Denver DA’s office prosecuted 44% of rape cases presented by police in 2020

Victoria found the conversation to be a polite brush-off.

On the phone, a prosecutor with the Denver District Attorney’s Office was explaining that she wasn’t going to file charges and pursue a criminal case against a man Victoria said raped her.

Victoria, 23, had reported the assault to Denver police, answered their questions about the night in January when she went to the apartment of a man she’d been texting with for weeks. She told investigators how she’d been flirting with him and excited for the date, how she’d gone willingly into his bedroom, but then how he went too far, how he pushed her down when she said ‘No,’ held her face against the bed and raped her.

During the call, Victoria said the prosecutor tried to avoid explaining why the district attorney’s office was declining to pursue the case — it will only lead to you blaming yourself, the prosecutor said — but Victoria, who at the time worked in the court system as a victim’s advocate, pressured her for an answer. The reasons trickled out: she’d been polite to the attacker in messages after the assault, until she wasn’t. She’d declined a rape kit.

“She told me, ‘Your tone change, your demeanor, the jury is going to see that wrong,’” said Victoria, who asked to be identified only by her first name. “…that I had a good case, but the burden of proof is too high.”

The Denver District Attorney’s Office in 2020 filed charges in less than half of rape cases presented to prosecutors by the Denver Police Department, according to numbers provided by both agencies. Denver police investigated and presented about 171 cases of rape, sexual assault with an object and statutory rape to District Attorney Beth McCann’s office in 2020, according to their records.

McCann’s office prosecuted 75 of those cases — about 44%.

That’s typical across the country, advocates say. Most sexual assaults aren’t reported to law enforcement, and of those that are, only a portion are then prosecuted in court.

“Out of every 1,000 sexual assaults, only 50 lead to an arrest, and 28 of those lead to a conviction,” said Camille Cooper, vice president of public policy at the Rape, Abuse & Incest National Network, a nonprofit organization that works against sexual violence.

The Denver DA’s prosecution rate of 44% is “average,” she said, but it’s hard to compare it to other jurisdictions because most prosecutors don’t track or publish their prosecution rates, she said. The DA’s office did not provide data for past years.

Assistant District Attorney Maggie Conboy said the prosecutors in Denver strive not to decline sexual assault cases, and do so only after two prosecutors have thoroughly reviewed the case, independently from each other, and found there is not enough evidence for a conviction.

“It is what keeps us up at night,” Conboy said. “We are not in the business of refusing cases. What happens is, sometimes there might be enough — could be anything — enough things that you think, ‘Well, I can explain that, I can explain that, I can explain that,’ but eventually you get to a point where there are too many different things, and we don’t believe we can prove a case beyond a reasonable doubt to a jury… and we have an ethical obligation to only charge cases we can prove beyond a reasonable doubt.”

Sexual assault cases often have less evidence than other types of cases, and often happen in private, away from witnesses, Conboy said. Perpetrators may exploit a vulnerable victim — someone they have power over or someone who may be under the influence of drugs or alcohol — and then use that vulnerability to try to undermine the victim’s credibility if he or she comes forward and reports the assault.

“These can be very difficult cases,” Conboy said.

Victoria said she would have liked to have the opportunity to explain herself to a jury.

“When it happened to me, I thought I would be the exception, and I wasn’t,” she said. “I don’t know anyone who has gotten a conviction for sexual assault, and I know a lot of people who have been assaulted.”

Conboy declined to discuss Victoria’s case, and she wouldn’t detail what factors impact whether the district attorney’s office considers a case provable in court, though she said sometimes victims can’t identify their attackers or don’t want to go forward with a case because doing so is too traumatic.

“There is no set formula, and that’s really important,” she said. “I would never say, for example, because someone didn’t report on time — that doesn’t matter. Or that someone didn’t go get a (rape) kit, or that someone had continued contact with the perpetrator. Those aren’t things that make a case unprovable.”

Cooper said all district attorneys should be forced to disclose both their prosecution rates in sexual assault cases and their reasons for declining a case, and suggested mandating a statewide database with such statistics.

“Until we have that type of sunshine on prosecutorial decisions, we will have a patchwork of prioritization around these issues and moving the cases through the criminal justice system,” she said. “Of course they don’t want to track it; they’re elected. I think that’s kind of a red herring, and a way for them to avoid having to be accountable for decisions and their office.”

Conboy said listing a handful of factors that impact a charging decision would oversimplify what are nuanced, difficult and unique assessments.

“When someone walks into our office, into DPD, we are listening with open ears and an open heart to what they have to say,” she said. “And the next step is doing everything we possibly can to corroborate and to be sure if there is a way we can go forward on a sex assault prosecution that we do so. It is only after a lot of discussion and a lot of time spent when we decide that we can’t.”

People who have been sexually assaulted often react in ways that might seem counterintuitive to the untrained eye, said Janine D’Anniballe, director of Moving to End Sexual Assault, a sexual violence resource center in Boulder County. The idea that a victim’s continued politeness after an attack undermines the case is misguided, she said.

“That is, in my mind, a prosecutor that doesn’t understand a normal response to trauma, which is for the victim to kind of normalize the interaction and strategize in the interaction to get out of the situation or cope with the situation in the best way they can,” she said, adding that women, in particular, are socially programmed to be nice, to not make matters worse, and to be polite.

It’s also common for victims of sexual assaults to remember only some of the events around the assault, or to put details in different chronological order when recounting the incident, D’Anniballe said. Prosecutors can rely on expert witnesses to explain such behavior to juries, she said.

Over the years, she said prosecutors have become “more sophisticated” in how they approach sexual assault cases.

“We still have a long way to go,” she said. “But I hope that the pervasiveness of some of the rape myths are starting to get challenged more by juries.”

Victoria thought she was ready for the justice system. She’d watched sexual assault cases play out in court before, and she was prepared for her credibility to be questioned, her actions scrutinized. She was even ready for a not-guilty verdict.

“It would have been a million times better than this, honestly,” she said. “Because at least he would have been charged. I would have gotten to tell what happened to his face and to a jury, and if it came back not guilty I would know it was for any number of reasons. I don’t know if I would have been happy, but it would have been better. I would have felt like they tried.”

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