WOMEN: Unprocessed Rape Kits in NM Part 3

REPORTER: Only about a third of all of the sexual assaults in New Mexico get reported to police. And in the end, only a small fraction of people go to jail for it"six for every one thousand sexual assaults, according to the state Auditors Office.

Bernalillo County District Attorney Kari Brandenburg remembers a rape case earlier on in her career. She was sure the jury was going to come up with a guilty verdict. The physical evidence was startling. It looked like a clear win for the newish prosecutor. Instead, the guy walked.

KARI BRANDENBURG: [0:10] And I cant think of anything worse than being a victim of rape and having the courage to go through the system and testify at trial, and then have the defendant acquitted.

A quick note: There are lots of other resources that have nothing to do with police or courts that people can get by reaching out to an advocate after a sexual assault. There are free health exams, counseling, and even financial help. But for the moment, were talking about the court system.

Of the cases that make it to District Courts around the state, about half of them are dismissed entirely. Lack of consent, Brandenburg says, can be hard to argue.

KARI BRANDENBURG: [0:10] Probably a vast majority of rape cases are what we would call acquaintance rapes where the accused person could use consent as a defense.

Part of the problem in found in a jury box. Juries are made up of a cross-section of people selected from the general public. And that means the nuances of what people believe about sexual assault and whos to blame can affect the success of a prosecution.

KARI BRANDENBURG: [0:13] We give a lot of lip service to valuing women in our society"and the majority of rape victims are women although they can be male"but I think that there is somewhat of an undervaluing in reality.

Lawyer Jacqueline James says jurors come in with their own ideas about sexual assault.

JAQUELINE JAMES: [0:12] There are preconceptions of what a rape is, of how a victim should react. Juries believe that if she didnt fight, then that didnt show that she was raped.

James has been prosecuting adult sexual assault cases in Albuquerque and Bernalillo County for four years at the District Attorneys Office. She says forensic evidence like DNA can fortify a case.

JAQUELINE JAMES: It can help us, lets say, if a victim is intoxicated, passed out, or doesnt remember what happened, it provides the evidence of what kind of sexual assault it was. So DNA in that case is invaluable to show that something did occur.

Juries like to see DNA evidence, James says. But having DNA doesnt mean itll be easy to prove rape.

JAQUELINE JAMES: [0:11] In rape you have a few defenses, which is, I wasnt there, I didnt do it, There was no sex and It was consensual. And arguing the consent portion is the most difficult.

And questions about a survivors character, history and personal life can end up getting dragged into court.

JAQUELINE JAMES: [0:02] Its devastating. Its absolutely devastating.

James says all of what the nurses collect is useful"even when the labs havent tested the kits. There are photos, evaluations and information about injuries, and that helps determine what they should charge someone with. Many cases wind up being settled out of court, she says.

Sometimes a detective might think shes delivered a clear-cut case with all the evidence necessary to lock up a sexual offender. But Brandenburg, the DA, says prosecutors have to bring a critical eye to the case.

KARI BRANDENBURG: [0:31] We have to believe that we can get a conviction, we can prove beyond a reasonable doubt. If we cant prove that, then we shouldnt go forward with a case.

MARISA DEMARCO: So youre coming to the end of your time here at the DAs Office. When you look back, do you wish that you had prosecuted more of these sexual assault cases?

KARI BRANDENBURG: I wish that we could have. I have full faith that the ones that we could prosecute and go forward on ethically and professionally, we did. The ones that we couldnt, we relinquished that case regretfully.

The incoming Bernalillo County DA, Raul Torrez, is inheriting this problem, these kits and maybe a slew of assault cases to prosecute.

Reporting from Albuquerque, Im Marisa Demarco.


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