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Dig: Prosecution Declined is the result of the Kentucky Center for Investigative Reporting's yearlong look at how rape cases are investigated in Louisville. What we learned: here, the police defer to prosecutors on rape cases — and prosecutors reject the vast majority of cases presented to them. Due to this unusual relationship, most people accused of rape here will never face consequences. Most won’t be arrested or convicted. And the case will be closed anyway.

Prosecution Declined

Although 194 rapes were reported in 2017, only four people have been convicted of those rapes.
Illustration by Carrie Neumayer
Although 194 rapes were reported in 2017, only four people have been convicted of those rapes.

A note to readers: This story contains descriptions of sexual violence.

As Jen Sainato suddenly regained consciousness, she saw a man pulling on khaki pants and running out of her downtown Louisville hotel room. She saw blood all over the sheets.

She began to scream.

What happened? What happened? Why is all this blood here?

Sainato frantically tried to string together her memories of the night before: stopping for a glass of wine at the hotel bar. Talking to a man — the same man who just ran out of her room. A cigarette that tasted funny. A feeling of euphoria. A violent rape.

She couldn’t find her personal cell phone, so she grabbed her work phone and called the only family number she had in there — her 16-year-old niece.

“My first thing to her was, ‘Something really bad just happened to me. Grab a pen, grab a piece of paper, write down every single thing I’m telling you so you can find me,’” Sainato, now 42, said in a recent interview. “Because I was sure that I was going to die.”

Her niece woke up Sainato’s adult son. He called the hotel, and a hotel employee called 911. When six Louisville Metro Police officers showed up to Sainato’s room on the tenth floor of the Louisville Marriott Downtown, she thought they would go find the man who fled her room and arrest him.

That was January 2018. Nearly two years later, her case is closed. No one has been arrested. Instead, LMPD cleared Sainato’s case “by exception.”

According to FBI guidelines and LMPD’s own rules, that means police have identified a suspect, they know where that person is and they have enough evidence to make an arrest. But they don’t, because of an exceptional circumstance beyond law enforcement’s control: the suspect is dead, for example, or the victim asks them not to make the arrest.

In Sainato’s case, records indicate the exceptional circumstance was the prosecutor.

The Jefferson County Commonwealth’s Attorney’s office reviewed the case and thought there wasn’t enough evidence to take the case to court. LMPD didn’t make an arrest, but cleared the case anyway: “prosecution declined.”

A KyCIR investigation shows LMPD brings almost every rape case to a prosecutor to decide whether to make an arrest — sometimes before they’ve done much investigating. If prosecutors decline the case, the police clear it “by exception.”

LMPD cleared three times as many 2017 rape cases “by exception” than they did by arrest.

LMPD brought Sainato's case to a prosecutor before they believed they had enough probable cause to justify arresting the suspect. When the prosecutor then declined the case due to a lack of evidence, police cleared the case by exception — in violation of their own policies and FBI guidelines.

Both Jefferson County Commonwealth’s Attorney Tom Wine and LMPD Chief Steve Conrad declined to be interviewed for this story.

LMPD spokesperson Jessie Halladay said prosecutors screen cases only after every possible investigative avenue has been explored, and that sex crimes detectives made arrests in every case where it was possible.

Screening cases with a prosecutor and clearing them by exception is “the victim-centered approach that we take,” because closing cases is more definitive than leaving cases open, Halladay said.

Kristi Gray, a prosecutor with the commonwealth’s attorney’s special victims unit, also declined KyCIR’s interview request for this story. She said answers she gave in December 2018 for astory about LMPD clearing rape cases by exception more often than the vast majority of large police agencies nationwide would stand. Back then, Gray said her office’s close relationship with LMPD’s sex crimes detectives leads to stronger cases.

KyCIR has reviewed police records and FBI data for all the rapes reported to LMPD in 2017. The police files were redacted to remove names of victims and most suspects. We also reviewed court files for those cases where arrests had been made as of this April. In this context, rape includes reports of attempted rape as well as sodomy or attempted sodomy. Under Kentucky law, sodomy is oral or anal rape.

We’ve found that Louisville has fewer rapes reported, per capita, than any of its peer cities.

LMPD closes nearly half of all rape cases by exception and arrests fewer suspects than the national average. In the 15 percent of rape cases that did end in an arrest, the vast majority of defendants saw their rape charge amended, or dropped altogether, in exchange for a guilty plea on other charges.

From 194 reports of rape, only four rape convictions.

'We get these a lot in the hotels'

On January 2, 2018, Sainato drove to Louisville from her home in Valparaiso, Indiana for a quick work trip. She was a medical device rep, at the operating table with surgeons when they implant the devices — aortic grafts for people who have suffered an aneurysm.

She met the surgeons who would perform the procedure the next day for a “didactic dinner” at a steakhouse, where they talked through all the details of the surgery one last time.

A little after 10 p.m., Sainato checked in at the Marriott. She wanted another glass of wine while she reviewed the next day’s work before bed, and stopped in the conference room the hotel was using as a bar during renovations.

She planned to take the wine back to her room, but the conference room was well-lit and quiet. She took a seat and opened her computer. The only other person there started talking to her.

She remembers that he was charming, and seemed very interested in her. She remembers him paying the bartender $20 to refill her wine glass even though she protested. She remembers going outside for a cigarette with him.

She thought the cigarette he gave her tasted funny, and she tossed it to the ground. She said he scrambled to pick it back up.

And then, she remembers only flashes.

She remembers at least two men in her hotel room, maybe both part of the rape, or maybe one filming it. At times, she thought she was at work, in the operating room, or that she was flying.

She felt like she was drugged, and then raped. She was still trying to put together all the details when the police showed up at her hotel room door.

It was 3 a.m. when LMPD officers arrived: five men and a woman.

“I remember speaking really quickly, like I was trying to tell them what had happened,” she said in a recent interview. “I just felt like I was trying to convince them or something.”

KyCIR obtained the police body camera footage from Sainato’s lawyer, Laura Landenwich. Soon after entering her hotel room, Officer Jeremy Wright walks towards her, asking whether she felt like she was poisoned — and if she wants to “go to the hospital or something, what?”

“I don’t know what has happened,” she says. “There’s blood everywhere. I told this one guy, ‘I don’t know who you are,’ and he was like, ‘It’s okay.’... There’s blood, and my insides hurt.”

With the hotel room door open and the five other officers crowding in the doorway, Wright points his flashlight at the bed, where bright red blood is streaked across the white comforter. Sainato panics.

Wright stands at least a head taller than Sainato, who’s 5-foot-1 and 105 pounds. He walks up to her and tells her to calm down. While she covers her face and cries, he puts his hands on her upper arms, as if to hold her still. He tells her he understands that she is hysterical.

“I’m not hysterical,” she screams. “Something bad has happened.”

He tells her again to calm down. Then, he asks her how much she’s had to drink.

She recoils from him, shocked. He asks again.

“Listen to me, alright?” he says. “How much have you had to drink tonight?”

Sainato says she hasn’t had that much to drink. She asks to speak to the female officer alone. Officer Ashley Spratt seemed more convinced that a crime had occurred, and she tells Sainato not to touch anything — it might be evidence. She encourages Sainato to go to the hospital for an exam.

Out in the hallway, Wright tells the other male officers and a hotel employee that Sainato is “drunk. Stupid drunk.”

“We get these a lot in the hotels,” Wright continues. “People probably have more than they should have and invite people back to their room and then they say they got raped.”

But at the same time, Wright says, you’ve got to treat it seriously — and take her to the hospital for a sexual assault exam, where “they say nothing happened.”

At one point, Wright sticks his head back into the room and asks Sainato if she’s on her period. She says it just ended. Spratt told the male officers she didn’t think that would explain the blood on the bed.

In a November interview about Sainato’s case and LMPD’s overall approach to rape cases, Lt. Shannon Lauder said new patrol officers get 40 hours of training on responding to reports of sexual assault. Lauder, who oversees the Special Victims Unit, said she hopes patrol officers treat victims with compassion.

Lauder said she had not reviewed the body camera footage from this case, but it sounded like the officers were “comparing notes.”

“Obviously we wouldn't want them saying something like that in front of a victim or making assumptions without evidence, but I don't necessarily know that they violated policy,” Lauder said.

At Hospital, Detective Turned Away

An ambulance took Sainato to the University of Louisville Hospital around 4 a.m., where a rape kit exam documented multiple vaginal lacerations, one actively bleeding.

The Kentucky State Police crime lab later tested a blood sample drawn that night. Sainato’s blood alcohol content was above the legal limit for driving at 0.13. The tests showed drugs she’d been prescribed, and marijuana she said she smoked a few days earlier on New Year’s Eve.

There was no evidence of other drugs in her system. LMPD records show the lab tested for some drugs commonly found in rape cases, such as benzodiazepines. Records indicate the lab did not test for GHB, which is often used to facilitate rape because it can cause feelings of euphoria, increased arousal, memory loss, loss of consciousness, and hallucinations.

Any drug that impairs a person can be used to facilitate rape, according to Trinka Porrata, a retired Los Angeles Police detective who now researches GHB and other drugs used in sexual assaults.

Many drugs leave the bloodstream within a few hours; evidence of GHB is typically gone from blood within four hours, Porrata said. Urine would hold evidence of drugs much longer, but only Sainato’s blood was tested.

“If they take blood and not urine, you’re not going to find much of anything,” Porrata said.

Lab tests rarely catch every possible drug, Porrata said, and that’s why it’s important for police to proceed based on a victim’s reported symptoms — not just what a toxicology screen shows.

A negative test might mean someone wasn’t drugged, Porrata said, or it may only mean too much time had passed by the time they got to the hospital.

When a sex crimes detective showed up to the hospital where Sainato was getting the exam, she said she didn’t want to talk to another male police officer. The patrol officers had scared her so much, she said, she refused to meet with the detective.

Whether she spoke to the detective directly is in dispute. LMPD records from that night say Sainato told the detective she did not want to report at that time.

Lauder told KyCIR that Sainato “was declining a report and declining an investigation.”

Sainato strongly denied that, and said she only discussed the case with the nurse conducting her exam.

Either way, LMPD officers stopped investigating that night. They didn’t collect any evidence from the hotel room that night — not the bloody bed linens, not the wine glass, not the orange lighter Sainato told the patrol officers the man left behind.

Halladay of LMPD said police have no right to collect evidence from a victim’s private property, whether it’s a hotel room or their house, when they’ve told the detective not to proceed with the investigation.

“That is one of the dangers for victims when it takes some time to report because it does impede the evidence collection,” Halladay said. “But I do not believe that is a fault of the Louisville Police Department for honoring her wishes.”

Kim Lonsway, the research director at End Violence Against Women International, a nonprofit advocacy group, agreed that police agencies generally should not proceed with an investigation after a victim asks them to stop.

She didn't comment on Louisville or this case specifically. In general, she said police should understand victims aren’t necessarily in a position to decide how they want to proceed immediately after an assault — they may have been up all night, perhaps with drugs or alcohol in their system.

“They don't know what they want to do yet,” Lonsway said. “They're still in trauma.”

She recommends proceeding with whatever details the victim has been able to provide so far, without doing a formal interview that same day.

Sainato had given the patrol officers lots of details, including the man’s first name, what he looked like and that he was staying at the Marriott. But that night, officers didn’t try to track him down. They didn’t talk to the bartenders, or the person in a neighboring room who called in a noise complaint to the front desk.

Sainato’s brother and adult son drove through the night from northern Indiana to meet her at the hospital. The exam took four hours, and she was discharged at 8 a.m. She missed the surgery she was supposed to oversee.

Sainato shared her hospital records with KyCIR. Her discharge paperwork included advice on how to avoid getting sexually assaulted: not drinking too much, since that could reduce her ability to fight off an assault; not running alone at night; and considering enrolling in a self-defense course.

Few Rapes Reported Per Capita In Louisville

After her experience with the patrol officers at the Marriott, Sainato said she could understand why a victim might not want to report a rape to the police.

Nationally and in Louisville, many don’t.

According to statistics LMPD provided to the FBI, 175 rapes were reported in Louisville in 2017. When we requested case summaries for all 2017 rapes from LMPD, we received 194 files. It’s unclear why the numbers differ.

That same year, Nashville, Tenn., reported 492 rapes to the FBI. Kansas City, Missouri reported 445. Lexington, with half the population of Louisville, reported 200.

Rape is different than other violent crimes: it typically happens in private, and the onus is usually on the victim to report it to police. Fewer rape reports may just mean fewer people are coming forward.

National estimates indicate about 40 percent of all sexual assaults were reported to police in 2017, according to the National Crime Victimization Survey from the federal Bureau of Justice Statistics.

“I think 194 people is a very low number for [Louisville’s] population, but it's a lot of very brave people,” said Eileen Recktenwald, the executive director of the Kentucky Association of Sexual Assault Programs. “Because it takes a lot to make that decision.”

Halladay of LMPD said Louisville’s low reporting numbers can be blamed on the media.

“Police are pitted as people who don't care and portrayed as people who don't care, and I think that is a big part of it,” Halladay said. “Stories like this will make it more difficult for women to come forward because they won't trust police. Because cases like this are difficult to prosecute.”

Sainato did trust the police. She has family and friends that work in the criminal justice system. After the hospital, she went home, took a shower and got some sleep. Within 48 hours, she was ready to talk to a detective.

The investigation from there was “full steam ahead,” according to Lauder of LMPD. Sainato gave police a statement over the phone. The case was assigned to Detective Lindsay Lynch.

A Marriott employee had reached out to LMPD to offer evidence she had collected, and records show she provided Lynch with some key leads: the name of the man Sainato had been at the hotel bar with, video surveillance from outside the bar, photos of Sainato’s hotel room, and a few items hotel staff collected from her room.

Halladay of LMPD did not respond to a request to interview Lynch.

Sainato came back to Louisville two weeks later for an in-person meeting with Lynch. At the end of January, she and Lynch met halfway between Sainato’s hometown and Louisville. Sainato reviewed a photo lineup and identified the man from the hotel bar. She had told police there was more than one man in the room during the rape, but the man from the bar was LMPD’s primary suspect.

As far as Sainato knew, police were moving toward arrest. But then, things started to slow down. Sainato said she played phone tag with Lynch and LMPD’s victim's advocate. It took a few months for her to see her police report. And it started to feel like the detective wasn’t taking her seriously.

Sainato said Lynch repeatedly told her about holes a defense attorney might poke in her case: They would ask questions about the blood to imply it was from her menstrual cycle, not a rape; they would point out that tampons could have caused her vaginal lacerations.

“That’s when I lost faith in Detective Lynch,” Sainato said.

Sainato also felt like the real focus was what the prosecutor might do with the case.

“There was so much talk about, ‘Make a case for the prosecutor,’” Sainato remembered. “‘They won’t even look at it without your DNA.’”

In an email to Lynch, Sainato documented one of the phone conversations they’d had:

“You said that because my attacker is from out of state, they will have to be extradited and that costs money,” Sainato wrote. “That it will involve extra resources and extra manpower. You said The Commonwealth will want a really strong case to justify putting forth those resources.”

Lynch responded, saying Sainato misunderstood: once they had enough evidence for an arrest warrant, they’d gladly go pick him up.

'I felt like the prosecutor was the Wizard Of Oz'

To get an arrest warrant, police need probable cause. According to LMPD’s standard operating procedures, probable cause is the “level of evidence, held by a rational and objective observer, necessary to justify logically accusing a specific suspect of a particular crime, based upon reliable, objective facts.”

In other words, the police have enough evidence to believe a crime was committed, and they know who committed it. Once they have met that burden, they can make an arrest.

But in Louisville, with rape cases, police take an extra step. Before an arrest is made, they check to see if the prosecutor would take the case to court. If not, police don’t make an arrest. Lauder told KyCIR that they could still make the arrest if they disagree, but she couldn’t think of a time that had happened.

In 2017, more than 40 percent of all LMPD rape cases were cleared by exception because a prosecutor declined to take the case.

Gray told us in 2018 that the main reason her office declines rape cases is because the victim asks them not to prosecute. After a KyCIR story last year about Louisville's high rate of rape cases cleared by exception because prosecutors declined, LMPD said they'd make it clearer in their statistics going forward which cases are declined at a victim's request.

The police records we reviewed don’t always clearly document the reason why a case is closed. In a third of cases cleared by exception, no reason was given. Some case files did show that victims asked police to stop the investigation, but more often, the victim stopped responding or otherwise didn’t cooperate.

When the victim does want to proceed, Gray said she holds rape cases to a high standard.

“I do think that we have to have better proof in these types of cases than we would in some types of cases,” she said.

KyCIR has reviewed several cases where police went to a prosecutor very early in the investigation, and prosecutors declined it for a lack of evidence. Some were declined before police interviewed the suspect the victim identified.

For example, a woman told police in June 2017 that her partner had raped her a few weeks before. She sent the detective photos of bruises she said were from the attack. The detective noted that she wouldn’t get medical treatment or a sexual assault exam. The file documents no other investigation before the detective screened the case with a prosecutor: declined due to a lack of evidence.

In another case, a 17-year-old told police in July 2017 that a friend strangled and sexually assaulted her. The police files shows she texted the friend the next day and told him that she’d repeatedly said no, but he “did it anyway.” He acknowledged that she probably had said no, but also insisted she’d let him.

“Well now I feel like a piece of s--t,” he wrote. “I feel awful now like I just f--king raped a girl.”

The detective never interviewed the suspect. In an email, he told the prosecutor that the suspect called the encounter consensual in text messages to the victim. The prosecutor noted that the victim didn’t get a rape kit.

While a rape kit might have documented injuries, the DNA collected would only have shown whether sexual contact occurred — something the suspect already admitted to in the text messages. It would not have proven whether or not she consented.

Still, the prosecutor declined the case. So the police didn’t make an arrest.

Gray declined an interview request in November to discuss these findings.

Lauder, of LMPD’s Special Victims Unit, disputed that her detectives ever did a minimal investigation.

“I’m not going to sit here and allow you to act like my detectives are not thoroughly investigating cases because it’s going to sound good for your article,” she said to a KyCIR reporter. “That’s reckless of you, it doesn't serve victims for you to say that, and I don't appreciate it.”

Sainato’s case file showed more investigating than many cases reviewed by KyCIR, but the detective didn’t have enough evidence to make an arrest. And Sainato started to hear more and more about making a case for “the commonwealth.”

She felt like she was trying to convince an unseen prosecutor, whom she never met, that her case was viable — a prosecutor who wasn’t just deciding whether to prosecute, but even whether LMPD would make an arrest.

“I felt like the prosecutor was the Wizard of Oz,” she said.

But someone else involved in Sainato’s case got a much clearer understanding of the situation: the suspect.

Suspect: ‘Going For This’ Was Mistake, But Not Rape

Detective Lynch first spoke with the suspect in July 2018. That was nearly seven months after the police showed up at Sainato’s hotel room door, and six months after Sainato picked him out of a photo lineup.

He was never charged in the case, and we’re not naming him here. His lawyer declined comment on his behalf, and said his client maintained the interaction was consensual.

In December 2018, Sainato filed a civil lawsuit, which alleges the man committed battery and inflicted emotional distress by raping her. He denied that claim in court filings.

The suit also names the Marriott, alleging the hotel aided the man by overserving Sainato and failed to investigate the noise complaint about Sainato’s room. The Marriott denied wrongdoing in court filings. A lawyer representing the company did not respond to requests for comment.

KyCIR reviewed hundreds of pages of police records and other documents her lawyer obtained as part of that suit, including recorded phone calls between police and the suspect.

During Lynch’s July 2018 call to the suspect, she quickly got to the point: a woman he met at the hotel bar in January 2018 named Jen Sainato said she was sexually assaulted.

“One hundred percent nothing like that happened,” he said in the interview, recorded by Lynch and obtained by Sainato’s lawyers.

Lynch asked him what did happen. He said he met Sainato at the hotel bar that night and they had a few drinks. According to him, she was very flirty, pursuing him, and she seemed “loopy,” like maybe she was on medication. He remembered they smoked a cigarette together, and that she was drinking wine. Eventually, they went back to one of their rooms — he couldn’t remember which —  and he said they had a consensual sexual encounter.

He said they talked after, and she wanted to keep in touch. But he told the detective “going for this” was a mistake, since he’s married. Then he asked why she’s just now calling about something that happened in January.

“To be honest with you, what I’ve been waiting on is DNA results,” Lynch responded. “I was waiting to see if she had semen in her kit.”

The kit showed evidence of saliva, but Lynch didn’t yet know who it belonged to. Due to delays at the state crime lab, that would take many more months. She did already know that the rape kit did not show evidence of semen, which she told the suspect.

Then, Lynch began to explain to the suspect how the system works in Louisville.

“I have been collecting evidence on this case, I’ve been talking with Jen, I’ve talked to you. Basically what I do is I see what I can find,” she said. “And then I go to a prosecutor.”

It’s really up to them, Lynch told the suspect.

She asked him about Sainato’s claim that there was more than one man in the room that night. He strongly denied that.

So Lynch offered a new theory: maybe someone else raped Sainato after they parted ways.

“That’s what I’m wondering,” he said.

The bottom line, Lynch told the suspect, is that the case doesn’t make sense to her. She told him that the commonwealth’s attorney’s office will need something that proves a crime occurred.

“And I'm not sure that we have met that in this case,” she said.

The detective apparently gathered no new details worth following up on in LMPD’s first and only interview with the suspect. The next day, Lynch called him back.

“So, I just got off the phone with the Commonwealth’s Attorney Kristi Gray,” Lynch said in the recorded call. “And she and I both are under the impression that we do not think that it’s a good case to try.”

He jumped in before she could finish.

“Oh my God, thank you,” he said. “You just legitimately saved my life. It could have been so much worse I'm sure for me, you know? And I'm just glad like you were, like, honest and cool.”

Lynch asked if he’d give a DNA sample so she can see if anyone else’s DNA comes back in the kit. He agreed, and said he wanted to buy Lynch a cup of coffee if he ever met her.

She laughed and said she’d be the one swabbing his mouth.

He asked if this is over — if he’s off the hook.

She reassured him. He is.

Elizabeth Donegan, a former sex crimes sergeant for the Austin Police Department and a national consultant, said these phone calls don’t sound like the appropriate way to do an interview.

“You don’t show your hand,” she said. “You want to see, ‘What can you tell me?’ so that you can utilize that information to poke holes in their story.”

Donegan said Lynch’s interview of the suspect sounded more like the detective was checking off a box on a to-do list than seriously trying to get information about a crime.

The detective could have seen what the suspect said about Sainato before offering that she accused him of rape, Donegan said, or used a pretext phone call — calling about something tangential, or having the victim call him on a recorded line to confront him.

Donegan also questioned why he wasn’t interviewed in person; she said police should have met him face-to-face to better assess his honesty.

“If it was a homicide, [they] would,” she said.

In early August 2018, Lynch did meet the man in person. He came to the LMPD police station to give his DNA sample after Lynch got a warrant for a cheek swab. With a video camera rolling, Lynch didn’t ask him any questions or try to get any more details about that night. They chatted briefly while she prepared the swabs. He started to explain why he got a lawyer, but then, he said, “I don’t want to get into it.” So, she didn’t.

By then, police and prosecutors agreed they would not be arresting the man Sainato had accused of rape. But no one told her that.

In fact, in November 2018, a victim advocate with the police department told Sainato in an email that the investigation was ongoing.

“The Commonwealth Attorney’s Office does not review cases until the DNA results come back,” she wrote.

The prosecutor had already reviewed the case and decided against charging the primary suspect, records show. But the case did remain open. Lynch interviewed a second man that Marriott staff had identified as being at the hotel bar that same night, but after a brief phone call, she determined he wasn’t involved.

When the DNA results came back in spring 2019, saliva found on Sainato's neck matched the sample the suspect gave to Lynch the previous August.

The police and prosecutors had already ruled out charging him. Prosecutor Gray declined the case, and police cleared it by exception.

LMPD told Sainato’s lawyers that prosecutors had declined the case. The lawyers thought Sainato already knew when she came to KyCIR for an October interview. She didn’t, and found out when we told her.

“That is corrupt,” she said. “It doesn’t make sense.”

Her voice broke. “So nothing now?”

Having her case open meant hope. Hearing it had been cleared by exception confirmed for Sainato what she thought from that first night: the police didn’t believe her.

To clear a case by exception, FBI guidelines and LMPD rules dictate that police must have identified a suspect, know where that person is and have “sufficient probable cause to support charging and prosecuting the offender,” according to LMPD's operating procedures.

But Lauder told KyCIR that detectives don’t have probable cause to make an arrest in Sainato's case, even though she conceded it was necessary before closing the case by exception.

Halladay clarified that the case had a minimal amount of probable cause, just not enough to support an arrest.

“If you want to dispute that we shouldn’t have closed this by exception because we didn’t have enough probable cause to issue an arrest warrant, then you can make that argument,” Halladay said.

Hard — But Not Impossible

LMPD and the Jefferson County Commonwealth’s Attorney’s office say their practices are based on what’s best for victims. But experts and other Kentucky prosecutors say handling these cases in a victim-centered way often means trying to get a criminal conviction.

“It’s the easy way out, saying, ‘They’re difficult… we don’t want the victim to have to go through this,’” said Donegan, the former Austin sex crimes sergeant. “If the victim chooses that, and you give them information so that they can make an informed decision about what is best for them, then I think we owe it to victims that they have a voice.”

Rape cases are difficult, everyone agrees. But they’re not impossible. AEquitas, a Washington, D.C.-based nonprofit, maintains that there are few legal roadblocks a prosecutor can’t overcome. Its research focuses on improving prosecution of sex crimes and gender-based violence, and the organization debunks common stereotypes in a 235-page “Model Response to Sexual Violence for Prosecutors.”

The report says that the relationship between prosecutors and law enforcement is important — and that prosecutors can and should encourage investigators to build better cases. Among these strategies: treating the scene of a rape like a crime scene and securing evidence early; following up on leads from other sources before sitting down with the victim; never stopping an investigation because the victim was drunk, or the case doesn’t make sense; and never giving the victim the impression the case won’t be prosecuted, since it tends to make victims feel like they aren’t believed.

The organization advises prosecutors to better educate juries, starting with the way they frame the case during jury selection and including the use of expert witnesses to better explain how details of victims’ stories might change as they process trauma. It advises prosecutors to prepare for “victim blame and shame” defenses, like attacking a victim's credibility or insisting they don't remember consenting.

"Remind the jury that no one asks a robbery or burglary victim what they did to bring on the crime,” the report said.

Jonathan Kurland, a former prosecutor and current attorney advisor with AEquitas, said the best way to get better at trying rape cases is, simply, to try difficult rape cases — and dispel the myth that these cases require better proof than other crimes.

Prosecutors do have an ethical obligation to only take cases they believe will stand up in court. But Kurland says that assessment should be based on what an unbiased jury should do under the law — not what a jury might do, or what a biased jury would do, or what the last jury did.

“Even if the jury doesn't return with the expected results or what's believed to be the correct result, just [use] that opportunity to start educating not only the broader jury pools but the judges and defense attorneys in the system as well,” he said.

Elsewhere in the state, prosecutors echo the necessity of taking difficult rape cases to trial.

In Lexington, rape cases are handled like all other cases: police decide when to make an arrest, and the prosecutor takes it from there. Lexington police’s arrest rate in rape cases is comparable to Louisville’s: both are below the national average. The difference is what happens in the rest of the cases.

If Lexington police are not able to make an arrest, the case usually remains open, pending new information. They cleared 8 percent of their rape cases by exception in 2014-16, while Louisville cleared 42 percent by exception.

And when suspects are arrested, the Fayette Commonwealth’s Attorney’s office takes over. Commonwealth’s Attorney Lou Anna Red Corn said they sometimes end up with cases they aren’t sure they will win — but they go to trial anyway.

"Who's the person that creates all the facts in the case? Generally, it's the rapist," Red Corn said. "They would certainly pick a victim that's vulnerable, not believable, or finds themselves under circumstances that might cause them shame or humiliation, should they report it and prosecute it... We need to make sure that we're doing everything to make this person accountable for what they've done."

Chris Cohron is the commonwealth’s attorney for Warren County, which includes Bowling Green, the state’s third largest city. Police bring some cases, including rape cases, to his office to screen before an arrest is made. But Cohron has a reputation among victim advocates around the state for being just that — an advocate for victims.

He said he always proceeds as if the victim will be willing to testify, even if they’re not sure themselves. He said through communication and preparation, he’s usually able to get them to a place where they believe they can do it too.

“As they get closer to having to make that final decision... they understand that it's something they need to do not only for themselves, but for the prosecution of the case,” Cohron said.

That’s a sentiment one prosecutor in Kentucky can relate to. When Jenna McNeal Cassady was 16, she told police in Carroll County that her boyfriend’s father had raped her.

She said her prosecutor encouraged her and gently pushed her, and so, she testified.

The jury found him not guilty on the rape charges.

But, she says it was completely worth it — “because I found justice in the fight for justice.”

Through the whole process, she saw police officers and prosecutors using their power to help her. That experience put her on a path to law school. Now, she prosecutes sex crimes in Red Corn’s office in Lexington.

As a victim, Cassady needed to know that the police and prosecutors believed her. As a prosecutor, she says she works in an office that’s willing to take cases as far as they can — even when it’s not easy. She said she’s currently prosecuting a person she believes to be a serial rapist. It’s his second trial. The first time, he was acquitted.

She said she’s working just as hard on the second case, even if it feels like an uphill battle.

Because that’s the job.

In Louisville, ‘Stronger Cases’ Usually End With Plea Deals

In Louisville, of all 194 rapes reported to LMPD in 2017, only one case so far has gone to trial.

Gray told KyCIR last year how difficult it is to convince a jury in a rape trial, particularly when a suspect says the sexual contact was consensual, there’s alcohol involved, or the assault happened in the context of a relationship.

She said taking a case to trial and losing can be worse than not trying.

“If they get acquitted, I think that empowers offenders sometimes and could potentially make them more dangerous,” Gray said. “I think a lot of these people commit these offenses believing that they're going to get away with it. And if they do in the form of an acquittal, I think it makes them all the more dangerous.”

Gray acknowledged that her office has probably screened out cases of suspects who have then raped again. But Gray says that can make for a stronger case if the next victim reports.

“Anytime you go in front of a jury with more than one victim who's making a similar complaint, it increases the likelihood that a jury is going to understand and believe these witnesses,” she said.

The rape cases Gray’s office chooses to prosecute tend to meet certain stereotypes of sexual assault. They have serious injuries, or eyewitnesses, or confessions. There are adults sexually abusing children, or strangers randomly assaulting people. There are guns, lost pregnancies or children testing positive for sexually transmitted diseases.

The penalty for each charge of first degree rape is 10 to 20 years in prison, or 20 to 50 years if the victim is under 12 or there was serious injury.

But the cases KyCIR reviewed often ended without serious jail time.

Of 30 arrests, six of the court cases are still ongoing. Five others involved juveniles, so those records are confidential.

Nearly all of the other cases were settled through plea deals, an agreement between the prosecutor and the defense attorney to avoid going to trial. And in all but four rape cases, that plea came with the most serious charges dropped.

In the end, four adult defendants have been convicted of rape — out of 194 reports.

Rapes aren’t the only cases typically resolved through plea deals. That’s how most criminal cases in Louisville, and nationally, end. And records show some plea deals in these rape cases were made at the victim’s request.

Some guilty pleas came in exchange for long prison terms  — a 16-year sentence for rape, seven years for child pornography, and five years for wanton endangerment.

But nearly as often, these pleas came with no prison time: either because the defendants received credit for time served while awaiting the plea, or their sentence was suspended or probated.

According to a police report from June 2017, Anthony Antonio Jones got into a stranger’s car in the parking lot at a Speedway gas station holding a gun. It was around midnight, and he told the woman sitting in the drivers seat to perform oral sex on him or he would “blow your brains out.”

She escaped into the Speedway, and Jones fled. But police said he returned to the scene, and he was arrested and charged with attempted sodomy, wanton endangerment, and two gun charges. Jones, 28, couldn’t be reached for comment.

Jones’ defense attorney and the prosecutors struck a deal: For a five-year prison sentence, Jones would plead guilty to wanton endangerment and a gun charge. The other charges, including the attempted sodomy, would be dropped.

But then, at the sentencing, Jones’ lawyer asked the judge for probation instead of prison.

The lawyer explained that Jones had completed diversion, a form of probation, on a previous drug conviction without getting charged with any new crimes. Circuit Judge Susan Schultz Gibson noted the incident was serious, and violent. She seemed to be on the fence.

The prosecutor took no stance. The judge agreed to the probation.

Jones had faced five years in prison. Instead, he went home that day without a sex crime conviction.

'Rapists get a pass'

When Sainato came to Louisville to meet with her lawyer and talk with KyCIR about her case, she stayed in a hotel. She brought her mother with her, but still, she said she was up all night.

There was an auctioneer’s conference in the same hotel. The lobby was full of men.

“That never even used to bother me,” she said. “It was like I had this confidence. It’s a compliment, maybe, if you look at me, but nothing else. I've always felt safe, not violated.”

Two years after that night in Louisville, she is still reeling from what happened. She’s terrified that the man she says raped her is still out there. Medical records show she’s been diagnosed with post-traumatic stress disorder. She’s had to fight to keep her job, since she doesn’t feel safe traveling for work anymore.

The lack of answers from the police has left her, as she wrote in an email to LMPD, like she has been “denied access to my own trauma.”

Sainato knows she’s in a better position to advocate for herself than a lot of people who report their rapes — she’s a white, professional woman with a college degree, and the time and resources to hire private attorneys and advocate for herself.

When she met with us in October, we shared our analysis of 2017 rapes: 194 rapes reported, but only 30 arrests. Only 10 people serving time. Only four rape convictions.

We explained what we'd learned about the system that had confounded her for so long — why a mysterious prosecutor she never met got to decide what police did with her case. She said it still didn't make sense to her.

“It’s a crying shame, because a lot of other women would not be as persistent,” Sainato said. “I can see and sympathize with some women who wouldn’t want to do that. And it’s just so shameful, because rapists get a pass in Louisville, I guess.”

She hasn’t given up. Since she learned her case has been cleared, she’s been pushing LMPD to reopen it. She provided some additional medical records, and the LMPD sex crimes unit sergeant told her they could screen the case with a prosecutor again. Sainato said she responded: yes, absolutely, and please keep her updated.

It will likely be the same prosecutor who screened it last time. Gray.

Now, Sainato is waiting again to find out if another look at her case will make a difference.

“I gladly would have prosecuted. I wanted to.”

She paused, and rephrased.

“I want to.”

Contact Eleanor Klibanoff at (502) 814.6544 or eklibanoff@kycir.org. 

If you'd like to share anything about a rape investigation in Louisville, leave us a message at (502) 814-6580. 


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