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Work hard, pray harder column: Time to catch up

Sarah Yacoub

Sarah Yacoub is an attorney at Equal Justice Inc.

The Hudson Star-Observer recently ran a piece on the handling of sexual assault in St. Croix

County. In it, the rape case at issue settled for a diversion. A diversion is where the defendant enters a plea, more or less keeps it together for about a year and the case gets dismissed and eventually removed from CCAP. A diversion in other justice systems is that which is reserved for petty offenses, not crimes that irreparably scar its survivors for life. The argument is that it's better to secure a guilty plea, even if that plea lasts only as long as the ink takes to dry before it disappears from the record books, than for the survivor to hear the words "not guilty" after trial. While I have no doubt that District Attorney Nieskes is well-intentioned, we also know that the road to Hell is paved with good intentions.

In 2008, the U.S. Department of Justice Bureau of Justice Statistics released a Special Report titled "State Court Processing of Domestic Violence Cases." In it, they analyzed 15 large counties across eight states (Arizona, California, Florida, Georgia, Indiana, Ohio, Tennessee and Texas). Sexual assaults that occurred within the context of domestic abuse were diverted only 1.3 percent of the time. In other words, it is extremely rare for larger, more experienced prosecutorial offices to give diversions for sexual assault. Any one who spends any amount of time reading the Circuit Court section of our local paper or perusing CCAP knows we regularly divert sexual assault cases.

So why the disconnect? The former prosecutor in me would say DA Nieskes is afraid of trial but that would not be entirely fair. Good district attorneys understand that community resources are scarce, sacred and should not be wasted on trials where the state expects to lose. Having been said, some cases need to be tried as there is value in the process. We need to stop making sexual assault cases a ball that rolls down the path of least resistance. Despite Rape Shield Laws that are supposed to protect against blaming the victim for the predatory criminal behavior of the rapist, locally, we still harbor a culture by which we ask what she was wearing and whether she was drinking. Nieskes, in the piece, is quoted as saying that it still comes down in part to whether he has a "believable" victim.

Believable as defined by who? We are not a justice system that works with law enforcement to confer with mental health professionals for such corroboration and or assessments of truth and veracity. While the fallout effects of rape, the signs of truth, flow in abundance to those who know what they're looking at, we still have so far to go within our own system and those entrusted to not overlook the evidence that these crimes happened.

As to the value in trying hard cases, it serves as a deterrent to future sexual assaults. No one wants their face on the front page of the local paper. As long as sexual assault cases are quietly swept under the rug with diversions, the entitled and privileged within the community will continue doing whatever they want, spend obnoxious amounts of money on fancy attorneys and continue on with their lives. Likewise, no one wants to go to prison. As long as we're pleading these cases out for probation, rather than prison, where rapists belong, we don't offer much of a chilling effect on those inclined to act on their predatorial impulses. Rapists went to prison 57.8 percent of the time in cases where the case arose in the context of domestic abuse. Here in St. Croix County, we'll send you to prison for embezzlement and child pornography (given mandatory minimums and pressure exerted by federal law enforcement who commonly work these cases), but we're not sending people to prison for rape, domestic abuse or even child sexual assault at anywhere near the same prevalence or consistency.

Trial is expensive and inconvenient to the accused. It drags in witnesses and garners publicity, forcing the community to deal with issues that it can more conveniently ignore in the absence of trial. It places pressure on people and institutions to pay more attention, as they start to feel and or become liable. It precipitates accountability in leadership as no one wants to go down as the enabler of a rapist.

It also creates dialogue, discussion and change. Personally, I have found that survivors find more empowerment in telling their story, whatever the outcome, understanding that they are putting down footsteps towards change. Just as other justice systems throughout the country have grown to not be afraid of sexual assault cases, starting no different than us with our social hurdles and public misconceptions, we too can catch up and be better for not only survivors of sexual assault but for the community as a whole.