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Rape: Puzzling out declining convictions

Neutral advocates could help ease victims' concerns


by: TRIBUNE PHOTO: JAIME VALDEZ - Erin Ellis, executive director of Washington Countys Sexual Assault Resource Center, says Portland might get more rape convictions if its victim support model were not so fragmented.Sgt. Pete Mahuna knows that time is definitely not on his side.

Mahuna heads the Portland Police Bureau’s sex crime unit, which means he sits on the hot seat when people start asking why the city’s solve rate for sexual assault crimes has been dropping for the last six years. The city as a whole has made major improvements in its response to rapes, according to a recent city audit. And yet the clearance rate, basically the percentage of cases in which the police identify an abuser regardless of whether the victim prosecutes or not, continues to fall from a high of 55 percent in 2008 to somewhere around 30 percent today.

Portland police’s clearance rate isn’t the only alarming statistic relating to sexual abuse. Nationally, despite efforts like those undertaken in Portland to enact a victim-focused approach to rape investigations, the number of women willing to report their attacks has plummeted in the last two years, though some say it might represent a statistical aberration.

Portland police have hired two civilian advocates to help victims, and Mahuna is convinced a greater percentage of women who receive the support of advocates end up testifying. But, he says, because advocates are sometimes involved in helping vulnerable women get access to medical care, mental health counseling, even finding housing for homeless victims, cases can take longer to complete.

“Detectives before would have been, ‘Are you in or are you out?’ And if (victims) said, ‘I don’t know what I’m doing,’ the detective would suspend the case and say, ‘Get a hold of us if you want to move forward,’ ” Mahuna says.

So maybe, Mahuna posits, the cases the sex crimes unit took on previous to hiring victim advocates were those that could be investigated more quickly and decisively. That might have skewed the closure rate somewhat.

Mahuna says that budget cuts in the district attorney’s office have resulted in prosecutors asking for more thorough investigations before they are willing to take rape cases to court. “They’re trying to head off any potential problems at trial,” Mahuna says. So detectives are taking longer in their investigations. But time is the enemy of a successful rape prosecution, according to Mahuna.

“Every time a case takes longer, sometimes you lose cooperation,” he says.

Mahuna says the falling clearance rate on sex crimes might at least partially be attributable to inaccurate record-keeping at the bureau, where an internal review has found some old cases considered cleared that should not have been classified that way. The Portland City Auditor says the police bureau needs to undertake an internal review to figure out why the clearance rate on sex crimes is going down.

Portland system falls short

Erin Ellis has some major suggestions. The executive director of Washington County’s Sexual Assault Resource Center thinks Portland’s approach to dealing with victims of sexual assault is misguided. She says what the city sees as a victim-focused approach actually falls far short of that, and is one of the reasons behind low rates of reporting and prosecuting rapes.

Hiring victim advocates, as Portland police have done, is not going to significantly increase Portland’s closure or conviction rate, according to Ellis. She calls Portland’s system for dealing with victims “fragmented,” and says a different model, something closer to that is used in Washington County, is needed.

In Multnomah County, Ellis says, a woman who chooses to report sexual abuse sometimes has to deal with three different advocates. First, she might be seen by a district attorney’s advocate, usually at a hospital. But that advocate does not accompany the victim who goes to the police station to talk to detectives. The Portland Women’s Crisis Line provides advocates to those women who choose not to report. The police advocates help those who report — but the police bureau employs only two advocates, so they are not present every time a detective interviews a victim.

In Washington County, the nonprofit Sexual Assault Resource Center provides all of the advocacy services, and its advocates are not connected with the district attorney or the police. So anything a victim tells a SARC advocate can be kept confidential. And that means more victims find a comfort level that makes them willing to report and later testify, according to Ellis.

“They’re more likely to be interested in participating in the criminal justice system because they’ve been working with somebody who doesn’t have an agenda,” Ellis says.

Women with criminal histories, addictions, or gang tattoos, or who are undocumented aliens, are not going to report rapes to police, according to Ellis, unless a neutral agency such as hers gets involved first and builds trust.

Currently, Ellis says, when Portland police work with a victim of underage sex trafficking they call her agency for victim support. Domestic violence cases also are getting more attention through a dedicated county domestic violence advocate and an eastside Domestic Violence Resource Center, she says. But rape, according to Ellis, is still stigmatized.

“They’ve taken on domestic violence and they’ve taken on human trafficking,” she says. “Why is sexual assault left behind? It’s the perception of culpability. People still have a hard time wrapping their heads around that.”

by: TRIBUNE PHOTO: JAIME VALDEZ - Mandy Davis, clinical director of PSU's Trauma Informed Care Project, says social media pressure might explain why fewer women are reporting sexual assaults to police.

SARC streamlines services

SARC is funded through federal, state and private grants. It offers all the advocacy services the district attorney, police and the Portland Women’s Crisis Line provide under one roof. Multnomah County needs its own rape crisis center if it wants more victims to report and participate in prosecuting more rapes, Ellis says.

Victims' decisions

PSU social worker Mandy Davis is interviewing victims of sexual assault about their experiences with law enforcement, advocates, attorneys, counselors and physicians. She is studying how those experiences influenced decisions to report and participate in prosecuting abuse. Victims willing to be interviewed should contact Davis at 503-725-9636 or at madavis@pdx.edu.

The SARC model has advantages, says Mandy Davis, a one-time SARC board member who is the clinical director of the Trauma Informed Care Project in the Portland State University School of Social Work. Davis has been interviewing Portland-area rape victims to evaluate the benefits of support services such as victim advocates for women who have been raped.

“My big question was, are victims really unwilling to participate (in prosecution) or are there other reasons?” she says.

Davis says she interviewed one rape victim at a Portland hospital where the victim saw an advocate from the Portland Women’s Crisis Line. Later, the victim decided to report the crime and went to the police station for an interview, where she worked with a police victim advocate. The day she testified against her attacker before a grand jury, an advocate from the district attorney’s office took over. Each advocate needed to hear her story.

“For a survivor, that’s too much,” Davis says.

Many victims don’t report rapes, Davis says, because they don’t even realize they have been raped. Many suffer from what she calls a rape-induced paralysis, which leads to thinking Davis describes as, “I didn’t scream, and I didn’t run,’ I come out of this and my cognitive brain comes back online and I’m, ‘Wait, why didn’t I scream?’ ”

That’s why there’s an advantage to having an advocate who can be with the victim from the very start of her thought process, rather than just when a police officer or a district attorney arrives, Davis says.

Social media hurting victims

The rise of social media might also be a factor behind the declining number of women reporting rapes, according to Davis. “The survivors are getting nailed publicly left and right,” she says.

Davis says in a number of high-profile, nationallly publicized cases, women who reported rapes were vilified in social media. Years ago such women were exposed to public humiliation only in the courtroom, but now it continues for months on end through the social network community.

“Is the message ... don’t bother reporting?” Davis asks.

Davis says Portland authorities have a great deal of work to do if they want to make women feel safe in reporting sexual abuse. She has been in Portland hospitals and seen women complete the swabbing and photographs that constitute an initial rape evidence collection. She’s seen them have their clothes taken away to be used as evidence, only to discover the hospital had no clothes for them to wear home. Consider, she says, the effect on the victim.

“If all of a sudden I’m leaving the hospital in a gown, I’m not coming back (to testify),” she says.

Rebecca Peatow Nickels, executive director of the Portland Women’s Crisis Line, says both the Portland and Washington County models of victim advocacy have their advantages. The Portland model, with advocates working alongside police, might be best in cases where a victim is certain she wants to press charges, because police advocates are more familiar with the criminal justice process. But for women who are uncertain or don’t want to report, a community-based advocate might be preferable. In either case, Nickels thinks, it is hard for advocates of any sort to convince victims that prosecuting a case will do them good.

“When survivors go through the criminal justice system, they have higher endpoint trauma,” she says.


Stranger rape may get too much focus

If police want to put more rapists behind bars, says Erin Ellis, executive director of the Sexual Assault Resource Center in Washington County, they may need to readjust their priorities.

Most police bureaus prioritize rapes by strangers because they are the ones that most concern the public, Ellis says.

But in reality, stranger-on-stranger rapes make up a small percentage of sexual assaults. Some years there are as few as 15 forcible stranger rapes in Portland, according to police bureau records. The far greater number of sexual assaults are committed by men who know their victims, including family members and assaults among members of homeless communities.

The majority of acquaintance rapists are serial rapists, according to Ellis, which makes it all the more important that they be prosecuted before they assault again. “That's who we need to be going after,” she says.

But acquaintance rapes pose special problems for detectives and prosecutors. More often than not, such cases come down to he said/she said testimonies with less hard forensic evidence of a crime having been committed. It takes more investigative time to attack the credibility of the rapist, Ellis says, but it can be done.

Portland police Sgt. Peter Mahuna, who heads the sex crime division, says he assigns all rape cases to a detective regardless of whether they involve a stranger or an acquaintance. "The detectives work every case that is assigned to them," Mahuna says.

Portland police victim advocate Susan Lehman says she confronts the difficulty in prosecuting acquaintance rapes all the time. She recalls a local case of a college student who had been sexually abused by her father. The student reported the abuse to police, only to be kicked out of her house by her parents. The father, Lehman says, was the family breadwinner. The victim changed her mind and decided not to testify.


by: TRIBUNE PHOTO: JAIME VALDEZ - Lewis & Clark Law School professor Meg Garvin says the military is moving ahead of the public sector in providing critical support for rape victims.

Expanding rape shield law an option

Rape-victim advocates in Multnomah and Washington counties follow very different models, but Meg Garvin, executive director of Portland’s National Crime Victim Law Institute, has a third model she thinks would represent a true victim-focused approach.

Garvin, a Lewis & Clark Law School professor, has spearheaded the institution of victims’ rights attorneys in the military. Military sex abuse has received a great deal of attention in recent years, but those cases come with an added burden for victims, according to Garvin. A soldier raped by a superior officer faces a potential career dead-end if she prosecutes.

The use of victims’ rights attorneys places the military a step ahead of the public sector, according to Garvin. In a public sector courtroom, two attorneys are present — the prosecutor trying to get a conviction and the defense lawyer representing the alleged rapist. Neither, Garvin says, has the best interests of the victim at heart.

Garvin says victims’ rights attorneys often have to stand up to prosecutors and police detectives. For instance, she knows of a current case where a victim’s attorney is attempting to keep police from getting a victim’s counseling records because they may end up publicly disclosed.

A classic example, according to Garvin, has a detective telling a victim to hand over her phone so he can corroborate her claim that the rapist sent her incriminating texts after the assault. Most victims hand over the phone. But that phone also might contain suggestive pictures or other texts from her private life that might help a defense attorney trying to prove the victim was promiscuous. They might even convince the prosecutor that the case would be too hard to win — even though they might have no connection to the rape itself.

A victims’ attorney, if on hand, could tell the prosecutor he can’t have the phone, but the texts from the rapist will be retrieved and delivered.

In addition, a victims’ attorney retains attorney/client confidentiality. A crafty defense lawyer, Garvin says, might get the notes of a trusted police advocate turned over to him or her. An example she uses is a victim talking about the pros and cons of going ahead with a prosecution. With a police advocate, those initial doubts might end up in her police file and used by defense attorneys. If those conversations took place with a victim’s lawyer or advocate, they would stay confidential.

“The ideal process is to have the attorney/client privilege,” says Garvin, who would have victims’ attorneys working with advocates to provide emotional support and social service skills.

Garvin is far from making the claim that providing rape victims with their own attorneys will increase the chances that victims will more often report and prosecute. She says that type of thinking is wrongheaded.

“Everyone assumes that the right outcome is prosecuting, so we set up systems and try to fix the problem of nonreporting,” she says. “Reporting may not be in the best interests of the victim, and the only way to fix that is to fix the whole system.”

For Garvin, that starts with expanding rape shield laws which limit a defense attorney’s ability to question a victim about her sexual history. It might include shielding whether the victim had a prior sexual history with the defendant. In Garvin’s view, strengthening rape shield laws is the best way to get more women to report and prosecute.

“The whole system continues to be laden with a legacy of disbelief that sexual assaults happen, and a fundamental belief that you lose privacy in the system,” she says. “Those two premises need to be changed, and then it might be good for a victim to report.”