Seven hundred and sixty-eight days. As of this writing, that is the amount of time that has elapsed since the victim in the Saifullah Khan sexual assault case — referred to in court documents as Jane Doe — first reported a sexual assault to the Yale Police Department on Nov. 2, 2015.
Just as the trial began gathering evidence in mid-October, a mistrial was declared because the YPD had not turned over notes from interviews with witnesses to the defense. The next court date scheduled for the case is Jan. 12, 2018, but it remains unclear as of now what will happen at that meeting or what it will entail for the eventual preparation of a new trial. The News last reported on a Yale student going to court on sexual assault charges in 2006, and in that instance, a little over a year after his initial arrest, defendant Gregory Korb ’10 pleaded no contest to misdemeanor charges in order to avoid prison time for being found guilty of sexual assault. A decade after the Korb case, the Khan case is still headed for trial following its more than two years of pretrial proceedings and mistrial.
These details have raised a critical question regarding how rarely and hesitantly Yale students — and college students at a national level — will report instances of potentially criminal sexual misconduct to the police. In fact, the Rape, Abuse & Incest National Network, or RAINN, reports that only 20 percent of female student victims of sexual violence aged between 18 and 24 report to law enforcement. In 2000, a United States Department of Justice study found that fewer than 5 percent of completed or attempted rapes against college women were reported to law enforcement.
And in the Yale Office of the Provost’s report on sexual misconduct from Jan. 1 to June 30 of this year, it was reported that 27 sexual assault complaints were made to Yale through the Title IX coordinator, University-Wide Committee on Sexual Misconduct and the YPD, 21 of which were complaints from undergraduates, 4 from graduate and professional students, one from a graduate alumnus and another from a Yale staff member.
Only in the case of the staff member did the victim choose to contact the YPD. The staff member said that a non-Yale affiliated individual inappropriately touched the complainant while on campus.
When a police investigation into a campus sexual assault case involves intimate questions about sexual history, clothing worn during the time of the assault, drug and alcohol consumption, among other personal details — in addition to a lengthy and intimate trial process — the incentives for a student sexual assault survivor to contact police are frequently undermined.
“The reality is that there is a lot that goes into sexual assault cases, and you need to go through several invasive procedures that are oftentimes more damaging and traumatizing than the rape itself,” said Catalina Velasquez, the communications director of End Rape on Campus, an organization dedicated to fighting sexual violence on college campuses. “That’s on a case-by-case basis, and not to diminish the trauma from a rape, but to explicate how aggressive and violent the process is for someone to report.”
Helen Price ’18, the co-founder and former co-director of Unite against Sexual Assault at Yale, similarly noted that reporting sexual misconduct to police can be extremely difficult for survivors who have to relive trauma as they repeat their story time and time again.
Price and Velasquez also both noted that groups which have disproportionately experienced violence in the hands of the police, like the transgender community or people of color, can have a particularly difficult time reaching out to law enforcement.
The YPD has a specially appointed Sensitive Crimes & Support Coordinator which, according to the department’s web page, “is dedicated to assisting victims of and investigating cases of sexual violence, harassment, assault, violence against women, and other crimes of sexual misconduct, including stalking, intimate partner violence, and workplace violence.”
YPD Sensitive Crimes was contacted, for example, by Carole Goldberg, director of the SHARE center, after Jane Doe reported Khan’s alleged sexual assault to her.
Chief of Yale Police Ronnell Higgins told the News that Yale police are specifically trained to ensure that they handle crimes related to sexual misconduct with care.
“In addition to receiving continuous traditional law enforcement training, Yale police officers and detectives have learned the special skills needed to investigate incidents of sexual assault, including empathy, compassion and understanding,” Higgins said. “They are trained to ask the right questions and provide the right information during these highly sensitive investigations placing emphasis on a victim advocacy approach.”
But a sexual assault case involving two Yale students does not guarantee that it will be handled by Yale Police. For example, incidents of sexual assault which occur off campus — unlike the Khan case, where the perpetrator is accused of sexually assaulting a female student in her Trumbull dorm room — are typically investigated by the New Haven Police Department, rather than the YPD, Higgins added.
The NHPD did not respond to request for comment on what measures its department takes to ensure a supportive atmosphere for sexual assault victims. Price told the News that, in her past experience as the co-director of USAY and as a Yale student, she encountered very few people who had actually reported their assaults to police because a police report can so daunting. She added, though, that those survivors who she does know who have reached out to police have found NHPD “to be pretty good on the issue.”
Still, one Yale student, who requested anonymity, noted feeling intimidated and discouraged by the NHPD’s investigation of her rape case.
“I felt intimidated by the police at first but I quickly also began to be discouraged by their conduct,” she told the News. “I understand that the officers are trying to do their job, and sometimes she made requests of me to help with her investigation in ways that I found inappropriate and uncomfortable … Eventually I gave up.”
Jennifer Long, chief executive officer of AEquitas: The Prosecutors Resource on Violence, told the News that unfortunately it can feel as though specialized sexual violence training or even gender-based filing at police departments is “seen as a luxury rather than a necessity in these cases.”
For others, the confidence required to declare oneself a victim of criminal sexual misconduct in front of the law can further mar the prospect of speaking to police. Ayla Besemer ’19, a WKND columnist for the News who had previously written about her own sexual assault, said that the language surrounding the terms of rape, sexual assault and sexual misconduct burdens victims.
“That is one of the main difficulties of waking up potentially after something happens and deciding what you want to do, because there isn’t a breadth of language to talk about these issues,” Besemer explained. “We still think of rape oftentimes as getting hit over the head with a brick in a dark alleyway and that’s what it is … We don’t have something to call what happens after a frat party on Saturday night or coming home from a bar, that feels like something different, we have sexual misconduct and sexual assault, but those are really broad terms.”
Another victim of sexual assault at Yale, who also requested anonymity, said that she wanted to avoid speaking to police because it felt as though they might invalidate her own personal understanding that someone had committed a horrible deed against her.
She described it as a pervasive idea that her assault is only “real” in the context of her institution, Yale, where she pursued an internal Title IX investigation, but not in the “real world.” Though it is not the case that she does not think her assault matters in the real world, she simply does not want to talk to police about it.
Besemer said that although she would report her assault immediately to Yale Title IX if it happened today as opposed to when she was assaulted two years ago, she is still not sure whether she would go to the police. She noted that the Khan case has taken over two years to go to trial, and she has great difficulty imagining herself standing in a court of law even today as she still grapples with the realities of her assault.
“Two years to have to leave the University and spend so much of your life thinking about one night during your college experience?” Besemer said. “That’s enormous.”
While it took the Khan case over two years to go to trial, the timeline for sexual assault trials can vary immensely based on the application of laws by either the defense or prosecution.
Laura Palumbo, communications director of the National Sexual Violence Resource Center, said that two years sounds like an extended amount of time for a sexual assault case, although the process of court systems frequently does have many delays and gaps. There are also special factors within the Khan case which have dragged out the case.
One such factor is individual voir dire, which grants lawyers the right to individually interview potential jurors in court for criminal trials. Connecticut is the only state in the country that uses this rule and, as a result, trials such as the one involving Khan can take longer than they would in other states, as jury interviews extend the pretrial process. In an article for the Hartford Courant, lawyer Norm Pattis — whose namesake Pattis and Smith Law Firm is representing Khan — said that the voir dire system in Connecticut is “killing the practice of law” for small firms that cannot afford extended delays in a trial caused by the frivolous questioning of potential jurors.
The idea behind delaying a sexual assault trial is controversial on both sides of the courtroom. Long told the News that the greatest source of delay tends to come from the defense strategically holding up the case. She explained that these trials deal with highly traumatic crimes, but that delays can amplify that stress and undermine the victim’s willingness to continue working with the prosecution.
But Khan’s defense lawyer from the Pattis and Smith Law Firm, Daniel Erwin, told the News that a swift trial is also in the best interest of the defense, and they have no reason to extend the length of proceedings.
“The defense has not engaged in delay tactics,” said Erwin. “Mr. Khan’s life has been upended by these allegations, which he denies. He was eager to have his name cleared in the first trial. Unfortunately, it mistried as a result of the Yale Police Department’s failure to disclose Brady material to the State’s Attorney and, vicariously, to the defense.”
Erwin noted that the defense requested these materials on Nov. 24, 2015, and was legally entitled to them. As a result, Erwin says, the trial court found that the resulting mistral “was in no way the defense’s fault,” and that Khan is eager to place the matter behind him.
Though the District Attorney’s office could not be reached for comment, Supervisory Assistant State’s Attorney Michael Pepper, the prosecutor in the case, previously told the News that he does not comment on pending trials.
One of the larger pretrial disputes arose over whether a victim rights attorney had the right to be in chambers for pretrial meetings. The Victim Rights Center of Connecticut has become involved in the case on behalf of the victim, but, according to court documents, the defense argued that the victim’s rights attorney had no right to be involved in pretrial meetings between the prosecution and the defense.
In an interview with the News, Executive Director of the Victims Rights Center of Connecticut James Clark explained that the role of the victim’s attorney is to protect their interests as the prosecutor clashes with the defense throughout the trial.
“A victim’s attorney in a criminal case protects the victim’s privacy, advises them concerning the court system, protects their constitutional rights and counsels them concerning any proposed disposition of the charges,” Clark said. “If a case proceeds to trial, we explain the trial process their role as a witness, including helping them to anticipate trial questions, and to prepare to testify truthfully in a way that can be understood by a jury.”
The trial court, however, ultimately agreed with the defense that there should be no outside attorney, such as a victim’s rights attorney, present in chambers prior to the trial. But the issue surrounding the presence of an outside attorney continued as the Connecticut state Supreme Court ruled last Friday that crime victims have no right to participate directly in plea-bargaining sessions. This other case is centered around the high-profile charges that Kyle Damato-Kushell, a 46-year-old former teacher’s aide at a Stratford Middle School, had sexual contact with two underage boys in August, 2014 at a Marriott Hotel in Trumbull, Connecticut. As negotiations for a plea bargain began, the judge in the case barred the lawyer of a teenager accusing Damato-Kushell of sexual assault from being present at a pretrial conference.
The Connecticut Supreme Court upheld this decision last Friday, and by extension, upheld the decision in the Khan case to not allow an attorney representing the victim to be present in pretrial meetings.
While this specific conflict led to a delay in the trial of Khan, explanations for how to streamline the trial process of sexual assault trials outside of the Khan case remains a separate issue.
Long told the News that she does not want to “sugarcoat” the process of going through prosecution as a victim of sexual assault, and leveled that the main strategy of the defense in sexual assault trials is to discredit the victim. Still, she added, she believes that the process of seeking justice in a court of law empowers victims regardless of the outcome and, by extension, makes the reform process of the courts a crucial one.
“The main reform really is making sure defense attorneys don’t ask for unjustified delays — there are already laws in place that should prevent that — and making sure prosecutors prepare and argue against continuances that are just designed to delay a case,” said Long. “Another area [for improvement] is training around witness intimidation and the nuances of witness intimidation, and ensuring the system is looked at before a case even happens, to make sure intimidation is prevented.”
Velasquez said that college campuses, in order to boost resources for victims and improve their understanding of how to report criminal misconduct to both universities and police, should have “a survivor’s center, period.”
And even groups which advocate for greater rights of the accused in sexual misconduct cases see benefits to helping victims approach police in cases of criminal sexual misconduct.
One organization, Families Advocating for Campus Equality or FACE, is an advocacy group founded in 2013 by mothers concerned over the fair treatment of their own sons and other young men accused of sexual misconduct on campuses. Co-President of Face Cynthia Garrett told the News that while she does not think it is practical to refer all matters of campus sexual misconduct to law enforcement because not all of it is criminal, she believes that schools should make it easier for students to report to police in more serious situations.
This would improve the quality of evidence and due process, she explained, in contrast to what FACE considers the biased system currently used by many colleges for resolving Title IX complaints.
“I believe the school should be encouraging them to at least make the report, and the school should create a safe space on campus to do that, because the detective can collect and preserve evidence more effectively,” Garrett said. “There are a lot of benefits of going to the police because procedural due process is a constitutional requirement; any time the state does anything to a human being, they have to give them due process, and that includes notice of the evidence, an active attorney, an unbiased judge and jury.”
Garrett said that at least 400 students have worked with her organization for help with internal sexual misconduct investigations at colleges — but, she added, of the fifteen students who have gone through criminal trial, none were found guilty.
But placing public advocates aside, the question of what it will take for police and a court of law to feel more approachable for victims while still being fair to all parties involved can be a tortuous one for the survivors of sexual assault.
“We should always give the victim the benefit of the doubt, the accused a fair process, but I still don’t know how to reconcile the investigation process,” Besemer said. “Questions like, ‘What were you wearing, were you watching your drink?’ feel like an invalidation, and maybe they are necessary in a court of law, but these are the questions which make girls back away.”
Britton O’Daly | britton.o’firstname.lastname@example.org