David Lisak travels across the country about a hundred days a year to teach law enforcement, military, and judicial personnel about how trauma affects the brain. His message is simple: The way the legal system works is out of sync with the latest brain science. “There’s a huge lag between what we know from the research in neuroscience and what is getting implemented,” he says.
In hotel conference rooms and police training halls, he uses a nofrills PowerPoint presentation to explain that during a life-threatening event, two chemicals—dopamine and norepinephrine—flood the brain. This jams up and alters the flow of information, which ultimately affects how victims process what is happening. “What people notice when they go through an experience like that is they say they can’t think straight,” he explains.
Simultaneously these chemicals modify the way the brain encodes experiences, often making it difficult to remember things chronologically. “It results in flashes of memory, intense fragments,” he says. “Fragments can, in many survivors, be really disconnected. What they remember are these vivid flashes of what happened, but they may have a lot of trouble answering questions about where or when was that, what sequence did it happen in, did this happen first or that?”
A victim who is having difficulty processing questions about a traumatic incident may appear suspicious. Taken out of context, the fitful memories of traumatized people can be devastating for their legal cases.
But even if the cops believe a victim, as they did in Guadalupe Chávez’s case, it still might not be enough.
By the time Chávez’s case came to Kathy Ciuffini, she had been a prosecutor for about half a decade. A deputy district attorney in California’s Central Valley, Ciuffini had earned a reputation for taking on cases that other attorneys tended to avoid. She prosecuted a police officer who admitted to molesting teens and a gang leader who ordered a hit on a prison inmate.
Before that, she had been on the other side as a public defender, before realizing it wasn’t the best fit. It was a job that put her on the fault lines of the justice system. On the one hand, she had defended a drunk driver at trial who she felt had been clearly guilty, and on the other, she had also represented a drug addict who she felt needed help instead of a lengthy prison sentence. “I wanted a job where I got thanked every once in a while,” she says.
When Chávez’s case file came to Ciuffini, she looked closely at the investigation that Deputy Sheriff Zúñiga had done. Ciuffini remembers thinking that in her experience, people didn’t tend to make up incidents like the one Chávez described. She was also struck by the fact that since both Chávez and the supervisor confirmed that they had never met before, there wasn’t an obvious motive for Chávez to lie about being the victim of such a serious crime. The suspect’s statements to the police struck her, too. “He kept changing his story,” Ciuffini says.
Like Zúñiga, she needed to make sure that she truly believed Chávez’s account before taking up the case. To help Ciuffini decide, she asked an investigator from her office to arrange an interview with Chávez to see if holes and discrepancies in her story had reasonable explanations.
A few days later, Chávez arrived at the Kings County District Attorney’s Office with Esmeralda Romero, a victim services advocate, who would help with Spanish-to-English interpretation. They were led to an interview room that had been purposely decorated to put visitors at ease.
Chávez was invited to sit on a couch, and Romero sat next to her. Ciuffini and Dennis Reed, the investigator, took armchairs opposite Chávez. Before beginning the interview, Reed set a tape recorder on the coffee table between them.
“We’re at the Kings County District Attorney’s Office with Guadalupe Chávez,” Reed began. “We’re gonna be speaking to you about an incident that happened to her out in, in Kettleman City. . . . We’ve read the report and actually the deputies did a good job on the report. But in reading it, we always have other questions to ask.”
Ciuffini and Reed started by asking Chávez about her trip to get her overdue paycheck, the various stops that she and the supervisor had made during their drive. Then they started in on the sexual assault itself. How did the supervisor appear when he asked her for her underwear? “Like nervous, staring and looking all around,” Chávez said.
Then they asked her to talk them through how she removed her underwear and why she did it. The interpreter translated: “She didn’t want to make anything more difficult so she just went ahead and took off the underwear and gave ’em to him and she was thinking in her head all he wants is my underwear, I may as well give him my underwear and I’ll get my check.”
When he was penetrating her with his fingers, did she tell him to stop? “No, she didn’t,” the interpreter said, translating. “She was scared. She didn’t think of anything. All she was thinking about is if something happened to her, what were her kids gonna do?”
Next Reed and Ciuffini asked Chávez about the second assault. “Okay I have to ask because somebody else is gonna ask if I don’t,” the investigator said. “When you got to that point and he was walking back with his pants unzipped, why didn’t you drive away?”
Chávez spoke and the interpreter translated: “She didn’t know where she was going. That’s why she thinks it’s her fault because she had time to go and get out of there and she didn’t know any roads where she was at. She didn’t know.”
“I understand, I do understand,” the investigator said. “But I need to ask, okay? But I understand you’re lost. What were you afraid of?”
“That he was gonna kill her or something was gonna happen,” Chávez said through the interpreter.
“What did you think would happen to you if you said no?” Ciuffini asked.
“She doesn’t know what would have happened but she knows that she wouldn’t be in all this mess. She said this is very embarrassing for her. She didn’t want to say anything about it and she said she’s never told nobody about it . . . so this is very difficult for her.”
Ciuffini had worked with enough victimized people to know what her gut was telling her. She looked at the moon-faced woman before her, her hair pulled back, the hurt and shame in her face. The story stuck together. She believed Chávez.
If sexual assault and rape cases are rarely reported to the police, then even fewer of them move forward through the criminal courts. According to the Rape, Abuse & Incest National Network, the country’s largest organization working to reduce sexual violence, less than 4 percent of reported rapes and sexual assaults are taken up for prosecution, and only about half of those go to trial.27
The legal standard is necessarily high in these cases, and a prosecutor must prove beyond a reasonable doubt that the crime happened. Judges and juries must be sure that the defendant is responsible before finding guilt, because aside from prison time, a sex-crime conviction—which may require inclusion in a sex-offender registry—has long-term effects on job and housing opportunities. In more than two dozen states, convicted sex offenders face housing restrictions that could bar them from living near schools, parks, or other places where children are likely to visit.28 This has led to increased homelessness and instability for convicted sex offenders, which also makes it difficult for them to find work and reintegrate into their communities, which in turn could make it more likely that they will reoffend.29
And wrongful convictions happen. Between 2012 and 2016, there have been at least sixty wrongful convictions based on sexual assault charges nationwide.30
The weight of a sex-crime conviction, coupled with the persistence of rape myths, makes sexual assault cases among the hardest cases to take to court, prosecutors say. “You have victims who are terrified of the process and they should be, frankly, because the system is largely intended to give the benefit of the doubt to the accused,” says Joshua Marquis, the district attorney in Oregon who is also a spokesperson for the National District Attorneys Association.
Of the hundreds of felony cases he has taken to trial, the rape cases are the harde
st, he adds. “The ones I remember the names of, the ones where I’ve stayed in touch with the victims, are the rape cases I’ve lost,” he says. “They stay with me. They are more difficult to do than homicide cases. Because the victims survive.”
For prosecutors, the decision to pursue these cases can be fraught, and they are not immune to political considerations. Almost all of the more than 2,300 local prosecutors in the United States are elected, and both the public and the criminal justice system itself tend to evaluate their performance based on their conviction rates.31 Studies have found that prosecutors are sensitive to reelection and have been found to be more aggressive about taking on cases prior to an election.32 At the same time, concerns around politics and public perception make some prosecutors hesitant to take on cases that they believe are unlikely to result in a conviction—including sexual assault cases, which are uniquely difficult to prosecute because victims are traumatized and vulnerable, and the crime itself is widely misunderstood by juries and the public.33
In a 2017 report aimed at upending the tendency of prosecutors to make decisions based on conviction rates, a group of criminal justice policy and training organizations argued that “conviction rates tell only part of the story about whether a prosecutor’s office—or a prosecutor—is successful in handling cases involving sexual violence.”34
“If difficult or challenging cases fall by the wayside early in the process, they are generally not factored into the rate of conviction,” says the report, which was authored by three policy and training organizations: AEquitas, the Justice Management Institute, and the Urban Institute. “While there may be a thin veneer of success in terms of conviction rate, the reality is that serial perpetrators, or those who are clever in their choice of victim, escape justice, while victims who have been violated in the most personal and devastating way are left to their own remedies, without the support of the criminal justice system.”
In an effort funded by the U.S. Department of Justice’s Office on Violence Against Women, these three groups have advanced and will implement a new model for sexual assault prosecutions in a handful of jurisdictions across the country, one that emphasizes how cases are handled instead of conviction rates.35
For prosecutors, there has historically been little choice but to play to conviction rates or ignore them altogether. “I think that there are two basic competing philosophies about how prosecutors approach a decision about when to take a case, particularly a sex crimes case,” says Alice Vachss, the former New York City prosecutor who has been critical of the way the criminal justice system handles sexual abuse. “One theory, and the one I believe in, is that you don’t worry about conviction rates. Your job as a prosecutor is to go after the bad guys. The other competing theory is that you look at the likelihood of conviction and that is a big part of your prosecutorial decision.”
In Hennepin County, Minnesota, County Attorney Mike Freeman says he is duty bound to take the probability of a trial win into account when deciding which cases to prosecute. Freeman had the power in 2008 to decide whether to pursue a criminal case on behalf of Leticia Zúñiga, a janitor who was undocumented at the time and who said she was raped while working as a cleaner at a shopping mall in suburban Minneapolis.
Zúñiga, who is not related to the deputy sheriff in California, says she had been raped after her supervisor called her into his subterranean office at the mall one afternoon.36 After he shut the door, he told her to take off her clothes. She refused, but he forced her to have sex with him. That was the first of three rapes in his office, Zúñiga says. She adds that a fourth assault at the loading docks caused her so much pain that she ended up going to the hospital.
She says the supervisor, a man named Marco González, had pressured her to stay quiet by threatening to report her to immigration authorities. For months, she hadn’t said a word to anyone, not even her husband. Holding such a dark secret had taken its toll. She barely ate, and when she was home, she avoided her family and hid in a bedroom. “I felt very closed in a world where I could not speak,” she says.
For months, she lived through the torment alone. She couldn’t stop working because her family relied on her paycheck and she knew it would be hard to find a new job without papers. She also didn’t know what she would tell her husband if she quit. Mostly, she worried that González would report her to immigration if she spoke out against him because what scared her most was the idea of being separated from her two sons, who had both been born in the United States.
At work, Zúñiga says González alternated between physically attacking her and publicly chastising her in front of other workers. He called her a prostitute and a monkey, and he pointed out deficiencies in her work. Though she had every intention of keeping the assaults to herself, the public insults pushed her over the edge. A few months later, she quit and told her husband everything. “You have no idea how much it hurt me, and I could not believe that all of this was happening to me,” Zúñiga says. “It hurt me a lot—so much that I got up the courage to talk.”
Zúñiga and her husband went looking for help. They met with a worker advocacy organization that helped Zúñiga report what had happened to the mall management. The mall contacted SMS, the cleaning company that had employed Zúñiga. The company responded by asking González to investigate the problem himself.
The advocates also connected the janitor with free legal help from the University of Minnesota’s law school. Lisa Stratton, a lawyer teaching at the school, oversaw a crew of law students who prepared a civil sexual harassment lawsuit against the janitorial company on Zúñiga’s behalf. The lawsuit said that the company had failed to take her complaint seriously and hadn’t created a clear-cut way for workers like Zúñiga to make a sexual harassment complaint.
As the civil case progressed, Stratton also encouraged Zúñiga to think about reporting the rapes to the police because it could give the janitor a chance at a special visa, known as a U visa, for noncitizen victims of crime who assist with the investigation or prosecution of crimes such as domestic violence, sexual assault, and human trafficking. Congress created the U visa program in 2000, and it requires an endorsement from law enforcement or a government official that states that the victim had been helpful in pursuing a criminal case.
In the spring of 2008, nearly a year after the final rape, Zúñiga summoned the courage to go to the police department. After she made her report, the police tried to gather DNA evidence by taking swab samples from González’s office because Zúñiga said that the violent rape had led her to bleed on the carpet. She also said González had ejaculated onto the floor.
In conducting its investigation, the police spoke with González multiple times. Each time, his story shifted. In their first meeting, González denied any physical contact with Zúñiga. In the second, after he learned that the police were looking for DNA evidence, González told the police that Zúñiga had instigated things by kissing him and then masturbating him. He also told the police detective handling his case that his doctor could provide him with documentation that said that he was incapable of rape because he had erectile dysfunction.
Zúñiga’s criminal case received some corroboration when Karla Perez, another janitor who had worked for SMS, came forward to say that she had been sexually assaulted by González, too. Perez had heard about Zúñiga’s report, and it gave her the push she needed to make a complaint to the police.
The DNA testing that the police conducted was inconclusive, but based on the reports of Zúñiga and Perez, the police referred the rape charges against González to County Attorney Freeman for prosecution.
Freeman reviewed the case personally and decided that his office would not move forward with prosecuting the case. “We had a strong report, the woman victim recounted the number of episodes and abuse she suffered,” Freeman recalls. “Immediately we began to look for what we call ‘hard evidence.’ Where’s the physical evidence? Is there a sexual assault kit? Do we have his sperm? Do we have other bodily
fluids? Do we have eyewitnesses? Do we have camera surveillance? And unfortunately and tragically in this case all we had basically was her word and his word. We really didn’t have hard evidence.”
The lawyers handling Zúñiga’s civil sexual harassment case, however, doggedly went in search of more physical evidence and corroboration. They found additional women who said that González had sexually harassed them. They learned that González had remodeled his office and changed the carpets before his office could be swabbed for DNA. They discovered that he had installed cameras and secretly recorded conversations with other workers as he fished for gossip on Zúñiga. Her lawyers, who were now working for a legal aid group called Gender Justice, also sought access to the supervisor’s computer, a process that took close to two years. A forensics scrub of the computer in González’s office showed that he went to websites like www.freerapepics.us.
Though the criminal case had been dropped, González was still being questioned by the U.S. Equal Employment Opportunity Commission in the civil case. He continued to offer disjointed and incompatible accounts of what had happened in his office with Zúñiga. In sworn testimony that he gave during the civil lawsuit, he said that despite what he had said to the police, he and Zúñiga had never had sexual relations. When Zúñiga’s lawyer asked why he had told the police that he and the janitor had a consensual sexual relationship, he said that he had lied to law enforcement out of fear.
After five years of litigation, Zúñiga’s sexual harassment case was settled in 2012. The company paid a settlement and didn’t admit any wrongdoing. It also agreed to make changes to its sexual harassment policy, including implementing annual training for all of its workers and posting a human resources hotline so workers know whom to call if they have a problem. González, who was named in the civil suit, also settled the case without admitting liability, and continues to deny that he raped Zúñiga.
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