Call for more change
Despite movement’s progress, justice system is still lagging behind
Despite the #Metoo movement, sex abuse victims say justice system still lags.
Cammy Duong woke up in a Manhattan hotel room in July 2017 and, dazed, called a friend. “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.
“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.
In the Manhattan District Attorney’s Office, prosecutors dropped 49 percent of sexual assault cases in 2019.
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 percent in Manhattan in 2019, compared with 79 percent for first-degree murder.
But some who study the matter believe the high drop rate also reflects prosecutors’ unwillingness to tackle those challenges.
Manhattan District Attorney Cyrus Vance Jr. has faced harsh criticism over his office’s handling of sex crimes.
Some who have sought justice in Manhattan said their reports were treated dismissively by Manhattan prosecutors. Others said they were berated.
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, 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.
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.
The experiences of women like Duong raise questions for prosecutors 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.
It was Sept. 30, 2017, and the woman, then a student at Fordham University, had been drinking 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 she did not remember how she got there and 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. 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. He later told his fraternity brothers that he had had sex with the woman while she was asleep.
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 and why she did not fight back, 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. They never found the video.
In New York and most other states, a person is considered incapacitated 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 must prove that force was used, that the person was unconscious or that the victim said or signaled that they did not want sex.
In January 2018, a judge granted prosecutors’ request to dismiss the case against the City College student.
But the Fordham student was not the only woman to accuse him of rape.
The Times 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 police in Manhattan, who told her to speak with detectives in Queens. Feeling dismissed, she dropped the matter.
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,” she said, adding that the office revamped its case management system to require that a second set of senior prosecutors review cases.
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.
A broken system
Rachel Lesser said she was raped in a Manhattan hotel room by an ex-boyfriend. 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, 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 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 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. He acknowledged having sex with Lesser, although he said he thought she had been awake. Four months later, in October 2017, the man was arrested.
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.
Mcnabney advised her to get on with her life, Lesser recalled.
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.