Date Rape Cases Can Be Can of Worms

Sunday, December 6, 1998

By Joy Yanoshak
Berkshire Eagle Staff

PITTSFIELD -- Sensitive issues and often little physical evidence make rape and sexual assault cases difficult to prosecute and even more challenging to convict.

 As much as individual cases may vary, the toughest trials are similar in several ways.

 And in cases of date or acquaintance rape, the problems are compounded. A lack of physical evidence and of witnesses is a common problem, and alcohol use is often a complicating factor.

 A recent date rape trial in Berkshire Superior Court involving two former Simon's Rock College of Bard students ended with the acquittal of the 18-year-old defendant.

 Prosecutors often struggle with the problems of presenting enough evidence to erase a reasonable doubt and of gaining a conviction in what often amount to he-said, she-said cases.

 "Proof beyond a reasonable doubt is a very high standard," said Berkshire County District Attorney Gerard D. Downing.

 Superior Court Judge Robert Barton, the sole decision-maker of a defendant's guilt or innocence in jury-waived trials, agrees.

 "It's very, very difficult to say a case is proved beyond a reasonable doubt when it comes down to one person saying one thing and another saying another," Barton said. "It comes down to credibility. You need corroborative evidence."

 Furthermore, in more prevalent jury trials, with the fear of falsely sending a person to jail, jurors are more sensitive to even the slightest twinge of doubt, particularly when some might assert the victim was "asking for it."

 Common ground

 Attorneys on both sides say they stand by the belief that regardless of the circumstances, "no" means "no."

 "A no means no whether or not someone is drinking one beer or no beer," said local defense attorney Timothy Shugrue, a former prosecutor of sexual assault cases.

 However, in cases where a defendant's guilt or innocence rests on consent, evidence in the degree of intoxication or a victim's mental capacity is crucial.

 Establishing certainty in those areas, however, can be difficult; with sex offenses, the man and woman frequently are acquaintances and usually are alone at the time the would-be crime unfolds, leaving no witnesses to corroborate testimony about a person's condition or ability to consent.

 "In any case, you really have to have something that substantiates the claim made by the alleged victim," said Barton. "Obviously, if there are torn clothes, marks, bruises or a chemical analysis, it makes it much stronger."

 As a Pittsfield police detective, Peter McGuire said the key is collecting any and all physical evidence from the crime scene.

 "The that don't report right away make it harder and harder to get a conviction," McGuire said.

 Shortcomings of a police investigation also can affect the strength of a district attorney's case.

 "We rely on whatever police investigation was done and the credibility of the individual making the complaint," Downing said. "Ideally, one would hope there would be some objective evidence as well, like some sort of physical proof based on an exam, eyewitnesses or other witnesses."

 While a sexual assault can leave a painful scar on both a victim and her family and friends, recounting in detail the circumstances of such a crime in the courtroom can be even more traumatic.

 However, new programs focused on victim awareness likely have led to the increased reporting of the crime, which most often occurs to women under 25.

 More programs such as those offered locally by the Elizabeth Freeman Center make it easier for women to come out and speak freely about the crime, said Shugrue.

 More convictions

 In the simplest analysis, the more incidents of rape and sexual assaults that are reported, the more offenders can be convicted.

 "There are far more convictions today in sexual assaults than there were 20 years ago," Barton said.

 "There is a theory of rape that allows the prosecution of the case based on the condition of the complaining witness if it renders them incapable of consenting," former prosecutor Elizabeth Quigley said.

 About one-third to 40 percent of the Superior Court caseload in Berkshire County -- annually between 65 and 80 cases -- brought to prosecution or disposition involve sexual assaults, according to Downing. "Sexual assault remains a significant portion of the Superior Court caseload," he said.

 But Downing admits -- and other former prosecutors agree -- that many cases don't make it to trial because they are settled at lower levels in the criminal justice system.

 "In general, the strongest cases don't get to trial," Downing said. "The cases that do go to trial tend to be seen as weak cases for the commonwealth.

 "Generally speaking, prosecution would acknowledge that one of the lowest success rates at a trial are sexual assaults," he said.

 When to prosecute

 Quigley said the decision to prosecute should be determined based on the circumstances exclusive to each incident.

 "I think the best way to address these is to exercise best judgment at the beginning of these cases, going behind the bare allegation and beyond the complaining witness to make sure the case is truly one of lack of consent and there is not some other agenda involved."

 According to Quigley, there have been rape allegations with underlying domestic relations issues such as child custody and restraining orders.

 "There is some abuse of the system," she contends.

 While victims are certainly encouraged to come forward, it is often the lack of physical evidence that works against them and in the defendants' favor.

 "Clearly someone isn't thinking about what they can do to get the defendant caught and prosecuted," Downing said.

 Rather, frequent showering after a rape or sexual assault is common in victimized women. At the same time, however, it literally washes away physical evidence.

 "The nature of the crime makes very difficult," according to Downing. "Rape is a crime of violence in which sex or a sexual attack is the weapon to carry out the crime."

 Downing adds that there is a strong network of support services available in Berkshire County for women who do come forward.

 In cases where there is an acquittal or not enough evidence to go to trial, there are services available to women that can help them cope with the outcome.


© 1998 by MediaNews Group, Inc. and Pittsfield Publications, Inc.