Opting for a plea deal viewed as the best option when evidence seems weak
Sexual assault cases hinge on evidence gathered by police, nurses
Seeking Conviction Investigative Collaboration
Sometimes the right evidence can make or break a sexual assault case.
Even when that evidence exists forensically or through witness testimony, the right circumstances make a difference, as do solid work by police, rape crisis advocates, medical professionals and prosecutors.
Statewide court data analyzed by Carolina Public Press shows that 75 percent of defendants arrested for sexual assault in North Carolina are ultimately not convicted of a sexual assault charge.
The evidence doesn’t just have to prove the case, to be strong enough to go to trial or convince a defense lawyer to accept a plea deal. The evidence has to be sufficient to convince North Carolina jurors.
“They want DNA, they want fingerprints, they want things that a lot of times in rape cases don’t exist,” said Ashley Welch, the district attorney in seven southwestern counties. “As prosecutors, we try very hard when we are picking a jury to ask them and weed out the people who want unreasonable proof.”
If a prosecutor thinks the evidence isn’t that strong, a plea deal may be the next best option. But how easily and frequently prosecutors should make that decision is a matter for debate.
Proceeding with a sexual assault prosecution can be challenging for everyone involved.
Sometimes the process can be unbearably traumatic for survivors.
But for officers like Lt. Eric Montgomery of the Winston-Salem Police Department’s Victim Assistance Unit, closing a case isn’t just about that one case.
“It’s a lot for the victims, psychologically, to have to tell their story again and again, and that can be painful,” Montgomery said. “But we have to catch the person so they don’t do it again.”
This is the third in a four-day investigative series, Seeking Conviction, examining the issue of sexual assault prosecutions and convictions in North Carolina, from a team of 11 media partners across the state including Carolina Public Press, The Fayetteville Observer; The (Durham) Herald-Sun, the Hickory Daily Record, The (Raleigh) News & Observer, the (Greensboro) News & Record, North Carolina Health News, the Winston-Salem Journal, WLOS News 13, WRAL-TV and WUNC North Carolina Public Radio.
When evidence makes the case
Briana Sherrod was a junior in college when a man kidnapped her from the campus of her small liberal arts college and raped her repeatedly.
It could have been a moment that ruined her life. She’s used it instead to make herself stronger, she said.
Sherrod grew up in the Lewisville-Clemmons area and still lives in Forsyth County. In November 2013, she was 20 and attending Barton College in Wilson, about 30 minutes east of Raleigh.
One evening just before Thanksgiving, she went to pick up a friend at her dorm for dinner. As she was parking, Sherrod noticed a man walking nearby but didn’t think anything of it — she was on a campus with lots of students. She parked under a streetlight, got out of the car and began walking toward the building.
“I was about five steps from the dorm when the guy I saw started running toward me,” Sherrod said. “Before this happened, I may have said (in this situation) I would run or scream, but I just froze. He said he had a gun. He grabbed my arm. He told me if I screamed he’d kill me. He forced me back to my car.”
The 21-year-old man got into the passenger seat and forced her to drive. He began rummaging through her purse, so Sherrod asked him what he wanted. He told her he wanted money. They began driving toward a more rural part of Wilson County. He directed her down a road where he said there would be an ATM. Instead, there were only a few trailers. He raped her several times in the car, Sherrod said.
“I just told myself, ‘I just need to do what I need to do to survive,’” Sherrod said. “It was almost numbing. It was like an out-of-body experience.”
Afterward, the man made her go to an ATM and withdraw money before buying cigarettes. He then told her to drop him off near the college.
“After I dropped him off, he said, ‘Don’t tell anybody about this,’” Sherrod recounted. “But the first thing I did was call my friend because I knew there was an officer on campus.”
While the man was with her, the friend Sherrod was supposed to meet had called several times. The man became frustrated with Sherrod’s phone ringing and took the battery out, she said.
She put it back together and called her friend to tell her what happened, then drove to meet her and an officer. She told the officer that the man who kidnapped, robbed and raped her also took her phone apart.
The detectives collected the phone for evidence. Police ultimately found his fingerprints on the phone.
That helped lead to his conviction, Sherrod said.
She then went to Wilson Medical Center, where a nurse administered the sexual assault collection kit.
“It was very invasive, and I was so tired,” Sherrod said, although she believes she was lucky in one regard. “A SANE nurse just happened to be there traveling. She was very considerate and kept asking me if I was OK.” Sexual assault nurse examiners, or SANE nurses, are registered nurses with specialized training on sexual assault examinations with evidence collection and documentation.
About a year afterward, Sherrod’s attacker pleaded guilty in Wilson County Superior Court to first-degree rape.
It was his first offense other than trespassing on the campus. He was sentenced to between 20 and 29 years in prison, according to the N.C. Department of Public Safety. In less than four years he has racked up 28 infractions in prison.
Sherrod asked that the man who raped her not be identified because of possible gang connections.
Through the eyes of a sexual assault nurse examiner
By Jordan Hensley, Hickory Daily Record
About once per month, one of the two sexual assault nurse examiners at Frye Regional Medical Center in Hickory receives the call: A sexual assault patient needs an exam.
Sherry Shepard, the director of Frye’s emergency department, said the hospital conducts at least one sexual assault forensic exam, or rape kit, per month.
As a state-certified SANE nurse, Shepard has worked to collect forensic evidence from sexual assault patients since 2014.
Shepard’s certification allows her to perform an exam alone. A nurse who does not have a sexual assault nurse examiner certification would have to perform the exam with a physician, she said. To earn her certification, Shepard had to log long hours of meetings with attorneys and law enforcement and spend considerable time giving and observing the exams.
Someone who has been sexually assaulted may arrive at the hospital in a variety of ways.
“They may come in by EMS. They come in by police. They may come in by privately owned vehicle through our lobby,” Shepard said.
When patients arrive, they may not say they’ve been assaulted. Sometimes they tell the front desk they need an injury checked out or they complain of pain or vaginal bleeding.
But, if the emergency department staff has reason to believe a sexual assault has taken place, hospital personnel immediately take action.
“We try to get those people back and sequestered as quickly as possible, because one, it is a traumatic event for them,” Shepard said. “They don’t need to be out touching other things or other people touching them because they are walking, living evidence.”
Get independent, in-depth and investigative journalism in your inbox
Sign up for free and never miss a CPP news report, investigation, conversation or event.
Building a case
For other types of offenses, like breaking and entering or assault, evidence can include a broken window or injuries, noted Jeff Welty of the UNC School of Government.
“One of the hard things about (sexual assault) cases is, it’s a type of crime where very often it’s committed in a private location, and the only two people who are present are the alleged perpetrator and the alleged victim,” Welty said.
Despite the emphasis on forensic evidence, cases can still be won without DNA. Many times victims wait before they report what happened to them. In that time, they have showered, wounds have healed, and perhaps years have passed.
Forsyth County Assistant District Attorney Elisabeth Dresel works in a county that has one of the highest rates of successful prosecution of sexual assault prosecutions in the state.
“A delayed report doesn’t mean we don’t have … evidence,” she said.
It is rare to have a witness for a sexual assault, but there might be video and text messages that can establish a timeline or provide information that corroborates what an accuser alleges happened, Dresel said.
SANE nurses can be critical, but access is spotty
Forensic exams by SANE nurses can provide crucial evidence that sexual contact occurred, document injuries to prove there was force and often confirm the identity of the suspect through DNA.
“If someone is sexually assaulted, they should go immediately to the emergency room and have a SANE kit done,” Lt. Montgomery of the Winston-Salem Police Department said. “We can prosecute later.”
He said that will help preserve evidence of the crime, should the survivor choose to file a report later.
“Now we have evidence we collected immediately after the crime, and it makes it almost impossible for a person to say, ‘I didn’t do this,’” Montgomery said. “It’s very difficult to say, ‘I didn’t,’ when your DNA is there.”
According to the International Association of Forensic Nurses, 46 board-certified SANE nurses reside in North Carolina. Numbers of nurses with SANE training but not certification are unclear.
However, they are distributed unevenly across the state.
Of more than 100 hospitals operating in North Carolina, only 28 have SANE nurses, according to a registry of forensic nurses. They are primarily located in high-population areas.
How many are at a given hospital, plus how many ought to be, is also unclear.
The University of North Carolina Medical Center, for instance, has nine SANE nurses on its staff, but there is no standard or requirement for how many a hospital system of its size should have, according to Thomas Hughes, a spokesman for the Chapel Hill hospital system.
Access to SANE nurses is especially limited in rural areas in North Carolina, the state with the largest rural population in the country.
Rape survivors may be asked to travel across several counties for an examination or wait until an on-call SANE nurse is available, said Charnessa Ridley, the training and communications coordinator for the N.C. Coalition Against Sexual Assault.
Ridley has worked in the past to build up the number of SANEs in rural communities by identifying areas where there was need and figuring out ways to support SANE nurses in the field. But that work stopped three years ago when a federal grant expired.
“In rural areas, the access was very, very limited,” she said.
Joyce Cody is the executive director of My Sister’s Place, a rape crisis center in Madison County, a Western North Carolina county with a population of about 22,000 and no hospital of its own.
Rape survivors typically travel to Mission Hospital in Asheville. While it’s about a 30-minute drive, her organization will provide transportation, if needed.
Once a sexual assault survivor arrives at a hospital, being processed there before seeing a nurse can also be agonizing.
“The part of the process that takes so long is the hospital side, not the SANE nurses,” Cody said. “You could be sitting in the ER for hours, putting up with the bureaucracy of it before you get to see a SANE nurse. They call ahead to the SANE nurse department for them to dispatch whoever is on call. We have never had to wait. It’s usually the doctors in the ER who drag their feet.”
Even if a hospital system has SANE nurses on staff, there wasn’t always a great level support for the work they do, Ridley said. Nurses often must seek training and continuing education on their own and face burnout from the emotional toll of the work.
It can take from four to five hours, and sometimes up to eight hours, for a SANE nurse to perform an exam to collect DNA for a rape kit that could later be used in a prosecution. In many cases, that involves pulling the certified SANE nurse, who may be working a regular shift in the emergency room, out of the rotation.
“Everyone else on the floor has to step up,” Ridley said.
State working to erase biggest rape kit backlog in nation
North Carolina is No. 1 in an ignoble measure: As of last year, it had the most untested rape kits in the entire nation.
Hundreds of police departments, hospitals and universities statewide had stockpiled 15,130 kits, according to a tally released last year.
Nationwide, grants have helped pay to test thousands of kits sitting on shelves. The evidence contained within has led to thousands of new DNA matches in the FBI’s nationwide genetic profile database called CODIS, according to The New York Times.
Testing kits in North Carolina has helped secure convictions in old cases.
Statewide, roughly 16 percent of those charged with rape are convicted of rape, according to a Carolina Public Press analysis of state court records.
A bipartisan proposed state law winding its way through the N.C. General Assembly aims to eliminate the backlog. Called the Survivor Act, it seeks to provide $6 million to test older rape kits and create a policy to ensure sexual assault evidence kits never build up again.
Convictions through plea bargains
After law enforcement and medical professionals gather evidence and an arrest is made, the prosecutor’s job is to evaluate the strength of the case, often with additional investigation. If the prosecutor ultimately decides the evidence is too weak to secure a guilty plea to the charge or bring the case before a jury, it could lead to a reduced plea deal or possibly a dismissal.
Statewide court data analysis showed that less than 14 percent of rape convictions come as a result of a jury trial. Most convictions for all crimes, including rape, are as a result of pleas.
Ideally, working with police and the victim, prosecutors try to build a strong case, and the defendant’s lawyer will recommend accepting a plea to avoid a steeper sentence.
But even the best cases can hit roadblocks along the way. Sometimes prosecutors decide a compromise plea deal is the best outcome. Whether some district attorneys are too quick to go this route is a matter of opinion.
County-by-county data analysis shows that reduced-charge plea deals more frequently feature in some counties than others, with Durham, Alamance and Union counties having a high percentage, though these were all counties with conviction rates above the state average.
Carolina Public Press’ analysis did not include a count of plea deals in which prosecutors dropped sexual assault charges altogether, as these were counted among the dropped charge cases. However, many of the prosecutors and law enforcement officials consulted for this series described this as their best option in some cases.
Lt. John Somerindyke, who heads the special victims unit at the Fayetteville Police Department, recalled one case in which a man who had been charged with raping four prostitutes instead pleaded guilty of kidnapping charges.
“He got 19 years in prison, so I’m good with that,” Somerindyke said. “The bottom line is, all rapists need to go to prison. … It’s what the victim feels is acceptable.”
And in still more cases, perpetrators will plead guilty to another crime, often a lesser felony or a misdemeanor, such as sexual battery.
Deanne Gerdes has served as executive director of Rape Crisis Volunteers of Cumberland County for the past 11 years. She said that she has come to the conclusion that a plea bargain is often preferable in a sexual assault case.
At one time, Gerdes disliked that so many defendants received plea deals. Now she prefers guilty pleas to trials.
“Honestly, I used to think like a plea was the easy way out for — specifically probably the District Attorney’s Office — until I actually went to a trial and I saw what the victim went through during a trial,” she said. “Horrible.”
It often takes two years to get to trial, she said. In that time, the victim has to interact with numerous people — law enforcement, prosecutors, family, the community and others “in the worst thing that’s ever happened to you in your entire life.”
The courtroom is scary to someone unfamiliar with it, Gerdes said. Simply parking outside the courthouse and walking in is fraught because “you could run into your perpetrator or your perpetrator’s family,” she said.
The first rape trial Gerdes attended was traumatic for the victim, she said. “The questions that the defense attorney was asking her: victim blaming, victim shaming.” Gerdes acknowledged the defense lawyer’s job is to defend the client, but “I see what that does to victims.”
Gerdes said it’s often easier for victims if the cases end up with plea bargains because “the victims don’t have to testify, and then they don’t have to be ripped apart by the defense attorney.”
However, Gerdes does not agree that any and all deals represent a real bargain. If the charge is among the most serious, such as a first-degree rape, the plea bargain should still require the defendant to plead to a sex crime, Gerdes said.
Tracey Kennedy, executive director of Real Crisis Intervention of Greenville, which serves several eastern counties, also cautioned against criticizing plea deals.
“Plea bargains are extremely important to victims,” Kennedy said. “Many victims want justice, and part of that justice is a conviction. Whether it is that person admitting it, which is a plea, or 12 (jury members) convicting that person. Regardless, I would never want a victim to think they were shortchanged either way.”
Some cases involve special considerations regarding the survivor’s circumstances. In Chatham County, Ignacio Alvarado was charged with three counts of sexual battery and second-degree forcible rape. He pleaded guilty to felony sexual act by a substitute parent or custodian, which required him to register as a sex offender.
“That’s an appropriate resolution,” said Assistant District Attorney Kayley Taber. “It was not a giveaway sort of thing.”
In this case, the victim was a young woman who lacked documentation to be in the United States, Taber said.
“So it was pretty scary for her to cooperate with law enforcement,” Taber said.
And in some cases, ambiguous evidence could make the option of a plea deal welcome.
If it’s a question of whether an act was consensual and a prosecutor has concerns about some of the social media interactions, but the defendant ends up pleading to indecent liberties, “then that’s a success,” said Harnett County District Attorney Don Harrop.
Or if a victim doesn’t want to testify, but the person still ends up going to prison on a plea deal, “then to me that is a successful prosecution,” Harrop said.
Alternatively, when district attorneys believe they have a winnable case in the long run, they may view a plea bargain as a poor choice because it takes eventual conviction off the table.
“If we plead to less than a rape, then the case is done,” DA Welch said, due constitutional protections against double jeopardy.
Prosecutors may instead drop such cases to preserve the right to try the defendant at a later date.
Surviving and beyond
Briana Sherrod, the college student who survived a rape in 2013, said putting her life together afterward was difficult. She was a psychology major, so it should have been natural for her to get counseling.
She didn’t, although her parents did.
Instead, she wrote — and still writes — in a notebook to relieve her stress when things frustrate or upset her.
Sherrod stayed out of school from the Thanksgiving holidays through the end of December.
While home, she got a tattoo on the inside of her left forearm —the word “Fearless,” with a teal ribbon for the “L” to symbolize sexual assault awareness.
She returned to Barton College for the next semester, determined to graduate on time. She was engaged when the rape and kidnapping occurred. Her fiancé was supportive through it all, and they now have a child.
Sherrod said she was diagnosed with post-traumatic stress disorder afterward, however, and still struggles with it.
“It was almost like grief, like denial, like I was not wanting to face it,” she said. “I was mentally exhausted.”
Sherrod said it’s taken her years to feel comfortable doing something as simple as going to the grocery store by herself.
“I’m still struggling,” she said. “I was diagnosed with anxiety. It’s a big issue. But the more I talk about it, the easier it gets.”
Tears still well in Sherrod’s eyes when she thinks her experience.
“I really think God’s the only thing that’s held me together,” she said.
“I had faith I would get through. I’m a very strong-willed individual. It’s gotten me in trouble a lot, but it helped me this time. I feel like God entrusted me, and if this happened and I survived, I can go on and make a difference with other ladies to get the confidence to tell people their story. It’s hard to tell people your story.”
Since becoming more vocal about what happened to her, Sherrod said friends have told her about things that happened to them and that they never reported. She’s encouraged them to speak out.
She also has taken part in fundraisers for sexual assault organizations, first in Wilson County, when she lived there, and now in Forsyth County, for Family Services.
“A lot of people don’t always tell somebody, or they have to have somewhere to go. That’s where Family Services comes in,” Sherrod said.
“I just figured I survived for some reason. I need to try to encourage other people.”
Contributors to this article included Kate Martin, Frank Taylor, Rebecca Andrews and Maria Grandy of Carolina Public Press; Sarah Newell and Michael Hewlett of the Winston-Salem Journal, Virginia Bridges of The (Durham) Herald-Sun, Paul Woolverton of The Fayetteville Observer, Sarah Ovaska-Few of North Carolina Health News and Kevin Griffin of the Hickory Daily Record.
Illustration by Mariano Santillan of Carolina Public Press.
Graphics by Cassandra Sherrill of the Winston-Salem Journal and Jason deBruyn of WUNC North Carolina Public Radio.See all reporting in the Seeking Conviction series
About the collaboration:
Eleven news organizations across North Carolina participated in the reporting of this series, which was coordinated by Carolina Public Press. Those organizations also include: The Fayetteville Observer; The (Durham) Herald-Sun, the Hickory Daily Record, The (Raleigh) News & Observer, the (Greensboro) News & Record, North Carolina Health News, the Winston-Salem Journal, WLOS News 13, WRAL-TV and WUNC North Carolina Public Radio. Go here to find all the reporting done in this project.