Making the case
Some jobs are complicated.
Some are just hard.
If District Attorney Mark Hurlbert announces sexual assault charges today against Los Angeles Lakers star Kobe Bryant, his is both. If he doesn’t, it’s still both.
No matter what his decision on Bryant, the next sexual assault case he faces – with or without the spotlight of the national media – will create the same kinds of questions. Is there enough sound evidence to prove this beyond a reasonable doubt?
Anne Munch, director of the Ending Violence Against Women Project, based in Jefferson County, provides training and technical assistance in stalking and sex assault cases around the state. She was a prosecutor for 10 years, and now trains prosecutors around the state to deal with the issue.
“Prosecutors must prove beyond reasonable doubt that the defendant did the acts he’s charged with,” said Munch. “District attorneys look at collecting forensic evidence, they interview witnesses, they examine an outcry from the victim to others, and they look for trauma – physical and emotional.”
The evidence must fit the definition of sexual assault under Colorado law. If it does, you draw your sword.
“If you have sufficient evidence, you go forward, regardless of what the circumstances are,” Munch said.
Then you go to war.
“Any trial is an adversarial process,” said Munch. “The district attorney is charged with doing justice, and doing it on behalf of the people of Colorado. It’s an important job, an important role.”
Fighting the good fight
“It’s difficult to win,” said Munch. “We’re still in the process of educating jurors and community members about sexual assault. Lots of myths attach themselves to these cases.”
“We’re working hard around the country to give people the tools to win cases that five years ago, people said you couldn’t win.”
Every case is different, each one a challenge. But when the evidence is collected and analyzed and the witnesses are interviewed, each case must be determined individually. This case will be decided the same way.
“All sexual assault cases differ dramatically, and each one has to be decided on its own merits,” said attorney Rob Wheeler, a former prosecutor with the 5th Judicial District Attorney’s Office. “This case will be decided the same way.”
Wheeler, who prosecuted many sexual assault cases, said when a victim makes an allegation, they’re sent to a doctor to look for signs it was forced. They aren’t always apparent, but that’s not always a tell-tale sign.
“It’s possible to have out-and-out rape where there was threat of injury, but no bruising or obvious signs,” Wheeler said. “In these cases, the victim succumbs under the threat of injury, even death, and threats to friends and family.”
The victim’s emotional state is examined closely, with investigators ideally looking for any indication that something out of the ordinary happened.
“Usually when consenting adults have sexual relations, they’re pretty happy about it,” said Wheeler. “In sexual assault, sometimes there are emotional signs, sometimes not. There are cases when you don’t have that sign. The victim can be traumatized beyond anything you can determine.”
There’s no formula for how long an investigation can take, Munch said. The statute of limitations is three years. Anything inside that and the alleged perpetrator is fair game.
“It can take much longer than this one is taking,” said Munch, her only direct reference to the Bryant case. “District attorneys are smart to take their time collecting and evidence. That’s what society expects of us.”
Under Colorado law, it’s required that the actor subject the victim to some kind of unlawful conduct. That could be fondling, penetration or intrusion, under circumstances that can include threats, weapons, drugs or something less than that.
In the provision for a Class 3 felony, it can be classified as sexual assault if it’s against the victim’s will, if there was coercion, which can occur even without words of threats – or even if the victims feels threatened.
“It’s not necessary for words or weapons to be used.”
Admissible evidence is anything that’s relevant that proves or disproves any aspect of the case, said Wheeler.
“You would think that any medical evidence could be admitted,” he said. “Almost anyone’s witness accounts are admissible: doctor’s testimony, photographs, evidence analysis.”
Mutual consent is the most common defense, especially with advances in DNA evidence, Munch said
“People use it because it works,” she said.
Under Colorado law, consent means “cooperation in act or attitude pursuant to an exercise of free will, and with knowledge of the nature of the act.”
“You have to know what you’re consenting to,” said Munch. “If there was a previous relationship, that does not make it consensual this time.”
State law says “submission under the influence of fear shall not constitute consent.”
“When you talk to rape victims, almost all will tell you that they felt a paralyzing fear at what was happening of them,” said Munch. “If that submission was in the face of fear, that’s not consent.”
Bruising would be a sign that there’s been no consent, said Wheeler.
Myths, lies, stereotypes
Everything that’s true about sexual assault cases flies in the face of the stereotype.
She said 85 percent of sex assaults are between people who are acquainted at some level – friends, sometimes family members.
Citing long-term studies, Munch said only 16 percent of all sexual assaults have been reported to police.
In a study of more than 6,000 college women, 5 percent reported a sexual assault or attempted sexual assault. The Koss Gidyez and Wisniewski report, “Rape in America,” sampled 6,159 college students. They found that about 20-25 percent had experienced either a completed rape or an attempted rape. Of those, 84 percent knew their attacker. Only 5 percent reported it to the police.
More recent studies also look at offenders.
“Until 10 years ago studies looked at incarcerated offenders,” said Munch. But the Abel Study interviewed prison inmates under certificates of confidentiality, which means they could answer questions about criminal behavior without an increased penalty. Of the 126 rapists studied in prison, they had committed 907 rapes on 882 victims.
A 1991 study by Wienrott and Saylor studied 37 rapists charged with 66 rapes. When the study was done, they had admitted to 433 rapes.
A 15-year study by David Lisak questioned and surveyed 2,000 college age men. He learned that more than 10 percent admit to behavior that meets the legal definition of rape anywhere across the country.
“If we believe Lisak’s research, the good news is that 90 percent of the men out there aren’t doing this,” said Munch. “Only 10 percent are doing this.”
Add it up and one in four women has been the victim of a rape of attempted rape, Munch said.
“Culture blames the victims. The victims blame themselves. Rapists don’t blame themselves,” said Munch. “It’s a huge problem, a big challenge.”
No matter how heinous the crime, it’s still wrong, said Munch, for people to take the law into their own hands. “We have good laws, a good process with which to deal with the problem.”
Colorado law defines sexual assault as:
1. Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:
A. The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will; or
B. The actor knows that the victim is incapable of appraising the nature of the victim’s conduct; or
C. The actor knows that the victim submits erroneously, believing the actor to be the victim’s spouse; or
D. At the time of the commission of the act, the victim is less that 15 years old.
2. Sexual assault is a Class 3 felony if it is attended by any one or more of the following circumstances:
A. The actor causes submission of the victim through the actual application of physical force or physical violence; or
B. The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or
C. The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat.
D. The actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission.
3. Sexual assault is a Class 2 felony if one or more of the following circumstances exist:
A. In the commission of the sexual assault, the actor is physically aided or abetted by one of more other persons; or
B. The victim suffers serious bodily injury; or
C. The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article or representation to cause submission of the victim.
Punishable by Class 2, eight to 24 years, up to 48 years. Class 3 felony four to 16 years, with up to 32 years.
Assistant Editor Randy Wyrick can be reached at 949-0555, ext. 615, or at firstname.lastname@example.org