Date rapes are hard to investigate and prosecute. A new Illinois bill would more clearly define consent in these cases

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CHICAGO — It was a normal night, or it was supposed to be. Live music in an Uptown bar, listening to a friend play in a band. But it ended in a way Laurie Empen is still struggling to comprehend.

A man’s jacket at the foot of her bed was the first clue to a night she cannot remember past her second drink. She woke up the morning after in a pool of urine, wearing only earrings and socks.

And nearly two years later, despite doing everything that advocates, detectives and prosecutors encourage — getting a rape exam, filing a police report, giving a urine sample — she is left in the same place as many others in similar situations: without answers, or anything that feels like justice.

Empen’s situation is one experts say is all too common — a person wakes up feeling strange, suspects a drugging and sexual assault, seeks care at a hospital. But at nearly every step they are met with challenges: nurses not trained to administer rape kits or who may not know to immediately get a urine sample (to screen for date rape drugs), and a state backlog in processing evidence that stalls cases even as a potential offender remains free to use the same tactics on another victim.

This type of crime returned to the spotlight when Bill Cosby was released from prison after the Pennsylvania Supreme Court overturned his conviction. He had served nearly three years of a three- to 10-year sentence for sexual assault. The court said a district attorney was obligated by a promise made by his predecessor not to charge Cosby. The actor admitted under oath he offered Quaaludes to women he wanted to have sex with; more than 60 women came forward with accusations against Cosby.

Sometimes referred to as date rapes or drug-facilitated sexual assaults, crimes that involve drugs, alcohol or both are some of the most challenging to investigate and prosecute. Even detectives and prosecutors are frustrated in a system that can leave survivors feeling stranded.

“One of the big challenges, as with all sexual assaults but especially with these cases, there’s a lot of underreporting,” said Annette Milleville, deputy supervisor of the Sexual Assault and Domestic Violence Division at the Cook County state’s attorney’s office. Unlike the rarer grab-off-the-street stranger scenario, she said, these cases are “even more underreported because of all the dynamics that are involved.”

Some of the challenges in these cases include questions of consent as well as memory loss that can be a result of drugs or alcohol, ingested voluntarily or involuntarily.

A bill passed by both houses in the Illinois legislature will more clearly define consent within these cases. A victim would be considered “unable to give knowing consent” when someone administers any intoxicating or controlled substance, causing them to become unconscious of the nature of the act, and when this condition was known, or reasonably should have been known. The bill passed both state houses May 27 and awaits the governor’s signature.

The question remains: Why is investigating and prosecuting these cases so difficult?

According to a 2020 report from the Chicago Alliance Against Sexual Exploitation, between 80% and 90% of reports made to the Chicago Police Department in the last decade did not result in an arrest. There are no numbers on how many of those cases involved drugs, because neither the Chicago Police Department nor the state’s attorney’s office keeps statistics specific to drug-facilitated sexual assaults.

So far this year 1,024 criminal sexual assaults have been reported to Chicago police, according to department statistics. According to the state’s attorney’s office, just 49 people were convicted of aggravated criminal sexual assault, the crime drug-facilitated crimes typically fall under, in 2020, a COVID-affected year that delayed trials. In 2019, 107 people were convicted.

A Chicago Police Department statement said it “deeply recognizes the lifelong impact sex crimes have on survivors.” Efforts to improve outcomes include building trauma-focused interview rooms and giving extra training to detectives who handle these cases. The most recent training was in 2018; all promoted detectives also receive it.

In Empen’s case, the moment that changed her life is hard to identify. Was something slipped in her old fashioned? Was it when she was sitting at a table, or using the restroom? That night Empen had two drinks, she said. After the second drink, things felt different.

“I’ve never lost memory,” she said.

Advocates and investigators say Empen’s situation is similar to many others. Strange feelings and confusion can lead to a delay in reporting an incident to police or going to a hospital. Empen’s exam, for example, was two days later.

“People might feel strange or confused waking up, with periods of time they don’t remember,” said Sarah Layden, director of programs and public policy at advocacy group Resilience. “Many survivors feel doubt or self-blame from their assault, but for those that have been drugged, these feelings can be exacerbated by the memory lapses in addition to the events that led up to being drugged and harmed.”

Some might recognize or know the offender; others might have a hazy memory of a face or a first name. The Department of Justice notes victims are hesitant to report these crimes, feeling they might be judged or challenged.

Many assume they can go to the hospital and find out if they have been drugged, but hospitals are not equipped to test for all drugs used in crimes. And because drugs stay in a body for a limited time, ranging from a few hours to several days, by the time a survivor walks into an emergency room it may be too late.

Ultimately, Empen’s toxicology results did come back positive for gamma-hydroxybutyric acid, also known as GHB, but it was an amount low enough that it could be naturally present in the body, where it is produced in small amounts.

This is something that Mariá Balata, director of advocacy services at Resilience, said they have seen multiple times recently. It’s frustrating for survivors, who may assume they will get concrete results from lab tests.

“The survivors are so furious,” she said, “because they’re not getting a full explanation.”

Marc LeBeau is an FBI senior forensic scientist who studies these cases. He cited multiple issues: the list of possible drugs continues to grow and change; delays in reporting decrease chances of finding the drugs; improper evidence collection, such as a blood sample instead of urine, affects cases; and labs are not mandated by any governing body to follow specific testing requirements.

Sometimes, he said, focusing on drugs or alcohol can overshadow or postpone investigations. “Some investigators would kind of sit back and wait on the toxicology results to come in.” Other times, investigators assume a negative result means no drugs were present, when it may mean a sample was collected too late.

Even without toxicology reports, Sgt. Alegra Koser, who investigates sex crimes for the Stephenson County, Illinois, sheriff’s office, said officers should move quickly to get evidence like surveillance video or interviews. She goes to the scene, she talks to witnesses, she checks hospital reports for bruising or scratches.

Because these cases are complicated, she said, officers want to prepare victims for potential challenges. She said some detectives might be hesitant to take on these cases, which are more complex than robberies, for example.

“These cases, I find, are some of the most difficult cases to work,” Koser said. “They’re very involved, and they take a long time to investigate. A lot of people think that these things are solved fast or very quickly, and that’s not always the case. They take time, and that’s one of the things that I tell people, be patient while we go through this process.”

Koser works hard to build complete cases and arrest offenders. Still, many of the cases she presents to prosecutors never move forward. To victims, she promises, “I will work very hard for you.” Even if the case does not move forward, she tells them, “At least you’re able to tell your story.”

“Because a lot of times, nothing does end up happening, and it’s horrible, because it’s just a disappointment,” she said.

Prosecutors must show not only that the victim was too incapacitated to consent, but also that the offender knew this.

“How you prove what happened in that room when there was only two people there is a very difficult thing,” Milleville said.

But it’s not impossible. Prosecutors build cases with evidence like surveillance video, witness statements and detailing the scene before and after the alleged assault. Video showing a person clearly unable to walk can help prove incapacitation; garbled text messages can show a lack of ability to communicate. Experts testify to how a victim’s behaviors correlate with symptoms from a drugging.

It’s vital to immediately investigate, said Elizabeth Payne, a former sex crimes prosecutor who is now managing attorney of the victims rights representation division at the Chicago Alliance Against Sexual Exploitation. If an offender argues the sex was consensual, she said, it is important to have evidence the victim was incapacitated.

“If you can show somebody leaving with somebody and they’re stumbling and clearly intoxicated,” she said, “that’s very, very powerful.”

Signs someone has been drugged also include nausea, loss of bowel or bladder control, difficulty breathing or sudden dizziness or disorientation. If people suspect they have been drugged and cannot get to a hospital immediately, the Department of Justice suggests saving urine in a clean, sealable container and placing it in a refrigerator or freezer.

Survivors who seek help should know that in Chicago, officers will not use evidence collected in a rape exam to prosecute a victim for any offense related to alcohol, cannabis or a controlled substance. It is also possible to undergo evidence collection and decide later whether to press charges.

In an effort to better assess these cases and improve collaboration, a multidisciplinary team that includes Chicago advocates, attorneys and law enforcement meets monthly to consider cases like acquaintance rapes.

One thing Milleville wants stressed to victims, no matter who they are interacting with, is “nothing about this is their fault.”

“Just because they went out or they may have had some alcohol or agreed to have somebody to their house because they trusted them, or whatever that might be, it is not their fault,” she said. “If they have fragmented memories or they can’t remember things,” she added, this should not discourage them from reporting or seeking treatment at a hospital.

The lack of resolution in these cases has prompted advocates to seek other ways to help survivors heal. In some cases, for example, Balata has secured civil restraining orders for survivors, which she said has helped them feel their experience was noted by a court and protection granted. She tries to manage expectations around what happens if they cannot get accountability through the court system. She might ask, “Are there other ways in which you would like the harm acknowledged?”

Sometimes, the only solace she can offer a survivor is that their experience is now logged should the offender strike again.

Balata and her colleague have found themselves in court at the same time, supporting survivors all attacked by the same person. “The reporting was not in vain, the reporting was not for nothing,” she said.

Empen has talked to as many people as she can, urging action. She keeps asking why her situation is so familiar to so many, why a normal night turned into a nightmare and she is left reliving it.

“People shouldn’t have to go through this,” she said.

Region: Northern,Region: Kankakee,News

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July 14, 2021 at 04:47AM

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