January 24, 2013

III. Vulnerable Cases

Our review of case files and interviews with witnesses indicate that some police are most likely to be dismissive in cases involving alcohol or drugs. In addition, several people who work with victims told Human Rights Watch that, in their perception, police are less likely to treat sex workers well.

However, Human Rights Watch is aware that there are detectives in the department who have made concerted efforts to pursue cases in which sex workers are victims. As a result, this perception of some people on the ground may reflect the fact that they have witnessed inappropriate responses by some patrol officers or individual detectives, and that the efforts that some are making are not visible in the community. 

Drug or Alcohol-Facilitated Sexual Assault

Research indicates that nationally, drugs or alcohol are involved in nearly half of all sexual assaults.[348] The definition of sexual assault in most places, including the District of Columbia, takes this into consideration.

In D.C., first degree sexual abuse includes engaging in a sexual act “after rendering that other person unconscious” or after administering either by force, or threat of force, or without that person’s knowledge, “a drug, intoxicant or other similar substance that substantially impairs the ability of that other person to appraise or control his or her conduct.” [349]

Second degree sexual abuse occurs when a person engages in a sexual act with a person who is “incapable of appraising the nature of the conduct; incapable of declining participation in that sexual act; or incapable of communicating unwillingness to engage in that sexual act.” [350] Intoxication may result in this level of impairment. Signs suggestive of drug or alcohol-facilitated sexual assault include unexplained loss or rearrangement of clothing; memory loss, disorientation, or confusion; and unexplained signs of trauma, particularly genital trauma. [351]

Some police (like others in the general public) may not view these cases as “legitimate” because they do not necessarily involve force, but they are all non-consensual sexual acts and the impact on the victim is still devastating. As one victim of second degree sex abuse said,

The way people react to rape isn’t fair. If my purse was stolen, it wouldn’t be my fault. I was shattered and I did not have a violent assault.[352]

Drug or alcohol-facilitated assaults are challenging cases to investigate because the victim’s memory may be substantially impaired. The sedative property of drugs often used in drug-facilitated sexual assaults means that victims may only have the sense that they were violated but not recall the assaults themselves. In addition, reporting is often delayed, making it possible, if not likely, that toxicology reports will be negative since the drugs leave the victim’s system quickly.

These difficulties make it even more important that detectives pursue an investigation and interview any witness who might have interacted with the victim before, during, or after the assault to help establish time frames, corroborate unusual behavior, provide critical facts, and identify other sources of information. [353] As an expert in drug-facilitated sexual assault cases testified in Rachel’s case against the MPD,

The whole point of investigation is putting it all together. And you don’t say ‘Well, she said she was drunk. Screw it.’ Voluntary intoxication is not consent to have sex. It may still be a sexual assault. And that’s the purpose of a proper investigation.[354]

Following the 2008 lawsuit relating to police handling of Rachel’s case discussed above, Human Rights Watch would expect to find an internal re-evaluation of the MPD’s approach toward cases involving drugs or alcohol. However, victims and witnesses said that even after 2008, the MPD had failed to report cases in which the victim may be intoxicated or drugged.[355] One observer noted that officers may not investigate “college cases” at all unless the victim has sustained substantial physical injury because alcohol is often involved.[356] Another reported,

Quite honestly it’s been a challenge when many of the detectives don’t want to move forward on the cases because alcohol or drugs have been involved…. They are clear. It is because of drugs or alcohol they don’t want to get involved. [357]

Medical staff describe the police attitude as, “Oh well. That is normal. It happens all the time;” or, if the victim was drunk, “it was her fault she was assaulted.[358] Shelly G. said that when she reported her assault in October 2009, the detective seemed to shut down as soon as she said she had been drinking.[359] According to these observers, if the victim does not recall what happened, the detectives often state that no crime occurred, even though a symptom of a drug-facilitated assault is an inability to remember events.[360] A detective told the former director of the SANE program, “She doesn’t remember what happened so there is not a crime. You can’t have sex and not remember.”[361] 

In such cases, police sometimes fail to ask particular questions to ascertain if it might be a drug-facilitated sexual assault.[362] Witness reports and a review of MPD investigative files suggest some detectives continue to take a dismissive approach to these cases, which their supervisors tolerate.

In addition to Shelly G.’s case, the following are examples of sexual assault complaints described to Human Rights Watch or found in the MPD’s files that occurred since late 2008, that show strong signs they were drug or alcohol-facilitated, and which police apparently decided not to investigate:

  • A victim, who woke up in September 2011 with no underwear and with personal items missing from her home after a night drinking at a club, was concerned she had been assaulted after a friend reported seeing her engaging intimately with a strange man. She had no recollection of the night. The detective told her that the progression of the case depended on the SANE results. The file notes stated, “In the meantime, a miscellaneous report will be taken to reflect the fact the complainant has reported the matter to the police.” Police told the victim there was “no evidence to substantiate that a crime was committed against her.” However, the final entry in the file was an indication that the SANE exam found semen in the victim’s cervix, buttocks, and externally. Although it says the detective will follow up, there is no further entry in the investigative file. [363]
  • In the spring of 2011, after a night of drinking, a victim reported waking up with dirt on her hair, bed, and clothes, with no underwear, and with bruises on her inner thighs and abrasions on her knees. She had no recollection of what happened the night before or how she got home. The forensic report noted the presence of a clear sticky fluid. Police classified the incident report as “miscellaneous,” and listed it as “closed pending” four days later. Police records showed minimal investigation. [364]
  • A young woman who was at a bar in February 2011 when an acquaintance brought her a drink. She remembers nothing after that but the next morning friends found her on the street between two parked cars, with abrasions, no underwear, and no cellphone. [365] According to hospital staff, detectives told her, “You can’t remember anything so you aren’t reporting a sexual assault. Call us if you remember something.” Police did not take a report or follow up. [366] Internal police investigation files confirm that police recorded the incident as “office information” because “no crime was reported.” The detective noted having “provided [the victim] with my business card and said to call if she needed police services.” Though the victim told the detective the next day that she would like to know what the police could do about her case, the case remained classified as “office information” and the file did not indicate any investigation. [367]
  • A college student who woke up outside her dorm room in the spring of 2010 without pants and with skinned knees, bruises, scratches on her face and thighs, and abrasions and mulch in her vagina. According to medical staff, police said they would not investigate because the victim did not remember the crime, which they wrote up as a general report. [368] They attributed the mulch to her possibly falling on the ground while urinating outdoors. [369] The victim said she felt like she was being called a liar and not taken seriously. [370]
  • Valerie S., who has a physical disability and woke up the morning after drinking at a party out of her wheelchair and naked. She could not remember what happened but was concerned she had been sexually assaulted. Medical staff say that the responding officers said this was not the case. She decided not to file a complaint because of the disbelieving way the officers questioned her. [371]

The MPD states it has made efforts to improve its handling of drug-facilitated sexual assault cases since 2008. The efforts included having detectives attend a 2010 training at the US Attorney’s Office, led by an expert in drug-facilitated sexual assault cases. Also, the MPD states that the number of cases submitted for toxicology testing “has substantially increased.”[372] Records from the Office of Chief Medical Examiner (which conducts toxicology tests in suspected drug-facilitated sexual assault cases for the MPD) show that their lab received, collected, or had transferred to it: 6 sexual assault forensic evidence kits in 2008, 2 in 2009, 12 in 2010, and 7 as of May 25, 2011.[373]

A new measure that could improve the handling of these cases is a case review process. Chief Lanier told Human Rights Watch that the MPD is in the “process of developing a formal case review process in which a panel will review, on a bi-weekly basis, all cases that have been investigated and are not forwarded to the US Attorney’s Office for prosecution.”[374] The concept of “case review” of closed cases has been on the SART agenda since 2010.[375] However, as of October 2012, it had not been implemented.[376] Different sources told Human Rights Watch this was because law enforcement was not providing necessary information.[377]

Additional Cases Involving Drugs or Alcohol That Raise Questions

  • The case of a sex worker who, according to community advocates, attempted to report an assault. Law enforcement told her that she was “complicit in her assault” and that she had no case because she had done drugs. [378]
  • The case of Kathy A., whom medical staff said woke up with no clothes on after a job doing make-up at a party. She did not remember what happened but suspected she had been drugged and assaulted. “Happens all the time,” a member of the medical staff recalled the detective telling her. “There is nothing we can do.” [379]
  • The early 2011 case of a victim who had only two drinks but blacked out while driving. Hospital staff said she woke up with her pants off, and her wallet and phone missing. She remembered a flash of two guys in her car but nothing else. Two weeks after reporting her assault to police at the hospital, her forensic exam kit and blood and urine samples were still awaiting pick-up because the detectives said the crime could have happened in Maryland. [380]
  • A July 2009 case in which the complainant was highly intoxicated at the time of her report and indicated she had been assaulted. Though at the time her statement appeared unclear, the victim called back nine days later to ask about results from her rape kit. The detective explained it would take six weeks or longer for results, but the file does not indicate any follow-up or investigation after the call. [381]
  • An October 2011 case in which the victim had half an open soda after a date and woke up without her shirt, tights, and underwear, and with her head spinning and hurting. She was very upset but could not recall what had happened or how her clothing had gone missing. She had not had any alcohol or drugs but witnesses described her as wobbly. She went for a forensic exam, but police listed the case as office information and did not assign a case number. [382]
  • A fall 2011 case in which the complainant reports that he lost consciousness after meeting the suspect at a nightclub, but awoke briefly to find the suspect anally penetrating him before losing consciousness again. The detective wrote up the report as an “allegation of a misdemeanor,” though assigned no case number. The file notes that the detective left one message for the suspect on his cell phone over two months after the assault. It also notes one unsuccessful attempt five months after the assault to go to the nightclub, when it was closed. But it contains no indication of further investigation. [383]
  • A May 2010 case in which the complainant was at a bar with a friend and next remembers waking up in a lobby with no shoes, underwear, or purse, with soreness in her vaginal area. The complainant was very upset. The case was taken as an “office information” case and apart from delivering the forensic kit to the lab, there is no indication of any follow-up or investigation before it was closed. [384]
  • A May 2009 case in which the complainant was found intoxicated on the sidewalk stating she was raped. She was “highly intoxicated” at the time of the interview and was taken to the hospital. But the report indicates “follow up: None.” [385]
  • An October 2010 case in which the victim was found in a wooded area “bleeding from the nose and mouth” with her pants and underwear off. The victim “admitted to having smoked PCP.” Though the victim had a SANE exam, the case was closed before the results were returned from the lab. The case was categorized as office information “injured person to hospital.” The “complainant was advised … that she did not report that she was sexually assaulted.” [386] The complainant said she wanted to leave the matter alone, but added that “the SANE Nurse told her she was the victim of a sexual assault because of injuries to her face/mouth and that there were tears to her vaginal area.” However, the detective notes that the nurse noted no “acute” findings (emphasis added) during the genital examination and therefore the detective “finds that no crime was reported or alleged to have been committed.” [387]
  • A January 2010 case in which a complainant reported waking up after a night of partying with no pants and underwear, on a floor in an apartment. She had no recollection of what happened but had a SANE exam. The case was designated “office information.” The file does not indicate whether police picked up the forensic exam kit. [388]

Naked, Bloody, and Unconscious

Two hospital staff members reported that in October 2010, a victim was brought to the hospital after a passerby spotted a trail of blood leading to a hotel room and called the police. When police arrived at the scene, they found a woman naked, bloody, and unconscious in a tub filled with ice in a hotel room bathroom. Five men were passed out in the room. The victim had lost significant amounts of blood, had a tear from her vagina to her rectum, and required emergency surgery and a blood transfusion. According to the staff members, an SAU detective told someone who works with sexual assault survivors, “Well, she could have fallen on rocks and may not have had panties on. Also what kind of girl is in a room with five guys?” [389]

Sex Workers

Sex workers face an increased risk of sexual assault. Many predators rightly believe that sex workers may be reluctant to report to the police. However, according to the Manhattan District Attorney’s Office, prosecuting people who prey on sex workers is especially important because sex workers are often targets for serial offenders or killers because of their vulnerability and unwillingness to go to police.[390]

The Standard Operating Procedures for the MPD’s Sexual Assault Unit state that, “One of the myths surrounding sexual assault is that prostitutes cannot be victims of sexual assault. Whether or not someone is involved with prostitution does not affect the fact that forcing sex on someone is sexual assault and illegal.” [391] Human Rights Watch research also indicates that a number of detectives in the SAU aggressively investigate cases in which the victims are sex workers. According to the assistant US attorney responsible for prosecuting sexual assaults in D.C., since 2008 at least 14 cases, involving 24 victims who were sex workers, have been prosecuted or are now under investigation. Many of these cases involved the same detectives, whom she praised for their positive interaction with victims. [392] Chief Cathy Lanier also told Human Rights Watch that detectives are actively investigating a case involving a paid escort that was reported in late May 2012, even though the victim was not able to participate in the investigation. Lanier acknowledged that failing to investigate crimes against sex workers (or others), even if the victim is unable to engage in the investigation, leaves violent predators on the street and is a serious threat to public safety. [393]

Nevertheless individuals who have witnessed MPD officers interact with sex workers who reported sexual assault shared concerns that, in practice, officers may make a quick decision that a sexual assault case involving a sex worker victim is not winnable and therefore not pursue it. For example, one transgender victim of a violent sexual assault was told by her lawyer that police did not pursue her case because the suspect said she was a sex worker.[394] Problematic behavior observed by advocates and/or medical staff in sex worker victim cases includes:

  • A focus on whether money was exchanged, and if so, a decision not to pursue the case. [395]
  • Police repeatedly giving feedback such as, “I’ll take the report but they’re not going to do anything about it because the person was high,” or “the victim’s background is going to come out so it is not worth following up.” [396]
  • Police not treating an assault against a sex worker as a sexual assault, but rather as a case where the victim was not paid. [397] For example, one exam exemption report prepared by a nurse in 2011, quoted an officer as saying the patient “frequently prostitutes herself and then comes to report if she has not been paid enough money.” [398]

Human Rights Watch also noted that in one investigative file for a case in which the complainant reported being assaulted in April 2009, the detective seemed to question the victim’s credibility, noting that “the complainant … admitted to being a prostitute in the past.”[399] This indicates that despite current efforts on the part of some detectives in the SAU, the experience and perception of the sex worker community is that crimes against them are not treated appropriately.

Sex worker lack of faith in police handling of assault cases against them is a long standing problem that can be traced back to before 2008, as two surveys from that period indicate.[400] One D.C. survey, for 2007 and 2008, indicated that 75 percent of sex workers who had sought help from the police were dissatisfied with the response.[401]

To protect sex workers, an advocacy group has created a “DC Bad Date Sheet” that describes people who have victimized sex workers, their vehicle, if relevant, and the assault. The sheet is updated every few weeks and usually then includes up to five new incidents of assaults, which are often violent. Crimes on the sheet dated March 17, 2011, for example, include robberies and physical and sexual assaults on sex workers by perpetrators wielding guns, knives, a stun gun, and an ice pick.[402]

Advocates for sex workers said the victims had not reported these violent assaults because police had in the past not believed victims who reported their assaults or blamed them for engaging in risky behavior.[403] Advocates estimate that of 60 to 70 annual assaults on sex workers, only 5 percent report to the police.[404] In some cases, sex workers accuse police officers of being the perpetrators of assault and one sex worker, in January 2012, told Human Rights Watch that some officers are known for demanding sex in exchange for not arresting them.[405]

[348] Division of Violence Prevention, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, “The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report,” November 2011, www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf (accessed November 19, 2012), pp. 22; Dean G. Kilpatrick, et al, National Crime Victims Research & Treatment Center, Medical University of South Carolina, “Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study,” Document No. 219181, US Department of Justice Award No. 2005-WG-BX-0006, February 1, 2007, https://www.ncjrs.gov/pdffiles1/nij/grants/219181.pdf (accessed November 19, 2012).

[349] D.C. Official Code § 22-3002.

[350] D.C. Official Code § 22-3003.

[351] World Health Organization, “Guidelines for medico-legal care for victims of sexual violence,” 2003, p. 8, http://www.who.int/violence_injury_prevention/publications/violence/med_leg_guidelines/en/index.html (accessed November 20, 2012).

[352] Human Rights Watch telephone interview with Kristen A. (pseudonym), California, May 17, 2011.

[353] International Association of Chiefs of Police (IACP) National Law Enforcement Policy Center, “Investigating Sexual Assaults,” initially published November 1999, revised July 2005, pp. 10-11.

[354] Amanda Hess, “Test Case: You’re Not a Rape Victim Unless Police Say So. This is the story of the night Hannah was not officially raped,” Washington City Paper, April 9, 2010, http://www.washingtoncitypaper.com/articles/38671/test-case-youre-not-a-rape-victim-unless-police-say/full (accessed January 9, 2012).

[355] Human Rights Watch telephone interview with medical staff B.C., March 8, 2011; Human Rights Watch interview with university staff L.O., March 28, 2011; Human Rights Watch interview with K.V., March 28, 2011.

[356] Human Rights Watch telephone interview with medical staff P.R., February 18, 2011.

[357] Human Rights Watch telephone interview with P.S., March 15, 2011.

[358] Human Rights Watch interviews with medical staff M.H., March 2, 2011; and with Cindy Teller, D.C. SANE director from July 2008 through December 2009, Newport Beach, Virginia, June 24, 2011.

[359] Human Rights Watch interview with Shelly G., Washington, D.C., October 12, 2012.

[360] Human Rights Watch telephone interview with medical staff M.H., April 8, 2011; IACP, “Investigating Sexual Assault,” p. 10; Womenshealth.gov, “Violence Against Women, Dating Violence,” last updated May 18, 2011, http://www.womenshealth.gov/violence-against-women/types-of-violence/dating-violence.cfm (accessed May 25, 2012).

[361] Human Rights Watch interview with Cindy Teller, June 24, 2011.

[362] See Deposition testimony of Detective Sergeant Kevin Steven Rice, October 14, 2008, pp. 66-67, 71-72; deposition testimony of Detective Elgin Wheeler, October 3, 2008, p. 109-110, 210-203; deposition testimony of Officer Ginette Leveque, April 14, 2008, pp. 206-210, 256, 269-70; and deposition testimony of Officer Tandreia Green, May 8, 2008, pp. 70-73, for evidence of practices described in 2008.

[363] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 21, 2012.

[364] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 21, 2012.

[365] Human Rights Watch telephone interview with former advocate R.L., March 9, 2011; Human Rights Watch group interview with advocates, Washington D.C., March 28, 2011.

[366] Human Rights Watch telephone interview with medical staff G.M., March 11, 2011.

[367] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 23, 2012.

[368] Human Rights Watch telephone interviews with medical staff D.S., March 29, 2011; and with medical staff I.L., December 7, 2011.

[369] Human Rights Watch interview with medical staff M.H., Washington, D.C., March 2, 2011.

[370] Human Rights Watch telephone interview with medical staff D.S., March 29, 2011.

[371] Human Rights Watch telephone interview with medical staff T.N., March 29, 2011.

[372] Letter from Chief Cathy Lanier to Human Rights Watch, June 8, 2012, on file at Human Rights Watch.

[373] Letter from the Sharlene E. Williams, general counsel, Office of the Chief Medical Examiner, May 25, 2011, in response to Human Rights Watch’s Freedom of Information Act Request dated April 20, 2011.

[374] Letter from Chief Cathy Lanier to Human Rights Watch, June 8, 2012, on file at Human Rights Watch.

[375] D.C. SART Meeting minutes, September 16, 2010.

[376] Human Rights Watch telephone interview with R.S., December 21, 2012.

[377] Human Rights Watch telephone interview with Washington, D.C. city government official, May 16, 2011; Human Rights Watch interview with medical staff M.H., Washington, D.C., March 2, 2011.

[378] Human Rights Watch joint interview with Cyndee Clay and colleague, Washington, D.C., March 28, 2011.

[379] Human Rights Watch telephone interview with medical staff L.L., March 23, 2011.

[380] Human Rights Watch telephone interview with medical staff B.C., March 8, 2011.

[381] Human Rights Watch notes from review of MPD investigative files, SA09-XXX, August 21, 2012.

[382] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 23, 2012.

[383] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 23, 2012.

[384]Human Rights Watch notes from review of MPD investigative files, SA10-XXX, August 21, 2012.

[385] Human Rights Watch notes from review of MPD investigative files, SA09-XXX, August 23, 2012.

[386]Human Rights Watch notes from review of MPD investigative files, SA10-XXX, August 21, 2012.

[387] Ibid.                                                             

[388] Human Rights Watch notes from review of MPD investigative files, SA11-XXX, August 21, 2012.

[389] Human Rights Watch telephone interviews with medical staff M.H., April 8, 2011; and with medical staff I.L., December 7, 2011.

[390] Human Rights Watch interview with Melissa Mourges, chief of Cold Cases Unit, and Martha Bashford, chief of Sex Crimes Unit, Manhattan District Attorney’s Office, New York City, January 31, 2012.

[391] Metropolitan Police Department, Sexual Assault Unit SOP, January 14, 2003, p. 10.

[392] Human Rights Watch telephone interview and email exchange with Kelly Higashi, assistant US attorney, Washington, D.C., June 4, 2012. In addition, a number of cases are investigated by MPD’s Human Trafficking Unit, which is not a part of the Sexual Assault Unit.

[393] Human Rights Watch telephone interview with Chief Cathy Lanier, June 1, 2012.

[394] Human Rights Watch telephone interview with Ruby C. (pseudonym), February 2, 2012.

[395] Human Rights Watch telephone interview with medical staff P.R., February 18, 2011.

[396] Human Rights Watch joint interview with Cyndee Clay and colleague, Washington, D.C., March 28, 2011.

[397] Human Rights Watch group interview with advocates, Washington D.C., March 28, 2011; Human Rights Watch telephone interview with medical staff C.J., May 10, 2011; Human Rights Watch interview with Cindy Teller, June 24, 2011; Human Rights Watch telephone interview with N.Z., May 17, 2011.

[398] District of Columbia Sexual Assault Nurse Examiner Exam Exemption Report, January 24, 2011, on file at Human Rights Watch.

[399] Human Rights Watch notes from review of MPD investigative files, SA09-XXX, August 23, 2012.

[400] A 2006 survey by an organization that works primarily with street sex workers in Washington, D.C., found that 90 percent of 149 respondents had experienced violence, but only one of those women said she would go to the police if she were hurt. See Alliance for a Safe & Diverse D.C., “Move Along: Policing Sex Work in Washington, D.C.,” 2008, p. 17 (citing Helping Individual Prostitutes Survive (HIPS), Survey on Violence, Washington D.C., 2006). The Move Along report also notes police indifference and poor response to violence against sex workers and transgender women and instances when the police themselves commit violence against sex workers.

[401] Survey respondents indicated that police had sometimes made the situation worse—insulting or abusing people who had turned to them for help, arresting them, or asking respondents for sex—rather than investigating the crimes committed against them. See Alliance for a Safe & Diverse D.C., “Move Along: Policing Sex Work in Washington, D.C.,” p. 56. An SAU detective was arrested for solicitation of a prostitute on July 11, 2008. Deposition testimony of Detective Elgin Wheeler, October 3, 2008, pp. 25-26.

[402] “DC Bad Date Sheet,” March 17, 2011, on file at Human Rights Watch.

[403] Human Rights Watch joint interview with Cyndee Clay and colleague, March 28, 2011.

[404] Ibid.

[405] See Alliance for a Safe and Diverse D.C., “Move Along: Policing Sex Work in Washington, D.C.,” p.56; Human Rights Watch interview with Monica B. (pseudonym), Washington, D.C., January 26, 2012.