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The Provability Gap: How Society Plays A Role In Finding Justice For Rape Survivors

A crowd during SXSW in 2019
Gabriel C. Pérez
Advocates say the country needs to have a national dialogue about sexual assault.

Part IV in a four-part series on why sexual assault cases are so hard to prosecute in Austin.

At an Austin City Council meeting in January, a large number of people had signed up to give public testimony on the last item on the agenda. Most were women; each wore a yellow bandana – a sign of solidarity for sexual assault survivors.

Marina Garrettwas one of them.

“I know survivors who’ve never been contacted by their detectives, who never got the results of their rape kits. I know survivors who were told their tortures sounded consensual,” she told council members. “More importantly, I don’t know a single survivor whose case made it into a courtroom.”

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Garrett was advocating for a resolution calling for a third-party evaluation into how the Austin Police Department investigates and processes sexual assaults.

“Asking you to pass this resolution – to help myself and the thousands of survivors of Austin get full transparency into a process that’s not giving us justice – doesn’t feel like a big ask,” she said. “It feels like the first step toward justice.”

The resolution passed unanimously with one council member absent.

Marina Garrett, sexual assault survivor
Credit Julia Reihs / KUT
Marina Garrett spoke at an Austin City Council meeting before members passed a resolution calling for an outside audit of how police investigate and process sexual assaults.

Garrett said she remembers looking up and seeing each council member’s microphone tied with a yellow bandana. She said it felt as if her leaders were standing with her and it made her feel hopeful for the first time in a long time.

Garrett started working within the advocate community in April 2016. She’s spent much of her time since then trying to persuade city officials to do more for sexual assault survivors, so the resolution was a big win. But Garrett says society must still reckon with the fact that rape is one of the easiest crimes to get away with – and the fact that the overwhelming number of victims are women.

It’s been almost a year since Garrett joined the class-action lawsuit alleging the city and county discriminated against women in their handling of sexual assault cases. She says she’s better educated on sexual assault investigations through her work as an advocate and that’s left her convinced some sort of bias played a role in her case.

"What do we, as survivors, have to go through for them to think we deserve justice?"

Her belief is compounded by the rape kit backlog and the finding that police were misclassifying cases. Mainly, though, it’s because of all the lingering questions she has about her own case.

Garrett says she had to do a project for an anthropology course that involved listening to hours of advocate testimony given before the Austin City Council.

“They all just say DNA isn’t needed for most of these [cases], and I was told for two years that it was needed,” Garrett said, choking back tears. “So, it’s just hard to do this work sometimes.”

Her lawyers also point to the one case that made it before a jury in 2017. The victim in that case was a man, and his rapist was found guilty and sentenced to life in prison. According to court documents, the man had a history of sexual assault charges; at least two women accused him of rape in 2013 and 2014. 

“I don't know what the difference was except in one case the victim was a man. I think the presumption is a man would never say he was sexually assaulted unless he truly was,” said Elizabeth Myers, one of the lawyers representing Garrett and seven other victims. “There is a gender discrimination presumption that that’s not true of women.”

Law enforcement and prosecutors in Austin and Travis County are adamant the only reason these cases don’t move forward is either because a victim refused to participate or there’s simply not enough evidence.

Garrett doesn’t buy it.

“It just makes you wonder what is enough evidence?” she said. “What do we as survivors have to go through for them to think we deserve justice?

Time For A National Dialogue

Noël Busch-Armendariz, director of UT’s Institute on Domestic Violence and Sexual Assault, says the question itself shows the complexity of this crime. When asked if she believes gender discrimination plays a role in the outcome of sexual assault cases, she says yes – but it’s not so cut and dried.

“I think you’re going to find individual cases where women have been mistreated and their cases have been very poorly handled,” she said. “And you’re going to find police officers and prosecutors who have handled cases beautifully.”

Busch-Armendariz says if people really want to change the way these crimes are handled, they can’t look at the criminal justice system alone.

“I think we have to move upstream [and ask], ‘What is it about our society that allows this to happen?’” she said.

Busch-Armendariz says any time there’s a national dialogue about sexual assault, it opens a conversation that can have a profound influence. Take, for example, Brett Kavanaugh’s Supreme Court confirmation hearings in 2018 and testimony from Christine Blasey Ford that he had sexually assaulted her in high school.

Texas Handmaids
Credit Emree Weaver for KUT
Texas Handmaids protest Brett Kavanaugh's nomination to the U.S. Supreme Court, in Austin in October.

For many, this was a defining moment of the #MeToo movement and the country’s long-overdue reckoning with sexual violence. For others, it was an example of how the movement had gone too far. The overwhelming response from the public sent a stark message to sexual assault survivors.

According to the Rape, Abuse & Incest National Network, the organization saw a 338 percent increase in hotline traffic during the hearings. RAINN also says the day after Ford and Kavanaugh testified was the National Sexual Assault Hotline’s busiest day in its 24-year history.

"Often people say, 'Well, this isn't rocket science,' and I say, 'It's not; it's a lot harder than rocket science.'"

It’s possible some of those calls came from the one-third of adult Texans who have experienced some form of sexual assault in their lifetime.

“The person sitting next to you, the person living in the bedroom next to you when you grow up, the person who sits in a cubicle next to you – one of those people will experience this injustice, this crime, this trauma,” Busch-Armendariz said. “If not that, then you will experience this kind of violation.”

If society wants to see any meaningful change, she says, communities need to allocate more time and resources into understanding this crime better. Right now, we simply do not have the legal mechanisms in place to unpack the more difficult aspects of sexual assault, such as how to define consent. Busch-Armendariz says it will likely stay that way until society makes it a priority.

“Often people say, ‘Well, this isn’t rocket science’ and I say, ‘It’s not; it’s a lot harder than rocket science,’” she said. “You try dealing with human beings on a mass scale and tell me how it goes for you.”

Changing Rape Culture

Garrett graduated from UT Austin with honors in May, but the effects of the night she was attacked, as well as what came after, continue to impact her life. She got a degree in cultural anthropology and wrote her senior thesis on rape culture. She also recently got a job working with survivors of sexual assaults.

Garrett says she’ll continue her work as an advocate and speak publicly about her rape even though reliving that experience takes its toll. She reported her rape, in part, because she wanted to make sure it didn’t happen to anyone else. Her attacker is still out there – along with countless others who have never been charged.

Garrett’s hopeful about the City Council’s decision to start reviewing sexual assault cases. But, she says, until Austin starts putting more offenders behind bars, it is failing victims.

“Survivors are still in this community not getting the resources we need, not getting the justice we need and not getting the healing that we need,” she said. “We absolutely have the power and the ability to [fix] that in this city.”


The Provability Gap episodes: 

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).

Nadia Hamdan is a local news anchor and host for NPR's "Morning Edition" on KUT.
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