Could DA’s Decision Not to File Charges in SDSU Gang-Rape Case Have a Chilling Effect on Sex Crime Reporting?

People who work with sexual assault victims fear they the decision will give pause to sexual assault victims considering coming forward

The decision was months in the making: The District Attorney’s Office would not file criminal charges against three former San Diego State University football players accused of gang raping a 17-year-old high school senior at an off-campus party last year.

The announcement Wednesday closed one chapter in one of the county’s most-watched cases, although a civil case and a university inquiry continue.

And ripples from the case could reach far beyond those probes.

In issuing its statement, the San Diego County District Attorney’s Office included this: “The conclusions reached in this review are specific to this incident and should not discourage any victim from coming forward and reporting a crime to law enforcement.”

There is good reason for concern, say activists and advocates, who fear the decision not to prosecute will give pause to victims of sexual assault who are considering coming forward.

Speaker and activist Brenda Tracy — who in 1998 reported gang rape by college football players in Oregon — said Wednesday’s decision “absolutely” has a chilling effect.

“People are looking at this and going, ‘Why, why, why should I put myself through this?’” she said.

“I’ve already seen multiple survivors on social media and people I talked to say, ‘This is why I didn’t report, and I’m so glad that I didn’t (report) because this is what I would have to go through.’”

Even after the #MeToo movement, with the societal attention and advancements it brought, struggles in investigating and prosecuting rape and sexual assault cases endure.

Believing the victim is only part of the equation. Alcohol or drugs may have been involved, potentially affecting the victim’s recall. Many suspects claim sexual encounters are consensual, and proving otherwise can be difficult.

The allegations of rape against San Diego State football players were detailed in a civil lawsuit the now 18-year-old woman filed in August in San Diego Superior Court. In it, she accused three players on last year’s Aztecs football team by name, including Matt Araiza, a stand-out punter newly drafted by the Buffalo Bills.

Within two days of the filing, the NFL team cut Araiza loose. The other two who were accused — then-18-year-old redshirt freshmen Zavier Leonard and Nowlin “Pa’a” Ewaliko — are no longer on the college team.

Attorneys for the three men said the District Attorney’s Office made the right decision to reject filing criminal charges. “I felt confident, based on what I knew, that they would reject the case,” said attorney Kerry Armstrong, who represented Araiza, last week.

Agent Joe Linta tweeted a statement Wednesday from Araiza: “I am grateful that the District Attorney and the San Diego Police Department have discovered all the facts and found no criminal wrongdoing. I am excited to continue my NFL career.”

According to the civil lawsuit, the incident happened at a College Area home not far from the university campus early Oct. 17, the end of a Saturday night party that had stretched into early Sunday morning.

The suit alleges that Araiza, then 21, had sex with the teen in a side yard of the residence before bringing her into a bedroom where a group of men took turns raping her. Leonard and Ewaliko were part of that group, according to the lawsuit.

The woman said she stumbled out of the room bloodied and bruised and immediately told her friends she’d been raped. She reported the encounter to San Diego police a day later.

The investigation lasted months.

In announcing the decision last week, District Attorney Summer Stephan’s office said a team of prosecutors and investigators “meticulously analyzed all the evidence in the case” — including a rape kit, DNA results and at least 35 taped witness interviews.

They said 10 search warrants turned up more evidence, including video of the incident itself.

When prosecutors are evaluating these kinds of cases, they have to believe they have enough evidence to prove to a jury — beyond a reasonable doubt — that a crime was committed and that the accused is guilty.

“Ultimately, prosecutors determined it is clear the evidence does not support the filing of criminal charges and there is no path to a potential criminal conviction,” the office said in a statement.

The District Attorney’s Office said Wednesday that it evaluated the case for several criminal charges, including statutory rape, forcible rape, forcible oral copulation and rape by intoxication.

Armstrong, a criminal defense attorney, said he was most concerned about statutory rape charges. He has said repeatedly that Araiza did have sex with the teen, but that it was consensual and he believed she was 18.

In California, if someone has sex with a child younger than 14, there is no legal defense, but if the teen is 14 or older, that person can argue that they had a “reasonable good faith belief” that the person they had sex with was 18, Armstrong said.

In the young woman’s lawsuit, she said she told Araiza that she was a student at Grossmont High School in the El Cajon area.

But Armstrong said he and his investigators spoke with witnesses at the party that night who said they heard the teen tell Araiza and others that she was 18 and a student at Grossmont College, a community college in El Cajon.

“Just because we see it a certain way doesn’t mean the DA will, but we felt really good about that particular charge,” Armstrong said.

Former prosecutor Samuel Dordulian, who spent 13 years as a deputy district attorney in Los Angeles County, said that when prosecutors decide not to file charges — even if that decision is appropriate — what the sexual assault survivor hears is: “They don’t believe me.”

He said survivors may not understand that prosecutors aren’t necessarily making a decision about their credibility.

“It’s a determination of whether they can prove (the case) beyond a reasonable doubt based on the evidence that they have.”

Dordulian, who now represents sexual assault victims in civil cases, agreed that decisions against a criminal case can have an unintended chilling effect on others.

“It keeps future survivors from coming forward,” he said, “because they say, ‘Well, look, this woman has the guts to come forward and look what happened. She got shamed in public, and now, no one believes her. Everyone’s calling her a liar.’

“That’s not what’s happening, but that’s how they’re reading it, that’s how they’re interpreting it,” he said.

The news of no charges frustrated Tracy, an activist and public speaker — a role that unwittingly tied her to the San Diego State case. Weeks after the reported assault, the university asked Tracy to give her presentation to its athletes, starting with the football team. She did so, but was not made aware of the specific allegations against Aztec players.

Tracy said one of the “most infuriating things” about the district attorney’s decision not to file charges “is chatter from people who say, ‘Well, if there was really a case, the DA would take it.’

“That’s just not true,” Tracy said.

It’s unclear how the district attorney’s decision will affect the ongoing civil suit.

Dordulian said judges often do not allow juries in civil cases to be told that prosecutors declined to bring charges in a criminal case. That’s partly because criminal and civil cases have different standards of proof.

In a criminal trial, the standard of proof is beyond a reasonable doubt. In a civil trial, it’s far lower — a preponderance of the evidence, or, more simply stated: the allegations are more likely true than not true.

There is another notable difference between civil and criminal trials. In a criminal trial, the jury must come to a unanimous agreement to reach a verdict. In a civil trial, only nine of the 12 jurors have to agree.

Verna Griffin-Tabor, CEO of the Center for Community Solutions, the only rape crisis center in the county, said moving through the justice system can be traumatic. It can involve lengthy and invasive forensic exams, reliving trauma during interviews with detectives and prosecutors, and facing the accused during a trial.

To go through that, only to learn that a case isn’t moving forward, is devastating for survivors, she said.

Griffin-Tabor said she also worries about others who haven’t decided whether to report their experiences.

“I always am concerned that if there isn’t an outcome that the survivor wants, not only will it impact that person, but also other survivors from coming forward.”

Click here to read the full article in the SD Union Tribune

Bills inspired by Stanford rape case miss big part of the problem

Brock turnerBrock Turner is a free man, and now California’s justice system is on trial.

When the former Stanford student was sentenced in June to only six months in prison for sexually assaulting an unconscious woman behind a dumpster, a sickening thud landed like a punch to the gut of millions of people who were following the high-profile trial.

Santa Clara County Judge Aaron Persky could have sentenced Turner to 14 years in prison and prosecutors asked for six. But despite the prosecutors’ recommendation and an impassioned letter from the victim describing her life-destroying ordeal, read aloud in court, the judge sentenced the young man from a wealthy family to just half a year in prison. “A prison sentence would have a severe impact on him,” Persky explained.

In the uproar that followed, Persky moved to civil court and no longer hears criminal cases, a recall effort was launched against him, and the California Legislature sent two bills to the governor’s desk.

AB701 modifies the definition of rape to include selected acts that under current law are charged as “sexual assault” and “forcible sodomy.”

AB2888 ensures that sex crimes against an unconscious or severely intoxicated victim trigger mandatory prison sentences without any argument over whether “force” was used to commit the crime.

Another, SB813, removes the statute of limitations so rapists can be charged no matter how long ago the crime occurred.

Do these laws heighten the risk of wrongful convictions?

Try this test: Instead of thinking about Brock Turner, think about the three Duke lacrosse players who were wrongfully accused of gang rape in 2006. After a year, North Carolina’s attorney general declared the three men innocent. The Durham district attorney was convicted of contempt and disbarred.

The challenge is to get the law right so innocent defendants can clear their names and innocent victims can get justice, sometimes in cases where only two people were present, and one was unconscious or close to it.

Perhaps the law should address what happened to Turner’s victim after the crime.

In her statement to the court, the victim said she originally thought Turner would “formally apologize, and we will both move on.” Instead, “he hired a powerful attorney, expert witnesses, private investigators who were going to try and find details about my personal life to use against me.”

That’s what happens to victims of sexual assault when the perpetrator is wealthy or powerful enough to use character assassination as part of a legal or public relations defense. …

Click here to read the full article from the L.A. Daily News

California Lawmakers Approve Mandatory Sentencing For Rape

As reported by NPR:

The California Assembly unanimously passed a measure that requires a prison sentence for anyone convicted of sexually assaulting an unconscious person.

The 66-0 vote comes after a six-month jail sentence (and three years’ probation) imposed in June by Superior Court Judge Aaron Persky on former Stanford student Brock Turner. He had been convicted earlier in the year of three felony counts of sexually assaulting an intoxicated and unconscious woman at a fraternity party. That sentence was widely condemned as too lenient. Prosecutors had sought a sentence of six years in prison.

Turner is scheduled to be released on Friday after serving half of the six-month sentence, based on his good behavior. …

Click here to read the full story

After Stanford case, California lawmakers push to redefine rape

As reported by the Sacramento Bee:

Building on their response to a Stanford swimmer’s sexual assault conviction, California lawmakers on Monday announced legislation to broaden the state’s definition of rape.

Much of the uproar around the case of Brock Turner, found guilty of sexually assaulting an unconscious woman, has focused on his sentencing after the student received a six-month jail term that was significantly lighter than what prosecutors sought. California legislators have pushed to remove the judge who issued that sentence.

Now those same legislators want to expand California’s definition of rape from the current standard, which requires sexual intercourse, to encompass penetration that occurs without consent. Turner was specifically convicted of sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object, not of rape. …