The Provability Gap: How One Survivor Was 'Retraumatized' After Reporting Her Rape

Aug 20, 2019

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

Warning: This story contains a graphic description of sexual assault.

When I first met with Marina Garrett, she was preparing to graduate from UT Austin. Like most seniors, she said she was nervous but excited. It was an especially significant moment for Garrett because, for a long time, she didn’t think it would happen.

Her doubt stemmed back to one night in 2015.

It was just after 2 a.m. and the then-19-year-old was in downtown Austin on Sixth Street. The bars were closing, and people were making their exodus onto the street. Garrett and her friend, both drunk and disoriented, sat down on a curb to figure out how to get home.

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That’s when a man approached them and asked if they wanted to buy any cocaine. He told Garrett if she went with him to the alleyway, he would let her try it first. She said OK and followed him.

But he did not take her to the alley.

“He took me to a parking garage, slammed my head against the parking garage wall and raped me vaginally and anally,” Garrett said.

Her memories from the attack are scattered, but she said she tried to call people for help. Her mother, her sister and her best friend all had missed phone calls from her. The friend she had been with that night even got a voicemail.

“In the voicemail, you can actually hear me saying ‘no’ and ‘stop,’” Garrett said. “I’m begging this man to stop doing what he’s doing to me."

Her next memory was walking down the I-35 service road and a man pulling over to ask if everything was OK. Garrett said no; she didn’t have her phone, keys or wallet. The man gave her a ride home. All she remembers after that is taking a shower and going to bed.

The next morning her roommate asked if what she said the previous night really happened.

“I was like … ‘Holy shit, I was raped last night,’ ” Garrett said.

Under A Microscope

Garrett went with her sister to Eloise House, a 24/7 clinic that provides free sexual assault forensic exams.

“The exam itself is difficult, it’s very difficult,” Garrett said. “You have to talk through something that you still barely understand … [the] ‘how’ and ‘why,’ and you have to tell someone else in detail.”

Not only was every aspect of Garrett’s story under observation, but so was every part of her body. The nurses’ report shows she had an abrasion on her forehead, where her attacker slammed her head against the wall, as well as bruising all over her arms and legs. For the next three hours, Garrett was poked, prodded, swabbed and photographed. Her nurses used purple dye to see if penetration caused excessive tears. They showed Garrett the images as they were taking them.

“I was like, ‘Oh my god, how is that my body?’” she said.

At the end of the exam, the forensic nurse filled out a form saying she believed Garrett’s wounds were the result of a sexual assault.

Paula Marks, forensics nurse manager at SAFE Alliance, shows Austin police detectives how nurses collect information from sexual assault examinations.
Credit Julia Reihs / KUT

Garrett immediately called 911 and reported her rape to police, but it took a couple days before a detective reached out to her. During that time she got a new phone. When she turned it on, she saw an unread text message. It was from her attacker. He said he wanted to see her again. She confronted him about the rape, but he denied it.

Now, she had a phone number to give police.

“I was like, ‘OK, they’re going to get this guy,’” Garrett said. “I completely believed it. I was like – there’s no way they won’t. They know who he is, they know he raped me. There’s no way I won’t make it to trial.”

When the police called to ask if she wanted to move forward with the case, she said yes. Garrett said she felt good about the detective, but the whole experience left her shaken.

"Every day, that's the first thing you think about. Every day. Where are my DNA results?"

“It’s traumatizing, of course. I can never say that word enough,” she said. “To just be in the room, looking at a detective and being like, ‘This is my story. This happened to me.’”

The police ultimately found Garrett’s attacker. He said the sex had been consensual and agreed to a DNA test. But APD suspended the case, while it awaited results from Garrett's rape kit.

Garrett said she called almost every month to check on the status of the exam.

“Every day, that’s the first thing you think about. Every day. Where are my DNA results?” she said. “It was just all I could think about.”

'It Really Felt Like No One Cared'

Garrett tried to get back to her life as a college sophomore. She said there were moments where she felt normal, but then the realization of what happened would come back and it was “world-crushing.” By the time the next semester rolled around, she made it only two weeks before dropping out.

Then Austin’s forensic lab shut down.

A state audit had raised concerns that the lab’s untrained staff and improper testing procedures could be compromising DNA results. Garrett called her detective.

DNA and other evidence is collected as part of the forensics exam.
Credit Julia Reihs / KUT

“She said, ‘I have no clue when you’ll get your results back.’” Garrett said. “That’s obviously when I started losing a lot of hope.”

The following year, hundreds of rape kits in police storage were found to have signs of mold. It was the summer of 2017 – exactly two years after her assault – and Garrett tried her detective again.

“She calls me back to let me know that my kit had come back and there was no DNA,” she said. “I immediately broke down.”

Due to insufficient evidence, the detective told her, the district attorney declined to prosecute her case. But Garrett wasn’t ready to give up. She set up a meeting with the assistant district attorney assigned to her case.

“I told her how traumatic my life had been since then,” Garrett said. “I stayed in bed for so long I had knots in my hair that I had to cut out because I could not take care of myself. My PTSD was so bad because of all of this.”

Garrett said the assistant district attorney was sympathetic, but told her she still could not take the case. The reason? The CSI effect: the belief among prosecutors that many jurors expect more DNA evidence because of TV crime dramas, such as CSI, which have influenced the public’s perception of what police need to solve a case.

In the end, Garrett’s case was exceptionally cleared.

“Exceptional clearance” is an FBI rule that allows officers to effectively close a case even when they have probable cause for an arrest. To do that, something outside their control must be stopping them from moving forward. This can happen when a victim drops out of the investigation or when a prosecutor chooses not to bring the case.

“I’m an American citizen with all these rights, like, why is my rapist getting rights and I’m not?” Garrett said. “It really felt like no one cared about it.”

A Responsibility To Survivors

Garrett isn’t the only sexual assault victim in Austin to feel this way. In fact, she’s one of eight women who filed a class-action lawsuit against the City of Austin and Travis County, claiming their cases were inadequately handled because of gender discrimination. (Garrett is one of five plaintiffs in the suit who agreed to be identified by name.)

UT Austin students show their support for victims of sexual assault during a demonstration on campus in October 2018.
Credit Salvador Castro for KUT

In the age of #MeToo, there’s a growing number of people in Austin – and across the country – who worry the criminal justice system is failing rape victims.

“As a Council we have an opportunity to acknowledge openly, honestly and with intention, that sexual assault is a violent crime, that sexual assault is too prevalent in our city [and] that sexual assault disproportionately hurts women,” Alison Alter said at a January 2019 City Council meeting. “We the leaders have a responsibility and a desire to do more to promote healing and justice for survivors.”

For Garrett, this means giving survivors a reason why so many sexual assaults are not prosecuted.

“You know, the rape itself was a trauma, but what happened afterward was also a trauma,” she said.

Next: How Police Can Get It Wrong In The 'Deeply Personal' Crime Of Rape

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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).