According to the CDC (Centers for Disease Control and Prevention), “nearly 1 in 5 women and 1 in 38 men have experienced completed or attempted rape in their lifetimes”. A study conducted in 2015 by the Institute on Domestic Violence & Sexual Assault and the Bureau of Business Research at The University of Texas at Austin, shows that Texas women are at even higher risk than the national level, with 2 in 5 women facing sexual assault in their lifetimes.

With such worryingly high sexual assault statistics in both the Lone Star State and the United States as a whole, one would think that the parameters set in place by police departments to deal with sexual assault cases would be of the highest quality and detail. However, that doesn’t appear to be the case in Austin, Texas and Travis County.

In June of 2018, three Austin-based sexual assault survivors banded together to file a federal class action lawsuit against the City of Austin and Travis County, along with current and former Austin Police Chief’s, and a Travis County Sherriff.

As reported by  The Austin Chronicle, the suit was filed by the three women on behalf of “all women” who had been raped in Travis County and didn’t receive justice, citing “constitutional violations” by local law enforcement, including actions and behavior that is vehemently against the best interests of the assault survivors, as well as the inaccurate and un-timely testing of rape kits.

In 2016, the Texas Forensic Science Commission recommended the Austin Police Department shut down their DNA testing lab when an audit showed the lab was using outdate testing methods, along with other professional oversights, according to The Austin Chronicle. The DNA testing lab was subsequently shut down while re-training of analysts was conducted, which caused an even greater backlog of untested sexual assault kits.

According to the Austin-American Statesman, The City of Austin eventually received grants from both the District Attorney’s Office of New York and the Sexual Assault Kit Initiative to outsource that backlog of untested sexual assault kits to other states to complete testing.

As reported by KVUE ABC in February of this year, a memo sent from Assistant City Manager Rey Arellano to the mayor and Austin City Council members detailed an update of the ongoing testing and audits, and found that of the 2,665 backlogged and outsourced rape kits that been tested, more than 900 of those kits came back with DNA findings that could reopen cases that correspond with positive DNA results.

However, it’s reported that some of the cases with positive DNA results are dated back to the 1990s, and while for criminal cases Texas doesn’t have a statute of limitations for rape, rape where DNA evidence is collected but a suspect cannot be immediately identified, or rape where the perpetrator is a suspected serial rapist, prosecution of sexual assault have a ten-year civil statute of limitations.

While getting the rape kits tested in the first place is a step heading in the right direction, sexual assault victims in Austin may not be taken seriously enough and their cases may not be examined properly to begin with.

There were reports of mold being found on the outside of hundreds of stored rape kits, affecting cases mostly from the 90s and early 2000s, and a former Austin Police Sergeant told ProPublica that her superiors in the Sex Crimes Unit “pressured her to close more rape cases by exceptional means”, also known as exception clearance, as reported by ProPublia.

As defined by the FBI, police agencies can only close a case by exception means if they meet four conditions including:

  • Identification of the offender
  • Gathering of enough evidence to support an arrest, make a charge, and turn over the offender to the court for prosecution
  • Identified the offender’s exact location so that the suspect could be taken into custody immediately
  • Encountered a circumstance outside the control of law enforcement that prohibits the agency from arresting, charging, and prosecuting the offender

In 2016, it was found that 2 out of every 3 sexual assault cases were given exceptional clearance. Austin Police Department Chief Brian Manley says the APD continues to work the cases until there is “nothing more we can do without survivor cooperation,” as reported by The Austin Chronicle.

However, Sergeant Elizabeth Donegan says the Austin Police Department’s use of exceptional clearance was an effort to boost the departments numbers on closed rape cases. She told ProPublica, “I had been told on two different occasions from the same commander under two different lieutenants that I needed to go back in and look at these cases that were suspended and change the clearance code because we were not up to the national average of exceptional clearance in Austin,” and says she never changed any of the clearance numbers. She goes on to tell ProPublica, “It gives a false send to the community that this case has been thoroughly investigated and it’s closed…it’s not truthful.”

Sergeant Elizabeth Dongan told ProPublica that these numbers are presented to the public, and they’re a major metric by which the success of department and police chief are measured.

The three plaintiffs who helped spearhead the the aforementioned lawsuit against the City of Austin and Travis County had their stories reported in an article from The New York Times as follows:

“The plaintiffs include a woman who said that the police collected no evidence from the crime scene after a rapist broke into her apartment; a University of Texas student whose screams for help were recorded but whose case was dropped when her attacker, a stranger, claimed the sex had been consensual; and another student who said she was forcibly taken to a motel and raped by three men, one of whom was not arrested even when his DNA was found in her sexual assault kit.”

The last woman, Emily Borchart was a student at the University of Texas when she was alone in a ride share vehicle, choked by the male driver until she passed out, and then sexually assaulted for 12 hours by him and two other men in a hotel room. They eventually let her leave, where two strangers helped her call 911 where she was then sent to the hospital where she met a detective of the APD Sex Crimes Unit, Detective Dennis Goddard.

According to The New York Times, Detective Goddard found one of the men the next day, but the man denied ever meeting her. However, his DNA was found on Ms. Borchart’s sexual assault kit three months later. The man was never arrested.

The first woman, Julie Ann Nitsch, who was raped after her apartment was broken into and her roommate’s door was tied close, said she hasn’t heard anything from the APD about her case since the sexual assault occurred in 2010, as reported by The New York Times. The police never investigated the crime scene of her apartment to gather evidence or take fingerprints, and they didn’t interview any of the potential witnesses. She still doesn’t know if the rape kit DNA she surrendered was ever tested by the APD.

Thank you for visiting the Jarvis, Garcia & Erskine blog. We write to inform Austin locals about law changes, events and news.