A 'Cleared' Rape Case In Austin Is Not Always 'Solved,' Investigation Finds

Nov 16, 2018

A national investigation into how police departments solve rape cases discovered that some departments consider a case cleared even when there is no arrest and the suspect is still on the streets. The number of these "exceptionally cleared" cases in Austin, in particular, has raised concerns.  

According to FBI guidelines, a case can be exceptionally cleared if it meets the following criteria: the identity and location of the suspect are known, there’s enough evidence to support an arrest, and – most importantly – something outside the police department's control stops officers from making that arrest. In the case of rape, that often means a survivor refuses to cooperate with the investigation.

Morning Edition host Jennifer Stayton spoke with Mark Greenblatt, an investigative reporter with the news network Newsy, who worked with reporters at Reveal and ProPublica to uncover this loophole.

The following transcript has been lightly edited for clarity.

Mark Greenblatt: So we really dug into the City of Austin's clearance rates and what has been sort of remarkable there is that city officials, in particular the police chief and leadership of the Austin Police Department over a number of years, have gone before City Council and told council, "Hey look, we have clearance rates that are well above the national average." And for that reason, they've used this to sort of talk about how safe the city is really.

Case Cleared: Rape Suspects Walk Free. Police Count It As A Success

As we dug into those numbers, we found out that in more than half the cases - and sometimes well over - that the quote-unquote cleared cases do not ever result in an arrest and the alleged rapist remains on the streets.

Jennifer Stayton: What kind of numbers are you talking about here? I know there is a specific period of time that was examined. How many of these exceptionally cleared cases have there been during that that timetable?

Greenblatt: Well, we really honed in on 2012 going forward through 2017. And it's important to talk about why we picked that time frame in Austin. We are in touch with a woman by the name of Sgt. Liz Donegan. She's recently retired from the Austin police after 26 years of service. And for nine of those years she led the Sex Crimes Unit in Austin, where she has alleged to us:

"I had been told on two different occasions from the same commander under two different lieutenants that I needed to go back in and look at these cases that were suspended and change the clearance code, because we were not up to the national average of exceptional clearance in Austin."

And what we see in the data is that in the year after she refused to follow this order and was transferred out of the Sex Crimes Unit, we're seeing a 50 percent spike in that share of all cases that are now being exceptionally cleared. You know, what they've done is they've exceptionally cleared 1,416 rape cases between 2012 and 2017, and they've done this by leaving the alleged rapists on the streets even if they allege that they have probable cause to make that arrest.

Stayton: What did APD tell you then about that high number? I mean, it sounds like they're following protocol in what they can and can't do in these cases. What did they tell you about this practice of exceptional clearance and that high number of cases post-2012 that were exceptionally cleared?

Greenblatt: What they have said is that there is a difference in opinions that took place between Sgt. Donegan and others in APD leadership. Chief Brian Manley has said that he's confident that everything that they are doing is fine:

"If we've got a survivor who is unwilling to participate in the investigative process, the detective will not stop the investigation at that point. They will still track down every possible lead and work that case as far as they can, and then at that point if the survivor is still unwilling to cooperate and we've met the four parameters then it would be exceptionally cleared."

So, then, of course, as investigative reporters the next question is: OK, well, let's go look ourselves and open up the files and take a look. Oher police agencies that have opened their books up and let us see case files, what they do ... is they simply black out the names of rape victims, their addresses. They protect the victims, and we want them to.

What Austin police are doing is they're simply denying us access in whole so that we're not allowed to see any cases that we've asked for, and we can't we can't really unpack more information for the public. So we are sort of a bit in the dark here.

Stayton: So, a question about the 1,400 cases that you looked at between 2012 and 2017: Knowing that you did not have access to the cases and are not able to see what those narratives are, did you get a sense if there's something systemic going on? Or is this just the sensitive nature of the crime and not being comfortable participating? Any Idea why so many people did not want to come forward?

If I'm recalling correctly Chief Manley said that essentially you know they got as far as they could and the victims didn't want to participate, but that's an awful lot of - I said victims I met survivors - an awful lot of survivors who who didn't want to continue that process.

Greenblatt: Well, we have a lot of questions about that. But the Austin Police Department in a written statement they said that typically this was because a victim might come forward and at one point report a rape, but then for whatever reason not want to provide a sworn statement, eventually. Maybe they don't want to take a rape test kits, a very invasive medical procedure after someone has been raped and some other reasons. We are at the word of the Austin Police Department that this is the case, that victims are just dropping out at a fairly steady clip.

And if that's true, then that would essentially place Austin in a position where they're having more victims drop out of cases after reporting to police then a good number of other cities that we analyzed across the country. So you have to then ask: Is there something then that's sort of special about the nature of a rape victim in the city of Austin or might there be something going on inside the Austin Police Department? We don't really know, because we can't see the files.

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In a statement to KUT, Austin Mayor Steve Adler said the issues raised in the report are concerning and must be an immediate priority.

“More than anything else, we must make sure we’re doing everything that we can do to prosecute and protect communities from sexual predators," he said. "The report raises issues that are very concerning and must be an immediate priority.  I’ve asked staff to respond and we’ll have that conversation in a very public way. We need to better understand both the technical and common meaning of what are 'exceptional clearances' and when its use is appropriate and required."

This story has been updated with an amended statement from Mayor Steve Adler.