Warning: This story contains descriptions of sexual assault.
Only 5 out of 1,000 rapists will go to prison in the U.S., according to the . The numbers aren鈥檛 much better when zoomed in locally.
Of the 625 adult sexual assault offenses reported to Travis County law enforcement in 2017, according to the district attorney. Only one case made it to a jury trial.
Even though it can sometimes take more than a year for a case to make it through the system, many in the community, including the district attorney, believe the number of cases making it to trial is far too small.
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鈥淲hen I came into office, I believe the number of jury trials in Travis County was low,鈥� District Attorney Margaret Moore said. 鈥淚 think prosecutors have to have jury verdicts to make sound prosecutorial decisions.鈥�
Moore said she made it a goal to send more sexual assault cases to trial in 2018, and she did. Nine cases went before a jury, and eight produced guilty verdicts. But even with this slight increase, victim advocates say, the numbers are still concerning.
argues if the city and county want to say they stand with survivors, there need to be more prosecutions.
鈥淲hat can you do if you have a police department and a DA that aren鈥檛 providing the justice?鈥� she said.
But prosecutors say they鈥檙e stuck within the confines of Texas law, which many would argue is not survivor-focused.
The (SARRT) survey released last year showed an overwhelming majority of respondents 鈥� 94% 鈥� do not believe the current law adequately addresses sexual assaults.
鈥淚鈥檝e seen literature that tells the public, 鈥業f you鈥檝e been touched in a way you didn鈥檛 like, you鈥檝e been sexually assaulted [and] you should report that,鈥欌�� Moore said. 鈥淭hat is not what the penal code calls a 鈥榮exual assault.鈥欌��
According to the , a sexual assault is the penetration of another person鈥檚 sex organ, anus or mouth without their consent. Things get more complicated when the statute attempts to define that lack of consent.
In Texas, the emphasis is still put on the use of physical force, violence or coercion. But these scenarios do not always reflect reality: . Still, every detective, prosecutor and jury must approach cases with the penal code鈥檚 definition as a reference.
This makes it hard for prosecutors to prove these cases beyond a reasonable doubt. It鈥檚 such a specific definition, Moore says, so it鈥檚 not enough that a victim says 鈥渘o.鈥� The DA鈥檚 office would have to prove that that 鈥渘o鈥� was overcome by force.
鈥淭here鈥檚 a big gap between believeablity and provability,鈥� she said. 鈥淭his is not a judgment of victims or their experiences. It is the analysis that a prosecutor who is ethically and morally responsible must make to ensure that justice is done according to our Constitution and laws.鈥�
Prosecutors wield an enormous amount of power when it comes to deciding what cases make it to a courtroom. And the current system leaves little to no recourse for victims who feel their cases were wrongfully denied.
Take the case of Emily Borchardt again. She was the UT student who was abducted and sexually assaulted by three men in 2018. Austin police found one of the men who assaulted her later that day. He told police he had never seen her before and agreed to a DNA test. His DNA matched a sample found in Borchardt鈥檚 rape kit.
But he wasn鈥檛 arrested and the case was declined for prosecution, citing a lack of evidence.
Borchardt later learned First Assistant District Attorney Mindy Montford had said over and over in (also a neighbor of the Borchardts) that the sex was consensual and she may be lying. But nowhere in the police report, which KUT obtained, or in her two-and-a-half-hour recorded victim statement does Borchardt say it was consensual. (Montford told KUT she stands by her decision not to prosecute.)
鈥淚 don鈥檛 know, you just feel very angry and 鈥� I cried,鈥� said Sarah Borchadt, Emily鈥檚 mother. 鈥淚t鈥檚 hard to explain, it just matters so much.鈥�
Borchardt is exploring a potential defamation claim.
While not all victims end up in a situation this contentious, there are still concerns over how prosecutors make decisions. Think back to what Marina Garrett鈥檚 attorney told her when her case was declined.
鈥淪he said the CSI effect,鈥� Garrett said.
Her attorney believed a jury would not convict because there was no DNA evidence linking Garrett to her attacker. Although , prosecutors know the reality: DNA is important only when proving someone鈥檚 identity or proving sexual contact.
鈥淚t is of less importance 鈥� perhaps no importance whatsoever 鈥� if the only issue is whether or not the conduct was consensual,鈥� Moore said.
But Garrett鈥檚 attacker had admitted to the sex and alleged it was consensual. Why then was she told her case could not move forward because there was no DNA?
Other lawyers have expressed concern that prosecutors may inadvertently be declining winnable cases because they think a jury won鈥檛 convict.
UT law professor Jennifer Laurin concedes prosecutors do have an ethical obligation to decline a case if there is not enough evidence.
鈥淭hat said, it is not unheard of in criminal prosecutions for prosecutors to bring novel theories in order to push the law in particular directions,鈥� she said.
According to Laurin, just as prosecutors have the power to decline a case, they have the power to take on tougher cases. They can convince a jury a crime was committed by reaching for as many available facts as possible. Laurin says she鈥檚 seen prosecutors do this successfully, and it鈥檚 actually one important way in which criminal law evolves.
鈥淚t鈥檚 still possible to make the case,鈥� she said. 鈥淚t鈥檚 still possible for the prosecution to do something that it frequently does, which is to try to educate a jury about some aspect of a case.鈥�
Laurin says even if a prosecutor doesn鈥檛 win the case, they鈥檙e still exposing juries to the surrounding this crime. She says, right now, the legal system still seems to be prioritizing a certain category of sexual assault cases. Those are the ones where the victim didn鈥檛 know their attacker and there was an extreme use of force. But an overwhelming majority of cases in Austin are between people who know each other and don鈥檛 involve any serious injuries 鈥� beyond the rape itself.
鈥淣ot pursuing those categories of cases is a choice that鈥檚 being made,鈥� Laurin said. 鈥淚t鈥檚 not something that is being forced upon an office.鈥�
Many in the community have long-criticized the DA鈥檚 office for not pursuing more sexual assault cases. A 2017 written by former co-chairs of the Austin/Travis County SARRT went so far as to call the current criminal justice system one that 鈥渃ondones rape and does not hold perpetrators, or itself, accountable.鈥�
Moore is also one of the defendants in the survivors鈥� lawsuit against the city and county and from the state鈥檚 new amid criticism of her appointment.
Moore dismisses the allegation that prosecutors refuse a case for any other reason than the inability to prove it beyond a reasonable doubt.
鈥淚f it鈥檚 prosecutable we take it and that鈥檚 that,鈥� she said. 鈥淭his idea that there is some reason why we won鈥檛 take sexual assault cases 鈥� other than the insufficiency of the evidence 鈥� is, frankly, erroneous and offensive to me.鈥�
Moore also says data shows around 40% of adult sexual assault cases reported to Travis County in 2017 didn鈥檛 move forward because of victim participation issues.
There is no simple answer for why so many sexual assault cases don鈥檛 make it to prosecution. It very well could be that there is not enough evidence to prove an overwhelming majority of these cases or a number of victims have dropped out. But it鈥檚 also possible that certain experiences or biases are preventing some prosecutors from believing they can convince a jury.
鈥淭hat鈥檚 not the ill-meaning prosecutor,鈥� Laurin said. 鈥淚t鈥檚 the prosecutor who has developed an erroneous sense of what juries can be persuaded of beyond a reasonable doubt.鈥�
Moore says Travis County prosecutors are doing the best they can within the confines of the law, and it鈥檚 the community that needs to adjust expectations.
鈥淧eople need to understand that the criminal justice system is not here to give satisfaction to victims. That may sound a bit harsh, but it鈥檚 a fact,鈥� she said. 鈥淲e can鈥檛 always make a criminal case out of a traumatic event.鈥�
Laurin said she agrees, but believes there is still opportunity to reform rape laws and that prosecutors play a big role in making that happen.
鈥淚 think it鈥檚 fair to ask whether prosecutors, in this context, are embracing their role as potential shapers of the law to the degree that they are in other contexts,鈥� she said. 鈥淚 think the nature of the offense of rape or sexual assault requires those hard conversations to be had and resolved.鈥�
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If you or anyone you know needs help following a sexual assault, call the 24-hour SAFEline in Austin at 512-267-SAFE (7233) or the National Sexual Assault Hotline at 800-656-HOPE (4673).
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