When Edurné López was drugged and raped in September 2012, she reported the assault to police two days later. On Jan. 1, 2013, the U.S. Attorney’s Office for the District of Columbia said it declined to prosecute her case. A Metropolitan Police Department detective delivered the news.
“No reason was given for the decline,” she told a D.C. Council committee last week.
López filed a Freedom of Information Act request and found out via a police report that her case was declined for “lack of evidence.” She wasn’t asked to testify in front of a grand jury, she said, and her sister, “the sole witness in my rape,” wasn’t interviewed by USAO.
During a phone call shortly after her case was declined, López testifed that the U.S. attorney assigned to her case claimed there were no witnesses, “arbitrarily listed events,” and “insinuated” that López gave consent despite being so drugged that she endured a 13-hour blackout.
She wrote four letters to USAO to request more information or a meeting. When she finally received a response, it was a form letter addressed to “Mr. López.”
“My experience with the U.S. Attorney’s Office can only be described as one of torment,” López told the Council.
There’s been a significant change to the way D.C. handles sexual assault cases in the past few years.
Following the release of a damning Human Rights Watch report in 2013, which outlined the numerous ways in which MPD was failing survivors, the Council passed a victims’ rights bill. Since then, D.C. police have made a number of improvements to the way they interact with survivors, who now have the right to be accompanied by a community-based advocate during interviews with MPD.
But according to several survivors of sexual assault who testified last Thursday, another crucial part of the justice system is failing them in a significant way: The U.S. Attorney’s Office has not provided adequate explanations as to why their cases weren’t pursued, leaving them with unanswered questions and ongoing trauma.
“I hope no one has to go through what I went through with the USAO,” one survivor said to the Committee on the Judiciary. “The word ‘traumatizing’ does not begin to describe my experience with USAO,” another survivor said, adding that the word “haunting” was more appropriate.
The Council hearing was held to discuss recommendations from a task force established to examine the implementation of the Sexual Assault Victims’ Rights Act of 2013. That law gave survivors of sexual assault the right to have a community-based advocate present during hospital exams and interviews with police; required that rape kits be tested within 90 days; and established a process to review MPD’s procedures and case handling.
The task force, headed by independent consultant Elisabeth Olds, recently recommended that survivors be given the option to have a community-based advocate present during interviews with the U.S. Attorney’s Office.
It also recommended that victims between the ages of 12 and 17 have the right to a credentialed advocate who is not beholden to mandatory reporting laws when the victim has been assaulted by a peer, stranger, or “by someone who does not have a significant relationship to the minor victim or survivor.” The task force also proposed a hotline minors can call to report their assault anonymously.
But survivor concerns’ about USAO were the focus the hearing.
One survivor testified she was told by an MPD detective that her case wasn’t prosecuted because she had consumed alcohol and there was “consensual flirting.” USAO didn’t respond to her requests that they call to further explain the declination, she said. Another survivor said MPD recommended that a warrant be issued for her alleged attacker, but USAO declined. No one from USAO met with or called her to explain why, she said.
Several of the survivors told the Council they wouldn’t report another sexual assault because of their experience with prosecutors. Many said they now suffer from anxiety, depression, and suicidal thoughts.
“There must be transparency on how many cases the USAO is prosecuting,” a survivor said, “which they aren’t, and why.”
Councilmember Kenyan McDuffie, who heads the judiciary committee, commended the survivors for testifying, but pointed out that the Council is limited in what it can direct the USAO to do. The District is the only jurisdiction in the country where federal prosecutors handle local felony cases.
Assistant U.S. Attorney Patricia Riley said the testimony at the hearing was “disheartening.”
“I bear some responsibility for the misunderstandings that have occurred,” Riley told McDuffie, adding that there are ways USAO, advocates, and survivors can “work more collaboratively together.”
Riley at several points noted how difficult it can be for her office to prosecute sexual assault cases for a variety of reasons. She added that “some of the initiatives—undertaken in good faith and with high expectations and good intentions—have had the opposite effect.”
“In some cases, a wedge has been driven between victims and the attorneys and advocates in our office. This serves neither victims nor the interests of justice,” she testified. “It has made our job more complicated, more time-consuming, and less effective. A successful prosecution depends critically on trust between victims and the prosecutor. If that relationship is jeopardized—either purposefully or inadvertently—the case suffers and, regrettably, the victim also suffers.”
Bridgette Stumpf, co-executive director and director of legal services at the Network for Victim Recovery of DC, says the presence of a community-based advocate has actually increased the number of survivors who are reporting their assaults to police.
The instances where survivors have a hospital exam then later decide to report their assault to police has increased greatly since NVRDC’s creation. While it may not seem significant that 17 people in fiscal year 2015, as opposed to three in fiscal year 2012, made this decision, the potential impact beyond getting justice for the survivor is huge “when you understand how repetitive sexual violence is in our community,” Stumpf said.
(NVRDC is part of D.C.’s Sexual Assault Response Team, a public-private collaborative of agencies and groups that serve survivors, and it provides attorneys and advocates to victims of sexual assault, as well as other crimes. Its co-executive director, Nikki Charles, serves on the SAVRAA task force.)
The task force also recommended that prosecutors “be required to meet with every victim who requests a meeting to explain the prosecutor’s decision to decline a warrant for arrest or decline a prosecution.” Riley said that wasn’t necessary, as USAO would be willing to do that voluntarily if asked. Stumpf pointed out that the survivors who testified were not concerned about meeting in person, but rather getting explanations that are complete.
It’s nearly impossible to say how many sexual assault cases the U.S. Attorney’s Office is declining to prosecute each year or why.
In the task force report, Olds notes that her “admittedly very limited review found a lack of transparency about process, minimal communication about the reasoning behind decisions made, and some cases possibly being refused based on trauma-related contradictions or factors that might make a jury doubt the victim based on common societal myths.”
Riley said USAO’s data collection system does not allow for information to be easily pulled for reports, like the one the task force produced.
Of the 331 cases Olds was able to review (all of which had rape kits as evidence), 291 were not charged as crimes; of the 40 cases that did go forward, 17 ended with a plea bargain, nine were dismissed, two were tried with a guilty verdict, and one defendant was acquitted.
Even though the Council can’t legislate USAO into action, Stumpf said it can establish local compliance coordinators, who would monitor and report on how the U.S. Attorney’s Office handles sexual assault cases. The Council could also legislate that D.C. Superior Court judges ask prosecutors about the extent to which a victim has been involved in a case (was she notified of the hearing? Did she want to be present?); if a judge is not satisfied, he or she could order prosecutors to do more.
Stumpf said she believes the new U.S. attorney, Channing Phillips, is committed to improving the office. But the attitude of the office’s representative toward advocates last week presented a misleading view of what it is they do for survivors.
“For a prosecutor to say that the community-based advocate impedes justice is totally against our purpose,” she said.
It’s not clear how many of the recommendations the Council will consider or adopt. Michelle Garcia, director of the Office of Victim Services and Justice Grants, testified that her agency is in favor of allowing an advocate to be with a survivor during interviews with USAO.
“While we take notice of the objections raised by the U.S. Attorney’s Office, we believe there is significant research demonstrating higher levels of victim satisfaction, higher perceived procedural justice, and greater willingness by victims to engage with the system when supported at all points by a victim advocate,” she said. “We believe this will lead to improved outcomes for prosecutors.”
In a statement, McDuffie said he will review the task force’s recommendations and contact USAO about the survivors’ concerns. At the hearing, he made it clear that the survivors’ testimony would not be ignored.
“Your words do not fall on deaf ears.”
Photo by Darrow Montgomery