were ever filed against the suspect. That is the norm in cases of sexual assault that occur at MU, according to statistics from MU police and Boone County prosecutor's office.

It's also the norm around the country, according to a recent 12-month Center for Public Integrity investigation. The center found a host of institutional barriers for people who report sexual assault on campuses. It said that official campus assault statistics often don't jibe with the number of assaults reported to campus organizations, such as victims advocacy groups.

It also found that many serial rapists went unpunished, and even when campus judicial services found guilt, punishment was weak.

At the heart of the matter is the question of consent. Victims' advocates' definition of that word differs greatly from that of the law. And cultural biases about sexual assault find their way into jurors' thinking, further complicating prosecutors' jobs.

The result is a minuscule prosecution rate for sexual assault.

But where does that leave victims?

Peggy Reeves Sanday, an anthropologist from the University of Pennsylvania and author of "A Woman Scorned: Acquaintance Rape on Trial," said a lack of prosecution of sexual assault cases sends people the message that "it's OK to engage in nonconsensual sex."

Dean Kilpatrick, director of the National Crime Victims Center, said successful prosecution is so rare that there is no body of research about its effects on victims.

But he has seen no evidence of relief when a case isn't prosecuted. "I've never talked to a victim who said, 'Boy I feel much better now,' when the prosecution doesn't go forward with the case," he said.

Reporting assaults

Few sexual assault cases make it to the prosecutor's office, and not many even make it to police.

In a report that all universities must produce, the MU Police Department said it received 14 complaints of sexual assault on or near campus from 2006 to 2008.

Studies show sexual assault on campus is much more common. According to the Centers for Disease Control and Prevention, about 20 percent of women are the victim of rape or attempted rape while in college. At MU, as of fall 2009 with 12,412 females enrolled, that would be roughly 2,500 undergraduate women who have been or will be sexually assaulted  during their college years — although not all those cases would happen on campus.

The MU Relationship and Sexual Violence Prevention Center doesn't track the people who use its services by location or time of the attack, which makes it impossible to get an accurate number of assaults that have been reported to people other than police.

Even reporting an assault to a counselor or advocate can be difficult, and reluctance increases when law enforcement is involved, though those groups work to make the process easier for victims.

That might explain why only about 36 percent of rapes are reported to the police, according to a 2002 Department of Justice study.

The study found the closer the victim was to the perpetrator, the less likely the crime would be reported to the police. People cited personal matters, fear of reprisal and police bias as reasons to not report an assault.

MU Police Capt. Brian Weimer said the department has streamlined the process to report a sexual assault, so ideally, victims have to tell their story to as few people as possible and work primarily with only one investigator.

Even so, he said, the investigator must ask about personal details, such as previous sexual activity that could affect physical evidence. 

"We've got to ask some difficult questions," he said.

Sometimes the only way to get physical evidence is through a rape kit, which is collected at a hospital. This entails taking potential evidence from the victim's body, such as any bodily fluids or hair that might have come from the attacker. The kit must be administered within 72 hours of an assault and is uncomfortably invasive at best and agonizing at worst, advocates say.

Finally, victims who know the perpetrator — the case in the majority of sexual assaults — sometimes object to naming their attackers, which leaves victims with little legal recourse.

Victims' misconceptions about police can also inhibit report rates, said Kelley Lucero, outreach coordinator for The Shelter, a Columbia organization that provides services to victims of domestic violence and sexual assault.

For example, she said victims often erroneously believe they'll get in trouble for underage drinking if they admit they'd had some alcohol when the incident occurred.

Prosecuting rape

When asked about sexual assault, Boone County Prosecutor Dan Knight speaks passionately about convictions his office has earned. He names Dwight Tyrell Hayes and Eric Pierre Saverson, among others — convicted of forcible rape and sexual assault, respectively. Neither incident occurred on campus.

Hayes raped and sodomized the assistant manager of a Comfort Inn in 2007. His victim was a stranger. He later broke into the same hotel and killed the general manager.

But most cases of sexual assault are much more like the Saverson case, where the victim knew her attacker. The woman and Saverson used cocaine together and had consensual sex. She testified that when he asked her to pay him for the drugs, "his whole face turned evil" and he raped her and threatened her with a glass bottle. He received 14 years in prison, the maximum allowable sentence.

Boone County Assistant Prosecutor Andy Scholz, who has handled sex offense cases since 2007, prosecuted the Saverson case. The difference between that and those that he has rejected is how he perceives the credibility of the accused rapist and the alleged victim.

"You have to make the decision based on how the facts of the case make you feel," he said.

Since 2005, there have been 16 convictions for felony sexual assault in Boone County. Eleven of those cases came from the Columbia Police Department, four from the Boone County Sheriff's Department and one from the Centralia Police Department, according to prosecutor's office administrator, Bonnie Adkins. (Those numbers don't include cases in which the person convicted received some kind of probation, resulting in the record being closed after sentencing.)

Prosecutors did not pursue any felony sexual assault cases from MU police in that time frame.

To compare, Columbia Police Department received 300 reports of felony sex offenses between 2005 and 2008, and that doesn't include other Boone County jurisdictions.

In those 16 Boone County convictions, about half the perpetrators knew the victim. But national statistics indicate that a vast majority of victims know their attackers, as in the Saverson case. This suggests that, for whatever reason, a disproportionate number of successful Boone County convictions come from rape by strangers.

In 2008, a woman told MU police that her ex-boyfriend stayed at her house overnight because he was too drunk to drive home. She told police that after her friends left, he cornered her in the bathroom, pulled her hair, and later sexually assaulted her, according to the police report.

The man told police the act was consensual and that the woman had liked rough sex while they were dating, which the woman also told Scholz. The man also said she repeatedly told him that she was "trying to be a good girl and not mess around with anyone."

Scholz said he didn’t file charges because the woman told him she wasn’t sure whether the suspect knew she didn’t consent.

Scholz said he and his colleagues focus on each case individually. He doesn't look at the overall numbers, which keeps him from feeling pressure to file on the next case that hits his desk, regardless of its value.

"I think the way we do it is the best possible way to do it," he said.

Boone County Assistant Prosecutor Richard Hicks, who prosecuted sexual assault cases for five years, added that many defendants will plead guilty to another charge, such as nonsexual assault, and the number of successful sexual assault convictions wouldn't reflect that.

Knight said prosecutors' duty is to do justice and that includes protecting the rights of those accused as well as victims.

"One of my biggest fears is that we prosecute someone and put an innocent person in the penitentiary," he said.

Scholz's standard is that he must "firmly believe" that a crime occurred, which he acknowledges is tricky. Even when he believes the victim, he said, that doesn't mean he believes a crime happened because perpetrators must know they don't have consent for the act to be defined as a crime.

Kilpatrick, the victims' rights advocate, said the bigger picture conveys the idea that rape is more OK than other crimes.

"If I'm a potential rapist, ... I may conclude that hey, my chances are pretty good here," he said.

Advocating for victims

Police work with prosecutors to gather necessary information and details. When the prosecutor's office takes over, victims speak with Scholz, advocates and others.

Victims hear that prosecuting cases of sexual assault and rape can be incredibly difficult for lawyers and trying for the victim. Reasons include:

  • Criminal cases can last for months or even years, a reality neither victims nor prosecutors can control. Students sometimes graduate and move away before the criminal justice process has run its course.
  • There are rarely eyewitnesses, so victims almost always have to testify, recounting their assault in front of the person they've accused and a roomful of people — most of them strangers. But defendants are not required to testify. This effectively means, in those cases, the entire burden of proof is on the victim. Defense attorneys can then use the victim's criminal record as evidence. But unless defendants testify, the jury won't hear their legal history, including any previous sexual assault convictions.
  • Police or other reports from the day of the assault can be used in court. When victims consumed alcohol or drugs, even if the perpetrator gave the victim a date rape drug such as flunitrazepam (a "roofie" or "rufie"), the victims' testimony sometimes changes when they remember more. Defense attorneys then use discrepancies to discredit the victim.
  • To prove sexual assault, prosecutors must show not only that the victim didn't consent, but also that the lack of consent was apparent to the alleged attacker. That legal standard of consent leaves out people who were unable or unwilling to communicate refusal, including if they were too drunk. Lucero, a victims' advocate, calls alcohol  "the No. 1 date rape drug."
  • Although he described Boone County juries as "progressive and educated," Scholz said people still bring biases and beliefs to the jury box. "In certain instances, it's difficult to say that you can convince 12 people that there's lack of consent or there was force," he said.

Mark Koch, an advocate who works in the prosecutor's office, tells victims that a successful prosecution is not always cathartic and doesn't necessarily provide closure.

When a victim becomes part of the justice process, "things are going to get worse for the victim before they get better," he said.

Victims often ask him questions about how long the trial will take, whether their names will be in the newspaper or whether they'll have to face their rapist. He doesn't have an answer for them, he said, because every trial is different. At least one local news organization — the Columbia Daily Tribune — will publish the name of a person who has alleged rape if the jury doesn't convict the defendant.

Koch takes into account not just the facts of the case but victims' situations. For example, he asks who they've told about the assault and tries to determine what kind of support systems they have. Victims with better support systems have an easier time enduring the process, he said.

Scholz said he tries to give victims back control of their lives and bodies in the prosecution process, but he ultimately decides whether to file charges. He consults with advocates, including Koch and outsiders who have worked with the victim. He also always talks it over with a woman in the office.

Scholz said he keeps in mind that the legal system was created to protect the accused rather than the accuser. While there are mechanisms to make sure the innocent don't go to prison, the system is not set up to protect victims' feelings. Sexual assault, a crime that already alters victims' and survivors' lives, makes a trial an intimidating process.

When prosecution gets stalled or especially when a jury returns a not guilty verdict, victims interpret that as a message that their case isn't good enough or their assault wasn't real. The Shelter's executive director, Barbara Hodges, said victims think, "It must be me," which is already a common thought after an assault.

In reality, those things are the product of a laborious and confusing judicial system.

Kilpatrick said even when there isn't prosecution or the verdict is not guilty, victims want to feel involved in the process and that authorities have done their best.

"Victims can distinguish between somebody making a good effort, doing all they can," he said.

The process is, in a word, daunting. 

"It takes a tremendous amount of bravery for victims to report these crimes and assist in prosecution," Knight said.

Improving the system

Longtime advocates talk about how little things have changed over the years since The Shelter was created as a safe space by MU graduate students in 1987, while the victim's rights movement was creating awareness about sexual assault.

When asked about solutions, police, prosecutors and advocates talk about changing the culture — changing the way people think about rape. Some bring up possible changes to the judicial system.

For example, advocates say victims should feel that they can report an assault without social repercussions. And they'd like to see the judicial process — countless interviews, depositions that sometimes take four or five hours, testifying in front of  attackers — made less traumatic for victims. 

Lucero said there's been progress. She said local groups that deal with sexual assault victims have worked out a good rhythm, especially in communicating with each other. Advocates from The Shelter or the campus Rape and Sexual Assault Violence Prevention Center accompany victims to the hospital and to meetings with police and prosecutors.

In all, she and Hodges said, things are improving.

"But we have a long way to go," Hodges said.

 Several open records were examined for this story, including MU police reports, court documents and statistics compiled by the Boone County Prosecutor's Office.


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Comments

Ruth Campbell March 18, 2010 | 4:39 p.m.

Apparently, Mr. Scholz himself is one of the biggest impediments to a woman seeking access to justice when she has been raped since Mr. Scholz feels HE needs to be absolutely convinced that her case is valid before he prosecutes. "The difference between that and those that he has rejected is how he perceives the credibility of the accused rapist and the alleged victim."

Gee, who needs a jury system.

(Report Comment)
Teddy Jensen May 19, 2010 | 3:11 p.m.

I find this article on sexual consent and concern over alleged sexual assault cases not being prosecuted as convoluted logic and reflecting an agenda to get men convicted of rape, even when innocent. Straining at a gnat and swallowing a camel... This concern over the fact there are not more sexual assault cases prosecuted is some people are distorting situations to turn them into rape when what is really going is young people experimenting and in this experimentation certain people ... as in the article... using distorted logic to always blame the male....

Not many real rapes occur, despite what the distorters, those activists with an agenda to make the public believe only men are to blame, want us to believe...

They create imaginary rapes when the 1990 REASON magazine article states "Sounds like you Raped me...", meaning the persons who are trying to produce more rapes are distorting situations with convoluted logic or illogic, to create rapes where there were none... bad experiences when young college students experiment but not rape...

I could say more but I say leave it up to the police officers who most of the time see there were no rapes but teenagers and college students experimenting with sex while drunk, etc... To blame everything on men is short sighted and illoical... Read SEXUALLY AGGRESSIVE WOMEN (GOOGLE THE INTERNET) to find out it is just as often the woman who is the one to blame and usually both the man and the woman.

(Report Comment)
Teddy Jensen April 10, 2011 | 1:15 p.m.

Ms Campbell seems to want to pull innocent men into the system.... let a jury decide even when the men are innocent and will nonetheless be harmed... INNOCENT MEN HARMED!! Often losing 10,000s of dollars, experiencing people calling them rapist while awaiting trial... their cars beat on.... their lives, emotions damaged, if not ruined.... Ms. Campbell seems to want this... then HER attitude is a hate crime toward even innocent men.... she does not care if innocent men are harmed or even go to prison.... Better it would be for both police and prosecutors take care to not bring innocent men into the system to be harmed.... and be careful to see false rape accusations.... to not let the legal system be criminally used to injure innocent men.... Obviously Ms. CaMPBEll does not care if innocent men are injured...

(Report Comment)

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