Caught in the gray zone
When Emily Smith reported she was raped, a prosecutor believed her. But believing her was not enough to be able to prove it in court.
By Samantha Schmidt
Hours are missing from her memory of that Saturday night.
It was Sept. 28, 2013, and Emily Smith was starting her first semester as an IU senior. She can still recall the beginning of that evening, when she put on her favorite blue chiffon shirt before heading out to the bars with her roommate. She can still hear the loud music pulsing from the dance floor at Kilroy’s Dunnkirk. She remembers sharing drinks with her roommate and other friends.
Then it all went black.
When she came to several hours later, a man was moving on top of her, having sex with her in her own bed. She froze. Somewhere in the darkness, she could hear her phone vibrating. She wanted to answer it, but her hands were so numb she could not move them. Then she lost consciousness again.
When Emily, 22, woke the next morning, the man was still in her bed. She recognized his face from seeing him on a couple other nights at Dunnkirk, but she had only fleeting conversations with him and knew nothing about him. Even though she couldn’t remember what happened between them during the missing hours at the bar, one thing was clear to her that morning: she had been violated. Yet the man acted like nothing was wrong.
One year later, Emily has decided to share her story in the Indiana Daily Student. By allowing readers to know her name and see her face, she said she hopes to show others that what happened to her could happen to anyone.
When the IDS contacted the man for his version of that night, he declined to speak on the record and asked not to be identified other than by his first name, Phil. Now 24, he lives outside Bloomington and has never been an IU student. Phil said he had no idea that Emily was as impaired that night as she describes. He said the sex was consensual.
The night after the incident, Emily reported a sexual assault to the Bloomington Police Department. For months, she worked with police to piece together what had happened and to provide any evidence showing that she had been unable to give consent.
When talking about rape, most people long for the clarity of a stranger jumping out of the bushes with a knife. But the majority of rapes are committed by someone the victim knows, in situations that aren’t so black and white. This makes it much more confusing for the victim and much harder to prove in court.
“It’s not stranger danger,” Emily said. “It’s your neighbor. It’s your friend. It’s the cute guy you met at the party who you’re really hitting it off with.”
Her case, like so many others, unfolded in a gray zone — a tangle of missing memories, mixed signals and unclear intentions.
Darcie Fawcett, the sex crimes deputy prosecuting attorney for Monroe County, evaluates all cases of reported sexual assault submitted for prosecution. Having reviewed Emily’s case, Fawcett said she believes Emily was in fact raped. But the prosecutor understood that believing is not the same as proving something to a jury beyond a reasonable doubt. Ultimately, she decided not to charge the man in Emily’s case.
Emily was devastated. As it turns out, the outcome of her case is extremely common in Monroe County.
According to public records supplied by police and prosecutors, 712 cases of alleged rape, sexual battery and other sexual assaults were reported to the Bloomington and IU police departments between January 2008 and early November 2014.
Of those cases, only 58 — about 8 percent — led to criminal charges.
Emily’s story is worth telling not because it is extraordinary but because it is so typical. Her account is a case study in how difficult it is to prove sexual assault.
Her rape, Emily said, was confusing, shameful and traumatic. But what happened next was an ordeal in and of itself. Over and over, she uses one phrase to describe what it was like to report a sexual assault and take her case into the criminal justice system.
“It’s a clusterfuck.”
On the night in question, Emily and her roommate, Jessica, made plans to go out with some girlfriends. Before heading out to the bars, they did their makeup and snapped a couple of photos together.
Jessica, now a high school teacher, was also interviewed by the IDS and asked that she only be identified by her first name.
The group of friends went to a concert at Kilroy’s Dunnkirk bar on Kirkwood Avenue. They were in a roped-off VIP section, where a table was set up with open bottles and a chaser for VIP members to pour their own drinks. At some point, Jessica and Emily set down their drinks briefly and walked away.
Emily remembers leaning over a railing with her roommate, surrounded by her friends, feeling almost invincible. Until that point, she said, she’d had no more than four drinks.
The next thing she remembered was waking up hours later with the man’s body looming over hers as he went inside of her. She didn’t know where they were at first or how they got there. She felt dizzy, frozen and entirely out of â€¨control.
The rest of her night is gone from her memory, until she woke the next morning. The man kept inching closer telling her he wanted to have sex again.
“I don’t know, I’m feeling sore,” Emily mumbled. She felt powerless, she said.
She didn’t know what to do or say. Letting him do it again seemed the easiest way to get him to leave.
“I try not to judge myself for what I did,” she said in retrospect. “He had already taken so much from me the night before.”
She recognized the man. She and her friends sometimes would see him kissing the drunkest girls at Dunnkirk. Emily and her friends even had a nickname for him: The Predator.
There had been times in the past when Emily had regretted sleeping with someone, she said. But the violation she felt that morning was much more than just regret. When she woke the second time, her clothes smelled like urine. Phil told her she had thrown up.
Before he left, Emily asked him for his name and phone number. If she decided to press charges, she said, she would need to know how to reach him.
Something had happened that night to both Emily and her roommate. During Emily’s missing hours, Jessica had been found passed out in the bathroom at a different bar, covered in vomit. The two young women had both blacked out for the same period of time.
The two roommates agreed that there was no way either of them would have blacked out from just three or four drinks. As college seniors and former resident assistants in dorms, Emily and Jessica had learned how to keep careful track of their drinking.
Even if she had been having a casual hook-up, Emily would have only gone home with someone she knew well enough to make her feel respected. This man had no idea that she was usually quite shy and that she had only had about three boyfriends in her life, that she prided herself in being independent and maintaining control, all of which she said had been taken from her that night.
Jessica called the Bloomington police to report that she and Emily had possibly been drugged. A patrol officer came to their apartment, and Emily sat in a chair in the farthest corner from him.
Emily was not afraid of police officers. At the time, she was even training to apply for the Indiana State Police. But in this moment, she felt exposed.
As the officer asked his questions, Emily found his tone insensitive. At one point, she remembers, he looked at Emily and asked, “Was anyone assaulted?”
She couldn’t bring herself to say it out loud. Everything seemed clouded. She wondered if she had done something wrong.
“No,” she said.
To Emily, the cop didn’t seem to believe that she had been drugged. Why would he believe that she had been raped? How could she possibly tell this stranger such â€¨invasive details?
“Had he said it a different way,” Emily recalled, “I probably would have felt more safe.”
Darcie Fawcett, the sex crimes prosecutor, explained that the quality of a victim’s first interaction with police is the greatest predictor of his or her willingness to file a criminal case. The BPD said it could not comment on Emily’s case. But a detective sergeant acknowledged that their patrol officers do not specialize in investigating sexual assault and are far more likely to be men than women. Only 11 out of 94 sworn personnel for BPD are women.
A patrol officer’s job is to get a statement and hand it off to a supervisor or detective.
But the minute Emily answered “No,” she made her case much harder to â€¨prosecute.
That afternoon, Emily went to the IU Health Bloomington Hospital Emergency Department so her urine could be tested for date rape drugs. But by the time Emily took the test, more than 12 hours after she might have been drugged, it was probably too late to get positive results.
This, too, is common. Because so many women given date rape drugs experience a blackout, it’s often difficult to piece together what’s happened. By the time they realize, it’s typically too late.
After taking the test, Emily was informed that the results were negative.
Searching for answers about her night, Emily decided to text Phil. A transcript of their texts was later saved in the case file.
“Still trying to piece together last night,” she wrote. “lol so I threw up? We met dancing?”
“Yes and yes,” Phil â€¨answered.
“Was my roommate with me?”
“Yes for a while then she got too drunk somewhere.”
“Huh? We think we might have been drugged,” Emily texted him. “I remember almost nothing before we had sex.”
“Also we probably shouldn’t have hooked up if I was that out of it.”
“Were you drunk at all?” she asked.
“A lil but not wasted I had a couple in me.”
“Well I may have been hitting on you but I was not in any kind of state to make decisions,” she said.
“Now I feel bad about my own decision making,” Phil said.
“Yeah I’m not making any accusations but if that happened with someone else you could get in real trouble if they wanted to report it,” Emily â€¨responded. “Just be careful.”
After the tests, Emily sat in her apartment for hours, stewing over the fears filling her mind. She felt physical pain and wondered if something had gone wrong.
Later that night, she went back to the Emergency Department to request a rape kit. The sexual assault nurse examiner ushered her to the same room as every other patient who reports a rape — Room 19. The nurse gave Emily a morning-after pill and a series of injections and pills to prevent STDs.
The nurse told Emily she was there for her, and if she was uncomfortable at any point, they could stop and take a break.
She asked a series of â€¨questions.
What did she remember? Where had the incident taken place, and what had the man done? This would be the first of three times in one night that Emily would be asked to recount that night.
The nurse gently scraped Emily’s fingernails for DNA evidence in case she had scratched the man. The nurse asked Emily to disrobe and used a black light to scan the front and back of her body, searching for any of the man’s bodily fluids on her skin.
“I remember feeling cold,” Emily said, “and wanting it to be over.”
Next came the worst part. Emily lay on the hospital bed, her feet in the stirrups. The nurse prepared to use a speculum to gather DNA from her vagina. Emily pictured the man entering her and felt the pain all over again.
She burst into tears. The nurse paused, giving Emily the time she needed.
“I had to turn my head and imagine I was somewhere completely else.”
The rape kit took four hours to complete. Then began the second round of questions from the police.
A patrol officer — not the same one who’d questioned her earlier — put Emily at ease. Emily told him that she wanted to report a rape.
She was terrified to pursue an investigation. It could take months and would require her to relive the night over and over again.
She weighed her options with representatives from Middle Way House, a victim advocate and support center, who were present during the exam. She decided she needed to stand up for herself. More importantly, she had to try to stop him from doing this again.
“I want him to be questioned,” she said to the officer. “I want this to go further.”
The officer drove Emily to the police station to speak with Detective Richard Crussen. Walking through her brief recollection of the night, she felt the need to justify all of her actions.
“Did you give him directions to your house?” she remembers Crussen asking. I have no idea, Emily thought. In her impaired state, she might have thought he was simply a friend driving her home. But she could prove nothing.
“Why didn’t you report the sexual assault to the first patrol officer?” he asked. Emily knew that her story, and the fact that she couldn’t remember anything, sounded very convenient to outsiders.
“I just felt so deeply, physically and emotionally violated that I couldn’t … not say anything,” Emily said.
Emily said the detective later told her that he had interviewed Phil in person and had requested surveillance videos from Dunnkirk. Analyzing her text messages with Phil, the detective encouraged Emily to continue texting him in the hopes of learning more about his intentions. Detectives often ask victims to communicate with suspects in order to get information out of them about the night, said Fawcett, the sex crimes prosecutor.
Emily kept texting Phil. She hoped he would admit that he knew she was too drunk to give consent.
“When did I throw up? Also my clothes were in the corner and smelled like pee…did I piss myself? Because I don’t know if I could ever recover from that lol”
“I don’t think you peed yourself and i think you threw up around 2:30 i’m not quite sure on the time cause my phone died by then.”
“You sure? Trying to figure out the mystery of that smell lol you still wanted to have sex with me after I threw up? Haha brave soul.”
“I did come help you when i heard that thud from the bathroom.”
Emily kept the tone of her texts as light as possible — she thought it would be easier to gain information from him if she remained levelheaded.
“I don’t think I’d get much out of him by saying â€˜You raped me,'” she said.
In the months that followed, Emily couldn’t focus. She started skipping classes and then withdrew from IU for the rest of the school year. She never followed through with her training to become a police officer. But she stayed in her Bloomington apartment. For weeks, she slept in her roommate’s bed, out of fear of sleeping in her own.
She felt dirty, shameful and hopeless. Was it her fault? Was there something about her, or something she did that night, that had set her up to be the victim?
She emailed the police constantly for updates, even though they never reached out to her.
“I felt like I was being forgotten,” Emily said.
On Nov. 4, after waiting three weeks with no updates, she emailed Detective Crussen. He responded the next day, saying he had just left the office of Darcie Fawcett, the prosecutor.
“Based on what we have at this point, including reviewing the text messages between you and him, she is inclined not to prosecute,” Crussen wrote.
Emily received no phone call and no further explanation.
Fawcett was only a few months into her new position in the sex crimes division when she read through Emily’s file.
After reviewing the evidence, the prosecutor spoke to both Crussen and another prosecutor before making her decision. Fawcett said she always gets a second opinion. She never takes her decisions lightly.
There was Emily’s memory loss, the fact that she hadn’t reported the sexual assault to the first police officer, the absence of physical injuries — all of these factors made it extremely difficult to prove that Emily had been incapable of giving consent. But the toughest blow to the case was the transcript of the text messages from Phil — the responses to the same text messages the detective had encouraged Emily to send and that Emily had hoped would help her case.
Reading Phil’s responses to Emily’s texts made Fawcett believe that he was caught off guard.
“I had no idea beforehand you were that bad off,” Phil wrote. “I should have asked I’m sorry.”
“I just wanted to apologize again for how I behaved Saturday night.”
To the prosecutor, the messages indicated that Phil had probably not been aware of how impaired Emily had been. Fawcett said there is a big difference between someone who is simply drunk and someone who is incapable of walking, holding conversations or giving consent.
“Was she so intoxicated that she couldn’t consent?” Fawcett said. “I don’t think I could prove beyond a reasonable doubt that she was.”
Even if Emily had blacked out, there may have been no way for the man to know she was that impaired.
A lack of consent is not enough to criminalize a rape case under Indiana law. Many people who report a sexual assault say that they felt frozen with fear and didn’t fight or even say no. Unfortunately, Fawcett said, that doesn’t carry enough weight in court.
If she had taken Emily’s case to court, defense attorneys would have questioned how Phil knew where Emily lived. She must have invited him over, they would say. Fawcett didn’t want to set Emily up for failure or further â€¨victim-blaming.
No call is easy, the prosecutor said. Her biggest frustration is the disparity between the number of sexual assaults reported and the number of cases she reviews that she feels confident in filing for charges.
Fawcett said it is hard to pinpoint any one reason for this gap. Cases can stall at several stages before reaching her office. Many victims back out after filing a police report — often out of fear of social stigma, retaliation or having to endure a months-long criminal process. Occasionally, detectives will decide not to send a case to the sex crimes prosecutor because they believe charges would not be likely. Fawcett said she wishes she could review all cases.
The prosecutor said she has to pay attention not just to the feelings of the accuser but to the fairness of any charges brought against the accused.
“I’m dealing with people’s lives here,” the prosecutor said.
Today, Emily is back in classes, and she has applied to graduate school. She plans to lead focus groups on campus to educate students on bystander intervention.
But she still wakes up out of breath at night with nightmares of being raped.
Emily tells herself that Fawcett’s decision was made in her best interest, and her case was bound for failure. But the justice system, she said, is not set up to benefit survivors of sexual assault.
“I did the right thing and nothing happened,” she says, sitting on a couch in her apartment, fighting off tears. “I spoke up, and I wasn’t heard.”
She hates to say it, but sometimes she wonders if her case would have reached a jury if Phil had been more violent.
“If he had slapped me around a little, given me a big old bruise on my face, broken a limb … maybe I would’ve been taken more seriously.”
The texts from Phil seemed to show remorse, she admits. But should remorse excuse violating another person’s body?
Emily said she doesn’t think of Phil as an innately bad person. He just made a bad decision, a decision that she believes is much too common on college campuses. She will never regret taking criminal action.
“It would’ve been easier if I would’ve done nothing,” she said, but, “it was important to me that I said something.”