City Attorney Shares Reality of Prosecuting Sexual Assault Cases

As Charlottesville's domestic violence attorney, Assistant Commonwealth's Attorney Jon R. Zug has prosecuted numerous violent crimes. Sexual assault, however, violates a victim in a unique way, he said during his presentation, "The Reality of Prosecuting the Sexual Assault Case," sponsored by the Rape Crisis Advocacy Project March 25 at the Law School.

Rape "involves a total loss of control of one's body" and can haunt the victim, usually a woman, making her feel ashamed and humiliated, Zug said. "That loss of control results in a lot of feelings," he added. Zug said that if he asked victims about the effect rape has had on them, some would say "'I'm just never going to get over this.'"

Zug asserted that going through a rape case can help some victims heal, but less than 20 percent of all sexual assaults are reported to police, due to some extent to the public nature of proceedings. "It's very invasive," he said. "Who wants to go through this?"

Zug said rape cases are notoriously hard to try in part because of the burden of proof; there are usually only two witnesses to the crime—the victim and the defendant. Defense attorneys can use only three defenses against rape prosecutions in Virginia: the defendant can say there was no penetration and therefore no rape; he can say the victim was raped, but not by him; or he can argue that the sex was consensual. Zug said the first defense is rare and is usually only used when the victim can't say for sure whether there was penetration or if there is a lack of medical evidence to suggest there was. Furthermore, the defense suggests that there was an attempt at rape, which most defendants would not want to admit.

The second defense—what Zug called "it wasn't me"—has become rarer in recent years. "DNA has almost eliminated this type of defense," Zug said, because attacking DNA evidence is difficult. Virginia, the first state to go online with its DNA testing, has a better lab than the FBI, he said. Furthermore, Virginia mandates swabbing the inside of convicted felons' mouths to collect and file their DNA. As a result, whenever DNA can be retrieved from a crime scene, the police check for "cold hits" through comparing the assailant's DNA with those on file in the state's database.

Montaret Davis, who was charged in an August 1999 rape of a University undergraduate student, was caught through a cold hit. He had turned himself in to serve a sentence for driving with a revoked/suspended driver's license 14 hours after the rape. Because of a backlog at the lab, a month passed before the hit showed up. When Charlottesville police questioned Davis, he denied even knowing the victim or the location of her apartment. At the end of their questioning, investigators told him they had DNA evidence and left the room; he immediately attempted to break out of his chains with a paperclip. Although he argued in preliminary hearings that the DNA evidence was faulty, the night before his trial Davis changed his defense, saying that the sex was consensual, despite his earlier assertions that he did not know the victim. A jury eventually convicted him for a sentence of 80 years.

"The cases of 'it wasn't me' have evaporated," Zug said. However, some serial rapists have become more sophisticated: they wear condoms, hairnets or caps to cover their hair, gloves sealed at the wrist and pants taped at their ankles to avoid leaving DNA evidence behind. They often make their victims bathe before they depart. Such cases, where the victim does not know the perpetrator, are rare, and investigators can have trouble just finding the assailant.

The third defense defendants use—that the sex was consensual—is the most common and the most difficult to defeat, Zug said. "I've never won an acquaintance rape jury trial," he said, often because of skeptical jurists. Women jurors aged 35 and older are the toughest demographic in rape cases, Zug said. "I went a long time trying to pack cases with women [jurors]—until I started talking to them." At that point he realized older women could be tough judges of victims; in cases where the victim had something to drink (and was drunk or not), older women jurors feel that "she was putting herself in that position" while they excuse the defendant's drinking. "There is nothing that justifies a rape. Ever. Never," Zug said.

During his presentation Zug also outlined the steps a rape victim must go through in pursuing a trial in Virginia. The victim, after meeting with a uniformed officer, meets with a Sexual Assault Nurse Examiner (S.A.N.E.) for a 3-5 hour examination following the rape. She then meets with the detective, her lawyer, a judge, the defense attorney and eventually the jury. By the time the trial is completed—usually eight to 14 months after reporting the incident, he said—the victim can be desensitized, having told her story 12 times or more. Zug said he makes a point not to talk about the assault in his first meeting with a rape victim. "What I realize is that I'm a perfect stranger to her," he said.

Zug said that unfortunately the women who are raped often compromise their own cases. Women, for example, could turn the potential defendant's consent defense into a "it wasn't me" defense by washing after the rape. "You are washing my evidence away," he said. In one case he handled, a woman smoked crack in front of the defendant before he raped her; the defendant argued that she offered him sex for more crack. A jury could have viewed the victim negatively after learning of her drug problem, Zug said, but after the victim gave compelling testimony in her case during a preliminary hearing, he was able to bargain with the defendant to accept a guilty plea for a reduced sentence.

Zug said that deciding between pushing for a trial or plea bargaining can be difficult in tough cases, but if there is a 50-50 chance of winning a trial, he goes with the victim's wishes.

"There's nothing worse than going through the trial and having him be acquitted" and smile at the victim as he leaves the courtroom, Zug said, adding that he has seen it occur. Everything that has happened during the trial to help the victim heal "can be erased."