As Kavanaugh faces accuser, Salem prosecutors, victim advocates say understanding of sexual assaults is poor

Jayne Downing, executive director of Salem’s Center for Hope and Safety, said few sexual assault victims who contact her office want to pursue criminal prosecution. (Rachel Alexander/Salem Reporter)

UPDATE: This story has been updated to include new information regarding legislative candidate Nathan Boddie.

The kinds of sexual abuse allegations roiling the U.S. Supreme Court nomination of Brett Kavanaugh are processed almost daily by local authorities but in ways that seldom come to such public attention.

That’s because most victims deal with abuse quietly and avoid ever going to police, according to interviews this week with police, prosecutors, and defense attorneys.

Such allegations are scheduled to play out on national television and in a U.S. Senate hearing room Thursday, as Kavanaugh and a high school classmate, Christine Blasey Ford, seek to convince the country they are telling the truth.

Ford alleges that Kavanaugh held her down on a bed and attempted to rape her at a high school party decades ago. Those allegations have led some to question her credibility or denounce the allegations as politically motivated.

For Salem experts who work with sexual assault victims, Ford’s account sounds familiar. And her case presents an opportunity for a better understanding how sexual assault allegations are handled.

In 2017, Oregon law enforcement agencies reported a total of 3,391 sex crimes, including 1,300 forcible rapes. The Marion County Sheriff’s Office and Salem Police Department combined reported 358 sex crime offenses, which led to 89 arrests. Fifty-three of those offenses were rapes.

Jayne Downing, executive director of Salem’s Center for Hope and Safety, said many of the questions asked about Ford reflect a lack of understanding about what a “typical” sexual assault looks like, and how a victim behaves after.

The center runs a 24-hour crisis line for sexual assault and domestic violence survivors. Most people who call in after an assault aren’t interested in pursuing criminal prosecution, especially not initially, Downing said. Usually, they’re still trying to understand what happened.

“They just want to talk to someone,” she said. “A lot of times victims question themselves. Is this sexual assault? Should this be affecting me?”

Kelsey Truong, a nurse and certified sexual assault examiner at Salem Hospital, said in an email that most sexual assaults are committed by someone the victim knows, including someone they may have considered a friend or acquaintance.

 “The general public seems set on this idea that women are raped when they are running alone, in the dark by some man that jumps out of nowhere and attacks them. The truth is that’s very rarely the case,” she wrote.

That fact may change the decision about whether to pursue prosecution for an assault, or even report it at all. Few people would hesitate to tell police about being assaulted by a stranger in public. But that’s rarely the decision victims face.

The fact that most victims know their abuser “leads to guilt with reporting and fear of retaliation,” Truong wrote.

Local examples of sexual harassment allegations against public figures aren’t far in Oregon’s past. Former state Sen. Jeff Kruse, R-Roseburg, resigned in February after an independent investigation commissioned by the legislature concluded he sexually harassed fellow lawmakers, interns and lobbyists.

Bend City Councilor Nathan Boddie’s campaign for state Rep. Knute Buehler’s seat floundered after an acquaintance said he groped her in a bar.

Boddie was poised to flip House District 54 for Democrats. He had endorsements from perches as high as the governor’s seat. But in July, environmental nonprofit worker Moey Newbold told OPB that in 2012, when she was 23, she was talking to Boddie at a bar when he slipped his hand down the back of her pants, under her underwear, and grabbed her.

Following the story, Boddie’s endorsements fled and campaign donations dried up. Boddie Wednesday he wrote on social media that the allegations were untrue and politically motivated. He remains in the race, he said.

Deschutes County District Attorney John Hummel said he hasn’t investigated the case because Newbold didn’t file a report with police.

How do sexual assaults evolve into criminal investigations?

In Salem, advocates and law enforcement try to work together on what Downing calls a “no wrong door” approach. If someone calls the center’s crisis line and wants to pursue prosecution, the victim can be connected to the sexual assault advocates in the Marion County District Attorney’s Office.

And local prosecutors will send people to the center for help with resources like counseling.

Salem Hospital is also an early stop for many victims who are seeking an examination following assault, resulting in what is commonly called a “rape kit.”

In the past, such examinations were performed by any staffer in the emergency department, Truong said. But Oregon law changed in 2011, requiring hospitals that perform those examinations have specially trained staff.

Those examination are free, and a victim isn’t required to press charges to receive medical care.

If a victim wants to press charges, the kit is sent to local law enforcement. But if a victim isn’t sure, or chooses not to report, the evidence is still collected and stored as an anonymous case filed by an identification number and the name of the professional who conducted the exam.

The victim is given that identification number and can contact law enforcement to pursue charges at any time, Truong said.

Lt. Michael Bennett of the Salem Police Department said when an adult victim reports sexual abuse in Salem, a patrol officer responds with a rape victim advocate from the district attorney’s office. The victim is interviewed and physical evidence is collected. The case is then given to one of the four detectives dedicated to sex crimes. A more in-depth forensic interview is conducted and the evidence is reviewed. When possible, a suspect is questioned.

But often there is no physical evidence, Bennett said, so officers work to corroborate the details of the victim’s account, such as location, descriptions and other small details.

Generally at that point, Bennett said, the case is sent to prosecutors for review. He said deciding whether the victim’s account is credible is up to the prosecutor, not the officer.

“My job is to stay neutral and objective and to let the facts speak to themselves,” said Bennett, who oversees the criminal investigations unit.

Downing said most victims she works with do not want to pursue criminal prosecution. Their reasons vary, ranging from not wanting to undergo the trauma of describing their assault in court with the attacker watching to not wanting their behavior exhaustively examined.

“They’re afraid they won’t be believed,” Downing said. “Was I drinking that night and is that going to be questioned?”

And though victims still find it difficult to come forward and say they were assaulted, it’s still easier to do now than it was a decade or two ago.

“Twenty, 30 years ago hardly anyone came forward with these allegations,” Downing said.

A victim speaking publicly about a decades-old rape is something she now sees routinely, she said.

Victims who don’t want to pursue charges may be looking for other forms of support such as counseling or medical care. Sometimes, it’s just someone to listen to and believe them.

Suspicions of false allegations play a large role in public discussions of accusations against public figures, something victim advocates say is damaging and rooted in myths about sexual assault.

“In dealing with survivors I frequently hear, ‘I shouldn’t have done that,’ or ‘If I wouldn’t have befriended him this never would have happened,’ or ‘I should have known that I shouldn’t go to that party,’’ Truong wrote. “Survivors tend to have difficulty coming forward immediately and receiving the care that they need due to this guilt and their fear that others won’t believe them.”

That view is shared by law enforcement and prosecutors. Hummel and Bennett find that the frequency of false reports of sexual assaults is about the same as for other crimes.

Hummel said falsely reporting an assault makes little sense. When someone reports a sex crime, they must share the most personal moments of their lives with investigators.

A University of Amsterdam study published in 2017 in the Journal of Forensic Psychology found about 5 percent of rapes reported to law enforcement agencies in the U.S. were later found to be “unfounded or baseless.”

That study looked at rapes from 2006 to 2010 and concluded false allegations of rape were more common than for other major crimes like murder, but still rare. Robbery had a similar rate of false accusations, about 6 percent.

Hummel said for public allegations like those against Boddie, his prosecutors first consider the state statute of limitations. For rape of an adult, that is 12 years. For harassment, it’s two years, meaning Boddie can’t be prosecuted for the 2012 allegation.

But if a prosecution is an option, the next step is a assessing credibility.

If police don’t believe the alleged victim, they could end up being a witness for the defendant, rather than the prosecution, Hummel said. Hummel said he would hope for additional proof, such as physical evidence, eye witnesses or a person with whom the victim shared the account with at the time.

A credible witness can be enough to win a conviction, Hummel said.

When a prosecutor decides to move forward with charges, defense attorneys get involved.

Olcott Thompson, a criminal attorney in Salem for more than three decades, has defended those accused of assault.

Sexual assault cases are difficult, he said, due to the emotional tolls on accuser and accused and that the events often took place years in the past. He said it’s not uncommon for a trial to turn on an incident that happened five years earlier.

In approaching a case, Thompson said he tries to be consistent in comparing all accounts and evidence, building a timeline and detecting discrepancies.

“I see if it doesn’t add up for one side or the other,” he said. “The way I approach these things is I don’t believe anybody, I just do an independent delving into what theoretically happened, work through whether I can prove anything or not. Then it’s ‘OK, where do we go from here?’”

Trials tend to be won or lost in those details, he said. In older assaults there is often little if any physical evidence, so a trial can come down to whether the accuser can credibly place the accused at the scene.

“They’re incredibly difficult because frequently you’re dealing with stuff that is not last week. It’s months or years old,” he said.

Even then, it’s difficult to be sure, said Jason Thompson, a Salem attorney for the past 17 years and a contributing author to the “Defending Sex Cases” manual for the Oregon Criminal Defense Lawyers Association.

He pointed to the rising trend of people whose convictions were overturned years later after new DNA evidence emerged. The Innocence Project estimates that accused people give a false confession or other incriminating statement in one out of four such cases later overturned because of DNA evidence.

“You have people confessing to crimes (that) other people committed,” he said. “What’s scary to me is that so many sexual abuse allegations carry with them no physical evidence and when it’s one person’s word versus another’s, it’s very difficult to prove that somebody is lying.”

The National Register of Exonerations records criminal convictions overturned in the U.S. since 1989, now totaling 2,266 cases. Of those, rape cases make up about 14 percent.

According to that data, 131 people were exonerated of rape charges in whole or in part because their convictions relied on a false accusation or perjury.

The prosecution is still burdened to prove the crime, but Olcott Thompson said the climate has justifiably become more intense for his clients. He said high-profile accusations put many in the courtroom reflexively on the side of the accuser.

“In the court system, judges tend to believe the victims. Certainly the prosecutors do and that’s their job. And juries tend to” believe accusers, he said.

“The stakes have been ratcheted up tremendously, for legitimate reasons,” he added. “People tend to think these things really did happen given the massive numbers of folks you read about getting caught. Things like the Catholic Church and (Harvey) Weinstein. It’s hard. There’s a lot of publicity out there. I’m not saying it’s not deserved.”

But the allegations still ostracize the accused, Thompson said. He pointed out that verdicts in criminal cases can be “not guilty” but never “innocent.”

“I’ve had clients go to trial on sexual abuse allegations and they’ve been found not guilty, but it’s not like they go back to living a normal life. They have to deal with it,” he said. “Some have told me they don’t feel comfortable driving down the street where their office is because it brings back such negative memories.”

During jury selection, Thompson said he likes to ask the room of at least 60 potential jurors if they considered whether “there’s someone falsely accused sitting in this courtroom.”

“You never see a hand go up, and my question, I guess, is why not? If that’s the tilt we have in society, than allegation has been made and that it must be true, then it doesn’t really matter if you’re a Trump supporter or not because these allegations have been against Brett Kavanaugh. Regardless of when they’ve been made, they’ve been made. And those are the types of dynamics at play and we all need to be careful.”

Where does the idea that false allegations are prevalent come from?

Downing said it’s in part because false allegations usually receive significant media attention, both when they’re first made and when they’re later found to be false. Since false allegations are a larger share of the cases that gain national attention, that can create the impression they’re far more common than they are.

Researchers have found that people falsely claiming they were raped typically fit into one of several profiles that are consistent – and are different from true crime victims.

They may have severe mental illnesses that either lead them to genuinely believe they were assaulted when they were not, or to exaggerate their victimization. Many false accusers, including Crystal Magnum, the woman who accused Duke lacrosse players of raping her, have a history of making other wild claims of abuse or assault, or of criminal fraud of other types.

 “I do not see sexual assault falsely reported more than any other type of crime, and it’s a false narrative,” said Brendan Murphy, a Marion County deputy district attorney who supervises assault prosecutions. “I don’t think there are victims who are very willing or likely to want to characterize themselves as sexual assault victims. That is a barrier, rather than something people seek out.”

But even when an allegation can’t be proven, other remedies are available, such as discipline at school or in the workplace, he said.

Ignoring the lesser inappropriate sexual contact helps feed a narrative that it’s OK or not a big deal, he said.

“All those victims deserve to be heard,” Murphy said. “We need to do a better job about teaching what it is to consent.”

Salem’s Center for Hope and Safety is available 24 hours a day for survivors of sexual assault and domestic violence, friends, advocates or others who want someone to talk to. The crisis line is 503-399-7722, and is always available in English and Spanish, with additional translation options during business hours.

Reporter Rachel Alexander: [email protected] or 503-575-1241. Reporter Troy Brynelson: [email protected], 503-357-3207 or @TroyWB. Reporter Aubrey Wieber: [email protected] or 503-375-1251.