The Provability Gap: Why It's Hard For Prosecutors To Prove Rape Cases Beyond A Reasonable Doubt

Aug 20, 2019

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

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 Rape, Abuse & Incest National Network. The numbers aren’t much better when zoomed in locally.

Of the 625 adult sexual assault offenses reported to Travis County law enforcement in 2017, 13 resulted in plea agreements, 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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“When I came into office, I believe the number of jury trials in Travis County was low,” District Attorney Margaret Moore said. “I think prosecutors have to have jury verdicts to make sound prosecutorial decisions.”

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.

Survivor Marina Garrett argues if the city and county want to say they stand with survivors, there need to be more prosecutions.

“What can you do if you have a police department and a DA that aren’t providing the justice?” she said.

Justice, According To The Law

But prosecutors say they’re stuck within the confines of Texas law, which many would argue is not survivor-focused.

The Austin/Travis County Sexual Assault Response and Resource Team (SARRT) survey released last year showed an overwhelming majority of respondents – 94% – do not believe the current law adequately addresses sexual assaults.

“I’ve seen literature that tells the public, ‘If you’ve been touched in a way you didn’t like, you’ve been sexually assaulted [and] you should report that,’” Moore said. “That is not what the penal code calls a ‘sexual assault.’”

According to the Texas Penal Code, a sexual assault is the penetration of another person’s 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: Only about 10% to 12% of victims in Texas report they were physically injured or threatened during a sexual assault. Still, every detective, prosecutor and jury must approach cases with the penal code’s definition as a reference.

This makes it hard for prosecutors to prove these cases beyond a reasonable doubt. It’s such a specific definition, Moore says, so it’s not enough that a victim says “no.” The DA’s office would have to prove that that “no” was overcome by force.

“There’s a big gap between believeablity and provability,” she said. “This 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.”

A painting by Emily Borchardt after she was sexually assaulted.
Credit Courtesy of Emily Borchardt

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’s rape kit.

But he wasn’t 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 a recorded phone conversation with her former sister-in-law (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.)

“I don’t know, you just feel very angry and … I cried,” said Sarah Borchadt, Emily’s mother. “It’s hard to explain, it just matters so much.”

Borchardt is exploring a potential defamation claim.

'It's Still Possible To Make The Case'

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’s attorney told her when her case was declined.

“She said the CSI effect,” Garrett said.

Her attorney believed a jury would not convict because there was no DNA evidence linking Garrett to her attacker. Although studies do show juries are more likely to expect forensic evidence, prosecutors know the reality: DNA is important only when proving someone’s identity or proving sexual contact.

“It is of less importance – perhaps no importance whatsoever – if the only issue is whether or not the conduct was consensual,” Moore said.

But Garrett’s 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’t convict.

UT law professor Jennifer Laurin says prosecutors could play a big role in reforming rape laws.
Credit Julia Reihs / KUT

UT law professor Jennifer Laurin concedes prosecutors do have an ethical obligation to decline a case if there is not enough evidence.

“That said, it is not unheard of in criminal prosecutions for prosecutors to bring novel theories in order to push the law in particular directions,” 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’s seen prosecutors do this successfully, and it’s actually one important way in which criminal law evolves.

“It’s still possible to make the case,” she said. “It’s 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.”

Laurin says even if a prosecutor doesn’t win the case, they’re still exposing juries to the complexity and nuance 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’t 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’t involve any serious injuries — beyond the rape itself.

“Not pursuing those categories of cases is a choice that’s being made,” Laurin said. “It’s not something that is being forced upon an office.”

The Burden Of Proof

Many in the community have long-criticized the DA’s office for not pursuing more sexual assault cases. A 2017 letter written by former co-chairs of the Austin/Travis County SARRT went so far as to call the current criminal justice system one that “condones rape and does not hold perpetrators, or itself, accountable.”

Moore is also one of the defendants in the survivors’ lawsuit against the city and county and recently resigned from the state’s new Sexual Assault Survivors’ Task Force amid criticism of her appointment.

"This idea that there is some reason why we won't take sexual assault cases – other than the insufficiency of the evidence – is, frankly, erroneous and offensive to me."

Moore dismisses the allegation that prosecutors refuse a case for any other reason than the inability to prove it beyond a reasonable doubt.

“If it’s prosecutable we take it and that’s that,” she said. “This idea that there is some reason why we won’t take sexual assault cases – other than the insufficiency of the evidence – is, frankly, erroneous and offensive to me.”

Moore also says data shows around 40% of adult sexual assault cases reported to Travis County in 2017 didn’t move forward because of victim participation issues.

There is no simple answer for why so many sexual assault cases don’t 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’s also possible that certain experiences or biases are preventing some prosecutors from believing they can convince a jury.

“That’s not the ill-meaning prosecutor,” Laurin said. “It’s the prosecutor who has developed an erroneous sense of what juries can be persuaded of beyond a reasonable doubt.”

Moore says Travis County prosecutors are doing the best they can within the confines of the law, and it’s the community that needs to adjust expectations.

“People need to understand that the criminal justice system is not here to give satisfaction to victims. That may sound a bit harsh, but it’s a fact,” she said. “We can’t always make a criminal case out of a traumatic event.”

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.

“I think it’s 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,” she said. “I think the nature of the offense of rape or sexual assault requires those hard conversations to be had and resolved.”

Next: How Society Plays A Role In Finding Justice For Rape Survivors

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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).