The Austin Chronicle

Survivors Hit Back at City, County in Court

Plaintiffs hit back at motions to dismiss in sexual assault class-action suit

By Sarah Marloff, October 19, 2018, News

The eight sexual assault survivors suing local law enforcement filed another scathing omnibus response on Monday to the city of Austin and Travis County's separate motions to dismiss. In short, the plaintiffs have asked U.S. District Judge Lee Yeakel to deny the motions in entirety – and if not, the survivors have requested leave to replead their case.

The original complaint, filed in June by three survivors, was amended in August to add five additional women, all arguing that systemic failures within the Austin Police Department, the Travis County Sheriff's Office, and the Travis County District Attorney's Office have not only led to the mistreatment of women rape survivors, but also violated their constitutional rights. The county's motion to dismiss, filed in September, claims that it's immune from the suit, that the plaintiffs lack both standing and "sufficient factual allegations," that no constitutional rights have been "identified or violated," and that the relief sought is "inappropriate." It further alleges that "Travis County law enforcement, advocacy groups, and prosecutorial communities prioritize seeking justice against those that threaten the safety of our community."

In their 65-page response, the plaintiffs hit back, calling it "breathtaking" that the county would claim to be prioritizing justice in light of the current circumstances. According to the filing, of the roughly 1,000 sexual assaults reported in Travis County annually – over 900 of which are made by women – fewer than 0.2% "proceed to finality" on criminal charges. On average, more than 600 of those women submit to rape kits in an effort to catch their attackers, yet those kits go untested (often for years) or are frequently not used to "pursue additional investigation or process cases through the criminal justice system." This, the filing argues, is a violation of the Fourth and Fifth Amendments, which protect against unreasonable search and seizure and prevent government officials from improperly taking personal property "without just compensation." The city and county allegedly misled survivors about the importance of a forensic exam, leading them to believe, "based on information provided," that the rape kits would be appropriately handled, stored, tested, and used to assist a criminal investigation, and potentially the prosecution of their attacker.

Additionally, the plaintiffs argue that the cases of women survivors are treated differently than those of male survivors, and thus the city and county have also violated the Equal Protection Clause under the Fourteenth Amendment, which forbids gender discrimination. The filing alleges that "female victims are blamed for their own assaults when men are not," that women's DNA evidence is often left untested, and that local statistics demonstrate there are "far fewer" prosecutions for women survivors.

Under federal case law, the plaintiffs argue that in considering the motion to dismiss, the court must "take all allegations in the complaint as true and view them in the light most favorable to the plaintiff." They cite a 5th Circuit Court of Appeals decision stating: "A motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim." As evidenced by their previous filings and this response, the plaintiffs' lawyers believe there's no dearth of evidence to prove that the systems expected to support rape survivors have in fact failed the women of Austin and Travis County for years.

Tuesday evening, the Texas Association Against Sexual Assault, the statewide agency working to end sexual violence, released a statement urging county officials to demonstrate a "clear commitment to prioritize sexual assault survivors," regardless of the court's decision. "We affirm the courage it takes for all sexual assault survivors to speak out about their experiences, and we demand more for them, beginning with transparency regarding how sexual assault cases are handled and a more thorough examination into current practices." Whatever happens next depends on Judge Yeakel, and it's uncertain when he will rule.

Read the Texas Association Against Sexual Assault full statement below.


Yesterday, several women who say that Travis County officials systemically mishandle sexual assault cases asked U.S. District Court Judge Lee Yeakel not to dismiss their federal class action lawsuit against the city of Austin, Travis County, the Travis County District Attorney and the Austin Police Department.

Despite significant advances in forensic evidence and investigation techniques, only a small fraction of sexual assaults in the United States result in criminal prosecution. Regardless of what the court decides, it is imperative that Travis County officials now demonstrate a clear commitment to prioritize sexual assault survivors.

We affirm the courage it takes for all sexual assault survivors to speak out about their experiences, and we demand more for them, beginning with transparency regarding how sexual assault cases are handled and a more thorough examination into current practices. We urge elected officials not only in Travis County but across Texas to prioritize these issues and join advocates and survivors in exploring best practices to address the prevalence of sexual assault, the lack of reporting by survivors, and immediate improvements in the number of cases that are thoroughly investigated and accepted for prosecution.

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