Stonewalling Rape: Police Can Investigate, But Will They?

One thing that comes up over and over in discussing rape and how to stop it is the role of the criminal justice system. Advocates for survivors are adamant that survivors don’t have to report and don’t have to use the system. Many other people, for various reasons, think that survivors have an obligation to go to the police and prosecute. Some of these people are well-intentioned, and others really just want to say that any survivor who does not report should be ignored. I’ve written at the greatest length about this specifically with reference to kinky communities, where the “cops or STFU” brigade is not well-intentioned, but rather mostly composed of people who know full well that successful prosecution is almost impossible, that contact with the police will be affirmatively awful for the survivor, and just want a rallying cry to shout down all survivors.

I won’t repeat a general explanation of why the criminal justice system is broken here. For a lot of people in a lot of social positions, contact with the cops is not likely to go well. That’s just the reality we have to live with, and anyone who doesn’t see that is neck-deep in their own privilege. That explains why, for example, people of color, or sex workers, or trans people might decide the cops are more likely to be a danger to them than to help them, and that’s not specific to rape. But there is another reason even the most privileged folks may not want to go to the police about a rape. When the rape doesn’t fit the stranger-rape or overt-force storylines that make for the least difficult prosecutions (and sometimes even when it does), there is reason to believe that there may be no real investigation at all. It’s a journalistic convention to start with anecdotes, to humanize the story. These are systemic problems, and I’d prefer to start with how many rape complaints languish without real investigation, how many cases are dropped without an interrogation of a certain number of witnesses and whatnot. But that data is spotty or nonexistent; and people being people, it is necessary to start with a terrible story to humanize the problem. So I’ll do this in the usual way.

[Content note for an ugly story about a woman who was sexually assaulted, then stonewalled.]

Hannah at Howard and the D.C. Police

Hannah (the name Amanda Hess used in her excellent reporting back when she was with the Washington Citypaper) was at a party at Howard — somewhere in the house, and her friends didn’t know where. Her friends, her wingwomen, were looking for her, worried. A big guy who said he had been paid to keep people from the second floor physically prevented them from going upstairs to look for her; then he made a show of looking himself, but all the bedroom doors were locked. He was sweating. Hannah’s friends thought he looked nervous, like he knew something was wrong. The women yelled and made noise, ignoring the bodyguard’s and the owner’s orders that they leave, and eventually Hannah emerged from a bedroom: intoxicated, obviously out of it, barely able to negotiate the stairs. Her friends had been with her much of the night, and she hadn’t had enough alcohol to be that drunk. Something was wrong. As they left, they got half-way down the block before Hannah told them enough for them to figure out that she had been raped. Then she threw up. The women stormed back to the address of the house party, demanding to know who had taken Hannah into the bedroom. The men inside gave a fake name, then slammed the door. Hannah did what the “cops or STFU” crowd insist on. She went to the “proper authorities.” Hannah’s friends took her, still throwing up, to Howard University Hospital. Her friend filled out the intake form, “raped, possibly drugged.” Then, Hess writes:

According to the girls’ testimony, when a doctor finally saw Hannah, she determined that she was too incoherent to consent to receive a rape kit, because she couldn’t verbally confirm that she had been raped. According to the girls, the doctor told them to take Hannah home, let her sleep it off, make sure she didn’t shower, and then return to Howard University Hospital for a rape kit the next day. When the girls begged the doctor to treat Hannah’s symptoms of sexual assault and drugging, the girls claim that the doctor told them to leave the ER. (The doctor testified that she informed Hannah’s friends that they would have to wait six to eight hours before Hannah was treated, and that the girls chose to leave the hospital without treatment).

The rape kit is an important collection of forensic evidence, and a standard procedure — but DC antirape activists had to fight a long battle to make them available. Before the Sexual Assault Nurse Examiner program, survivors often had to wait ten or twelve hours in an ER for the exam to be performed by residents with no experience, who in turn made terrible witnesses because they had no experience with the procedure or with testifying. But after the SANE program got funding, no hospital wanted to host it; eventually, Howard agreed to host, but every survivor would need the approval of the DC Police before a kit would be done. Hannah went back to the hospital, having not showered, eaten or defecated. In the waiting room, she ate a sandwich from Subway; a nurse then told her that the rape kit would be useless because she ate, though she had never been instructed not to eat. But she didn’t give up. When she spoke to the first police officer, who came to the hospital in person, he took a statement and then got another officer on the phone, Officer Spriggs of the Sexual Assault Unit. By DC police policy, Spriggs was supposed to interview Hannah in person, but he didn’t do that. Instead, he only spoke with her by phone. The two sides tell different stories about what was said. The officer later said under oath:

“She told me that she was at a party. And she remembered kissing a guy,” Spriggs testified. “I repeated back to her what she said to me. And there was a pause,” he said. Back on the phone with Minor, “I said, this young lady, she’s not reporting anything, she’s not reporting a crime to me. I’m not bringing a sex kit up here.” Spriggs then testified as to why he didn’t press Hannah to explain why she needed a kit: “I’m not going to feed you any information to give you an opportunity to embellish you story,” Spriggs testified. “If you are reporting something to me, then you should be able to tell me what that is. And she did not report any crime to me.”

But Hannah testified:

she did tell Spriggs she had been raped, but that he informed her “I would not be able to receive a sex kit because I do not know the person or whoever it was last name,” she said. “I didn’t know the last name. So I could not receive the sex kit.”

The officer who responded in person left without filling out a report. But Hannah called her sister, who called the police again. Twice. Two more police came to the hospital. They again called the Sexual Assault Unit. This time, the SAU officer asked a sergeant’s guidance, and the sergeant said that no investigation would be opened. No investigation, no rape kit. How did the second set of officers to show up in person treat the survivor, now in the hospital for the second time trying to press charges?

“They were barking at me,” Hannah testified. “They did nothing…to help me or to even try to make me feel like they would help me.…They just did not do their job, and they were rude and not being police officers to me.…And the way my case was just dismissed, the way I was dismissed, the way my story was not heard all the way through, was wrong, negligent.” Hannah’s sister testified that she attempted to reason with the officers. “I was trying to just ask them some simple questions about the procedure and what the protocol would be. I was told, you know that they were no longer going to answer any questions from me to the point where I felt threatened,” she testified. “I felt like if I was going to ask more questions [that] they were going to, like, try to detain me.…And I didn’t want any trouble with the police.”

Hannah’s sister believed that if she pushed them any harder to investigate who raped Hannah, they would arrest her. This is what it’s like to advocate for a rape survivor when the cops have decided they refuse to take a report. This is what the “cops or STFU” crowd ignore. Then they made it worse: in what was a step, in their sergeant’s own admission, to cover themselves, the responding officers opened a miscellaneous report where they claimed that Hannah said she wasn’t really raped and just wanted to kit to test for infection. This report, unlike a rape report, was an open, public document with her full name and address. They never interviewed any other witnesses or went to the scene of the crime. The story has an ending; I won’t say a happy one. Hannah sued the hospital, and another hospital that refused to help her get a rape kit done, and all the doctors, and the city. I followed the case against the hospitals through court filings, which I have access to via a subscription service, and the case against the medical providers survived a summary judgment motion from the defendants and, prior to trial was dismissed in what is almost certainly a settlement for undisclosed sums. The city got away with no liability for the police conduct, though Hannah appealed that decision and rape crisis clinics and survivor advocates filed friend-of-the-court briefs urging a different outcome. One thing has changed: the Violence Against Women Act has required hospitals to provide rape kits without police preauthorization since 2009.

Managing The Numbers

Why would police refuse to investigate a case? There is no indication that the man who raped Hannah was anyone special or powerful, that the police might want to protect. So why did she encounter so much flat refusal; refusal to interview in person, refusal to do a kit, refusal to take a report, refusal to even provisionally credit her account? There are two obvious reasons. One is that they — all of them, the officers in person and on the phone and the hospital staff, didn’t believe her, or didn’t believe there was something wrong with what was done to her. As the security guard at the party, the one who blocked her friends while she was assaulted, later testified, “You’ve got your church girls and your street girls.” Those belief systems are not particular to police, and police certainly are not immune from them. But there is a reason that is unique to police, that that is to keep the crime numbers low. (That these are the two reasons isn’t just my opinion. It is the finding of this policy brief.)

Rape is one of the Seven Major Crimes that have federal reporting requirements, and that are widely used to measure performance within departments. If you’ve watched a cop show within the last decade, you’ve probably heard of CompStat, the statistical package that NYPD and others use, and that precinct officers’ careers can hinge on producing the numbers that the department brass demand. The Village Voice broke the story in 2010 that the NYPD had deliberately downgraded reports of rape. Daryl Thomas is in prison today and will be for decades, but he was only caught after a neighbor saw him in the act. Before that, six victims had reported the rape. These are stranger rapes, overt force rapes, the kind that even the most intransigent rape apologists usually grudgingly admit are rapes, the kind the system is supposed to handle well. One might think that the police would hop right on these reports, notify the community and try to catch the rapist. And they might have, if anyone had seen the pattern. But most of the reports were marked down to criminal trespass by desk sergeants under pressure to show improvements in crime statistics. With the data falsified, the very information systems that are supposed to allow police to identify patterns and trends do the opposite. The Voice also reported the story of journalist Debbie Nathan. She was shoved off a park path and into the woods one evening by a young man. She couldn’t free herself, and he twice said he wanted to have sex with her, according to the Voice. He pinned her down, and rubbed his penis against her until he ejaculated, then ran off. Thinking that the park, Inwood Park at the Northern end of Manhattan, had limited exist, she called police right away. Here’s what happened (emphasis supplied):

It took two hours and three 911 calls for the cops to finally reach her apartment. *** “I stressed that I was at all time overpowered,” she says. “The female officer, I thought she was acting weird. She wasn’t writing anything down.” The officers interviewed her for two hours. At some point, one of them said they didn’t know how to classify the crime, so they called the Special Victims Unit, and spoke to them without Nathan being able to hear what they were saying. After awhile, the Special Victims unit told the officers that the crime was misdemeanor “forcible touching.”

Police downgraded what was obviously attempted rape to a misdemeanor. After local groups and elected officials put pressure on the police over the downgrade, the department apologized. But the classification wasn’t the only problem. She later reviewed the report (emphasis supplied):

“My story had been scrubbed of everything except the fact that the perp grabbed me, pushed me, and mentioned sex,” she says. “Almost every detail of the crime was missing from the report.” The officers had left out her being overpowered and pushed into the woods, the duration of the assault, the masturbation. The report, she says, even said she had reported no sexual assault. “After special victims downgraded my crime to a misdemeanor, an officer from my precinct tweaked my report so it described a misdemeanor,” she says. “They had written non-report to conform to a misdemeanor. They were so sloppy, they forgot to rewrite the report to conform to felony.”

Yes, that’s right. The police report told a different story than what she said. That account, the thing that would be used as evidence to show whether her statement was consistent or inconsistent later, and that a jury might use to decide if her story was true, was scrubbed in ways that would make it harder for her to prove what happened to her later. Suppose the man had been identified! Having eliminated from the report all the details necessary to make out a felony, they couldn’t prosecute him for one. And then, if Nathan decided to sue civilly, for money and for a judicial determination that he did it, that report could be used against her, as evidence that the allegations were embellished later! If she wanted to prove her case, she actually would have been better off if she had not gone to the police. This isn’t just a New York problem. New Orleans. Baltimore. Lincolnshire, England. Earlier in Philadelphia. D.C. Still D.C.:

The detective sent to investigate told her that bringing charges against the perpetrator would ruin the rapist’s life. He told her that her “words said no, but what about the other signals she was sending?” He said she did not need a sexual assault exam in a hospital (and police never ran tests on her rape kit).

Since the judge threw out Hannah’s lawsuit, D.C. apparently has no motive to change the entrenched refusal to investigate. (D.C. activists don’t quit, and may be making headway.)

Cops And Colleges: Sadly Similar

Over the last few years, college students first began speaking out and then filing complaints with the Department of Education about colleges’ handling of rape complaints. The structural factors at work are largely similar — a mix of entrenched attitudes about rape and institutional incentive to minimize the problem. Just as local police are subject to reporting requirements, colleges have an obligation under the Clery Act to report rape and other crimes. They don’t want to. A thorough discussion of this issue is for a different post (good places to start include here and here), but similar structural forces often produce similar particular tactics. Compare what Debbie Nathan found in New York, above, with what one woman found when she reported her rape to the University of Texas – Pan American, according to the HuffPo:

Espinosa told HuffPost that what bothered her about the school’s initial determination of insufficient evidence was that during her first hour-long interview with three administrators, they only wrote down three paragraphs and misspelled her name. She also said that when she reported the incident to campus police, their account of her abuse did not reflect what she told them. She complained of the discrepancy and was told by police they would make a note and put it in her file, Espinosa said.

The Huffington Post story isn’t about just one institution. It recounts stories at five different institutions where either campus police or investigators did not take down a full and accurate account of what the survivors said. Worse, the accused were sometimes allowed to respond in prepared, written statements, giving them the advantage of being able to present a proofread, fact-checked narrative that said what they wanted, and that was internally consistent.

The Rape Kit Backlog

When Hannah went to the D.C. police, she was trying to get their permission to have a rape kit. The Violence Against Women Act stopped police from acting as gatekeepers for rape kits, and now hospitals must offer one to a survivor of sexual assault. The rape kit collects vital forensic evidence, forensic evidence that can be the only thing that rape apologists in the system or juries accept as true.

Yet those kits often just sit. The process of collecting the evidence lasts four to six hours; the survivor has to be mighty committed to go through that. And then the carefully collected evidence is left to rot. The backlog nationally is 400,000 kits.

What happens when these kits are tested? In Detroit, the backlog reached about 11,000 kits. However, with the help of Law and Order: SVU actress Mariska Hargitay, prosecutor Kym Worthy found private funding to begin testing the stored kits. In the first 1600 kits, they identified 100 serial rapists, 59% of whom matched DNA in available databases, and 14 prosecutions started as a result. Clearing the backlog also linked offenders to sexual assaults in more than twenty other states. Since most rapes are committed by serial rapists, a focus on prevention would dictate that finding serial rapists and stopping them would receive the highest priority.

Excuses for the backlog are weak. Obviously, the first explanation is always budgetary constraints. Jurisdictions that process backlogged kits do not typically use their own crime labs, which have time-sensitive work to do, but pay outside labs; Detroit reported a cost of $1,200 to $1,500 per kit. That’s a significant number, but compared just to the social cost of each rape that can be prevented, it’s a pittance. There are an array of public and private efforts right now to clear the backlogs nationwide, including finding funding to pay for it.

The other excuses are that where the identity of the assailant is known, the kits are unnecessary. This is where finding serial rapists is critical, however. Given the low rate of rape reporting, the same rapist may have many victims before two or three go to a hospital and report, and those may be years apart. Anything that makes it more likely that multiple rapes by the same attacker will be noticed is critical, because the pattern itself if critical information to prosecutors. It’s a lot easier to find out that three victims have gone to hospitals for rape kits in ten years and turned up DNA from the same person, than canvassing the social circles of the same person from different periods and possibly in different places.

Running Interference

Above, I identified two reasons that the system may fail at its earliest stage. In brief: rape culture, and institutional incentives. But the incentive to keep the reported numbers low has insidious cousins in some circumstances. Sometimes, people within the system decide to protect the accused, or protect an institution from scandal.

The latest iteration is highly informative, but unique only in that the media has reported the details so thoroughly. The New York Times reported that when Jamais Winston, later the Heisman Trophy winner, was accused of rape, the police simply did not do their job. The “errors” are so numerous:

The detective did not attempt to identify Winston, whose name the survivor did not know, right away.

A month later when she saw him on campus and was able to supply the detective with his identity, he did not go to see Winston in person right away. He waited two weeks, and then;

Instead of visiting Winston in person, he called Winston on the phone. This is a violation of basic procedure, and lost any chance that Winston would say something spontaneous that could help the prosecution.

The detective did not even write a report for two months.

One of Winston’s friends videotapes Winston’s conduct without the survivor’s knowledge, but police did not find out about that until the video had been deleted.

The detective filed to request video from the college bar where Winston met the survivor, though the bar has extensive video; that video was taped over before it was requested.

The detective closed the inquiry without telling the survivor.

The police did not collect Winston’s DNA.

Florida State has a federal, statutory mandate to investigate whether or not the police do so. The Athletic Department at FSU know about the allegations not later than January, 2013 (the conduct occurred on December 7, 2012), but did not even seek to speak to Winston until after he had played in the NCAA championship game in 2014, a full year later.

In short, the police and the school simply stonewalled. They have no idea what happened, and they never will, because they chose to sit on the allegations while all the evidence that could substantiate the survivor’s account disappeared.

This is more than a little reminiscent of the Steubenville situation — like Florida State, the football team is not just a football team, but a local institution, a cultural cornerstone, and a part of the economy. Steubenville did lead to two juvenile convictions, and to CNN’s Candy Crowley wringing her hands in concern for the young rapists. But what was drowned out in the furor over the involvement of hackers from Anonymous offshoot Knight Sec helping to publicize the case is that important evidence was deliberately destroyed in the early investigation. School IT worker William Rhinaman was indicted by a grand jury for destroying evidence and lying about it. The indictment alleges that the tampering goes back to the date of the rape, and while specifics of the evidence that the grand jury heard are not to my knowledge available, my expectation is that he deleted video or statements from student phones seized by administrators. (It is possible he deleted information from the school’s network instead.)

In Tallahassee, the FSU booster organization routinely hired local police as security. In Steubenville, Rhinaman played for the same Steubenville high school team. Sometimes, the ties between law enforcement and the accused are even closer.

Ben Roethlisberger has never been convicted of rape, though he’s been sued civilly for it and other accusers have surfaced. In Georgia, where a college student accused him of raping her, he had two police officers with him, one from a Pittsburgh-area town and one a Pennsylvania state police officer. Sgt. Jerry Blash, who was supposed to investigate the Georgia case against Roethlisberger, had already had his picture taken with the quarterback earlier in the day, and made openly disparaging comments about the accuser in front of Roethlisberger’s entourage. His conduct was so blatant that when the Georgia Bureau of Investigation completed its review of what had happened, Blash resigned from the force the day before the documents were released.

This isn’t about football, or isn’t just about football. The same motive to protect the institution, at the cost even of letting abuse continue, runs through church scandals, not only the Catholic church, but allegations within other religious groups. Any time people believe that protecting an institution is more important than justice for rape survivors, they will be tempted to obstruct and stifle investigation; when they are themselves the investigators, this means in reality no investigation at all.

False Accusation Calculations Rarely Reckon With This

Among the most divisive topics in dealing with sexual assault in any community is the possibility of false accusations. Nobody seriously maintains that there are zero false allegations, but many people seriously maintain that they are common. This is strongly against the weight of the evidence, and the typical way in which this assertion is supported is by pointing to the number of allegations made to the police that do not result in convictions, or that do not result in prosecution, or that are classified as unsubstantiated or some other code for not worth pursuing. And typically, such calculations make no attempt to estimate how many allegations were credible, plausible, could have been prosecuted, and just … weren’t. In Philadelphia, when John Timoney took over as Chief in 1998, he tasked the department with reviewing the rapes that had been ignored and the department re-investigated 1822 cases. The size of the review in Philadelphia, along with the harder-to-quantify issues in many other cities, is just one more reason to reject out-of-hand the laughably simplistic assertion that because the complainant goes to the police and the investigation goes nowhere, the allegation should therefore be deemed false.

Conclusion: “Cops or STFU” Is An Excuse For Inaction

Rapes happen. In our schools, social circles and clubs; all around us. Most people are not rapists, most men are not rapists, but there is a significant contingent in the population. They are good at looking like everyone else, and what they say and do will seem just enough like everyone else that they can escape casual notice. They may be charming. They often have some loyal friends and supporters. And if they have not been caught, they’ve figured out ways to do what they want that will receive social support.

The simple way to think about a problem like this is to say, “figure out who they are and lock them up.” I’d love that outcome. But it won’t happen in a vacuum. In the real world, today, there are a number of reasons that we can’t count on the criminal justice system to rid us of rapists. Some of those reasons are the same cultural stuff that operates on everyone. The same things that make civillians leap to the defense of their local repeat rapist, that make school administrators see them as deserving of a second chance instead of punishment, cause some police to fail to get them behind bars.

Saying, “go to the police” won’t change that. Instead, if we want survivors to be able to uniformly go to the police, we need to work to make the police an institution that survivors can count on; to do their jobs and not to retraumatize the survivor. (Some people think that the problems in the criminal justice system are too deep and structural for that ever to be true, and one can make a persuasive case for that. Only cops can put the unrepentant repeat rapists behind bars, though; and I don’t see campaigns of vigilante violence as a realistic structural solution to replace prison when rapists don’t want to change.)

Stating “tell the police” as a mandate is really just a declaration that rape is “not my problem.” Usually, I hear it from people who are trying to “not take sides” because they have a reason to want to believe it didn’t happen, even though they sort of know it did. That’s not a solution; that’s not making the world better; that’s not going to cut it.