The Austin Chronicle

https://www.austinchronicle.com/news/2019-03-15/painful-splits-along-the-way-to-stopping-sexual-assault-in-and-around-austin/

Painful Splits Along the Way to Stopping Sexual Assault in and Around Austin

Different approaches to accountability lead to rifts throughout the county

By Sarah Marloff, March 15, 2019, News

In the quest to find justice for local rape survivors, advocate Ana Rodriguez DeFrates told the Austin City Council on Jan. 31 that the last few years have felt like "we're putting out fires one by one." Dozens of speakers that evening agreed with her as they urged the adoption of Council Member Alison Alter's resolution – which passed unanimously – to initiate a comprehensive third-party audit of how the Austin Police Department has handled the last seven years of sexual assault cases.

Both advocates like DeFrates, co-founder of the Survivor Justice Project, and APD, according to Police Chief Brian Manley, hope this review will uncover root causes for those repeated crises, from numerous failures leading to the closing of the APD crime lab, to an enormous backlog of untested rape kits, to a troubling rate of mistakenly cleared assault cases. But the issues plaguing survivors of sexual assault in Austin extend beyond APD.

Largely unknown to the broader public, the Austin/Travis County Sexual Assault Response and Resource Team (SARRT) has, since 1992, been the hub of coordination among the many agencies that respond to these crimes. Over the years, the SARRT has moved the local needle toward a more survivor-centric system and has been recognized for its efforts by advocates that include Human Rights Watch. The team led efforts to open Eloise House on the SAFE campus (the city's primary shelter and service center for survivors of sexual assault and domestic violence) in 2015; as of last October, Eloise House has served over 2,000 survivors, collecting about 90% of all local sexual assault forensic exams (also known as "rape kits").

In 2018, the SARRT's Community Needs Assessment found that every aspect of Austin and Travis County's response system is under-resourced, but SARRT has succeeded by optimizing the work of its many partner agencies. "The only way that any community is successful in targeting sexual violence is a coordinated community response," explained SARRT co-chair and former APD Sergeant Liz Donegan to the Chronicle earlier this year. Donegan, who's been part of the SARRT on and off for most of its existence, elaborated: "You need to have this team to deal with all the issues within sexual assault that we don't see in other crime types: You have to try and keep victims in the system, and supported and believed. You need really bright cops and prosecutors who understand these crimes in order to be successful."

As recently as 2017, when the SARRT renewed its Cooperative Working Agree­ment, partnered agencies included APD, SAFE, Seton Healthcare Family, the Travis County Sheriff's Office, Texas Legal Services Cen­ter, and the Travis County District Attorney's Office. But all that changed in the summer of 2017. Just as the city and community were again seeing the benefits of collaboration and a focus on survivor justice, the system to deliver those benefits became in danger of falling apart.

Reaching the Breaking Point

The trouble began shortly after the July 2017 revelation that "a mold-like substance" had been found on the outside of 849 untested rape kits stored in APD's evidence warehouse – part of the backlog of more than 4,000 kits that had amassed since the shuttering, amid scandal, of APD's forensic lab the prior year. This was a breaking point for the SARRT, whose co-chairs at the time, Emily LeBlanc and Dana Nelson, authored a heated letter to Assistant City Manager Rey Arellano and Justice & Public Safety County Executive Roger Jefferies (both of whom oversee public safety) expressing their frustrations with APD and the D.A.'s Office. That letter called the backlog a symptom of a diseased "system that condones rape and does not hold perpetrators, or itself, accountable."

Though D.A. Margaret Moore and Chief Manley are both named in the letter, LeBlanc told the Chronicle at the time that the letter was not intended to hurt feelings, but to ensure that the SARRT was involved in conversations about the ongoing forensic lab crisis. But the fallout was immediate. Moore, only seven months into her term, pulled her prosecutors out of the SARRT. Manley followed suit: After what he says was about a decade of working on the team, his sworn officers stopped attending meetings.

While negative attention nationally and locally has focused largely on APD, survivors and advocates have mounting frustrations with the D.A.'s Office as well. Both Moore and her predecessor Rosemary Lehmberg are named in a class-action suit filed in federal court last August by eight local survivors of sexual assault. That lawsuit claims that systemic failures within Austin and Travis County law enforcement, including the D.A., have harmed women rape survivors, led to gender-based inequitable treatment of these women, and violated their Fourth and Fifth Amendment rights.

Moore's office stands accused of failing to prosecute cases lacking severe physical injury. According to the suit – and confirmed by Assistant County Attorney Tony Nelson during the defendants' motion-to-dismiss hearing in December – the D.A. prosecuted only one rape case out of approximately 1,000 sexual assault allegations made locally in 2017. The suit also claims that Moore, since leaving the SARRT, has "steadfastly fought to exclude subject-matter experts who had been critical of the D.A.'s Office."

In the suit, the plaintiffs cite Moore's comments (on tape) at a 2018 Circle C Area Democrats meeting. As stated in the filing, Moore argued that "nonconsensual sexual 'incidents' involving acquaintances of female victims are really better characterized as 'traumatic occurrences' that do not rise to the level of sexual assault. ... During the same meeting, D.A. Moore stated her belief that rapes involving victims who had consumed alcohol or drugs are generally not prosecutable as criminal acts, either."

In a January interview for this story, Moore did not directly discuss with the Chronicle the lawsuit or any of the allegations made therein. The D.A. said her office actually prosecuted 79 cases (rather than one) in 2017 in "one way or another. ... I consider it prosecuted if we take it into grand jury, even if it didn't show up on a court docket." Last year, Moore's office took nine cases to trial (although Nelson said 10 at the December hearing).

Moore asserts that she has to prove beyond reasonable doubt that perpetrators acted within the Texas Penal Code's definition of adult sexual assault (Sec. 22.011), which requires penetration without the consent of the victim and which suggests that a victim has to either fight back, be coerced, or be incapacitated to establish lack of consent. "Which is more than, 'Hey, I don't want to do this,'" she said. "So therein lies a world of factual circumstance that we have to examine to see what, would we tell a jury, was the force or coercion that was used to overcome the resistance of the victim."

Juries, Moore says, often want more evidence to be convinced. "It does get to be pretty grim. And you will go home and tell your daughter: 'Don't ever go down to Sixth Street and get drunk. Don't get in that car.' So that's what we're up against."

SARRT co-chair Donegan, however, argues that nothing will change if the D.A. doesn't take these cases to court – "even if we lose. We're not going to change the community's lack of understanding [if we] keep blaming juries. ... If you kept bringing [these cases] forward, you'd educate your grand jury."

"Ugly" is the word Moore used to describe the now-infamous letter from the former SARRT co-chairs (who stepped down last summer after the lawsuit was filed to avoid any perceived conflict of interest*) during the same January interview, in her office at the new Ronald Earle Building. "That's the only word. It was highly offensive and, frankly, hugely detrimental to any kind of collaborative atmosphere." But Moore also says she realized that collaboration between law enforcement and victim advocates was still needed in Travis County. So she formed her own team.

"You've Got to Test the Law"

In September 2017, Moore brought together Manley, Travis County Sheriff Sally Hernandez, Pflugerville Police Chief Jessica Robledo, UT Police Chief David Carter, and Lakeway Police Chief Todd Radford to discuss the creation of the Interagency Sexual Assault Team, or ISAT. Together with SAFE – the only representative of advocates, Eloise House, and the county's Sexual Assault Nurse Examin­ers – and the Texas Department of Public Safe­ty's Capital Area DNA Lab, ISAT's executive committee signed a memorandum of understanding the following month. The team's mission: to increase the effectiveness of the county's "response, investigation, and prosecution of adult sexual assaults and to ensure that victim needs are being met." The executive committee meets quarterly, Moore says, and the ISAT "worker bees" from the member agencies meet monthly.

Among several current ISAT projects is a data work group to identify where rape cases fall out of the justice system, and why. Moore insists that current data about sexual assault complaints, cases, and prosecutions are "highly unreliable for many different reasons." When asked to elaborate, she added that the reporting that's happening "is not uniform, and it is often fraught with flaws. We can just tell you that." To address this, she said, the ISAT began a "yearlong process" of discussing how terms are used between agencies and even "from detective to detective," working toward a countywide agreement on "what these terms are going to mean."

The ISAT also launched its own review of rape cases – from reporting to disposition – to identify "effectiveness of current processes/protocols; gaps and successes; victim centeredness of our processes; and recommendations for enhancing our systemic responses and interventions," as described in materials provided to the city's Public Safety Commission. Using the cases brought to jury trial in 2018, prosecutors present the cases to ISAT with feedback from jurors and highlight possible roadblocks. "Trials are our bottom line," Moore told the Chronicle. "You've got to test the law against what the community is really going to do."

The ISAT also aims to use survivor feedback to figure out why 40% of cases do not reach jury trial due to "victim participation issues." Moore pointed to the "wide range of reasons why victims drop out" and said, "We can address it anecdotally, but we don't have a good tool to tell you: 'Is there some way you can do this better?'" The D.A. emphasized that these "are not discussions that can take place in public; they're very invasive of the privacy of the victims. It has to be done in a very trusting environment."

Moore notes that the SARRT's membership is too large to have those confidential conversations, but in any event, her relationship with the team may be beyond repair. Moore insists the connection between the survivors' lawsuit and the SARRT is "known and obvious"; participating SARRT agencies have provided services to some of the plaintiffs. Once the lawsuit is resolved, however, Moore says she'd be open to discussing "what value" SARRT would "bring to us that would justify us taking taxpayer resources to participate."

The SARRT has to "figure out what they are and what they're trying to do," the D.A. said. "If they want to be a victim advocacy attack organization, go for it. Tell the community the whole victim perspective. But let the participants in the system have collaboration that leads to better practices, better communication, and hopefully better cases."

Difficult Discussions for All

Both ISAT and SARRT presented at the February 4 Public Safety Commission meeting, prompting one of the biggest turnouts in recent memory. After the presentations concluded, Commissioner Daniela Nuñez expressed the public and private views of many: "What really struck me [about SARRT's presentation] was the importance of having those difficult conversations ... to identify these areas of conflict and address them together. ... I'm a little unclear about why ISAT formed, when there's such a long history with the SARRT team and such a diverse list of community advocates representing survivors." Moore responded that "my people came back saying they didn't feel safe there. For me, it was important that we get our job done and go on."

That prompted a pointed reaction from advocates. As Kristen Lenau, a co-founder of the Survivor Justice Project, explains: "The co-opting of the word 'unsafe' by institutions and people in power – it's disturbing and surprising. It's dismissive and minimizing of the real experiences of survivors. There's a difference between being uncomfortable and unsafe."

Elected officials like Moore, SJP says, should engage "not just with peers, but with everyone they serve," which is not possible when advocates other than SAFE are not at the table and when a lawsuit names those officials as violators of survivors' rights. SARRTs can be found all across the country, and SJP's third co-founder Amanda Lew­is mused that ISAT "sounds like another type of SARRT – minus the community collaboration and accountability for change."

Donegan told the Chronicle: "You can have two SARRT-like groups if they have clear roles, but they have to be communicating. ... We never told the D.A. not to come back; APD as well – we never closed that door. We couldn't, with the critical roles those agencies play."

Donegan and fellow SARRT co-chair Neva Fernandez sent letters in February to both Manley and Moore, inviting them back to the SARRT. Moore declined, citing the lawsuit; Manley hasn't responded, but told the Chronicle that "ISAT needs to continue due to confidentiality." But he hasn't closed the door to working with SARRT and feels it's important for APD to maintain its relationships with advocacy groups there.

Meanwhile, Hernandez, who announced the Sheriff's Office's departure from SARRT during the February PSC meeting, is now reconsidering after conversations with Donegan and Fernandez. Echoing Moore, Hernandez pointed to a change from collaboration to conflict, which "takes away from giving survivors everything they so definitely need. ... [I haven't] felt attacked, I've felt disappointed."

Moore, Manley, Hernandez, and SAFE co-CEO Kelly White are all quick to note that non-sworn law enforcement personnel and victim counselors still attend the SARRT meetings, but Donegan explained that the group needs the sworn officers and prosecutors who are doing the work to "tell us what's going on, what trends they're seeing – and to be OK when having difficult discussions about why a case didn't move forward or when we're not seeing the numbers we think we should be seeing."

DeFrates echoed this sentiment, noting that advocates also face difficult conversations between one another. "We're not going to pick up our toys and go home when what we're working on doesn't suit our individual interest. They say it's a trust issue – and maybe it is – but if you pick up your toys, you can't build that trust." Speaking as an individual, DeFrates said she wonders if only elections will fix the divide. "When dealing with publicly elected officials who openly, unapologetically refuse to engage with the community or handle any kind of criticism, then the only answer is elections. So I'm excited to see if there's another potential district attorney out there who is committed to treating sexual assault [as] the serious matter that it is."

"Setting a New Table" for Healing?

The divide between the ISAT and the SARRT has led to concern – and intervention – from Travis County Judge Sarah Eckhardt and former state Sen. Wendy Davis, who in late January launched a new Sexual Assault Prevention and Healing Workgroup. The following week, Moore told the Public Safety Commission she was counting on Eckhardt, Davis, and SAFE "to develop a bigger picture of the survivor point of view, [which] is extremely critical to us to measure how well we're performing."

Eckhardt told the Chronicle via email that she believes all the players "share common goals" but are "finding it difficult to speak with one another about the challenges we face in reaching them." As she told her Commissioners Court and city leaders in January, it's necessary that "all sides" put down "our swords, exchange them for plowshares, and work together."

Davis – who now leads the young women's empowerment group Deeds Not Words and who was an active and effective advocate for survivors in the Senate – was invited to help "set a new table," as she and Eckhardt put it. Together, they want to facilitate the conversations they think are needed to bring both sides back together and eradicate the trauma of sexual assault. While Eckhardt's January letter points to ISAT's data projects as a "first task," she adds, "The holders of the data are not the only stakeholders ... survivors and the larger victim advocacy community must have input and influence."

Davis tells the Chronicle she's taking time to speak with as many people as possible – both from the SARRT and ISAT, and from the legal team behind the survivors' lawsuit – to "piece together everyone's perspectives." She's sensitive to the perception that this new group would supplant work already being done. "[It's] not an effort to create a separate, ongoing entity. What the final form will look like, I have no idea, and I don't see my role as long-term unless others feel that's important." While Davis says the lawsuit has "put people back on their heels and into their corners," she also insisted that everyone involved needs to "look very seriously" at the suit, which ultimately seeks a better environment for rape survivors.

Regardless of what happens in court, Davis said, one of her goals is to learn "whether we can answer what the suit calls for cooperatively without need for judge or jury to say it has to be done. No one has purposefully disregarded survivors, but we can be doing a better job, and we want everyone to feel welcome."

Echoing her optimism, White said that while the tension has boiled over, she believes Austin is going to become a model. "We're not alone in these issues," she said, "but at least we're surfacing it and we're turning the corner." SAFE has been in a delicate position as the only participant in both the SARRT (whose executive committee includes two SAFE staffers) and ISAT. White says she asked Moore to invite other victim service agencies to the table, "but it's also not our table."

Sitting in the middle has been "difficult to live in and be in," White said. "We're having awkward, messy convos – people feel bad, hurt, betrayed. Survivors feel revictimized. But the truth is, we're making strides. We've got to find common ground. At this table, it's no longer about who, but what." The co-founders of SJP aren't so sure; Lewis says the new group feels like "a way for the county to fix something they broke when the D.A. left the SARRT."


Editor's note: This story has been amended since publication, which originally said the former SARRT co-chairs stepped down amid the letter controversy. In fact, the two stayed on as chairs for another year, but stepped down once the survivors’ lawsuit was filed, because they had provided legal referral to some of the plaintiffs, which they didn’t want to be perceived as a conflict of interest.

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