GREENPOINT — It seemed a clear case of rape.
A young woman found crying on a Greenpoint sidewalk in broad daylight last month told passersby that she had been dragged into a portable toilet and sexually assaulted by two men who also stole her phone.
One of the suspects was seen hoisting up his pants as he fled, according to witnesses and surveillance camera footage. Within hours, police tracked down the two men in possession of the woman's phone and Greenpoint residents and business owners along the block breathed a sigh of relief.
But by the next morning, the story had changed. NYPD investigators let the men go without charging them because the 26-year-old had woman recanted her claim, sources told DNAinfo New York.
The decision by law enforcement officials not to proceed with the case triggered a public backlash — and revealed a sharp division between the way law enforcement and victims advocates interpreted the facts.
Following a public outcry, the Brooklyn District Attorney's office changed course to pursue the case after the NYPD opted not to charge the men.
DNAinfo New York spoke to defense lawyers and former prosecutors — as well as advocates for rape victims — to understand the challenges of prosecuting such cases.
A 'Reckless' Case to Prosecute
Matthew Galluzo, a former sex crimes prosecutor turned defense lawyer, said that when it comes to cases like the Greenpoint assault claim, shifting storylines by the victim create a mountain of doubt and present a moral dilemma for the prosecutor.
"[As a DA] I have an ethical obligation to not prosecute the case if I have reservations about it," said Galluzzo, who began his career in the Manhattan District Attorney's office, where he prosecuted cases of sexual assault, rape and domestic violence. "If I don’t think he’s guilty and there’s the possibility that he’s innocent, I couldn’t do that as a prosecutor, I’m sorry. It would be a reckless thing for me to do.”
“If I were somehow representing one of these two young men and you told me [the woman] told one story up front and then [she] told me a second story that basically exonerated my boys and then she told a third story where she pointed a finger [at my clients]... I would basically laugh at trial.” he said. “[You] have to prove this beyond a reasonable doubt to 12 people.”
In addition, experts said, if the case did go to trial, the woman's mental health and sobriety — which victims advocates argue have no bearing on the case — would also come under scrutiny by the defense lawyers seeking to question the victim's perception of the case.
Several details in the Greenpoint police report could be used to make a case against the victim, including that that she had been drinking at a bar with an unidentified man prior to the attack, attorneys told DNAinfo.
The fact that the woman could not tell investigators where she'd been drinking before the incident — which could be seen as in indication of her level of inebriation — could also be used to portray her as unreliable, they said.
In addition, police also noted in their report that the victim had scars on her arms and had admitted to cutting herself in the past — which former prosecutor and defense lawyer Seema Iyer said could be used at trial.
"If there is evidence that she cut herself in the past, then that indicates some mental health issue may be present or may have been present in the past," Iyer said. "Being mentally ill, she may not have the capacity to consent. It depends on her level of inebriation. It all goes to the ability to perceive."
A Survivor Intimidated by Authorities
Advocates for sex assault survivors point to investigators' inclusion of those details — which they say are irrelevant to the case — as symptomatic of NYPD hostility to rape and sexual assault victims.
The advocates say that aggressive questioning techniques by police officers are the reason these kind of cases never make it to court. They explain that when it comes to traumatic assault, inconsistencies in stories are common.
"Changes in the story, 'that must mean someone’s lying,' that’s been the frame up until now," said Josie Torielli, an advocate at the New York City Alliance Against Sexual Assault, who trains police, prosecutors and social workers in trauma-informed interviewing techniques.
"Traumatic events are not going to be created and stored and then recalled in the same way" as other events, Torielli added.
In cases like these, instead of creating and storing memories, all of the body's energy is channeled into self-preservation, she said.
"Just focusing on survival, heart rate, and breathing, muscle control. All of the mechanisms in the body that all kind of work together just to get through that experience and the cognitive part is very secondary at that point."
If survivors are rushed by investigators to try to fill in the gaps in their story, "that’s where maybe inconsistencies happen," she said.
Advocates point to the accelerated timeline the NYPD was on before deciding to drop charges against the men in the Greenpoint case — a decision that took them less than 24 hours to make after the crime was reported.
Jane Manning, the Director of Advocacy at the New York City chapter of the National Organization of Women and a former sex crimes prosecutor, said changes in victims' stories are not unusual — nor is the decision not to press charges. But she said it may be indicative that the victim is feeling re-traumatized by the law enforcement officials responsible for investigating the case.
"We don't know how she was treated by the investigators or what made her decide that she didn't want to press charges... We don't have the context and we don't know what the process was that lead to her saying this," Manning said. She added that in her experience working with survivors of sexual assault, many have backed away from prosecution when they feel intimated or harshly questioned or blamed by investigators.
"There's a wide range of responses that victims get when they report. Some of them encounter really good detectives who treat them really well, detectives and prosecutors. And some of them encounter detectives and prosecutors who really do not treat them well."
"It's more like an interrogation; it's a scenario where they are broadcasting to her, right at the outset, that they don't believe her and her case is bullsh--t and she's the one who's kind of under the searchlight."
"It is such a painful experience for a victim of rape to be treated that way that many victims give up at that point and say, 'I cannot go forward with this'," Manning said. "The public is then told the victim didn't want to press charges and the cycle continues."
Solid Facts Few and Far Between
Many residents of North Brooklyn who followed the case railed against police and prosecutors in the immediate aftermath of the announcement that the men would not be charged in the case, saying that anything less than an arrest and prosecution would be an affront to the victim.
Hey @BrooklynDA, Greenpoint resident here. Your office declined to bring charges against these rape suspects? https://t.co/r4oKY1tgB5
— Ben Newman (@benjamn) April 26, 2017
But experts say that building a legal case has to be about more than just public opinion.
“It’s frustrating but why are people so determined that there should be an arrest? How are they so sure what the truth is?" Galluzo said. “The community doesn’t get to decide these things.”
"These cases are as difficult as it gets. You’re depending on the human element. There’s rarely a smoking gun document, rarely a smoking gun admission, rarely eyewitnesses,” he said. “Why are you so sure they’re guilty? You weren’t in the bathroom.”
While law enforcement officials tout the strides they've made in the investigation of sexual assault cases and their sensitivity to survivors of those cases, advocates argue continued harsh treatment can frustrate investigations and prosecution.
But actual data that might speak to this divide is hard to come by.
Advocates at the Rape, Abuse & Incest National Network point to FBI statistics from the National Incident-Based Reporting System to highlight that of every 1,000 rapes just 310 are reported to police, and only 57 result in arrests, though those numbers don't include New York City or state.
The NYPD has not reported arrest rates for rape or any other crime for that matter since 2001, according to staffers from City Councilman Ritchie Torres' office, who introduced a bill Wednesday that would require the NYPD to do so.
Though in 2009, the most recent numbers available immediately, the arrest rate for rapes was actually higher than any other type of major crime, at 75 percent, more than the 59 percent of murders that closed with an arrest, the 54 percent of assaults and the 42 percent of robberies, according to data obtained by the New York Post through a Freedom of Information request in 2010.
In Greenpoint's 94th Precinct, however, where the confusing April 24 sexual assault case played out, the arrest rate for rape cases was bleak, with only three of 13 rape reports resulting in an arrest.
