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Eluding justice:Why Idaho sexual offenders rarely do time

By Tom Holm Lewiston Tribune

If a man is convicted of a sex crime in Idaho, he likely will get probation.

The same goes for women, though the majority of people charged with sex crimes are men. For most sex crimes committed, allegations will never surface.

Out of every 1,000 rapes nationally, 230 are reported to police and 43 of those result in arrest. Five of those arrests will lead to a conviction, meaning 97 out every 100 alleged rapists walk, according to data analyzed by the Rape, Abuse and Incest National Network.

Those statistics hold up in Nez Perce County as well. Over the past two years, there have been 17 sex offense convictions, eight resulting in some form of incarceration and the rest resulting in probationary terms. Across Idaho, it is common for prosecutors to enter into plea bargains and recommend probation, and for judges to accept those pleas and send offenders out without ever spending a day in jail.

Research has shown most sex offenses are not reported to law enforcement, and a metaanalysis of sex offenders by the U.S. Department of Justice found that recidivism rates are often underestimated, particularly for sex offenses.

Ask any victim’s advocate at the YWCA if the research matches their experience, and the answer is clear. Advocate coordinator Shelly Meisner said she doesn’t know a woman in her life who hasn’t experienced some form of sexual assault. But the number who reported that to law enforcement, Meisner said, is slim. Justice department data says that only 19 percent of women and 13 percent of men who were raped at 18 or older reported it to authorities.

“And you see less than 2 percent going anywhere, let alone convictions,” Meisner said.

Observing that convictions seldom result in jail time, many victims recoil from reporting to law enforcement, she said.

Police have gotten better at trauma-informed interviews of sex crime victims, she said. YWCA employees didn’t discourage victims from reporting to police in the past. But, Meisner noted, police had a reputation for treating such investigations like an interrogation, proceeding as though victims had made up accusations.

“There was a time when we would be hesitant to encourage them to go to the police,” she said. “But we definitely encourage them to do whatever feels right.”

A more critical eye has been drawn to the justice system meant to hold offenders accountable as the nation confronts its pervasive history of women and sexual assault. The public has become increasingly aware of the issue as men in power are outed as alleged abusers.

The #MeToo movement led to male celebrities and businessmen having their guilt or innocence tried in the media sphere. Then, a case in California’s criminal justice system took the national spotlight. Brock Turner, a Stanford University freshman, was sentenced to six months in jail and three years of probation for sexually assaulting an intoxicated woman. The outcome for 20-year-old Turner was just as vocally derided as the allegations lodged outside the justice system, leading to such online fervor that a petition to recall the judge who sentenced him succeeded.

Experts argue these cases indelibly harm victims and often are buried and unreported because victims feel shame, feel protective of their abuser – who may be a family member – or fear the abuser being set free. Why, then, do many convictions result in little more than a monitoring program that lasts a few years?

Nez Perce County 2nd District Court Judge Jeff Brudie isn’t fond of binding plea agreements.

Brudie said it’s his job to decide an appropriate sentence, and a plea agreement takes it out of his hands and ensures a defendant will serve, or not serve, a certain amount of time. A judge can reject any agreement that comes across his desk, and Brudie said he has rejected a few because the term recommended is not long enough.

But he also understands how difficult sex offense cases can be. If he rejects a plea agreement, the case could go to a jury trial and the victim may have to testify, be harshly questioned and relive the crime. And a conviction is not guaranteed. The jury might not believe the victim and choose to acquit the suspect.

Earlier this month, Brudie sentenced Frank Cunningham to five years of probation for filming his alleged rape of an unconscious woman and posting the video online. Cunningham made multiple videos of the same victim, several in which she was conscious and the intercourse appeared consensual, but posted the videos to a pornography website without her knowledge. When the woman found out, she contacted police and Cunningham was arrested. Before he deleted the videos they had been cumulatively viewed almost 4 million times.

Not only had Cunningham abused the woman, he had broadcast the abuse to strangers, and the videos, despite being deleted, will likely live on the internet indefinitely. At the sentencing, Brudie remarked on his own frustration at handing down probation for the offense. He told Cunningham at the hearing that were it not for the victim asking the court to grant him probation, some form of incarceration would be warranted.

“I became extremely uncomfortable with this plea agreement,” Brudie said at the time. “I didn’t see a lot of remorse come through (this). I saw the words – people can say things – but that doesn’t necessarily mean they mean it or feel it.”

In a phone interview, Brudie said the best way to protect the community from sex offenders reoffending is to have them closely monitored for a long period of time and to be treated by professionals. Sex offender treatment isn’t available in prison to the degree it is in the community.

“The law presumes probation is acceptable for any crime unless you find a reason not to,” Brudie said. “(Even with a prison sentence) at some point in time they will be back out on the street on parole. Do you want them on the street after they’ve gone through some kind of treatment? I think based on the fact that we don’t see lot of that repeat type of offense, it can be effective.”

If a sex offender does reoffend, it’s often for a crime unrelated to their original charge. Typically it’s failure to comply with the sex offender registry. The lifelong registry, unless a defendant complies for 10 years and requests dismissal, keeps monthly tabs on offenders to ensure they aren’t victimizing more people.

Sex offenders have a low recidivism rate, compared to those who commit other crimes. A 1994 Bureau of Justice Statistics study tracked 9,961 male sex offenders for three years from their release from prison and 5.3 percent committed another sex offense. The study found that 43 percent of the sex offenders who were rearrested were charged with other types of crimes – not sex crimes. The study compared 262,420 nonsex offender parolees during the same time period and found a re-arrest rate of 68 percent.

A 2005 meta-analysis of sex offender treatment programs found that of the 22,181 people in the various studies analyzed, 11.1 percent of treated sex offenders recommitted a sex crime while 17.5 percent of those without treatment reoffended.

Nez Perce County Prosecutor Justin Coleman said putting a victim on the stand and having a jury acquit her offender can shatter any healing or catharsis she had from reporting the crime.

“Your whole very personal thing that happened to you that was very traumatic is going to be on public display, so we try to make (victims) understand that they have the support of us and this office and the detectives. (That) is a huge piece of it,” Coleman said. “(Plea agreements are often) the best chance we can get for some kind of accountability.”

Coleman said his deputy prosecutors often engage in plea agreements that result in little incarceration, always in cooperation with victims, to ensure some kind of resolution that both aids a victim’s rehabilitation and leads to some accountability.

Taking sex offense cases to trial is a big risk, he said, in part because jurors tend to hold sex crimes to a higher standard of proof. Any criminal case before a jury has to surmount “reasonable doubt” to gain a conviction. But Coleman said jurors appear to want to be “absolutely 100 percent certain” a defendant committed the crime, which is not the standard for a conviction. The sometimes overt atmosphere of victim-blaming and rape culture cause jurors to disbelieve victims, he said. Many sex offense cases have little to no physical evidence, complicating a trial if jurors refuse to believe a victim.

Coleman said juror bias has resulted in the perception that a victim was “acting promiscuous”and the perpetrator was not at fault.

“(Jurors) may go the victim-blaming route. We had one juror at one point write in a questionnaire that (the victim) was out past 11, and so she must have wanted it,” he said. “When we deal with those kind of things, it’s not our job to scare victims off. But it’s something as prosecutors we have to take into account and how we deal with those perceptions.”

Prior to Coleman’s tenure as prosecutor, he said the office would seldom file sex offense cases unless they had copious evidence. He reviewed in-house records and found that from 2012 to 2015 the prosecutor’s office declined more cases submitted by law enforcement for review than it filed. Coleman said those numbers have flipped since 2016, and the office is now filing more cases than it’s refusing.

He said he has made a conscious effort to reverse previous thinking of finding winning cases that surmount the reasonable doubt standard before filing. Coleman said both detectives and prosecutors start out by believing victims to engender trust and potentially lead to some healing.

“Because our approach is very victim-centered, both law enforcement and our office, we stand with them through the whole decision-making process, and they have input at every level,” he said. “Once we reach an ethical standard, which is probable cause, we file a case. We will file it knowing it could be hard to get a jury trial conviction. I think that has sort of changed as a sentiment locally, and law enforcement feels the same way, that more victims are willing to come forward at that initial phase.”

But when the public sees a convicted rapist get probation, online outrage arises. Some call for harsher punishments; others shift blame to victims. Coleman said he can’t control free speech on social media, but he wants to educate the public that these cases are sensitive and that prosecution often defers to a victim’s wishes in recommending punishment for an offender.

“Social media makes it easy for people to spout off about something they don’t understand. And they aren’t helping the conversation,” he said.

He pointed out that his office has a conviction rate of 30 percent for these types of crimes, which far exceeds the national average of 2 percent. While the punishments may not be severe, he said it gives victims some kind of conclusion so they can move on.

The #MeToo movement helped broadcast the pervasiveness of sexual assault.

One in four women and one in six men have been a victim of some form of sexual assault, according to the Connecticut Alliance to End Sexual Violence. Most of those crimes go unreported for a variety of reasons. Chief among them is that rape is rarely committed by a stranger. Often a victim would be reporting her own brother, husband, father, uncle or cousin to the police. Eight out of 10 rapes are committed by someone known by the victim, according to the Rape, Abuse and Incest National Network.

That fact is often overlooked in discussions of sexual assault online as media reports endeavor to keep victims anonymous and don’t reveal their relation to an offender. Social media has been a boon for awareness but also a detriment to education on the sensitive subject of sexual assault, some victim advocates said.

YWCA advocate coordinator Nellie Frost said almost any time she sees comments on a news story about rape she sees a few people claim the victim falsified the story. False reporting for sex crimes is on par with any other crime, hovering around 2 percent. But Frost said that negative assumption bleeds into the courtroom.

“Lack of education in the public as a whole is probably why we see this kind of mindset with juries,” Frost said. “A lot of rapes end up looking like a ‘he said, she said’ thing, and it’s so hard for a jury to say somebody’s guilty from that. Most rapes aren’t cut-and-dry stranger attack violent rapes.”

Comments mocking victims of sexual assault for not coming forward immediately after an attack are extremely painful to victims who want to come forward even years after an incident, Frost said.

“They think, ‘Why would I report if I end up a meme on Facebook?’ ” she said.

Last year, a meme was posted to Nez Perce County Sheriff Joe Rodriguez’s Facebook page mocking sexual assault victims who come forward years after an offense. Rodriguez apologized and said his wife posted the meme to his page.

Meisner, also an advocate coordinator at the Lewiston YWCA, said she thinks it’s easier with the relative anonymity online to voice a hurtful opinion and demonize a victim than to confront the idea that defending a perpetrator is harmful.

“Indeed, we have an empathy problem,” Meisner said. “It’s easier to vilify, particularly things like this – if you vilify this, then we can say it can’t happen to me. If she did something wrong, then I can do the right thing so this won’t happen to me. If she did something wrong, then my brother didn’t do something, or my uncle is still a good guy. All these things help us to believe that our world is still safe.”

Frost said she understands the difficulty of prosecuting these crimes in an atmosphere where victims are reluctant to come forward, and she doesn’t lay the blame solely on law enforcement, attorneys and judges. Meisner agreed that people sometimes fail to understand the difficulty in reporting a sex offense or the trauma victims suffer long after the incident.

The attention drawn to sex crimes has some positives. Meisner said for years the YWCA was unable to bring together enough participants to form a sex assault survivors’ group. But six women recently pushed for the creation of a support group.

Frost said she would like to see more education both online and elsewhere to help people recognize the harm these crimes cause.

“We give props to people that are working to make things better. Not everybody is this villain that issues low sentences,” Frost said. “I think we talk about (victims) as if they are the perpetrator. It’s important to acknowledge, one, the bravery in the victim, even if it’s just coming forward to seek help for themselves. And, two, the people who support victims.”

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