Rape Cases Tough to Prosecute

by Wendy Lin, Anthony M. DeStefano and Peg Tyre
Originally published in Newsday, January 7, 1990

Rape cases are some of the toughest felonies to prosecute of all the major crimes investigated by city police. While between 60 percent and 70 percent of most felony arrests in the city are disposed of by convictions, state statistics for 1988, the most recent year for which figures are available, reveal that the percentage of convictions drops off dramatically to 36.9 percent in first-degree rapes cases, close to the same rate for all sex crimes.

Why the dramatic difference? A major problem is that people who commit sex crimes, particularly rape, usually know their victims, said Alice Vachss, head of the special victims bureau in the Queens district attorney's office. Such close relationships between victim and defendant make it difficult for a jury to find that the sex act was against the victim's will, she said.

"If a rape case is an identification case, it is no different from trying an identification robbery or any other type of case," said Stephen Saracco, deputy chief of the sex crimes unit in the Manhattan district attorney's office.

Identification rape cases are those in which the defendant claims that he was misidentified as the perpetrator.

The big difficulty in rape trials is in the consent defense, where the suspect on trial doesn't deny that sex took place but raises a question about whether the victim wanted or encouraged the act, Saracco said. That defense holds the words and actions, as well as inaction, of the victim up to jury scrutiny.

This can be treacherous water for the prosecution to tread, said Vachss, particularly if the woman is not viewed sympathetically by the jury. Vachss cited a recent verdict in a Florida rape case where the defendant was acquitted because the victim was wearing a flimsy miniskirt and was perceived as asking for trouble.

Vachss believes that prosecutors have to address credibility problems or the negative image of a victim directly with the jury in summation.

"You can say to the jury, 'You may not like the victim, but that doesn't mean it is not rape,' " Vachss said. In other cases, the prosecution has to pay close attention to details that can enhance the victim's credibility, Saracco said. In one case involving the rape of an airline flight attendant, Saracco said, his work was made more difficult by the fact that the woman met her attacker, who was a neighbor, in the lobby of their building. The woman invited the man up to her apartment for drinks and the suspect was later found by police showering in the victim's apartment after having sex, Saracco said.

But what apparently helped the victim's credibility was the additional fact that she refused to return to her apartment after the rape, even though she had just spent money redecorating it, Saracco recalled.

Use of DNA testing to identify rapists through the genetic makeup of body fluids, such as blood and semen, has been heralded in the last year as a law enforcement breakthrough. But prosecutors interviewed were cautious about relying too heavily on such scientific evidence.

"It can be tremendously useful," Vachss said. "Juries are very frightened to convict solely on eyewitness identification, especially in sex crimes. As long as you give them something in addition that reassures them, they have a much easier time convicting."

But the use of DNA testing, said Vachss, is limited by the state of the science.

"In the majority of rape cases there is not sufficient medical evidence," said Vachss. "It's the rare case where we can actually get a DNA 'fingerprint.'"

Law enforcement officials believe that many rapes go unreported, compounding police problems and increasing the likelihood that rapists will go undetected for longer periods of time.

Only one out of every four rape victims report their attacks, said Nellie Torres, commander of the police sex crimes liaison unit. A rapist may commit 20 to 28 attacks before being arrested, she said.