The uniquely stark cover of Thursday's New York Daily News asks a question that seems to keep coming up in highly publicized rape cases—publicized, generally, because they involve powerful men, including cops, accused, but not convicted, of rape. This is a sentiment we've heard after sexual assault charges against Dominique Strauss-Kahn were dropped and former NYPD cops Kenneth Moreno and Franklin Mata were acquitted of rape. In those cases, people reading the news tended to feel one way, while those sitting on juries, or in courtrooms and police stations, disagreed that the evidence was there to convict of rape. Of course, there's plenty going on behind the scenes that the average person is not privy to, but tabloid front pages have never been a place for nuanced details. And with this cover, the News appears to go the route of censuring New York's District Attorney Cy Vance, as well as more broadly calling attention to what appears to be a tragic flaw in the entire system of bringing rapists to justice.
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The case inspiring this headline is that of NYPD officer Michael Pena, who last summer, while drunk, allegedly kidnapped and raped and sodomized a woman in an Inwood alleyway in broad daylight. On Tuesday Pena was found guilty of sexual assault—but not of rape. He's admitted to assaulting his victim and "threatening to shoot her in the face"—but continues to deny raping her. (At least one repercussion of all this is that he's been fired by the NYPD and will lose his pension.) An article by four Daily News writers makes clear the feelings of the paper as to this case:
She insisted she was raped.
A witness testified she was raped.
A doctor told the court it appeared she was raped.
Police found the suspect’s semen on her panties.
And even the cop accused of brutalizing the Bronx school teacher admitted assaulting her.
Despite that, an eight-man, four-woman jury that included several big-time Manhattan lawyers would not convict disgraced Officer Michael Pena of rape Wednesday.
And then we get that much-repeated sentiment again, "It... left the victim and others wondering what it takes to convict somebody of rape in this town." Further down in the piece, we learn that District Attorney Cy Vance commended the victim for her bravery and that he will recommend "no mercy" at Pena's sentencing. Perhaps that mention is an olive branch of sorts to the DA from the News, to make up for what reads as some strong Vance-blaming on the cover?
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In The Atlantic Wire's own coverage of the Pena trial, we went with the headline "New York Juries Don't Like Convincing Cops of Rape," and Adam Martin asked a very similar question: "What does a prosecutor have to do to win a rape case against a cop in this town? More than they have so far, that's for sure." A spokesperson later took issue with that line. "To say the prosecutor didn’t win this conviction was just wrong," DA spokeswoman Erin Duggan told Martin. "He assaulted anally, vaginally, and orally. The vaginal attack is what was hung up in the jury." As Adam noted, the three counts that Pena was found guilty on were "predatory sexual assault," a charge which carries a sentence of 25 years to life and was meant to give prosecutors a way to prosecute crimes that go beyond rape.
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But the DA's statement is still confusing. Did the jury not believe there was a vaginal attack? And if so, why not? Further, what the world hears regardless of the definition of "predatory sexual assualt" is that, despite this being an apparently clear case involving a schoolteacher assaulted at gunpoint by a drunk cop while she was on her way to work in the morning, the jury did not find him guilty of rape. While these semantic distinctions are very important in the language of the courtroom and to cops and the DA, the layperson doesn't necessarily know the difference between a charge of rape or a charge of sexual assault, or what "predatory sexual assault" means. It's generally also assumed that the worse sort of sexual assault is rape.
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In ongoing conversations with the the DA's communications team over the past few months, they've repeatedly expressed how hard they have worked to convict rapists, and sexual offenders, in New York City. Joan Vollero, the DA's Deputy Director of Communications, released stats to The Atlantic Wire recently showing sex crimes indictments: In 2009 there were 124 indictments filed; 168 were filed in 2011. As for sex crime conviction rates of people actually brought to trial, in 2009, that was 86 percent; in 2011, it was 89 percent.
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Who does get convicted of rapes and sexual assaults in the city? Kentrel Whitaker, sentenced to 22 years in prison and 15 years post-release supervision for sexually assaulting a 73-year-old woman as she walked on the East River promenade, and Mustaphe Ouanes, who was convicted of rape in the first degree, among other charges, for raping a woman in his room at the Plaza Hotel in Midtown. (Ouanes will be sentenced in April.) Also, Jeremy Fulton, a former youth minister from the Mariners' Temple Baptist Church in Lower Manhattan, who was sentenced to 22 years in prison followed by 20 years of post-release supervision after pleading guilty to the rape and sexual abuse of five girls who attended his church. Serial rapist Vincent Heyward received 200 years to life "with a consecutive determinate sentence of 228 years in prison following his conviction at trial for a series of violent sexual attacks on five women in Hamilton Heights and Chinatown." Hugues Akassy, the "Riverside Rapist" who claimed to be a French journalist in order to lure women to picnics and dates (and would then physically stalk them and and also abuse them via email), was given 20 years in prison for stalking, harassing, and, in one case, raping a Russian tourist on the Upper West Side. In another 2011 case, Jaime Lopez-Mendoza was convicted by a jury of rape and given 15 years for raping a women in her room at the Dream Hotel (he was an employee there).
Interestingly, only the cases of Ouanes and Akassy have been made much of in the press. Also interestingly, none of these men convicted are cops, nor are any of them in the same league as a DSK.
The problem, as ever, may be one of PR, but it's also one inherent to rape as a crime itself. Sadly, when alleged victims are drunk, otherwise impaired, or of impugnable character (and most characters are) as we saw with Moreno and Mata, DSK, and Greg Kelly, those victims have an even harder time "proving" their case. We acknowledge this as a tragic fact of sex crimes—the victim is forced to prove something when sometimes the only available evidence is someone's word, and interpretations, alas, are varied. But when, in what seems an obvious case of rape involving a drunk cop with a gun, it's even less palatable to say that rape is not applicable in that case. It sounds like rape—how could it be anything else?—to the ears of the layperson... And that's exactly what this New York Daily News cover is playing into.
The problem is that the story ignores the fact that there are rapists convicted in New York City, and fairly often, actually. But by and large, they're not the ones we're hearing about on the front pages of the tabloids.