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By the Seeking Conviction Investigative Collaboration

Sometimes the right evidence can make or break a sexual assault case.

Even when that evidence exists forensically or through witness testimony, the right circumstances make a difference, as do solid work by police, rape crisis advocates, medical professionals and prosecutors.

Statewide court data analyzed by Carolina Public Press shows that 75 percent of defendants arrested for sexual assault in North Carolina are ultimately not convicted of a sexual assault charge.

The evidence doesn’t just have to prove the case, to be strong enough to go to trial or convince a defense lawyer to accept a plea deal. The evidence has to be sufficient to convince North Carolina jurors.

“They want DNA, they want fingerprints, they want things that a lot of times in rape cases don’t exist,” said Ashley Welch, the district attorney in seven southwestern counties. “As prosecutors, we try very hard when we are picking a jury to ask them and weed out the people who want unreasonable proof.”

This is part of an investigative series, Seeking Conviction, examining the issue of sexual assault prosecutions and convictions in North Carolina, from a team of 11 media partners across the state.

If a prosecutor thinks the evidence isn’t that strong, a plea deal may be the next best option. But how easily and frequently prosecutors should make that decision is a matter for debate.

Proceeding with a sexual assault prosecution can be challenging for everyone involved.

Sometimes the process can be unbearably traumatic for survivors.

But for officers like Lt. Eric Montgomery of the Winston-Salem Police Department’s Victim Assistance Unit, closing a case isn’t just about that one case.

“It’s a lot for the victims, psychologically, to have to tell their story again and again, and that can be painful,” Montgomery said. “But we have to catch the person so they don’t do it again.”

When evidence makes the case

Briana Sherrod was a junior in college when a man kidnapped her from the campus of her small liberal arts college and raped her repeatedly.

It could have been a moment that ruined her life. She’s used it instead to make herself stronger, she said.

Sherrod grew up in the Lewisville-Clemmons area and still lives in Forsyth County. In November 2013, she was 20 and attending Barton College in Wilson, about 30 minutes east of Raleigh.

One evening just before Thanksgiving, she went to pick up a friend at her dorm for dinner. As she was parking, Sherrod noticed a man walking nearby but didn’t think anything of it — she was on a campus with lots of students. She parked under a streetlight, got out of the car and began walking toward the building.

“I was about five steps from the dorm when the guy I saw started running toward me,” Sherrod said. “Before this happened, I may have said (in this situation) I would run or scream, but I just froze. He said he had a gun. He grabbed my arm. He told me if I screamed he’d kill me. He forced me back to my car.”

NC working to erase biggest rape kit backlog in nation

By Kate Martin and Imari Scarbrough

kmartin@carolinapublicpress.org and imari.scarbrough@gmail.com

North Carolina is No. 1 in an ignoble measure: As of last year, it had the most untested rape kits in the entire nation.

Hundreds of police departments, hospitals and universities statewide had stockpiled 15,130 kits, according to a tally released last year.

Nationwide, grants have helped pay to test thousands of kits sitting on shelves. The evidence contained within has led to thousands of new DNA matches in the FBI’s nationwide genetic profile database called CODIS, according to The New York Times.

Testing kits in North Carolina has helped secure convictions in old cases.

Statewide, roughly 16 percent of those charged with rape are convicted of rape, according to a Carolina Public Press analysis of state court records.

A bipartisan proposed state law winding its way through the N.C. General Assembly aims to eliminate the backlog. Called the Survivor Act, it seeks to provide $6 million to test older rape kits and create a policy to ensure sexual assault evidence kits never build up again.

The proposed law change was unveiled at a January press conference by state Attorney General Josh Stein. The bill’s main sponsors are Sen. Warren Daniel, R-Burke, and Reps. James Boles Jr., R-Moore, Carson Smith, R-Pender, Mary Belk, D-Mecklenburg, and William Richardson, D-Cumberland.

“We need to improve the criminal justice system so more rapists are arrested and put behind bars,” said state Attorney General Josh Stein late last month. “It’s critically important to the victim to know that there’s justice, and it’s also to the benefit of the community.”

The legislature required the kit count in early 2017. Before the count was completed, Stein said he had figured there might be a few thousand kits in the entire state. When Stein saw the results of the rape kit tally at the end of 2017, he was shocked, he said.

“To realize there were 15,000 untested kits … was like being hit in the face with cold water,” Stein said.

Each kit represents a victim, a violation, and perhaps the key to justice — if only it were tested for DNA evidence. It can take from four to five hours, and sometimes up to eight hours, for a nurse to perform a forensic exam.

It can take an hour or more for rural victims to find a hospital with a Sexual Assault Nurse Examiner, or SANE nurse, who is specially certified to collect the evidence now present on the victim’s body. If the SANE nurse is not on shift yet, the victim may spend many more hours waiting.

Meanwhile, the clock is ticking. Experts say DNA evidence ideally should be collected within 72 hours to be analyzed by a crime lab.

After driving to the right hospital and waiting, the victim must endure the invasive exam, which can take many more hours as a nurse thoroughly examines the body looking for traces of evidence that could be used to put the rapist in jail.

For now, it’s up to each agency to decide how it handles kits — that is part of the reason why rape kits built up in the first place, said Lt. John Somerindyke, head of the Fayetteville Police Department’s special victims unit.

“DNA technology has significantly increased,” he said of the decades since he started his career.

In the last couple of years, some departments around the state have received grant funding to test some of the kits in their backlogs. So far, testing produces results.

Of more than 800 kits recently tested from the Winston-Salem Police Department, the DNA matched 87 people whose genetic material was in the federal CODIS database, Stein said.

“We can solve about 10 percent of these cases if we just do the work,” Stein said. As more kits are tested, “the more connections there will be to known individuals on the database, which will lead to arrest.”

The Albemarle Police Department in Stanly County had 55 of the state’s untested kits last year. For its population, the Charlotte-area county charges more people with rape per capita than the state average.

It’s been testing some of its old kits lately, said Assistant Police Chief Jesse Huneycutt.

“We actually had a hit on a case just recently that I worked on, it was probably 16 years plus, that we actually got a hit on that case from an old rape kit that was submitted,” Huneycutt said. “Those type of things you like to see come full circle in the end.”

In December, Winston-Salem police submitted a nearly 30-year-old kit for analysis. Investigators said they linked the DNA, collected in 1990 after a stranger rape, to a Winston-Salem man. Police arrested the alleged perpetrator in February.

In November, Fayetteville police arrested a man in connection with a 2001 rape after sending an untested kit for DNA testing.

The Survivor Act mandates a uniform process for testing rape kits for all agencies to follow:
Any agency that collects a rape kit must notify law enforcement within 24 hours.
Police have 45 days to conduct a preliminary investigation.
Kits must be then sent to a lab for DNA testing and a possible match with the FBI CODIS database.

The bulk of the $6 million in the Survivor Act would pay to test old kits in the next two years. Of that amount, $800,000 will pay for more forensic scientists at the state crime lab to address the increased workload.

The number of untested rape kits now remains unclear, though Stein said in January it was more than 10,000. Money from a separate grant will pay for two people to travel around the state to get an updated count of the kits, Stein said recently.

Since the Fayetteville Police Department started testing what once was a backlog of more than 600 untested kits, police have arrested 37 people, Somerindyke said.

As of January, the department’s backlog has been reduced to zero. Over the past two years, the department has sent batches of a few dozen kits to an outside forensics lab. Grant funding pays for the testing.

The oldest kits in Fayetteville were from 1984. Even decades later, the DNA in the kits can help police find suspects.

“We recently just made an arrest in an unsolved 1987 stranger rape,” Somerindyke said. “I don’t know if (DNA testing) was even an option then. Years go by and cases pile up.”

Meanwhile, unidentified rapists remain free.

“I will stand by this statement: All rapists are serial rapists,” Somerindyke said.  “The bottom line is all rapists need to go to prison.”

The 21-year-old man got into the passenger seat and forced her to drive. He began rummaging through her purse, so Sherrod asked him what he wanted. He told her he wanted money. They began driving toward a more rural part of Wilson County. He directed her down a road where he said there would be an ATM. Instead, there were only a few trailers. He raped her several times in the car, Sherrod said.

“I just told myself, ‘I just need to do what I need to do to survive,’” Sherrod said. “It was almost numbing. It was like an out-of-body experience.”

Afterward, the man made her go to an ATM and withdraw money before buying cigarettes. He then told her to drop him off near the college.

“After I dropped him off, he said, ‘Don’t tell anybody about this,’” Sherrod recounted. “But the first thing I did was call my friend because I knew there was an officer on campus.”

While the man was with her, the friend Sherrod was supposed to meet had called several times. The man became frustrated with Sherrod’s phone ringing and took the battery out, she said.

She put it back together and called her friend to tell her what happened, then drove to meet her and an officer. She told the officer that the man who kidnapped, robbed and raped her also took phone apart.

The detectives collected the phone for evidence. Police ultimately found his fingerprints on the phone.

That helped lead to his conviction, Sherrod said.

She then went to Wilson Medical Center, where a nurse administered the sexual assault collection kit.

“It was very invasive, and I was so tired,” Sherrod said, although she believes she was lucky in one regard. “A SANE nurse just happened to be there traveling. She was very considerate and kept asking me if I was OK.” Sexual Assault Nurse Examiners, or SANE nurses, are registered nurses with specialized training on sexual assault examinations with evidence collection and documentation.

About a year afterward, Sherrod’s attacker pleaded guilty in Wilson County Superior Court to first-degree rape.

It was his first offense other than trespassing on the campus. He was sentenced to between 20 and 29 years in prison, according to the N.C. Department of Public Safety. In less than four years he has racked up 28 infractions in prison.

Sherrod asked that the man who raped her not be identified because of possible gang connections.

Building a case

For other types of offenses, like breaking and entering or assault, evidence can include a broken window or injuries, noted Jeff Welty of the UNC School of Government.

“One of the hard things about (sexual assault) cases is, it’s a type of crime where very often it’s committed in a private location, and the only two people who are present are the alleged perpetrator and the alleged victim,” Welty said.

Despite the emphasis on forensic evidence, cases can still be won without DNA. Many times victims wait before they report what happened to them. In that time, they have showered, wounds have healed, and perhaps years have passed.

Forsyth County Assistant District Attorney Elisabeth Dresel works in a county that has one of the highest rates of successful prosecution of sexual assault prosecutions in the state.

“A delayed report doesn’t mean we don’t have … evidence,” she said.

It is rare to have a witness for a sexual assault, but there might be video and text messages that can establish a timeline or provide information that corroborates what an accuser alleges happened, Dresel said.

SANE nurses can be critical, but access is spotty

Forensic exams by SANE nurses can provide crucial evidence that sexual contact occurred, document injuries to prove there was force and often confirm the identity of the suspect through DNA.

“If someone is sexually assaulted, they should go immediately to the emergency room and have a SANE kit done,” Lt. Montgomery of the Winston-Salem Police Department said. “We can prosecute later.”

He said that will help preserve evidence of the crime, should the survivor choose to file a report later.

“Now we have evidence we collected immediately after the crime, and it makes it almost impossible for a person to say, ‘I didn’t do this,’” Montgomery said. “It’s very difficult to say, ‘I didn’t,’ when your DNA is there.”

According to the International Association of Forensic Nurses, 46 board-certified SANE nurses reside in North Carolina. Numbers of nurses with SANE training but not certification are unclear.

However, they are distributed unevenly across the state.

Of more than 100 hospitals operating in North Carolina, only 28 have SANE nurses, according to a registry of forensic nurses. They are primarily located in high-population areas.

How many are at a given hospital, plus how many ought to be, is also unclear.

The University of North Carolina Medical Center, for instance, has nine SANE nurses on its staff, but there is no standard or requirement for how many a hospital system of its size should have, according to Thomas Hughes, a spokesman for the Chapel Hill hospital system.

Access to SANE nurses is especially limited in rural areas in North Carolina, the state with the largest rural population in the country.

Rape survivors may be asked to travel across several counties for an examination or wait until an on-call SANE nurse is available, said Charnessa Ridley, the training and communications coordinator for the N.C. Coalition Against Sexual Assault.

Ridley has worked in the past to build up the number of SANEs in rural communities by identifying areas where there was need and figuring out ways to support SANE nurses in the field. But that work stopped three years ago when a federal grant expired.

“In rural areas, the access was very, very limited,” she said.

Joyce Cody is the executive director of My Sister’s Place, a rape crisis center in Madison County, a Western North Carolina county with a population of about 22,000 and no hospital of its own.

Rape survivors typically travel to Mission Hospital in Asheville. While it’s about a 30-minute drive, her organization will provide transportation, if needed.

Once a sexual assault survivor arrives at a hospital, being processed there before seeing a nurse can also be agonizing.

“The part of the process that takes so long is the hospital side, not the SANE nurses,” Cody said. “You could be sitting in the ER for hours, putting up with the bureaucracy of it before you get to see a SANE nurse. They call ahead to the SANE nurse department for them to dispatch whoever is on call. We have never had to wait. It’s usually the doctors in the ER who drag their feet.”

Even if a hospital system has SANE nurses on staff, there wasn’t always a great level support for the work they do, Ridley said. Nurses often must seek training and continuing education on their own and face burnout from the emotional toll of the work.

It can take from four to five hours, and sometimes up to eight hours, for a SANE nurse to perform an exam to collect DNA for a rape kit that could later be used in a prosecution. In many cases, that involves pulling the certified SANE nurse, who may be working a regular shift in the emergency room, out of the rotation.

“Everyone else on the floor has to step up,” Ridley said.

Convictions through plea bargains

After law enforcement and medical professionals gather evidence and an arrest is made, the prosecutor’s job is to evaluate the strength of the case, often with additional investigation. If the prosecutor ultimately decides the evidence is too weak to secure a guilty plea to the charge or bring the case before a jury, it could lead to a reduced plea deal or possibly a dismissal.

Statewide court data analysis showed that less than 14 percent of rape convictions come as a result of a jury trial. Most convictions for all crimes, including rape, are as a result of pleas.

Ideally, working with police and the victim, prosecutors try to build a strong case, and the defendant’s lawyer will recommend accepting a plea to avoid a steeper sentence.

But even the best cases can hit roadblocks along the way. Sometimes prosecutors decide a compromise plea deal is the best outcome. Whether some district attorneys are too quick to go this route is a matter of opinion.

County-by-county data analysis shows that reduced-charge plea deals more frequently feature in some counties than others, with Durham, Alamance and Union counties having a high percentage, though these were all counties with conviction rates above the state average.

Carolina Public Press’ analysis did not include a count of plea deals in which prosecutors dropped sexual assault charges altogether, as these were counted among the dropped charge cases. However, many of the prosecutors and law enforcement officials consulted for this series described this as their best option in some cases.

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Lt. John Somerindyke, who heads the special victims unit at the Fayetteville Police Department, recalled one case in which a man who had been charged with raping four prostitutes instead pleaded guilty of kidnapping charges.

“He got 19 years in prison, so I’m good with that,” Somerindyke said. “The bottom line is, all rapists need to go to prison. … It’s what the victim feels is acceptable.”

And in still more cases, perpetrators will plead guilty to another crime, often a lesser felony or a misdemeanor, such as sexual battery.

Deanne Gerdes has served as executive director of Rape Crisis Volunteers of Cumberland County for the past 11 years. She said that she has come to the conclusion that a plea bargain is often preferable in a sexual assault case.

At one time, Gerdes disliked that so many defendants received plea deals. Now she prefers guilty pleas to trials.

“Honestly, I used to think like a plea was the easy way out for — specifically probably the District Attorney’s Office — until I actually went to a trial and I saw what the victim went through during a trial,” she said. “Horrible.”

It often takes two years to get to trial, she said. In that time, the victim has to interact with numerous people — law enforcement, prosecutors, family, the community and others “in the worst thing that’s ever happened to you in your entire life.”

The courtroom is scary to someone unfamiliar with it, Gerdes said. Simply parking outside the courthouse and walking in is fraught because “you could run into your perpetrator or your perpetrator’s family,” she said.

The first rape trial Gerdes attended was traumatic for the victim, she said. “The questions that the defense attorney was asking her: victim blaming, victim shaming.” Gerdes acknowledged the defense lawyer’s job is to defend the client, but “I see what that does to victims.”

Gerdes said it’s often easier for victims if the cases end up with plea bargains because “the victims don’t have to testify, and then they don’t have to be ripped apart by the defense attorney.”

However, Gerdes does not agree that any and all deals represent a real bargain. If the charge is among the most serious, such as a first-degree rape, the plea bargain should still require the defendant to plead to a sex crime, Gerdes said.

Tracey Kennedy, executive director of Real Crisis Intervention of Greenville, which serves several eastern counties, also cautioned against criticizing plea deals.

“Plea bargains are extremely important to victims,” Kennedy said. “Many victims want justice, and part of that justice is a conviction. Whether it is that person admitting it, which is a plea, or 12 (jury members) convicting that person. Regardless, I would never want a victim to think they were shortchanged either way.”

Some cases involve special considerations regarding the survivor’s circumstances. In Chatham County, Ignacio Alvarado was charged with three counts of sexual battery and second-degree forcible rape. He pleaded guilty to felony sexual act by a substitute parent or custodian, which required him to register as a sex offender.

“That’s an appropriate resolution,” said Assistant District Attorney Kayley Taber. “It was not a giveaway sort of thing.”

In this case, the victim was a young woman who lacked documentation to be in the United States, Taber said.

“So it was pretty scary for her to cooperate with law enforcement,” Taber said.

And in some cases, ambiguous evidence could make the option of a plea deal welcome.

If it’s a question of whether an act was consensual and a prosecutor has concerns about some of the social media interactions, but the defendant ends up pleading to indecent liberties, “then that’s a success,” said Harnett County District Attorney Don Harrop.

District Attorney Ashley Welch supervises prosecutors in seven southwestern North Carolina counties. Submitted photo.

Or if a victim doesn’t want to testify, but the person still ends up going to prison on a plea deal, “then to me that is a successful prosecution,” Harrop said.

Alternatively, when district attorneys believe they have a winnable case in the long run, they may view a plea bargain as a poor choice because it takes eventual conviction off the table.

“If we plead to less than a rape, then the case is done,” DA Welch said, due constitutional protections against double jeopardy.

Prosecutors may instead drop such cases to preserve the right to try the defendant at a later date.

Surviving and beyond

Briana Sherrod, the college student who survived a rape in 2013, said putting her life together afterward was difficult. She was a psychology major, so it should have been natural for her to get counseling.

She didn’t, although her parents did.

Instead, she wrote — and still writes — in a notebook to relieve her stress when things frustrate or upset her.

Sherrod stayed out of school from the Thanksgiving holidays through the end of December.

While home, she got a tattoo on the inside of her left forearm —the word “Fearless,” with a teal ribbon for the “L” to symbolize sexual assault awareness.

She returned to Barton College for the next semester, determined to graduate on time. She was engaged when the rape and kidnapping occurred. Her fiancé was supportive through it all, and they now have a child.

Sherrod said she was diagnosed with post traumatic stress disorder afterward, however, and still struggles with it.

“It was almost like grief, like denial, like I was not wanting to face it,” she said. “I was mentally exhausted.”

Sherrod said it’s taken her years to feel comfortable doing something as simple as going to the grocery store by herself.

“I’m still struggling,” she said. “I was diagnosed with anxiety. It’s a big issue. But the more I talk about it, the easier it gets.”

Tears still well in Sherrod’s eyes when she thinks her experience.

“I really think God’s the only thing that’s held me together,” she said.

“I had faith I would get through. I’m a very strong-willed individual. It’s gotten me in trouble a lot, but it helped me this time. I feel like God entrusted me, and if this happened and I survived, I can go on and make a difference with other ladies to get the confidence to tell people their story. It’s hard to tell people your story.”

Since becoming more vocal about what happened to her, Sherrod said friends have told her about things that happened to them and that they never reported. She’s encouraged them to speak out.

She also has taken part in fundraisers for sexual assault organizations, first in Wilson County, when she lived there, and now in Forsyth County, for Family Services.

“A lot of people don’t always tell somebody, or they have to have somewhere to go. That’s where Family Services comes in,” Sherrod said.

“I just figured I survived for some reason. I need to try to encourage other people.”

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Seeking Conviction Investigative Collaboration

About the collaboration: Eleven news organizations across North Carolina participated in the reporting of this series, which was coordinated by Carolina Public Press. Those organizations also include:...