Women: S.F. shrugs at sex assault cases
Rachel Sutton woke up dazed, lying in an unfamiliar bed, and began to panic. She struggled to recall what had happened since she’d lost consciousness on the bathroom floor of a San Francisco apartment.
Then, pieces of that night started coming back. Memories, she said, that included a “painful and traumatic” drugging and rape by a co-worker. She grabbed her clothes, texted her boyfriend for help, and ran.
Sutton, 24, shared her account of the February 2014 episode and its aftermath recently with The Chronicle, speaking out about years of frustration over her alleged assailant never being criminally charged, despite a lengthy police investigation.
Her experiences, and those of several other women who
say they have been victims of drugfacilitated sexual assaults, include allegations of critical delays, potential missteps and mistreatment by officials across various city agencies.
Their complaints include: blood and urine samples not being taken for several hours, making it less likely drugs would be detected. A key witness not being interviewed for months, while other evidence went uncollected or was withheld from them. And police and prosecutors coming across as uninterested or rude, leaving the women believing their cases were not being taken seriously.
At a time when sexual assault has been thrust into the national spotlight — with the #MeToo movement, the downfall of comedian Bill Cosby and renewed attention on campus rape following the Brock Turner case at Stanford University — these women and their advocates say their cases raise a troubling question: Is San Francisco doing enough to investigate and prosecute sexual assaults, particularly those involving drugs and alcohol?
“It is like everyone is standing around watching you drown,” Sutton said. “I have experienced firsthand how the system has failed. There is nothing to do other than scream and flail.”
In response to the complaints, Supervisor Hillary Ronen has scheduled a hearing Wednesday before the Public Safety and Neighborhood Services Committee to examine how the public hospital, police and prosecutors handled reports of sex assault in San Francisco. By reviewing the system with representatives from those agencies, Ronen said she hopes to see how it might be improved.
“You would think in San Francisco, such a liberal and progressive city with a majority of women on the Board of Supervisors, that we would be on the cutting edge of treating survivors of sexual assault with the dignity and respect they deserve,” Ronen said in an interview. “And we’re not. It’s outrageous.”
A San Francisco Police Department spokesman said police could not comment on specific cases for confidentiality reasons, but that they are “committed to treating sexual-assault survivors with empathy, dignity and respect.”
“We take these cases seriously and devote the time and resources necessary to thoroughly investigate these allegations, while remaining mindful of the rights of all parties involved,” David Stevenson said.
A spokesman for the district attorney’s office said the office has re-reviewed two of the cases at issue, which are still open and under investigation, after the victims and their advocates raised questions.
“We care deeply about every victim, and where appropriate, we file cases to hold offenders accountable,” Max Szabo said. “Equally important are our efforts to prevent these crimes from happening in the first place.”
*** Sexual-assault cases are challenging to prosecute in general, experts said, and become particularly difficult when alcohol or drugs are involved. Evidence can be hard to collect, and victims are usually called to testify in emotional trials that pit accuser against accused. Though officials may believe a crime has happened, cases can remain open and uncharged for years if prosecutors don’t believe they have enough evidence to obtain a conviction.
Nationwide, very few rapes — between 0.4 and 5.4 percent — are prosecuted, according to a 2012 article in the peer-reviewed journal Violence Against Women. The article compiled research evidence suggesting cases are less likely to be prosecuted if they don’t involve a crime committed by a stranger with a weapon, partly because people are “frequently skeptical” of reports that involve acquaintances and alcohol.
No equivalent statistics were available for San Francisco.
Jane Manning, a former New York City prosecutor who specializes in crimes against women and director of advocacy for Women’s Justice NOW, said that in such cases there is a tendency to blame victims who may have been drinking socially before a possible drugging, even when there is corroborating evidence.
“Many of these cases are prosecutable cases,” Manning said. “The biggest obstacle to prosecuting drug-facilitated rape cases is not the difficulty, and not the lack of evidence — it is an unwillingness of prosecutors to bring charges even where there is sufficient evidence.”
For the past two years, Manning has advocated on behalf of six women, including Sutton, who have alleged that their sexual-assault investigations were mishandled in San Francisco and were never charged. Her work, along with that of Ronen and other advocates, has led to the appointment of a new prosecutor on two cases, and to changes in how San Francisco General Hospital collects blood and urine evidence from sexual-assault victims.
Sutton and some of the other women plan to share their experiences at the hearing on Wednesday.
Ronen said the matter came into focus for her two years ago when a longtime colleague told her that she had been drugged and raped by a man she had met at a bar. Although the woman had come forward less than a day after she said she was assaulted, Ronen said, she immediately confronted obstacles.
The woman declined to give her name but spoke extensively with The Chronicle. She plans to speak as Jane Doe at the hearing.
At San Francisco General Hospital, she said she waited for hours in a basement room behind a line of women reporting sexual assaults. Police then discouraged her from filing a report, she said, asking whether she “really wanted this guy arrested.” Finally, she said, the prosecutor said her case wasn’t even a “he said, she said” case, but “he said, she doesn’t remember,” though she had told him she recalled the rape.
Manning, who aided the woman’s case, said the investigation suffered from other errors. Police waited months to talk to the woman’s friend, Manning said, even though that witness was in the apartment where the woman said the rape occurred. She added that investigators waited weeks to try to retrieve video from the bar where the woman said she was drugged, ultimately failing to obtain it.
“It was like entering the twilight zone,” the woman said about the process. “It is profoundly sad and unsettling to have been dehumanized first by the predator who raped me, and then, by the police, the organization I went to for protection and justice.”
***
Tiffany Tonel, 28, also plans to speak at the hearing about how she was treated after she told police she was drugged and raped by an acquaintance in 2016.
Tonel said the investigator told her: “Alcohol played a big role in all of this, and I think everyone involved needs to accept responsibility for their actions.”
In the absence of criminal prosecutions, some of the women — including Sutton — have pursued their cases in civil court. Two are pending. Sutton recently settled her case for $400,000.
Her alleged assailant has not admitted fault. He declined to comment when reached by phone. The Chronicle is not identifying him because he has not been criminally charged.
In court records, he denied all allegations, including that he drugged, raped or had sex with Sutton.
According to her lawsuit, Sutton, then 20, met the man at his apartment on a night in February 2014.
During the course of about three hours, she said, she had one shot of Tequila, one beer and a few sips of a second beer. She then began to feel “extremely nauseous and dizzy,” according to court records. A short time later, she said, she passed out in the man’s bathroom and later woke to find him raping her in his bed. She then lost consciousness, according to court records.
After waking again and leaving the apartment, records show Sutton immediately reported the incident and went to the hospital to undergo a sexualassault examination. But, she said, her experience since has been fraught.
It started at the hospital, she said, when she had to wait hours to be examined. Her blood and urine samples were collected more than two hours after she arrived, records show.
In a later phone call that police recorded, Sutton’s alleged assailant told her they could have had sex “a couple times,” and when she asked him if he used a condom, he said, “I always use protection,” according to civil case records.
In a text message to Sutton, the man also wrote that he had never “seen someone so passed out” and told her that he “was both concerned and trying to get you comfortable,” according to his deposition in the civil case.
When police searched his apartment, they found two pills they believed were Ambien, according to court records.
Police said they had enough evidence to arrest the man on suspicion of two counts of raping an intoxicated person, and two counts of raping an unconscious person.
But in an interview with police, the man denied having sex with Sutton, and disputed how his comments in the recorded phone call had been interpreted, according to court records.
“It’s just me playing along with her,” he said in his deposition when asked about the recorded call. “I’ve already told her nothing happened.”
About a week after being arrested, the man was released from San Francisco County Jail when the district attorney’s office declined to pursue charges. Roughly a year and a half later, after police obtained more forensic evidence in the case, prosecutors again declined to file charges.
Sutton, who now works for a federal government contractor doing security clearance investigations, said she was
told her blood and urine samples did not show any traces of “date rape drugs.” The man’s DNA was found on her neck, but not in the vaginal swabs collected at the hospital, records show.
According to Sutton and the police investigator, the prosecutor did not believe he could secure a guilty verdict.
“Society needs to have a paradigm shift before juries will convict” in a case of her type, Sutton recalled the prosecutor saying.
***
When advocates complained in the fall of 2016 about such responses, Sutton and the woman who will be speaking at the hearing as Jane Doe had their cases reassigned to a new prosecutor.
“The fact that this is still open makes it impossible to move forward,” said Sutton, who also goes by the last name Zader professionally. “So, essentially, I am in a state of limbo, almost half a decade later. It is impossible not to feel incapacitated.”
Of the six women whom Manning has advocated for in San Francisco, she said all recalled critical portions of their assaults. There were varying amounts of physical or other corroborating evidence in their cases, she said, including eyewitnesses, injuries, DNA evidence and symptoms that expert toxicologists described as not being attributable to alcohol alone. In the cases where drugging was alleged, however, none of the blood and urine tests turned up drugs that could have been used to commit assault.
Many drugs used in sexual assaults pass through the body quickly, said Linda Richards, a sexual-assault nurse examiner for 25 years and retired manager of the Silicon Valley Sexual Assault Response Team at Santa Clara Valley Medical Center.
“That’s the vicious, evil thing about those drugs,” she said. “They’re tasteless, sightless, and they do damage, cause amnesia and they’re gone. That doesn’t mean they weren’t there to begin with.”
Officials at San Francisco General Hospital, where Sutton and the other victims were examined, said a new policy in effect since last year calls for the collection of blood and urine samples within 30 minutes of a sexualassault victim’s arrival.
“That’s a legitimate concern, and this is something that we’ve been working hard at,” said Catherine Classen, division head of Trauma Recovery Services at SFGH.
But she acknowledged that there can still be delays in doing examinations if more than one victim shows up, because most trauma centers are equipped to handle one patient at a time.
Absence of certain evidence — like drugs or DNA — can make prosecuting a case challenging but not impossible, said Rick Barton, a retired investigator with the Butte County district attorney’s office, who teaches courses to law enforcement on investigating sexual assault and child abuse.
“The burden of proof is on the prosecution,” he said. “They have to be able to convince 12 jurors beyond a reasonable doubt, and that can be a heavy burden.”
But even when there is little or no physical evidence, a victim’s statement is often legally enough for a district attorney to file charges, according to Barton, who said he “firmly” believes in aggressively prosecuting sexual-assault cases by using such testimony.
Victims in sexual-assault cases rarely lie, Barton said. Instead, he said, they are often reluctant to come forward due to stigmas around sexual assault.
Without positive toxicology tests, prosecutors can still call experts to testify about drugs that could cause a victim to pass out but may be hard to detect, Manning said.
She said she hopes Wednesday’s hearing will lead to some resolution for victims, encourage others to come forward and send a message that the city is serious about how it handles sexual assaults.
“These women are doing something incredibly brave, talking publicly about the most painful episode of their lives, in the hopes that the justice system can be made better for others,” Manning said. “We owe it to them to make sure that happens.”
“The fact that this is still open makes it impossible to move forward.
So, essentially, I am in a state of limbo, almost half a decade later.”
Rachel Sutton, whose accusation of rape has not resulted in prosecution