What happens in a rape kit exam?
Once law enforcement arrests a rape suspect in North Carolina, the wait only begins for both the rape survivor and the accused.
Resolution of the charges typically takes more than a year, Carolina Public Press found this month in a statewide analysis of court data, with some cases taking much longer.
The average sexual assault case that remained open and was included in the analysis had been open for 900 days, or about 2 ½ years. But some cases have been open for longer than 4 1/2 years after an arrest, which was the most the data available could show.
Prosecutors and rape crisis workers say these findings in the data describe what they see every day.
Valerie Pearce moved to Pitt County to work for the District Attorney’s Office after training defense attorneys around the state for nearly five years. When she recently took stock of her workload, she realized she had a mountain of it.
Nearly 500 defendants, each with at least one felony charge, were in her active case backlog. Of those, she said, 18 defendants are charged with crimes against other adults for “forcible sexual assault.”
Altogether she has 93 defendants charged with sex offenses that include both child and adult cases. Her six co-assistant district attorneys have similar workloads, she said.
“I’m trying to go through them and figure out, one, do I have everything?” Pearce said. “They are all new cases to me even though they are old.”
Legal strategy of delay
Defense attorneys know, she said, that time is their client’s best friend.
“Cases don’t get better with time; they often get worse,” Pearce said. “If they can delay it and let it go on for longer, it’s less likely the evidence will be fresh. You are hoping the victim will grow tired of it.”
With every delay in their case, victims can get discouraged. People move. Memories fade.
“(These crimes) are done in the dark, they are done in secret and done in private,” Pearce said. “Oftentimes that victim is the only primary witness.”
“No survivor should have to wait four years to have their case be heard in court,” said Angelica Wind, executive director for Our VOICE, a rape crisis center based in Buncombe County. “Every time that alleged perpetrator’s case is continued, we cannot lose sight that it impacts the survivor.”
When told the state average for open sexual assault cases is around 900 days, Wind said that’s “unconscionable.”
“How do we create a more survivor-focused process as they relate to the district attorney’s office?” Wind asked.
Wind said more funding is needed so that district attorneys’ offices can return victim phone calls in a timely manner or so they can hire more people to call survivors to update them on the status of their cases, ensuring that unavoidable case lags don’t leave the survivor feeling abandoned.
“When you have cases going through the process four years later, we should not be surprised that survivors say, ‘I can’t do this anymore,’” Wind said.
Defense strategies may not be the only contributor to long delays in sexual assault cases. Pearce said human nature may account for the length of time these cases remain open without a resolution.
“A lot of DAs hold on because they don’t want to dismiss it,” Pearce said. “They don’t want to send a message to the victim that we don’t believe them or that we think they are lying.”
Though North Carolina’s laws are silent, the U.S. Constitution guarantees a defendant’s right to a speedy trial, said Jeffrey Welty, a professor of public law and government at the University of North Carolina School of Government.
The right is vested in the defendant, not the victim.
“Some defendants don’t push the ball forward — often taking the view that the more time that passes, the more witnesses’ memories fade and the harder it becomes for the state to make its case,” Welty said via email.
Some delays come from testing evidence, which the defense may want to reexamine rather than accept the findings that led law enforcement to make the arrest. Or in some cases, new evidence requiring testing may become available to both sides after an arrest, especially in cases in which the identity of the suspect or the occurrence of sexual contact is disputed.
“In 2014, lab lead time was as long as two-three years for all cases, not just sexual assault,” said Laura Brewer, spokeswoman for the state Attorney General’s Office, via email. “Right now, turnaround time for current cases is about six months. The lab also has a rush program for cases law enforcement deem immediate threats to public safety.”
Law enforcement officials have also started using outside commercial labs to test DNA evidence.
“The state crime lab has made tremendous strides on their turnaround time,” said Lance Oehrlein, an assistant district attorney in New Hanover and Pender counties. Even three years ago, he said, it wasn’t uncommon for it to take a year to get lab results for a DNA test.
Various procedural delays also cause the system to slow down, whether intentionally or not.
One issue is defendants who fire their court-appointed attorneys, Oerhlein said.
“It’s a common tactic is when it gets down to crunch time,” he said. “They don’t like the plea offer, and it’s getting close to a trial,” Oehrlein said.
Judges will usually give a defendant who says he has reached an impasse with his attorney an opportunity to work with at least one more attorney, he said.
“That sets the case back to zero,” he said. “It’s not uncommon for them to do that with two or three attorneys.”
Complicating matters in a county like New Hanover is an ever-growing caseload and the same number of Superior Court judges now as there were more than a decade ago.
“Our court system is just overwhelmed. We don’t have enough judges in our courtrooms to try all of the cases that need to go in front of juries,” he said.
Oehrline said it takes around two years for his major cases to see a trial. Meanwhile, cases mount up.
Investment and specialization
Included in CPP’s analysis were roughly 1,000 defendants charged with sexual assault spread among 94 of the state’s 100 counties. Of those, nearly 100 defendants were in Mecklenburg County, which fared better than the state average in all measures.
“While it is certainly nice to know we are doing well comparably, we are clearly not doing well enough,” said Mecklenburg County District Attorney Spencer Merriweather, who heads the district attorney’s office in the largest county in the state, with nearly 1.1 million residents.
His office obtains pleas 13 percent faster than the state average, and cases sit open 70 days less than the state average.
“I think the average survivor of sexual assault wishes they were finding justice quicker through our justice system, not only in this county but in every county in the state,” Merriweather said.
Merriweather credits the relatively speedy pace of cases in his county largely to extra funding provided by area governments like the city of Charlotte and Mecklenburg County. His office has 85 prosecutors, more than 20 of whom are paid for with these extra funds.
“They allow us to create specialized units throughout our office,” Merriweather said. “Elsewhere in the state, you are likely to find general practitioners who are handling anything from breaking and entering of a motor vehicle, first-degree rape all the way to first-degree murder.”
Such vast discrepancies in resources and team structures create swaths of the state where justice may be applied unevenly.
“I think it is all of our hope that someday we will get the appropriate investment from our state government which allows us to secure the kind of justice that our survivors expect in the timetable they expect it,” Merriweather said.
While Merriweather said the court system does its best to hold perpetrators accountable, that can’t always happen.
“With standards like ‘proof beyond a reasonable doubt,’ which is the standard in the law, sometimes your evidence falls short,” he said. “And sadly that evidentiary burden doesn’t have anything to do with whether or not that person was assaulted.”
Courage to proceed
Pearce said she knows all too well that these cases take a long time to resolve. She said she levels with sexual assault victims as they meet in her Greenville office.
“This process is going to be lengthy, and there are going to be lots of ups and downs,” Pearce said.
Successful prosecutions punish offenders and may prevent them from reoffending for as long as the penal system holds them. The process is not designed to bring solace to survivors.
“Don’t let the court process be your healing process,” Pearce said. “It is not therapeutic. Don’t rely on the court system to bring you closure.”
Pearce said it takes courage to come forward. Fewer than one in four victims report their sexual assault to police, according to figures from the Rape, Abuse and Incest National Network.
“Know your victory was reporting it to begin with,” Pearce said she tells survivors.
Data method and findings
When sexual assault cases are resolved, outcomes other than conviction for a sexual assault crime are most common.
An earlier CPP-led collaborative investigation reported that fewer than one in four people charged with sexual assaults whose cases were resolved during a 4 ½-year time window were convicted of the charges or a related charge.
Those resolutions could come immediately, such as when a defendant immediately pleads guilty. Other cases could go on for many years. The data shows some defendants who had been charged in early 2014 still had open cases by June 30, 2018, when the data ends. For cases that remain open, it’s not possible to know how long they will stay that way.
But that analysis excluded cases that had begun but not ended, since it was impossible to know how they would conclude. For that analysis, CPP focused on cases that began and ended during the same time window. Had it included sexual assault defendants who were charged but whose cases remained open, they would have amounted to about 31 percent of the total cases. However, that’s not representative of lagging cases overall, because it includes many cases in which the charges were very recent.
For the analysis of lagging cases in this article specifically, CPP used a smaller time window that would exclude cases that remained open after a short time.
To do this, CPP examined three years of court records across the state for defendants charged with sexual assaults alleging threats, force or intimidation, from 2014 through the end of 2016. CPP then recorded what happened to that defendant’s charge as of June 30, 2018, the most recent date available in the court data.
Of the sexual assault cases beginning within this 2014-16 time window that have been resolved, most reached their conclusion — acquittal, conviction, plea deal or charges dropped — within two years.
Of the sexual assault cases beginning during the same time window that remained open as of June 30, 2018, the average one had already been opened for 900 days, or 2 ½ years. There’s no way to know how long such cases might ultimately remain open, so the average could actually be much higher if a longer period of data were available for analysis.
Kate Martin is lead investigative reporter for Carolina Public Press. Email her at firstname.lastname@example.org