| Today's NAASCA news:
February 1, 2015
Legal system makes major moves forward in its handling of sexual assault, especially in Illinois
by Kristy Kennedy
In December, a Chicago area man was convicted of raping a woman in a hotel room following their date in 2009.
If the crime had happened 20 or even 15 years ago, Jennifer Gonzalez, chief of the Sexual Assault and Domestic Violence Division for the Cook County State's Attorney's office, doubts it would have ended in a conviction. The two met online, had drinks and ended up in a hotel room. Cases of “she said, he said” are among the most difficult to prove.
“These are tough cases,” Gonzalez says. “I'm trying to hold offenders accountable, but usually there are no witnesses. This is a crime that happens behind closed doors.” That case, which later involved a second victim, is just one example of how times have changed and continue to change. Over the last 30 years in Illinois and across the United States, sexual assault laws have been made stronger, the application of those laws has been better and there has been a shifting view of victims and perpetrators by law enforcement and the general public. For example, victims' sexual histories or manners of dress aren't allowed at trial as often as they once were thanks to victim shield laws.
Military and university policies against sexual assault have been strengthened. Influential people with the power to change policies and laws have weighed in. President Barack Obama last year launched the “It's On Us” initiative to raise awareness about sexual assault on college campuses. Also last year, Pope Francis met with individual victims of clerical sexual abuse. Those things shift public thinking, says Polly Poskin, executive director of the Illinois Coalition Against Sexual Assault. “It creates seismic reverberations,” she says. “It gives survivors the feeling they are believed. We have to have that kind of change.”
The media also is paying attention. Take the allegations against Bill Cosby that he drugged and sexually assaulted several women over the course of his long career. Poskin says it is powerful not only that women are coming forward, but that they are getting attention from the media and the public. “We realize that some will still deny that Dr. Huxtable, the Jello-Pudding pitchman, could ever commit such heinous acts. It is difficult to accept that someone you think you know, someone whom you think shares your values and ideals, could commit such a monstrous crime again and again. Yet your collective stories are powerful and will break through the denial of many,” Poskin said in an open letter to alleged victims on the organization's website. Cosby denies all allegations.
While progress clearly has been made, measuring it is a messy, complicated task. Sexual assault laws are different in every legal jurisdiction in the United States. The definition of criminal sexual assault varies. Before 1983 in Illinois, rape was defined as vaginal penetration by force by a male at least 14 years of age. By definition a man couldn't be raped. Sodomy couldn't be rape. In fact, the FBI Uniform Crime Report, which is often cited for national crime trends, until this year defined sexual assault as the forcible rape of a woman against her will. Chicago statistics were left out of the report because the city recorded sexual assaults based on the current Illinois definition: “an act of sexual penetration when the accused uses force or threat of force, or knew that the victim was unable to give knowing consent.” The FBI's new definition doesn't require force to count cases of sexual assault and has expanded the definition to include men and women as possible victims.
Trying to make sense of it all isn't simple. According to the FBI Crime Report, 79,770 rapes were reported in 2013, or one every 6.6 minutes. But there's another caveat — statutory rape and incest are not included in the report, which used the old reporting method for those national figures so they would be easier to compare to previous years. Further, participation in the report is voluntary and depends on how well reporting agencies follow the FBI's definition. The 2013 FBI Crime Report shows 4,263 sexual assaults were reported in Illinois using the revised definition and 3,276 using the old definition.
A look at sexual assault laws across the country is equally confusing. Laws for the most part have changed to include both genders and define different levels of sexual assault and abuse, says Jennifer Gentile Long, director of Æquitas, an organization offering resources to prosecutors who work on cases involving violence against women. But they vary on how to define consent and force. The age of consent in one state might be 18, but 16 in another. And yet, in another state, that 16-year-old might not be prosecuted if the other person was within four years of his or her age. California is the only state to require “yes means yes” affirmative consent, a statewide law for colleges and universities that receive state money. States differ on force as well. Is it physical? Can it be psychological? Does a threat count? Intimidation? The age of consent in Illinois varies from 17 to 18; someone impaired can't give consent and the use of force is broadly defined.
Prosecutors and advocates in Illinois say sexual assault laws are pretty good. Gonzalez says prosecutors in other states are particularly jealous of her ability to bring in other victims to testify to show a perpetrator has a propensity to commit sexual assault. “When I tell them some of the laws here, I get gasps,” she says. “Our laws in Illinois are some of the best in the country.” Her office used the propensity law to convict that Chicago area man involved in the date rape case. The victim initially decided not to prosecute because her memory was hazy and she had no recollection of how she got to the hotel room. Then in 2011, another woman reported being sexually assaulted by Ignacio Carrillo after meeting him on the same dating website. She reported feeling strange after consuming two drinks on their date and says Carrillo raped her against the passenger door of his Porsche. Carrillo claimed the women regretted their one-night stands. But prosecutors believe he slipped drugs into both women's drinks. The jury took about 90 minutes to convict after the woman in the 2011 case testified, showing Carrillo had a propensity to rape. Carrillo is still facing charges in the 2011 sexual assault.
Victim advocates and prosecutors also like Illinois' laws that allow sex crimes involving children to be prosecuted until the victim turns 38, that those convicted of a wide variety of sex crimes must become registered sex offenders and that they don't have to prove a victim said no to prove consent wasn't given.
At the local, state and national levels, those who advocate for sexual assault victims and those who prosecute perpetrators say their toughest obstacle remains a societal one — the public's judgment of the victim. How was a victim dressed? Did the person drink or get into a car and go to a hotel with the defendant? Judgments about those actions can influence a jury and can be a deciding factor on whether a police officer investigates a sexual assault case. Less than 20 years ago, when she was a young prosecutor, Gonzalez says her first step in any sexual assault case was to look at whether the victim had a history of prostitution. “None of us is surprised when we hear a victim got robbed, so it shouldn't surprise us that prostitutes, runaways and college students are sexually assaulted,” she says. “Most crime is a crime of opportunity.” Gonzalez, who has seen her department grow from three to 15 prosecutors, is proud of the sexual assault training provided in her office. Not just in how to build cases, but also about how the crime of sexual assault impacts victims.
Beyond the “he said, she said” nature of many sexual assault crimes, they are frustrating to investigate. Sarah Layden, director of advocacy services for Rape Victim Advocates in Chicago, explains sexual trauma can cause a victim to be a poor witness. The story may change or be unclear. Details might not be forthcoming. But that doesn't mean the victim isn't telling the truth, Layden says. In her experience, the most successful cases happen when they are investigated well from the beginning. If a victim's memory is foggy, an officer might learn from a bartender that she needed help walking or from a cab driver that she was passed out. It's a change of thought, from why did she put herself in that position to what did the defendant do. “It's unlike any other kind of crime except perhaps domestic violence where so much rests on the victim's ability to articulate in a believable way what happened and to refute the suspect's defense that it was consensual or didn't happen,” says Cassia Spohn, professor and director of the School of Criminology and Criminal Justice at Arizona State University. The easiest cases to convict are those involving strangers or where the victim is not engaged in risky behavior. “We have this image of rape, that a stranger is jumping out of the bushes with a gun or a knife, but the reality is that in most of these cases, people involved know one another and sometimes intimately. That makes it difficult to successfully prosecute these cases,” Spohn says.
Kate Kurtz is an assistant state's attorney in Macon County who also prosecuted sex crimes in Winnebago County. In 2012, she successfully prosecuted Nathan Bell of Rockford, who sexually assaulted prostitutes and drug addicts. Kurtz says he preyed on the vulnerable and that the women were brutalized, making conviction easier. “It was horrific what he did to them,” she says. “I'm lucky the women in that case let me into their lives.” Kurtz says victims who speak up, especially those with checkered pasts, are brave. “Who subjects themselves to this?” she asks. “It's not fun. It's scary.” Gentile Long of Æquitas agrees. “It's not complicated to defend one of these cases because you are just feeding into what people believe. But people are questioning why, and it has become more publically accepted to talk about sexual assault and to critically think about it,” she says.
Kurtz and Kelly Griffith, a former sex crimes prosecutor in Lake County, polled jurors after cases and both found they tended to judge sexual assault victims. Women were especially judgmental of other women's actions, particularly if they had been drinking or using drugs. Griffith, who now serves as general counsel for ICASA, wanted no more than half of her juries to be made up of women. “Women live with the fear we may be raped,” Poskin says. “If a juror can put distance between herself and that rape, she can believe it won't happen to her.” It is particularly difficult to prosecute a sexual assault against a child that doesn't make it to court until the victim is a teen or adult. “I may have a girl at 15 testifying to what happened to her at eight years old, when she didn't even have the words for what was happening to her,” Kurtz says. Her job is to make the jury see the victim as that 8-year-old even as they are hearing from a teen. “The biggest hurdle is to get the jury to stop judging the victim and to judge the defendant,” she says.
Several victim advocates in Illinois say they are frustrated by sexual assault cases pleaded down to lesser charges. Mary Harrington, executive director of the Sexual Assault and Family Emergencies crisis centers, serving Bond, Clay, Clinton, Effingham, Fayette, Marion and Washington counties, says they most often become batteries. “Prosecutors are concerned about winning,” she says. “I understand that. They feel like it is better to send the individual away for three years than to lose altogether and put them out on the street.” But Griffith of ICASA says there is harm done when there is no record of a sex offense because some perpetrators are “notoriously recidivist.” “Our work is geared towards reducing sex offenses,” she says. “Will they rape again?”
Experts like those at the Rape Abuse and Incest National Network (RAINN) believe sexual assaults are grossly underreported, investigated and prosecuted. RAINN uses the U.S. Department of Justice's National Crime Victimization Survey's results to report there are an average of 293,000 victims of sexual assault in the United States each year and that 68 percent of sexual assaults are not reported to police. That is three times the number reported by the FBI and still underreported according to another study done by the National Research Council. The NRC questions the accuracy of the survey which gathers data by questioning 90,000 households about a variety of different crimes. Critics say the interview doesn't grant victims of sexual abuse enough privacy to facilitate honest answers. Figures in Illinois as reported by law enforcement and victim-advocacy groups vary greatly as well. ICASA, which runs about 30 community-based sexual assault crisis centers throughout the state, takes about 18,000 calls and in-person requests for services each year. Of that total, ICASA, served about 9,000 victims in the last fiscal year. While some people might be counted twice because calls are anonymous, that is four times the number of cases reported by police in Illinois to the FBI in 2013. And ICASA isn't the only organization to serve sexual assault victims in Illinois.
However, great strides continue to be made in victim services. ICASA is working to increase response to sexual assaults on the disabled. Harrington says a Christian college in southern Illinois is asking her for training and programs rather than the other way around. She spent the last 20 years trying to offer programming there. But best of all are the services available to children and young people. “Their abuse is being validated. They aren't going to have to carry this all the rest of their lives,” Harrington says. “The people who struggle the most are those who had to remain silent because no one would believe them.”
For Poskin, the work won't be done until sexual assault is no more. “We've made great gains on behalf of survivors, but we haven't changed the culture, and that is the ultimate goal,” she says. “That is the work still to be done.”
Local legislators, Millersville mom want state to keep unproven child abuse allegations longer
by Chase Cook
Two bills that would lengthen the time Maryland holds on to the records of unproven cases of child abuse and neglect are getting broad support from state officials and children's advocacy groups.
That support could be vital to a Millersville woman who has advocated this change for seven years, arguing that Maryland needs to catch up to other states like Virginia and New York.
Maryland destroys the records of "ruled-out" child abuse cases 120 days after the date of filing, as long as no other reports on the same children are filed in that period.
A ruled-out case is one in which investigators didn't find evidence of abuse. Supporters of the bills want the records kept longer to help investigators spot possible patterns of abuse; the state wants to keep them longer so it will have more robust investigative histories.
Opponents think the records should be destroyed so that accumulations of unproven allegations won't be used in court cases.
Both sides say they are arguing for the rights of the innocent — one side for children who speak up about abuse, the other for people who should be presumed innocent until proven guilty.
Senate Bill 12, filed by Sen. Ed DeGrange Sr., D-Glen Burnie, would extend the time ruled-out reports are kept from 120 days to five years.
The bill would also extend the time unsubstantiated records are kept from five to 10 years. An unsubstantiated record is one in which there was not enough evidence to support allegations of child abuse or neglect.
Del. Ted Sophocleus, D-Linthicum, has filed the same measure in the House of Delegates as House Bill 7.
DeGrange filed a similar bill last year. It passed the Senate unanimously but ran out of time in the House.
Testifying before the House Judiciary Committee Wednesday, Mickey Dunn, 46, of Millersville, said that when reports reach state agencies, children "did what they are supposed to do, they spoke up. But they feel as if no one cares, as if no one listens to them, because their report was destroyed within 120 days."
This, she said, gives "predators and abusers a clean slate."
Dunn said that in February 2008 she filed a report because she believed her child had been sexually abused by the father. She requested the child's gender not be reported.
That report was "ruled out" the following month and was set to be destroyed 120 days from the date of filing. Dunn sent a letter requesting the record be preserved.
She said she filed a second report in July 2008 about an incident in Rochester, New York.
After a court fight in which she requested protection orders, Dunn received full custody of her child in October 2008. She began fighting to get Maryland's law changed after learning that the records in the case were set to be destroyed in four months.
Dunn said she now feels safe from the father of the child, whom she said has left the country. Phone calls to the father's last-known residence weren't returned.
When Dunn testified in support of DeGrange's bill last year, she learned the records in the case had been expunged, in spite of her efforts.
Both the House and Senate bills had committee hearings last week, in which representatives of child advocacy groups and the state Department of Human Resources, or DHR, testified for them.
DeGrange and Sophocleus said the measure is getting broad support in committee and they believe it will pass. DeGrange wants to get the bill to the floor earlier this year.
Keeping the records on hand longer, DeGrange said, means "there is a more extensive record, and there is a history in case of another incident. This bill helps build a case against an individual."
Steve Berry, the in-home services manager for the DHR, said in an interview that records are destroyed so early that investigators sometimes find themselves retracing the steps of other investigators, who talked to the family about the same incidents five or six months earlier.
Maryland has one of the shortest hold times in the country, he said in his testimony to the House Judiciary Committee Wednesday.
The change would also help the department protect itself from lawsuits claiming negligence or deliberate indifference, Berry said.
The DHR asked the bill be amended so that unsubstantiated findings are retained for only five years, saying that is plenty of time. It also asked for the removal of language stating that records would be retained for the purpose of "determining a pattern."
"Each ruled-out finding signifies a finding that no maltreatment occurred," Berry told the Senate Judicial Proceedings Committee Tuesday. "Multiple findings that maltreatment did not occur may not necessarily add up to a pattern of maltreatment."
New York keeps unfounded child abuse reports until the youngest named child turns 28, unless the accuser is found to have given a false report or clear evidence is presented to refute the claim, according to that state's Office of Children and Family Services.
Virginia keeps reports of abuse for a year after they are filed, whether those reports are found valid or invalid, according to the Virginia Department of Social Services.
Maryland Child Protective Services investigates about 25,000 to 27,000 child maltreatment reports a year, Berry said in an interview. About 40 percent to 45 percent of the cases are ruled out, and the records are soon destroyed.
Not everyone supports the legislation. The American Federation of Teachers submitted testimony on this year's bills raising concerns that teachers could be deterred from working in Baltimore because of false reports lingering in the state's files.
Defense attorney Peter O'Neill said in an interview that if the records are retained, judges could order ruled-out, unproven allegations used in divorce and custody cases, harming people who were never found to have done anything wrong.
"It is patently unfair to have records accessible that are ruled out," O'Neill said. "As far as I'm concerned, if the matter is ruled out, there should be immediate expungement of the record."
A similar bill in 2011, requested by the DHR, died in the House Judiciary Committee.
But Dunn said she is confident that this year the bills will get floor votes in the House and Senate. It won't help her directly, she said, but it could help many other Maryland families.
Her child, Dunn said, "is safe now. This is about every other kid in this state who is being abused and whose voice isn't being heard."
New Mexico toddler shoots pregnant mother, father, police say
by Fox News
A three-year-old New Mexico boy shot both of his parents after reaching into his mother's purse for her iPod, authorities said Saturday.
Albuquerque police say the toddler fired one shot hitting his father in the right buttock. The bullet went out of his hip and hit the woman, who is eight-months pregnant, in the arm.
The shooting occurred in a room of America's Best Value Inn, police said. The man and the woman confirmed the story, but the boy and another 2-year-old girl were not interviewed. The handgun was found inside the room.
Police said the state Children, Youth and Families Department took custody of the children for 48 hours.
Albuquerque police spokesman Simon Drobik said it was the negligence of the parents that allowed the shooting to occur. “If you are going to be a gun owner, you need to lock it up and keep it safe, especially around children.”