0-for-16: No sex cases Stanford police submitted to the DA were prosecuted

BY ALLISON LEVITSKY
Daily Post Staff Writer

Some 84 sex offenses were reported on the Stanford campus in 2016 and 2017. But between January 2016 and Dec. 1, 2018, police only investigated 16 cases — and Santa Clara County prosecutors didn’t file criminal charges in any of them.

That 0% charge rate is particularly striking in light of the fact that last year, the county District Attorney’s Office filed charges in 449 of the 904 sex assault cases they reviewed countywide. That’s 49.7%.

Of the 34 sex assault cases that went to jury trial last year, prosecutors secured 25 convictions, or 73.5%.

“That is probably higher than a lot of the counties in this state, which to me just demonstrates these cases are difficult,” said Terry Harman, the Assistant District Attorney who leads the Sexual Assault Unit.

Campus police say they don’t investigate most cases because the victims don’t or cannot identify their perpetrator, or they decline criminal prosecution.

“As a general rule, we forward all cases for which an investigation was completed,” Stanford police Chief Laura Wilson told the Post in an email. “Given the criticisms that have been made about Stanford’s handling of sexual assaults, I prefer to have the DA’s office review the cases.”

For Stanford, a “sex offense” can be rape, sodomy, forced oral sex, penetration with a foreign object, fondling, incest or statutory rape.

Many reports come to police third-hand from campus security authorities, university employees who are required to report crimes to the police, but only report the names of the victim and suspect with the victim’s consent.

Sometimes police take reports that don’t include a location or other details of a sex offense because a victim didn’t provide the information along to the employee required to report such crimes, called a “mandated reporter.”

Stanford has its own adjudication process

Some victims opt instead for the university’s own adjudication process, where offenders may, at most, be forced to change dorms or face suspension or expulsion in lieu of criminal charges.

Stanford law professor Michele Dauber, who led the campaign that unseated Santa Clara County Superior Court Judge Aaron Persky over his sentencing of Stanford sex assailant Brock Turner, said prosecutors are overly conservative with charging accused sex offenders.

Dauber said she’s known sexual assault victims who wanted their assailants to be charged and were frustrated when Santa Clara County prosecutors wouldn’t open a case.

“(Prosecutors are) very cautious about whether they think they’ll be able to get a conviction,” Dauber told the Post. “They have to be willing to take some risks and not only be worried about the win-loss record in order to do the public’s business in this area.”

Prosecutors can be particularly cagey about going after sex assailants in the university setting, where assaults often involve alcohol and take place between acquaintances at parties rather than “stranger danger in the bushes,” Dauber said.

“There’s a larger issue with DAs around the country not being able to take college sexual assaults to trial, or even to a preliminary hearing, because of concerns that the jury subscribes to rape myths, or won’t convict if the victim is drinking, or if there is only one victim, for example,” Dauber said. “And that, I think, is very unfortunate. That is not fully consistent with the kind of public education function and protecting the public function that we would like to see.”

Beyond a reasonable doubt

Harman said her prosecutors only file charges when they believe they can prove to a jury that the suspect committed the crime beyond a reasonable doubt.

“We received criticism from a lot of defense attorneys that we were wrong to pursue the Brock Turner case, that there was insufficient evidence there and we should have declined to file,” Harman said. “Some people who think that we are not filing cases that we should be filing, they are assuming that everything is winnable in front of a jury. And the reality is that everything is not winnable in front of a jury.”

Alcohol

Alcohol does make it more difficult to prove a case, Harman said.

“The role of alcohol in the case can make it difficult for a number of reasons, and it has nothing to do with any sort of moral judgment,” Harman said. “Alcohol affects people’s memories. It affects the memories of witnesses, victims, suspects.”

Often prosecutors have to stop in their tracks when they find evidence — through text messages, video surveillance or otherwise — that indicate the victim appeared to be capable of giving consent.

Dauber said she wants to see prosecutors educate skeptical juries on the role of alcohol in sexual assault, and why victims behave in certain ways.

“You’re not necessarily going to have the same win-loss ratio in sexual violence that you would have in other kinds of felonies, because there are social biases and prejudices against women and against sexual violence victims that the jury may have,” Dauber said. “It’s your job as a district attorney to educate the jury and bring in expert testimony if necessary.”

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