While the Me Too movement led to greater awareness about the prevalence of rape, prosecutors in New York City still struggle to prove sexual assault accusations.
Written by Jan Ransom
Cammy Duong woke up in a Manhattan hotel room in July 2017 and, dazed, called a friend she was supposed to meet later that morning. “I think I was raped,” she said, crying.
The police investigation lasted months. But when the case reached the Manhattan District Attorney’s Office, prosecutors quickly declined to bring charges, records show. It would be seven more months before Duong got an explanation.
“I remember leaving and crying and feeling helpless,” said Duong, now 32. “I felt like nobody believed me.”
The #MeToo movement led to heightened awareness of the prevalence of sexual assault, an increase in reports to police and a new hope that people accused would be more frequently held accountable. But in New York City, statistics and the accounts of women who say they were attacked suggest that little has changed about the way the criminal justice system grapples with rape accusations.
Most New York City prosecutors’ offices rejected a greater percentage of sex crime cases in 2019, the last year for which reliable data is available, than they did roughly a decade earlier, before the case against Harvey Weinstein touched off a national reckoning.
In the Manhattan District Attorney’s Office, prosecutors dropped 49% of sexual assault cases in 2019 — among the highest rate in the city, and an increase from 37% in 2017, state data shows. Only the Bronx rejected a greater percentage of cases. The data excludes most sex crimes against children and certain nonviolent offenses like stalking.
The low prosecution rate partly reflects the inherent challenges of prosecuting sexual assault, particularly cases like Duong’s, in which the attacker is not a stranger and alcohol is involved. For cases that are not dropped, conviction rates for sexual assault cases are typically much lower than for other violent crimes: 44% in Manhattan in 2019, compared with 79% for first-degree murder.
“There aren’t really any third-party witnesses to these things,” said Carl Bornstein, a former state and federal prosecutor who teaches at John Jay College of Criminal Justice. “This is tough sledding. The prosecutor has to assess: Is this going to hold up under the scrutiny of 12 people?”
But some who study the matter believe the high drop rate also reflects prosecutors’ unwillingness to tackle those challenges. The issue became a focus of the race to succeed the district attorney, Cyrus Vance Jr., who did not run for reelection.
Vance, who heads one of the largest and most prominent district attorney offices in the country, has faced harsh criticism over his office’s handling of sex crimes, including the 2015 investigation into Weinstein, the former Hollywood producer who was convicted last year of rape and sexual assault, and the no-jail plea deal in 2016 for a Columbia University gynecologist accused of molesting dozens of patients.
Some who have sought justice in Manhattan, like Duong, said their reports were treated dismissively by Manhattan prosecutors. Others said they were brushed off or berated.
“Prosecutor negligence is often part of the problem,” said Jane Manning, a former sex crimes prosecutor and the director of the Women’s Equal Justice Project. “There’s a long, disgraceful legacy in our criminal justice system of not taking rape seriously.”
Alvin Bragg, a former federal prosecutor who won the Democratic primary for district attorney, making him the heavy favorite to succeed Vance, has promised to revamp the office’s beleaguered sex crimes bureau.
Bragg, in an interview, said he planned to “reboot” the sex crimes bureau “from the ground up” by assessing its leadership and staff with input from survivors. He said that he also intended to evaluate why certain cases are rejected and that the likelihood of a conviction should not be a determining factor.
Although the number of rape reports made to police jumped around 20% after Weinstein’s behavior was exposed, it is difficult to determine how strong or weak those additional cases were. The number of cases closed by Manhattan prosecutors — by winning convictions, dropping the cases or securing pleas to lesser charges — has not deviated much each year from the average over the past decade.
Facing protests over his office’s handling of sexual assault cases, Vance commissioned a study of his sex crimes bureau by AEquitas, a nonprofit that provides prosecutors with resources on violence against women.
The study, completed in November and provided to The New York Times by Vance’s office, found that prosecutors “do not always fully explore alternative ways of achieving a just result,” like bringing different charges or searching for more evidence.
The study, based on interviews with prosecutors, police investigators, victims and others, described a perception that decisions about which cases to pursue were based on the likelihood of a conviction and that more challenging cases — such as those that involved acquaintances or intoxication — were often rejected. The report also found that some of those interviewed believed that prosecutors “default to disbelieving victims” until they prove their credibility.
Based on that view, the report said, the culture within the office “creates an expectation” that prosecutors win cases and that they tend “not to pursue cases that they believe to be especially challenging.”
Responding to ongoing public criticism, Vance has implemented trainings for the bureau centered on the effects of trauma on victims, as well as on sexual assault in the LGBTQ community, and on alcohol-facilitated rape, said Audrey Moore, a first assistant district attorney. The sex crimes unit also has new leadership.
Vance, in an interview, said his office must reckon with its handling of people who report sexual assault.
“At the end of the day, if the perception is that lawyers in our office are short or in anyway disrespectful to victims, that’s unacceptable,” Vance said. “We as an office need to deal with it and educate our assistants on how to be better at their interactions with survivors and victims.”
The experiences of women like Duong raise questions for prosecutors like Bragg and lawmakers, who have been reconsidering New York’s rape laws. How should prosecutors approach cases where victims’ accounts are credible but may be difficult to prove in court? Should the state’s laws make convictions in such cases easier to win? And how should the criminal justice system balance the rights of the accused with a modern understanding of sexual violence?
The Times reviewed three cases from 2017 in which prosecutors eventually decided not to pursue charges against the men accused of rape, interviewing more than two dozen witnesses, friends, relatives, lawyers and investigators as well as reviewing police documents, medical records, emails and audio recordings.
The Times learned about the cases from an advocate for victims of rape and a Manhattan defense lawyer troubled by a case’s outcome. Duong contacted the Times directly about her case.
The women who reported being raped said prosecutors appeared overworked, were unresponsive and treated initial conversations like cross-examinations. Their cases also demonstrated the inherent complications in prosecuting cases beyond a reasonable doubt — even when the accuser herself has no doubt at all.
Too Much of a Hurdle
It was Sept. 30, 2017, and the woman, then a graduate student at Fordham University, had been drinking heavily at her sorority’s party at a venue in Brooklyn. She said she recalled trying to help a drunk friend in the bathroom when, she said, a male friend came in and raped her. (The Times does not publish the names of rape victims unless they choose to be identified.)
Later that night, she said, she woke up to the man raping her again while choking her in his room at City College in Manhattan, where he was a student. She said that she did not remember how she got there from the party and that the man was recording her with his cellphone.
When she realized what was happening, she said, she grabbed the phone and ran into the bathroom. She then showed the video to another student, Carlos Colon, who had been in the next room. After seeing the video, Colon fought with the man and was later charged with assault. Colon said in an interview that the woman had appeared to be unresponsive in the video.
Soon after the encounter with the woman, the man spoke by phone with one of his fraternity brothers, who recorded the call and provided it to the Times. During that call, the student admitted to filming the woman and said that was where he had “messed up.” He later told his fraternity brothers that he had had sex with the woman while she was asleep, two of them said in interviews.
The woman reported the attack, but during the three-month investigation that followed, she said prosecutors seemed skeptical. They asked her how much she had had to drink, why she did not fight back and whether she had wanted to cheat on her boyfriend, she said.
Prosecutors told the woman that the intoxication she described did not constitute being “physically helpless” under the state’s law and that they could not prove that she did not consent, according to a recording of the conversation. They never found the video.
In New York and most other states, a person is considered incapacitated — and thus unable to consent to sex — if he or she is intoxicated, but only if the intoxication is involuntary, such as if it was caused by a drug surreptitiously dropped into a drink. If the drinking was voluntary, prosecutors have a more difficult path to conviction: They must prove that force was used, that the person was unconscious or that the victim said or signaled that they did not want sex.
At least 14 states — including California, Arizona, South Carolina and Maryland — have expanded the definition of incapacitation to include voluntary intoxication. Vance and women’s advocacy groups have called on New York to do the same, but a proposal to do so has stalled in Albany over concerns that such a change could criminalize a common situation: one in which both partners have been drinking, communication is impaired, and memories after the fact are hazy.
In January 2018, a judge granted prosecutors’ request to dismiss the case against the City College student. Through his public defender, the student declined to comment on the case.
But the Fordham student was not the only woman to accuse him of rape.
In defending Colon against the assault charge, his lawyer, Nathaniel Broughty, filed a court motion in January 2018 saying that the student faced another rape accusation and that City College campus police had found videos on his phone that showed him having sex with unconscious women. But the videos were gone by the time prosecutors searched the phone. Citing privacy concerns, college officials did not respond to questions from the Times about the videos and their investigation.
The Times also interviewed another woman, Maria Guzman, who said she and a friend had been drinking at the man’s home in Queens in 2016. Guzman, now 25, said she awoke in pain to him raping her. While in and out of consciousness, she said, she saw him rape her friend, who was completely unconscious.
Guzman, after learning through friends about the alleged rape in 2017 at City College, said she reported her attack to the police in Manhattan, who told her to speak with detectives in Queens. Feeling dismissed, she dropped the matter.
Although the City College student was never charged in relation to the other accusations, prosecutors could have used their testimony to try to bolster the case they had against him.
Karen Friedman Agnifilo, the former Manhattan chief assistant district attorney, acknowledged that the office had erred in this case by not following investigative leads.
“It was a missed opportunity, and we can do better, and we will do better,” Friedman Agnifilo said, adding that the office revamped its case management system to require that a second set of senior prosecutors review cases to ensure investigations were thorough.
A 2018 investigation by City College found that the student had engaged in “nonconsensual sexual intercourse” with the woman whose case had been dropped by the district attorney. The student was suspended for four years, university records show.
But the only person punished was Colon, now 27, whose charges were dismissed only after the completion of community service.
‘A Broken System’
Rachel Lesser said she was raped in a Manhattan hotel room by an ex-boyfriend who wanted to reunite. They dated for a year before breaking up in 2016, she said, but they agreed to spend a platonic weekend together the next year.
While she was napping the first evening in the bed they shared, Lesser woke to him kissing her, she said, and she told him she was not interested in him sexually.
On the second night, after she drank several glasses of prosecco and took NyQuil for a cold, Lesser said she woke to him shaking her.
Her underwear was on the floor, and her anus was bleeding, she said. She had a vague recollection of sexual activity but could not recall details. But the man, in a bizarre phone call to Lesser’s mother, told her he had had sex with the woman, her mother said.
Doubtful she would get justice, Lesser, now 30, said she waited two days to go to a hospital and contacted the police a month later.
Detectives had her place a “controlled call” to the man, in which she confronted him over the phone while detectives secretly recorded him, she and her grandmother said. He acknowledged having sex with Lesser, although he said he thought she had been awake, prosecutors said. Four months later, in October 2017, the man was arrested, prosecutors said.
But as the case proceeded, in Lesser’s recollection, the prosecutor, Justin McNabney, peppered her with questions about her relationship with the man and questioned how she could sleep through a rape, she said. The office disputed they had questioned the latter and said that questions about her history with the man were relevant to the investigation.
Prosecutors said the man stated during an interview with them that he believed she had consented because she was moving and that he had stopped when he realized she might be asleep.
McNabney advised her to get on with her life, Lesser recalled.
Once when she called for an update on the investigation, she said, the prosecutor yelled that he had a lot of cases on his plate, including an attempted murder, before abruptly ending the call. The office disputed her characterization and said the prosecutor had told Lesser that he would respond to emailed questions.
Prosecutors dropped the case a month later because of insufficient evidence, the office said. With no memory of what had happened, prosecutors said, they could not prove Lesser did not consent.
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