If you heard that the Oakland Police Department had “cleared,” or closed, 60 percent of its felony sexual assault cases in 2016, you might think the police were doing a stellar job of solving rape cases and bringing perpetrators to justice. You would be mistaken.
In fact, according to an analysis of U.S. crime data obtained by ProPublica, Newsy, and Reveal from the Center for Investigative Reporting, almost seven out of eight cases in that year never even resulted in an arrest. Out of 341 total cases, the OPD only arrested the alleged perpetrator 13 percent of the time. Another 40 percent of cases were never solved. The remaining 47 percent of sexual assault cases reported to police were abandoned using something called “exceptional clearance.”
Rape and other sexual crimes are admittedly difficult to investigate and prosecute. Cases typically pit the word of one person against another. Some physical evidence of rape can also be evidence of consensual sex. Victims sometimes decline to press charges rather than submit themselves to the ordeal of a prolonged investigation and trial. Prosecutors typically want to be sure they have rock-solid evidence when they take a case to court.
But none of those reasons appear to explain why Oakland police inexplicably terminated more than 250 felony sexual assault cases during the three years from 2014 to 2016.
The Federal Bureau of Investigation uses the phrase “exceptional clearance” to describe a set of reasons that police might stop working a case without making an arrest. U.S. law enforcement agencies report their success rates to the FBI every year as part of the agency’s Uniform Crime Reporting program. Crimes that police take credit for resolving “by exceptional means” must meet the following four criteria:
1) The investigation has definitely identified the offender;
2) There is enough information and probable cause to arrest and charge the person;
3) Law enforcement knows the suspect’s exact location;
4) For some reason beyond the control of law enforcement, the person cannot be arrested. Possible reasons include the accuser’s desire not to press charges, the suspect’s death or incarceration, or the district attorney’s decision not to prosecute.
A case cannot be “cleared by exception” just because it may not be prosecutable, or because the victim doesn’t want to pursue a case. The police investigation has to be thorough enough to yield the identity and whereabouts of a suspect and to substantiate probable cause for arrest. All four of the above criteria must be met for police to declare a case resolved in this manner.
From 2014 to 2016, Oakland police dismissed 143 alleged sexual assaults with the rationale “Victim Refused to Cooperate.” Another 59 cases were closed because prosecutors reportedly declined to take the case to court. Two were presumably consensual but underage juvenile cases with a juvenile suspect not taken into custody.
But more than half of all the 2014-2016 cases that Oakland police claimed to have solved and stopped pursuing were neither dropped by the victim nor rejected by prosecutors. The data submitted to the FBI doesn’t say why these cases were closed; six were tagged “Exceptional Clearance” and the other 247 were mysteriously labeled “Not Applicable.” That’s 253 separate Oakland sexual assault investigations in which the survivor wished to press charges and the police claimed to have cracked the case that were nonetheless abandoned for no apparent reason.
Why do Oakland police abandon so many cases of sexual assault even though they believe they have conclusively identified and located the attacker? Were those 253 suspects dead, or already in custody? That seems highly unlikely.
How, then, did something explicitly defined as an “exception” come to be used in nearly half of all reported sexual assaults cases in the city? Are Oakland police disinterested in such cases? Do they lack resources or personnel? Do their investigative techniques discourage rape victims from agreeing to press charges? And what about prosecutors? Do they fail to take good cases to court? Or is there a reasonable explanation for why only 13 percent of reported sexual assaults in Oakland result in an arrest when the national average is almost 22 percent? Do police in other cities care less about the quality of their evidence than officers in Oakland?
One thing is sure. You won’t get the answer to these questions from the Oakland police.
In the absence of an official explanation for the high rate at which Oakland police claim success in rape cases even though they never arrest anyone, rape-victim advocates and sexual-assault prosecutors offered possible reasons for why Oakland police clear so many cases “by exceptional means.”
When victims of sexual assault seek help at Highland Hospital, most are willing to talk to the police, said Kio Pak, the former program coordinator of the facility’s Sexual Assault Response and Recovery Team, which works closely with victims. Their initial attitude, Pak said, is “I don’t want other women to go through what I just went through.” But such attitudes can change over the course of an investigation, which often moves slowly.
Program Specialist Lacey Tauiliili of the Sexual Assault Response and Recovery Team concurs.
Survivors who are motivated to persevere in the investigation express a sense of anger and desire for justice, she said. “They’re looking for justice, because they feel … they were not deserving of this scenario.”
But in some cases, a police investigation can take a year or longer to identify a suspect. “It’s very difficult for the survivor to have to deal with a case that is ongoing,” Tauiliili said. “So if there is a hit, or they do know who the assailant was, they call the assailant with the survivor, they go through all these different processes that just continually affect the victim of this case, and that constant re-traumatization is very difficult for them to deal with — to the point where they may say, ‘I don’t want to do this anymore.'”
Pak said that after a long investigation a survivor might decide that she doesn’t want to revisit what happened. She might feel, “I’ve come to terms with my trauma; I’ve been through a year of therapy; I’ve been functioning well. Do I really want to tackle this again?”
Survivors also sometimes feel a great deal of shame because of the assault or related domestic violence, Pak said. For other survivors there are language and cultural barriers, he said, despite the use of interpreters by phone or in person. Some survivors of color feel they won’t be believed by the police. Sex workers, meanwhile, are often afraid they will get into trouble if they report a sexual assault to police.
One challenge in rape cases that is almost never an issue with other types of crime is the difficulty of proving that sex between people who know each other was not consensual.
“They bear the burden of having to prove that they didn’t consent, right?” Pak said. “And so that’s the complexity of sexual assault. It becomes, oftentimes — and I’m going to use gender here — ‘he said/she said,’ because that’s the majority of what we see come through here.”
This dynamic is compounded by another truth about sexual assaults, Pak said. “The majority of sexual assaults are by people that you know, that you maybe willingly and consensually engaged in a relationship, whether it’s friendship, platonic, whether it be intimate, right, or maybe it’s an ex or something — that complicates things.”
Pak also suggested that the large number of “social determinants” affecting the lives of many Oakland residents sometimes prevent survivors from pressing charges.
“We reach out to each and every person that we touch, and as diligent as we are, if they don’t have a cell phone, if they don’t have a home phone, if they don’t have a home, how are we supposed to reach out to them?” Pak noted. “Here in Oakland, we’re dealing with a housing crisis; we’re dealing with homelessness; we’re dealing with drug addiction. We’re dealing with so many different social determinants that are impacting someone’s life. Some of our survivors don’t really want to participate, because they’ve just got to survive and take care of their kids as a single mom. They just can’t take time off of work to meet with an officer.
“When we do our trainings, what we do tell people for sexual assault, especially in the Oakland population — for some people, it’s the worst day of their life, and for some people, it’s just another day in their life.”
At Highland Hospital, whenever someone comes into the emergency room saying they’ve been raped, members of the Sexual Assault Response and Recovery Team take them into immediate care. A team worker accompanies each assault victim through the medical and forensic exams and the immediate and subsequent police interviews. He or she also follows up with survivors in the days and weeks, and sometimes months, afterward.
Besides acting as advocates for crime victims, team employees also take part in new-cadet trainings, where they speak to police officers-in-training about rape trauma syndrome, and the emotions and gaps in memory such trauma can cause.
Pak thinks that, overall, Oakland police do a good job interacting with victims.
“There are times when it’s not the officer, but maybe just the questions they have to ask in order to be able to help corroborate this story in this report,” Pak said. “I know that they’re doing their job. If we’re sensing that there’s an emotional reaction, a very strong one, OPD’s always open when we jump in and say ‘Hey, do you need a break?'”
After investigating a crime and gathering all of the relevant evidence, the Oakland Police Department takes its criminal cases to the Alameda County District Attorney’s office for prosecution. The charging D.A. then decides whether the evidence demonstrates that a crime was committed, and what crime they will charge the alleged perpetrator with.
According to Senior Prosecutor Teresa Drenick, prosecutors must set a high bar when deciding which cases to proceed with. “The rule for prosecutors is we have to believe that we could go into court on the day of charging and prove it in court beyond a reasonable doubt,” she said.
Special assistant to the District Attorney and former head of the sexual assault unit Joni Leventis said a case can be “thoroughly investigated” yet lack the specific evidence necessary for prosecution to proceed.
“The cases [from OPD] I saw come through, they do a good job of investigating. They’re going to take it to the charging D.A., who might ask them to do further investigation.”
One consideration unique to prosecuting sex crimes is the necessity for the survivor’s participation.
“Normally in criminal law — in most felonies, for example, robbery or car-jacking — even if the victim does not want to prosecute, the D.A. can bring a case,” Drenick said. But in sexual assault cases, “we often can’t do it without the victim. If there’s an eyewitness to it, we could do it without the victim’s testimony.”
However, she said there is no one common thread among the sexual assault cases that are turned away by the charging D.A.
“Literally every case we review is unique,” Drenick said. “It’s a totality of the circumstances surrounding the alleged assault.”
Each type of specific sexual assault crime is defined in the California Penal Code, and “every crime has certain elements that have to be proven beyond a reasonable doubt,” Leventis said.
For example, non-spousal rape is defined in Penal Code Section 261 and rape of a spouse in Section 262. Other types of sexual assault, such as forcible oral copulation and forcible penetration by a foreign object, are defined in other sections of the code.
The different circumstances under which an act of rape can be established include the use of force or intimidation, or the victim’s inability to consent to sexual intercourse because she’s unconscious or mentally disabled. Proving both the occurrence of one such circumstance and the alleged attacker’s knowledge of that circumstance is necessary to establish the crime of rape.
When an accused attacker is on trial for the crime of rape, the judge reads specific instructions to the jury. As spelled out in the Judicial Council of California Criminal Jury Instructions, the jury must determine what is sometimes the hardest detail to prove: whether the accused understood that there was no consent, but acted anyway.
“With these forcible crimes,” Leventis said, “part of the instructions [to the jury], is if the perpetrator believes there was consent, the jury has to find them not guilty.”
If Oakland police are not arresting people because they suspect that prosecutors won’t pursue the case, then police may be closing down some investigations early, based on that assumption.
But while Oakland is not alone in its frequent use of “clearance by exception,” only three other surveyed law enforcement agencies used that rationale to close cases more frequently.
Seven other California departments provided their data for this survey — although notably not San Francisco — and every one used exceptional clearance less frequently than Oakland’s 47 percent rate. Long Beach cleared 41 percent of its cases by exception, Los Angeles 38 percent, Bakersfield 20 percent, San Diego 18 percent, Kern County and Sacramento 5 percent each, and Sacramento County only 2 percent. However, every one of those agencies also reported more unsolved cases than Oakland’s 40 percent rate, with Long Beach at 46 percent, Los Angeles at 48 percent, Bakersfield at 55 percent, Kern County at 69 percent, San Diego at 73 percent, San Jose at 87 percent, and Sacramento topping out at 91 percent of cases unsolved.
Could it be that police in Oakland are not less effective than police elsewhere in California but are merely choosing to present their efforts in a more favorable light than warranted by the facts?
When it comes to a comparison of 2016 arrest rates, which are more tangible and less subject to semantics than clearance rates, the data shows that every California agency in the survey appears to be doing a poor job of investigating sexual assault. Where Oakland boasts an arrest rate of 13 percent and the other California agencies average about the same, the average of the U.S. agencies surveyed is closer to 22 percent.
Perhaps someone at the OPD could explain the agency’s apparently poor performance in this area. To learn answers to these questions and others, this reporter has asked to meet with OPD several times, beginning in mid-January of this year. But the Oakland Police have not responded to multiple requests for information or an interview, except to ask for a list of questions in August — which they promptly received but have not answered.
Here are some of the questions that the agency should answer:
How do Oakland Police officials explain their agency’s low arrest rate in sexual assault cases and its extremely high rate of exceptional clearances? What are the barriers to identifying perpetrators? How has the department managed its backlog of unprocessed rape kits? If Oakland police believe they have probable cause for arresting a suspect, what is so frequently keeping them from doing so? Do sex-crime investigators have enough resources? Was exceptional clearance properly applied in all of these cases? Is the department identifying perpetrators only to find that survivors no longer want to press charges, or that prosecutors don’t believe the evidence will prove the claim in court? Are police doing something that discourages survivors from pressing charges?
By now, the department has sent the FBI data for the years 2017-2018, as required by law. However, despite a formal written request for that data, the Oakland Police Department did not release it for this article, as is required by California law. Without this more recent data, it’s impossible to know whether the OPD’s track record of investigating sexual assault has improved in recent years.
If you’ve been the victim of a sexual assault, you can get in touch with the Sexual Assault Response and Recovery Team by calling the Alameda Health System 24/7 Hotline, at 510-534-9290, or emailing [email protected]
Last December, a reporting project sponsored by ProPublica, Newsy, and Reveal from the Center for Investigative Reporting shared data with local reporters regarding the success rate of rape investigations from 64 law enforcement agencies. Reporters Mark Fahey and Mark Greenblatt of Newsy requested clearance data for the years 2014 through 2016 from all 103 local law enforcement jurisdictions in the United States that serve populations of more than 300,000. Sixty-four agencies — including Oakland and seven others in California — released enough data for reporters to reliably compare.