Seeking Conviction: Justice elusive for NC sexual assault survivors - North Carolina Health News
By the Seeking Conviction Investigative Collaboration
Fewer than one in four defendants charged with sexual assault in North Carolina can expect to be convicted of that charge or a related reduced charge, and some parts of the state generate few if any sexual assault convictions, according to Carolina Public Press’ analysis of state court data.
The picture is not universal. A few counties have conviction levels well above the state average.
But in 38 counties, there were no recorded convictions at all during the 4½ years included in the analysis, not even on plea deals reducing original sexual assault charges to lesser offenses. The analysis specifically examined rape charges involving threats, force, intimidation or an incapacitated person. (To read more about the analysis method, see the column below.)
In some additional instances, defendants and their attorneys look for ways to plead down the charges, and often that includes dropping the sexual assault charges altogether.
How Carolina Public Press analyzed statewide court data on sexual assaults
By Kate Martin and Frank Taylor, Carolina Public Press
Our series Seeking Conviction relies partly on an analysis of North Carolina criminal court records produced by the Administrative Office of the Courts. Court clerks in each of the state’s 100 counties enter criminal and infraction data into a central system, which is basically a large filing cabinet for cases.
People can look up basic information about cases at terminals in courthouses around the state.
Carolina Public Press analyzed data contained in more than 3 gigabytes of zipped text files from the court’s Automated Criminal/Infractions System. Once parsed, the data included hundreds of thousands of lines across several tables, some dozens of columns wide.
These records are public under North Carolina public records law. Anyone can buy the data from the agency for $7 after filing a records request, but it requires knowledge of a scripting language to parse it (see below).
First, Carolina Public Press looked in the data for defendants who were charged starting on Jan. 1, 2014, and whose cases were resolved by June 30, 2018. Cases that remain open are counted separately.
The analysis sought to examine defendants charged with the following six felony crimes to represent rapes that had an element of threats, force, intimidation or involved an incapacitated person:
- First-degree rape (recodified to first-degree forcible rape Dec. 1, 2015).
- First-degree forcible rape.
- Second-degree rape (recodified to second-degree forcible rape Dec. 1, 2015).
- Second-degree forcible rape.
- First-degree forcible sex offense.
- Second-degree forcible sex offense.
In addition, if a separate freeform text description of the crime entered by court clerks met any of the above conditions, those cases were also included.
In a handful of cases, defendants were charged with a different crime — such as the rape of a child or teenager. Despite the use of the word “rape” in the statute, these crimes are based on age and the existence of force. CPP’s analysis focused on forcible rapes and excluded these age-based charges, not because they are unimportant but because they are fundamentally different in the way the statutes work, the way cases are built and the way in which they are prosecuted.
However, if a defendant was charged with one of these crimes that do not include the element of force, then ultimately convicted of one of the six sexual assault crimes that do involve force, the defendant was included in the analysis.
In the articles of this series, the crimes included in the analysis are generally described as “sexual assault,” a term that is in common usage but does not describe the title of any specific statutory charge in North Carolina. Where the word “rape” is used instead, it either appears in quoted comments or in reference to cases that specifically involved rapes, as defined in the statutes.
Child or statutory rape charges were not included in this analysis. A child can never consent to sex acts under North Carolina law, and sex with a child is a crime. But a forcible rape or sex offense charge can be applied in a case involving a child, so child victims were not excluded if these charges were involved.
Defendants are often charged with multiple crimes in connection with the same event. Consider the following example: A defendant is charged with burglary, assault and first-degree rape. In situations where the rape charge was dropped (either by the district attorney or the judge), but the defendant was prosecuted for one of the other two crimes, Carolina Public Press did not count that as a conviction because there was no conviction for sexual assault. If the defendant pleaded guilty to any of the six rape crimes, it was counted as a conviction, including if the defendant pleaded to a lesser sexual assault charge, as an example, second-degree rape from a first-degree rape charge.
If the rape charge was not dropped, but the defendant pleaded guilty to a lesser crime — misdemeanor sexual battery or assault on a female, for instance — it counted as a conviction but not for rape.
Once CPP obtained the number of sexual assault defendants and the number of convictions statewide and in each jurisdiction, it was possible to calculate a conviction rate for this group of defendants.
CPP found that 24.2 percent was the statewide conviction rate for both sexual assaults and reduced pleas. This figure is the basis of the “about 1 in 4” description provided in these articles.
Based on this calculation, CPP evaluated counties with conviction rates 8 percentage points below 24.2 percent as “Low” counties. Those below the state average by a lesser amount were simply “below average.” Counties with conviction rates that were 8 percentage points or more above the state average were evaluated as “High” counties. Those that were above the state average by a lesser amount were “above average.”
A few, mostly smaller, counties had very low numbers of defendants who matched the criteria for this analysis. If a county had fewer than four defendants, it was not given an evaluation based on its conviction rate, but instead categorized as having insufficient data.
This also helped avoid the problem of division by zero for counties that had no defendants.
CPP also evaluated prosecutorial districts based on the same calculations. No prosecutorial districts had too few defendants to be evaluated. Even the counties that had too few defendants to be evaluated on their own were included in the analysis and evaluation of their prosecutorial districts and the statewide totals.
Kate Martin of Carolina Public Press performed the bulk of the analysis for this project. Frank Taylor of Carolina Public Press worked with her on geographical analysis and spot checking. Data experts from several collaborative partners made significant contributions in checking and critiquing this analysis at various stages, including David Raynor of The (Raleigh) News & Observer, Tyler Dukes of WRAL-TV and Jason deBruyn of WUNC North Carolina Public Radio.
Because this information is entered into databases by people, and people make mistakes, it is reasonable to expect the data provided by the state will contain some errors. Whenever and wherever possible, those identified errors were corrected.
For example, each North Carolina county is represented in the data by a three-digit code in the Administrative Office of the Courts’ data. In a few instances, district attorneys alerted Carolina Public Press to cases that were coded incorrectly, which caused the data to be attributed to the wrong county.
Similarly, there is a possibility that a crime code may be entered incorrectly by deputy clerks in each of the state’s 100 counties. Crimes are represented by a four-digit code in the database. Crime codes beginning with 11 are typically sex crimes. First-degree rape is coded as 1103, for instance. Depending on how a clerk keys in a crime code, whether it is on a 10-key or a normal keyboard, a traffic infraction, which typically begins with 44, may be coded instead as a sex crime.
We modified the analysis to account for three such instances where entries were incorrectly entered as rape crimes instead of traffic infractions, though there may be more.
In any and/or all instances where we have been made aware of or discovered coding errors, we corrected the information in the final analysis. We do not know if a rape crime was similarly misclassified by the state as a traffic infraction, though it’s possible.
In addition to correcting a small number of errors that we identified, we conducted numerous spot checks, especially when something raised a red flag. These spot checks found no additional errors beyond those already corrected.
Defendants at times pleaded guilty to some separate charge, such as possession of a firearm by a felon or sexual battery, a misdemeanor. Those results mean the suspect never became a convicted rapist, possibly not a convicted felon, and in many cases did not have to register for the state’s sex offender list.
For rape survivors, “they don’t feel like it’s justice” when their attacker is convicted of something else, said Monika Johnson Hostler, executive director with N.C. Coalition Against Sexual Assault.
Karen Baucom, director of the Anson County Domestic Violence Center in Wadesboro, pointed to the entire judicial system as failing sexual assault survivors. “Our legal system is set up for defendants, not for victims,” she said.
Many additional defendants faced charges during the time window, but their cases remained open. Several jurisdictions face a substantial backlog of dozens of cases — some of which may never go to trial.
As days, weeks and months pass after they report their rapes, repeated continuances or setbacks in their cases can at times be tough for survivors.
“For them to go through the criminal legal process,” Johnson Hostler said. “It can be a year or two before their case makes it to court.”
Though she believes prosecutors are doing their best, Hostler said she has long suspected that few people who are charged are actually convicted of rape. Prior to Carolina Public Press’ analysis, the analysis on state court records had not been done to confirm it.
“Everybody thinks when I say it, I have to be exaggerating,” she said.
But the analysis suggests she’s right. However, it also points to many complexities that could provide important clues to policy changes that might promote a different outcome.
This is the first in an investigative series, Seeking Conviction, examining the issue of sexual assault prosecution and convictions in North Carolina, from a team of 11 media partners across the state including Carolina Public Press, The Fayetteville Observer; The (Durham) Herald-Sun, the Hickory Daily Record, The (Raleigh) News & Observer, the (Greensboro) News & Record, North Carolina Health News, the Winston-Salem Journal, WLOS News 13, WRAL-TV and WUNC North Carolina Public Radio.
Putting suspected rapists on trial
In the 4 ½ years included in the study ending on June 30, 2018, there were 247 convictions for sexual assault in North Carolina, Carolina Public Press’ analysis of data from the Administrative Office of the Courts found. Court data also showed:
Almost 60 percent of the nearly 250 convictions statewide came from pleas to a sexual assault charge.
Nearly one-third of convictions, roughly 75 statewide, came from people facing sexual assault charges who agreed to plead to a reduced charge that did not constitute sexual assault.
Convictions from jury trials, 23, represented less than 10 percent of total convictions.
The data show that 1,019 people were charged with sexual assault and had completed the legal process within the 4 ½-year analysis. Of those charged, juries convicted defendants about 2 percent of the time.
With nearly 50 trials in cases that began and ended during the study time window, from Jan. 1, 2014, to June 30, 2018, juries in North Carolina convicted sexual assault defendants 23 times in 4 1/2 years, analysis shows.
District Attorney Ashley Welch oversees prosecutors in North Carolina’s seven westernmost counties, which prior to this year was known as the 30th District. In 2017, she personally prosecuted a serial rape perpetrator in Haywood County, which she describes as a “tragic, horrible case.”
Luis Antonio Gomez was a certified nursing assistant who worked at an assisted living facility. He came to the attention of law enforcement after women in the Alzheimer’s wing started reporting sexual abuse, Welch said.
“Of course, Mr. Gomez would always deny it,” both to police and his employer, Welch said. “Because these women had dementia, (the women) would say, ‘Oh no, never mind, this didn’t happen.’ Or they would die.”
“He got braver and braver. What I told the jury when we were in closing arguments, he finally picked the wrong people. We had two ladies that were so incredibly strong,” Welch said. “He probably thought that nobody would believe them.”
She said her office refused to make a plea deal with Gomez that he would accept. “He was always adamant that he didn’t do this.
“He was a real predator. He knew who to pick on and he had gotten away with it for so many years,” Welch said.
After a weeklong trial, the jury convicted Gomez of two counts of second-degree rape, one count of second-degree forcible sex offense and three counts of sexual activity by a custodian.
He received a sentence of 23 to nearly 43 years in prison.
In many cases, going to trial can be extremely difficult for the survivor.
Samantha White, now 25, initially did not want to go to trial and testify against the man who raped her.
Now she is glad she did, even though it was difficult to go to court, stomach-turning to be in the same room with the rapist and angering to take questions from the lawyer who was trying to keep him out of prison, she said.
“I cried a lot,” she said.
White was 16 in April 2009 when her church pastor forced himself on her three times.
The case against Joseph K. Ragland didn’t come to trial until September 2011. By then, White wanted to leave the incident behind her and move on with her life.
The prosecutor in Johnston County, where the assault took place, persuaded her to testify.
“He was really understanding,” White said. “He was just telling me that you want to get him so he doesn’t keep doing this.”
Up until DNA evidence was presented at the trial, many members of the church refused to believe her, she said.
A jury found Ragland guilty, and the judge sentenced him to 18-24 years.
There was no proverbial sense of closure, White said.
“I really thought I was going to like — get something from that? Like — I don’t know — I felt like I would get relief, or …,” she said, trailing off as she reached for the memory. “I didn’t get that at all.”
After it was over, White still had nightmares, she said.
“For me, I think it was just — like knowing that he wouldn’t hurt anyone else for at least 18 years,” White said. “But I didn’t — it didn’t help my mental healing at all.”
Looking back, White is grateful that her parents and the police believed her, and that the Johnston County prosecutors avidly supported her and pursued the case.
Her only complaints about how law enforcement handled her case at the time of the incident: The police officer who took her report seemed nervous, and she felt that he and the hospital staff, who did her rape kit examination, could have been more compassionate.
At the trial, White was distressed to learn that a letter she wrote about the incident as part of therapy had been shared with the defense lawyer. It had become a piece of evidence that the prosecutors were required to turn over. The defense lawyer tried to use the letter during cross-examination of White to undermine her testimony.
Nearly 10 years after the assault, White lives in Fayetteville and strives to make some good come from the experience, she said.
She operates a Christian life-coaching business for women, called Consult Positivity. Some of White’s clients are sexual assault survivors.
“I came from that horrible experience to being here every day, just trying to help other women find a little bit of peace,” she said.
The reality about forensic evidence
One challenge for sexual assault prosecutions is that many jurors want to see the same conclusive forensic evidence they see in popular TV shows. It’s a reality both police and prosecutors agonize over.
“They want to see all of this spectacular scientific evidence that doesn’t really exist in the real world — that’s TV,” said Ted Bell, the district attorney in McDowell and Rutherford counties. “So, if you don’t have all of this basic nonexistent scientific evidence, juries don’t want to convict.”
“Without physical evidence, it’s really hard to move forward with an arrest, much less a prosecution,” said Raleigh police Capt. Andy Murr, who leads the Aggravated Assault/Special Victims Unit and Juvenile Crimes Unit and Family Violence Intervention Unit.
Even so, forensic evidence is typically at stake only in cases where the key question is not one of consent.
Most of the rapes involve people who know each other, and prosecutors are put in a position to prove that the sex act wasn’t consensual, Wake County District Attorney Lorrin Freeman said.
Due to the concealed nature of these cases, other witnesses are rare, she said. Social media and other interactions could be key to finding evidence that could persuade a jury or sometimes to casting doubt about the survivors’ account.
“What you are looking for is: Are there things that can corroborate someone’s statements?” Freeman said. “And, more importantly, are there things that undermine what the victim has told you.”
Don Harrop, an assistant district attorney in Harnett County, also pointed to the importance for juries of forensic evidence of injuries even in these cases that do hinge on questions of consent.
In dealing with jurors over the last seven years, Harrop said they want to see bruising and medical records.
Even when a forensic exam after a sexual assault can make or break the case, the lack of qualified nurses to work with survivors and gather evidence after an attack poses a challenge in many parts of the state.
A significant backlog of untested rape kits means that suspects who are potentially serial rapists haven’t been identified as such because their damning DNA is still sitting in a kit on a shelf somewhere.
North Carolina’s consent laws also pose another problem for successful prosecution before a jury. Based on judicial precedents from the 1970s, North Carolina remains the only state in which sexual partners can continue with a sex act after the other person tells them to stop – and it’s not a crime.
Changing understanding of rape
In recent years, police have changed how they interview rape survivors. There is a scientific reason for the statements rape victims make in the aftermath of a rape, said Lt. John Somerindyke, head of the Fayetteville Police Department’s special victims unit.
“In the past, we thought they were lying,” he said of rape victims. “We thought we were these great detectives. ‘Her story doesn’t make sense. She must be lying,’”
But now Somerindyke is an advocate for the training he feels every law enforcement officer in the state should take. A concept called the neurobiology of trauma explains why victims of violent crimes, including rape, can at times seem inconsistent when they talk to police in the hours and days after the crime.
“I can’t say enough how important it is for law enforcement to have an understanding of the neurobiology of trauma,” Somerindyke said. “They might remember more over time. There’s a biological concept that explains that.”
In Stanly County, Oakboro Police Chief T.J. Smith similarly called for more universal training and other changes in police mindset in dealing with sexual assault survivors.
“There needs to be a change in the way we sit people down and talk to them,” Smith said. “There needs to be a change in how we do reports and how we collect data and how we collect evidence. Because sometimes it’s not necessarily physical evidence or latent evidence, it’s more of something she had said at that given time that could be credible in the future with everything collected.
“There’s stuff that people missed because they haven’t necessarily been trained to pick up on it. … That will make a better case. And I think the DA’s people need to be trained on the exact same thing.”
Police and prosecutors are not the only parts of the criminal justice system that may need to update their thinking about sexual assault. Jury members, made up of the general public, can also have the wrong ideas about rape and rape survivors.
“They want to see tears, they want to see this person being distraught and crying and just breaking down on the stand,” said DA Bell of McDowell and Rutherford counties. “But what the research shows and what psychologists who study this, and experience shows, when witnesses of a traumatic event like this have to retell the story, they’re very nonemotional, and when they have to testify about it, they’re very nonemotional.”
However, the prevalence of sexual assault also affects jurors.
“Every time I pick a jury in a case involving a sexual assault … I ask potential jurors if they have been, or if they know someone who has been, the victim of a sexual assault,” said Assistant District Attorney Crystal Beale of Iredell County.
“Nearly every time there is at least one juror who has been or has a close family member who has been the victim of unreported sexual abuse.”
Wake County District Attorney Freeman said she thinks the public in general — the people who make up juries — have also moved away from misguided ideas about sexual assaults.
“We are living in a time in which the public’s mindset about victim-blaming among juries is evolving,” she said. “Has it gone far enough? No.”
Contributors to this article were: Kate Martin, Frank Taylor and Imari Scarbrough of Carolina Public Press; Paul Woolverton of The Fayetteville Observer; Virginia Bridges of The (Durham) Herald-Sun; and Jennifer Emert of WLOS News 13. Illustration by Mauriano Santillan of Carolina Public Press. Graphics by Cassandra Sherrill of the Winston-Salem Journal and Jason deBruyn of WUNC North Carolina Public Radio.