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Nov 17, 2018

Case cleared (part 2)

Co-produced with PRX Logo

He seemed to confess to the crime, twice to his ex-girlfriend, once to police. But prosecutors never charged him. The reasons why show how rape myths continue to influence how justice is meted out in America. Reported in partnership with Newsy and ProPublica.

Credits

Reporters: Mark Greenblatt and Mark Fahey of Newsy and Bernice Yeung of ProPublica

Lead Producer: Emily Harris

Editors: Brett Myers, with help from Andy Donohue, and Newsy’s Lawan Hamilton and Ellen Weiss

Special Thanks: Zach Cusson, Kenny Jacoby, Vik Narayan and Luke Piotrowski of Newsy;  Sophie Chou, Robin Fields, Lena Groeger, Ryann Grochowski Jones and Sisi Wei of ProPublica; and Michael Corey and Eric Sagara of Reveal

Transcript

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.
Speaker 1: Support for Reveal comes from a new show from our friends at KUOW, Battle Tactics For Your Sexist Workplace, the show that breaks down how sexism works in the modern workplace and, with help from some bad-ass experts, brings you real tactics you can use to fight back. On this podcast, they're taking on everything from the gender wage gap to imposter syndrome to manterruption to being working moms. We've all experienced it. Let's figure out what we can do about it. Find Battle Tactic For Your Sexist Workplace on iTunes, Google Play, or wherever you get your podcasts.

 

Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson.

 

Al Letson: This week, we're continuing our two part look at the criminal justice system in the age of the #MeToo movement to find out what happens when someone reports a sexual assault. Last week, we investigated how police handle these crimes. We looked at more than 60 major cities and counties and found that, in almost half, police clear the majority of rape cases without ever making an arrest. That's what happens with police, but what about prosecutors? We found that few reported rapes result in criminal charges. We're teaming up again with the online and cable news network Newsy and ProPublica to answer a pretty basic question. Why?

 

Al Letson: We should let you know that our show deals with graphic allegations of sexual assault which listeners may find disturbing or triggering.

 

Al Letson: We begin back in January of 2013 in northern Minnesota. It's freezing, snow is on the ground, and a 55-year-old woman named Rae Florek learns a secret.

 

Rae Florek: Well, I woke up that morning in awful pain.

 

Al Letson: Rae is often in pain after a long bout with throat cancer. She's had 15 surgeries because of it. It's why her voice sounds a little scratchy. But this pain is in her arm.

 

Rae Florek: I had shoveled the day before and kind of thought, "Wow, what did I do?" He had called that morning and said his truck won't start.

 

Al Letson: He is Randy Vanett, Rae's off-and-on-again boyfriend for more than four years.

 

Rae Florek: He had about a two hour window of nothing to do and I said, "Would you please bring me gas and cigarettes and a six pack of Twisted Tea?" He did.

 

Al Letson: Twisted Tea is an alcoholic iced tea. When Randy shows up, Rae is busy.

 

Rae Florek: Trying to take down my Christmas decorations. My arm is bothering me so bad, I've taken a dish towel and made a makeshift sling. He doesn't even notice the dishtowel hanging around my neck. Right away, he lays down the receipt. I say, "I've got the money," paid him, and I offered to make him lunch. He didn't want lunch. He wanted sex. I told him I'm not feeling good, I just ... No. I offered him lunch again. He didn't want lunch. Then, he just said, "Well, that's okay, babe," because last time I was here I took you two more times after you crashed.

 

Al Letson: "I took you two more times after you crashed." In other words, Randy is saying he had sex with Rae while she was asleep, and then did it again. Rae can't believe what she's hearing.

 

Rae Florek: He was standing by the sliding glass door, still had his boots on. When he said it, it was just this ... It was almost too much. I turned back around and I said, "You can't do that. That's date rape."

 

Al Letson: Rae remembers part of that night he's talking about, the part she says she was awake for. They hung out, had sex, and then she fell asleep. She says she had two of those Twisted Teas and taken painkillers for her throat and she slept soundly. Rae does not know that in Minnesota, like most states, it is illegal to have sex with someone who is physically helpless and can't consent to sex. That includes being asleep or unconscious. Rae just knows that what Randy says he did makes her feel violated and betrayed.

 

Rae Florek: So betrayed because I had no say in it. I had no idea what he did to my unconscious body.

 

Al Letson: Rae wants justice but, like many other women in her situation, she finds it's hard to come by. Here's Newsy's Mark Greenblatt and ProPublica's Bernice Yeung.

 

Bernice Yeung: After Randy drops his bombshell, Rae holes up in her house, unsure of what to do. She can't get what Randy told her off her mind. After three weeks, she calls a friend whose husband is in law enforcement, and he tells Rae that Randy may have committed a crime.

 

Mark Greenblatt: Her friend calls the sheriff. A deputy comes to Rae's home and she tells him she wants to record a secret conversation with Randy to find out exactly what happened. The deputy declines.

 

Rae Florek: I'm asking him, "Can you help me?" because I know it's going to be his word against mine. I wanted them to help him get him on audio or just help me, wire me up and help me get a confession. He stepped outside, came back in, pretty much said, "We could never do that. It's entrapment."

 

Bernice Yeung: But law enforcement officers often use secret recordings to investigate sex crimes. In her case, Rae says the deputy only offers to take a formal statement.

 

Rae Florek: Yeah, well, I'm like, "And then what happens?" He said, "Well, then I go over and talk to him." I was like, "No. No, no, no," Because I knew I had to get a ... I needed to get that on recording before he had a head's up.

 

Bernice Yeung: Rae believed she needs Randy on tape so it's not just her word against his.

 

Mark Greenblatt: Rae lives in a small town, population 360. It's in a part of Minnesota known as the Iron Range because of all the iron deposits and mining. Even Rae's town, Taconite, is named after a kind of low-grade iron ore. Rae owns a house on a corner lot. She shares it with her poodle, Layla, who she is teaching how to count.

 

Rae Florek: Do you want to count? Layla? Say, "Yes, yes, yes." Well, that was kind of lame but it will work.

 

Bernice Yeung: Rae grew up in this area. She strikes me as determined and fiercely independent but, when she talks about what happened, I see her swing between despair and righteousness. When the sheriff's deputy told Rae he wouldn't make a secret recording of Randy, she decided she'd do it herself, so she drove to Wal-Mart to buy a video camera.

 

Rae Florek: Then, I took the teddy bear that sat on my bed and took a razor blade and cut his belly open and put the camera in there and [inaudible] him in the closet so I could find out really what the hell happened to me.

 

Mark Greenblatt: When she is ready, Rae texts Randy. Randy texts back. It takes a couple of weeks but, eventually, they set a time for Randy to come over.

 

Bernice Yeung: The camera is hidden inside her teddy bear, and the teddy bear is hidden on a shelf just inside her bedroom closet. Before Randy arrives, Rae pushes record.

 

Rae Florek: [inaudible 00:07:29].

 

Bernice Yeung: It's nighttime and the video shows her bedroom, dim with curtains drawn.

 

Bernice Yeung: Randy is in shadow. It looks like he's lying down. Rae is sitting on the bed next to him, smoking. They talk about snowmobiles, people they know around town. Then, Rae asks what she really wants to know.

 

Rae Florek: What did you do that night after I passed out?

 

Randy Vanett: What?

 

Rae Florek: Yeah. You had me two more times. Did you pull my arm, or did you pull my leg?

 

Bernice Yeung: "I didn't pull anything," Randy says, and Rae laughs, but gets serious again.

 

Rae Florek: You did.

 

Bernice Yeung: A warning: what you're about to hear is graphic and disturbing.

 

Rae Florek: You knew I was out, passed out, because that's what you said that day in the kitchen. "Babe, that night after you passed out, I had you two more times."

 

Randy Vanett: No, I didn't say passed out.

 

Rae Florek: What did you say? What did you say? I don't think you said "passed out." "Crashed."

 

Randy Vanett: I have no idea. It wasn't "passed ..." Yeah, well, we were sleeping.

 

Rae Florek: "Crashed."

 

Randy Vanett: Sleeping. When you were sleeping. I had you when you were sleeping.

 

Rae Florek: I had you when you were sleeping, that's right.

 

Randy Vanett: Yeah.

 

Rae Florek: Yeah.

 

Randy Vanett: Yeah, and I did.

 

Mark Greenblatt: The video ends with Randy leaving. His last words are, "I'm sorry," but Rae's not good with technology. She's so nervous and unsure if the camera worked that she invites Randy back the next day. The teddy cam is in still place. Rae presses record again.

 

Rae Florek: God, I hope that's running.

 

Bernice Yeung: In this video, it's daytime. You can see Rae's bedroom and you can hear a NASCAR race on the TV. Then, Randy and Rae come in, sit on the bed, and eat pizza. As soon as she can, Rae brings up the subject.

 

Rae Florek: Rand, I had to be gross when I'm crashed and you're [bleep] me, God.

 

Randy Vanett: You're beautiful when you're crashed and I'm [bleep] you. Stop it. Stop bringing it up. You're beautiful.

 

Rae Florek: [crosstalk 00:09:23].

 

Randy Vanett: I don't care if you're ...

 

Rae Florek: Unconscious?

 

Randy Vanett: You're snuggling next to me. Of course [inaudible 00:09:31].

 

Bernice Yeung: Rae says she was unconscious. Randy calls it snuggling.

 

Mark Greenblatt: It seems to Rae that Randy is clear about what happened, that he had sex with her when she was asleep, when she was unable to say yes or no. With the video in hand, Rae tells us that she felt she had the evidence she needed to go back to authorities.

 

Mark Greenblatt: Now you've got some power. Now you have some ammunition.

 

Rae Florek: Yeah. Yeah.

 

Mark Greenblatt: Now the game has changed.

 

Rae Florek: Oh, it was never a game. It was my life. The tables were turned.

 

Mark Greenblatt: The tables were turned.

 

Rae Florek: The tables were turned because I had the tape.

 

Mark Greenblatt: 11 days after taping, six weeks after Randy first told her what he did, Rae takes a copy of the videos to the Itasca County sheriff's office. Detective Dean Sherf interviews her. He records the conversation.

 

Det. Dean Sherf: Four and a half years, he's been a boyfriend of yours? Okay. Just so we're talking about the same person, Randy's kind of tall, slender, bald?

 

Rae Florek: Yes.

 

Det. Dean Sherf: Okay.

 

Bernice Yeung: Detective Sherf knows where Randy works and where he lives. He used to see him around sometimes out snowmobiling. The day Rae talks with the detective, her throat is bothering her, so she has to whisper answers to his questions.

 

Det. Dean Sherf: Would you say that, after you'd taken your medication on 18th or 19th, that the sex that you had was against your will?

 

Rae Florek: Yes.

 

Mark Greenblatt: Rae's voice is almost too quiet to hear. She says, "Yes."

 

Det. Dean Sherf: Okay. Is that what you're reporting?

 

Rae Florek: Absolutely.

 

Bernice Yeung: She shows the detective text messages between her and Randy, and describes the hidden teddy cam recordings. He sounds doubtful about the value of her recorded evidence.

 

Det. Dean Sherf: This recording, without our control or whatever, it's somewhat difficult, or it can be difficult to get that entered in as evidence. That's not up to me. I'll certainly submit it as evidence but if the court accepts it, they accept it, if they don't, they don't. That's just something [crosstalk 00:11:41].

 

Rae Florek: [crosstalk 00:11:41]. [inaudible] I'm aware of it.

 

Bernice Yeung: Rae tells Detective Sherf she hopes prosecutors accept the videos as evidence. He warns her not to get her hopes up.

 

Det. Dean Sherf: There's always two sides to every story and, nine times out of 10 on cases like this, it's a he said-she said type deal, she-said he-said, however you want to put it.

 

Rae Florek: [crosstalk 00:11:58].

 

Det. Dean Sherf: I'm just throwing that out there, just so you know. It can be an uphill better. We gotta prove beyond a reasonable doubt that someone committed a crime.

 

Mark Greenblatt: A week later, the detective calls Randy in.

 

Randy Vanett: How are you doing?

 

Det. Dean Sherf: Randy. How you doing?

 

Mark Greenblatt: He offers Randy a chair, closes the door.

 

Det. Dean Sherf: [inaudible 00:12:17].

 

Mark Greenblatt: And he opens the conversation.

 

Det. Dean Sherf: Like I told you yesterday, I just want to talk to you about what her report was and get your version of how things played out. I'm not interested in locking you up in anything. You ... Whatever you tell me here today, you're going to walk out of here, okay? You're not charged with anything, you're not under arrest or anything like that. It's just [crosstalk 00:12:39].

 

Randy Vanett: Really is really a sad deal.

 

Det. Dean Sherf: Well, I know. It's something no one wants to deal with, but we gotta.

 

Randy Vanett: I appreciate that.

 

Det. Dean Sherf: The report has been made and, in this case, it's ... She's alleging a fairly serious allegation, that there was some sexual contact between you two when she was under the influence of a prescription drug, is what she's saying.

 

Mark Greenblatt: Randy tells Detective Sherf essentially the same details he told Rae. He repeats the story several times.

 

Randy Vanett: That night, she called me like she's done a thousand times. I go over there and she's drinking. I know she's drunk. We have sex, and now we're spooning like this.

 

Mark Greenblatt: Randy then explains that they fell asleep and, at some point in the middle of the night, he woke up and had sex with Rae again.

 

Det. Dean Sherf: Did she respond then?

 

Randy Vanett: No.

 

Det. Dean Sherf: Did she say no or ...

 

Randy Vanett: No, she didn't say yes or no.

 

Bernice Yeung: Randy describes it as romantic. He tells Detective Sherf he had done it before, and that, sometimes, Rae would wake up and have sex with him.

 

Mark Greenblatt: Here's what's complicated about this case. It's about consent. They both agree that they'd had consensual sex earlier that night, before going to sleep.

 

Bernice Yeung: Here's what's not complicated. Minnesota law defines consent as overt words or actions, freely given. It also says being in a relationship doesn't equal consent.

 

Bernice Yeung: We want to hear Randy's side of the story ourselves. I reach out to him and his attorney a bunch of times but he doesn't want to be interviewed. In July, we stop by his house but he's not home, so I leave him a voicemail.

 

Bernice Yeung: Hi, Mr. Vanett. This is Bernice Yeung, the reporter. I'm in town and was hoping for an opportunity to chat with you when you have a moment.

 

Bernice Yeung: Later that day, Randy sends me a text message, including a photo of his legs and bare feet dangling over one of Minnesota's 10,000 lakes. There's a message, too. "Missed your call, Bernice," he writes. "I'm occupied."

 

Mark Greenblatt: Months later, Randy e-mails us. He writes that the rape accusations against him are false. He said that, because of the allegations, he's been harassed in person and online. He writes, "This has and continues to be very painful to me."

 

Bernice Yeung: Detective Sherf, the cop who interviewed Rae and Randy, has since retired. We asked him if he'd give us his perspective on the case.

 

Mark Greenblatt: He agreed and invited Bernice and me to talk at his home. 20 years ago, he built a house on his parents' old dairy farm. Soybean fields spread from his back deck to the Mississippi River. A metal sign with a rusty decorative rifle hangs over the front door.

 

Mark Greenblatt: Note the sign that we don't dial 911, it says right above his front door. That's pretty good.

 

Det. Dean Sherf: Hey.

 

Mark Greenblatt: Detective? Mark Greenblatt.

 

Det. Dean Sherf: Dean Sherf.

 

Mark Greenblatt: Good to see you.

 

Bernice Yeung: Hi. Good to see you again.

 

Mark Greenblatt: How are you?

 

Det. Dean Sherf: Come on in.

 

Bernice Yeung: Thank you.

 

Mark Greenblatt: Thank you so much. Thanks for having us by.

 

Bernice Yeung: Dean Sherf was a sheriff's deputy for Itasca County for almost three decades. He retired as soon as he could to help take care of his wife, who had a stroke a few years back. His cheeks are ruddy, his hair receding. He's down to earth and mild-tempered. He comes across as almost unflappable.

 

Mark Greenblatt: His living room is cozy, decorated with photos of his grandchildren. That's where we sit down and talk. I ask him why he didn't arrest Randy Vanett after Randy appeared to admit twice on Rae's video and several times when Dean interviewed him that he'd had sex with Rae without her consent.

 

Det. Dean Sherf: Not to say that there wasn't proof beyond a reasonable doubt, but there just wasn't solid enough probable cause to make an arrest on that case. It was she said-he said, there was a time lapse from the time it was reported, they were in a consensual relationship. It wasn't an arrestable case.

 

Bernice Yeung: But in the two teddy cam recordings and during Dean's interviews with Randy at the sheriff's office, Randy was candid about that night and what he'd done. Mark presses Dean on that point.

 

Mark Greenblatt: Really, the substance of what the victim was alleging was that Randy had had sex with her while she was asleep or passed out.

 

Det. Dean Sherf: Mm-hmm (affirmative).

 

Mark Greenblatt: And that she didn't consent to that.

 

Det. Dean Sherf: Right.

 

Mark Greenblatt: Is that a crime?

 

Det. Dean Sherf: It could be. Yeah, it is. I shouldn't say could be, it is, but are the rest of the elements there to convict him of that crime?

 

Mark Greenblatt: What evidence would you need if the suspect acknowledges having sex with someone while they were asleep? Do you need more evidence than that?

 

Det. Dean Sherf: Well, yeah. You have two people that the victim's saying one thing and the suspect's saying, "No, no, no, I didn't do that." That's what you have. There's nothing ... There's no other physical evidence or any short of a witness that you're going to prove that case. You had the interviews, you had no physical evidence, you had a he said-she said type deal, you had a recording.

 

Mark Greenblatt: With respect, sir, what was he said-she said about it? He's acknowledging that he had sex with someone that he thought was drunk and passed out. What's he said-she said about that?

 

Det. Dean Sherf: Well, the prosecutor obviously felt that ...

 

Mark Greenblatt: In your mind, not the prosecutor. In your mind, what does it take to convince you to make an arrest in a sexual assault case?

 

Det. Dean Sherf: A lot of things sometimes, and sometimes not ... It's a case-by-case deal.

 

Mark Greenblatt: When the suspect admits to it in front of you in a recorded interview, that's ...

 

Det. Dean Sherf: I'm not going to argue the law with you. I decided not to arrest him. He didn't get charged. That's the way it is. I moved on to the next case. I don't know what else to tell you.

 

Bernice Yeung: We asked Dean about the way he started his interview with Randy, about why he told Randy that he wasn't interested in locking him up or that, whatever Randy said, he was still going to walk out of there that day. Dean tells us it's a technique that worked for him, a way of disarming suspects to try and get the real story out of them. But if Randy's real story, the one he's told many times, is that he had sex with Rae while she was asleep, it's a violation of Minnesota rape laws, so why then wasn't he arrested?

 

Mark Greenblatt: Is it not the case that a woman can be raped when she knows someone?

 

Det. Dean Sherf: Well, yeah. It can happen, but I would bet, if you went and gathered all of the cases of that sort that were investigated and compared it to how many people were even charged, it's going to be pretty minimal that were charged. It just don't happen for whatever reason. Again, that's up to the prosecutors and the courts and that's our fine system. It's frustrating, I know. Trust me, I know.

 

Mark Greenblatt: But you're a cog in that system, right?

 

Det. Dean Sherf: Yeah, I was. I'm not anymore.

 

Bernice Yeung: In Minnesota, suspects don't have to be arrested in order to be prosecuted. Dean says he did his job and moved on. He sent the case to the Itasca County attorney and says it was ultimately the prosecutor's job to decide whether to take the case forward.

 

Mark Greenblatt: But that didn't happen. The prosecutor declined to file charges and the case was closed.

 

Al Letson: When we come back, Bernice and Mark track down the man who made the ultimate call to not press charges, and we'll tell you what Rae tried next because she believed the law was on her side.

 

Rae Florek: If you cannot consent, it is rape. Period. There's no gray area.

 

Al Letson: That's coming up on Reveal from the Center for Investigative Reporting and PRX.

 

Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson.

 

Al Letson: Rae Florek wants justice after her boyfriend, Randy Vanett, told her that he had sex with her while she was asleep.

 

Rae Florek: Because he stole it when I was not able to even say yes or no.

 

Al Letson: She feels angry, betrayed, and wants him to face criminal charges for having sex with her when she was unable to give her consent, but prosecutors in Itasca County in Minnesota, where Rae lives, decide not to do that.

 

Al Letson: ProPublica's Bernice Yeung and Newsy's Mark Greenblatt are investigating why so few sexual assault cases end in charges. Here's Mark.

 

Mark Greenblatt: Jack Muhar is Itasca County's chief prosecutor. We got him on the phone late last year.

 

Jack Muhar: This is Jack.

 

Bernice Yeung: We never meet in person but I've seen pictures of Jack. In his official headshot for the county, he has a roundish face, curly gray hair, and an inviting smile. Right away on the phone, he makes it clear he did not handle Rae's case personally.

 

Jack Muhar: As I'm sitting here right now, I'm not familiar with the specifics of the matter at all.

 

Mark Greenblatt: Jack has been Itasca County's elected prosecutor for nearly three decades. He leads the office, he sets the tone, and he's ultimately responsible for who gets charged and who doesn't.

 

Bernice Yeung: I ask him how he decides which criminal cases to pursue.

 

Jack Muhar: There's kind of a factual standard and an ethical standard that's involved in that.

 

Bernice Yeung: The standards come from the American Bar Association, which say a prosecutor's decision to charge should be made in the interest of justice.

 

Jack Muhar: Generally, we prosecute all crimes where a determination has been made that probable cause exists and that there's a reasonable possibility of securing a conviction based upon admissible evidence.

 

Bernice Yeung: Those guidelines lead to a tangible consideration he says is always on his mind as a prosecutor, what will a jury believe, although it may be more accurate to say what does Jack imagine will believe?

 

Jack Muhar: How does a jury perceive these things? Do you ... When you're putting yourself into their shoes and how they're assessing that evidence, verdicts for conviction need to be unanimous.

 

Mark Greenblatt: But well before juries hear any evidence, prosecutors have already made a really big decision. They alone can decide what criminal cases they take on, whether to press charges or to pass. Police departments typically track the way that they handle cases. That information is often available to the public, and sometimes offers insights into prosecutors decisions, but, more often than not, we're left in the dark.

 

Bernice Yeung: We know this because we asked more than 500 prosecutors across more than a half-dozen states for their records. We wanted to compare what kinds of rape cases they take, what kinds they reject, and why. We learned that there's no uniform or comprehensive standard for this kind of record-keeping and, often, it doesn't exist at all. This makes it very hard to understand why prosecutors make the decisions that they do, let alone hold them accountable for those decisions.

 

Mark Greenblatt: Three months after Rae reported to the Itasca County sheriff's office that she had been raped, she got a letter from the county. It was from the lead criminal prosecutor, Todd Webb. He wrote that there was insufficient evidence to prove beyond a reasonable doubt that Randy had raped her. Webb wrote that it did not mean a crime did not occur or Rae was not a victim, only that it could not be prosecuted with the evidence available.

 

Bernice Yeung: Randy points to the fact that no criminal charges were filed against him as proof that he didn't break the law but, to Rae, it felt like betrayal all over again.

 

Rae Florek: I was devastated. I was angry and I felt really hopeless.

 

Mark Greenblatt: You wanted the trial?

 

Rae Florek: Oh, you couldn't ... For all the tea in China, I wanted justice and I wanted him exposed.

 

Bernice Yeung: Typically, this is where rape cases stop, no arrest, no prosecution, but Rae didn't stop there. She called a lawyer who had helped her in the past.

 

Ellen Tholen: My name is Ellen Tholen and I am a private attorney in Grand Rapids, Minnesota.

 

Mark Greenblatt: When Ellen learned the details of Rae's case, she was surprised prosecutors hadn't filed charges.

 

Ellen Tholen: It's pretty black and white in the summary that was written out by the investigator, where Mr. Vanett admitted that he had intercourse with her when she was asleep.

 

Bernice Yeung: Ellen knows the players in Itasca County's legal system. In fact, she ran to be chief prosecutor herself twice, so she offered to help by talking with Todd Webb, the prosecutor who turned down Rae's case.

 

Mark Greenblatt: Ellen e-mailed Rae the next day to tell her about the conversation. In the e-mail, she writes that Webb told her he thought a jury would be skeptical because Rae and Randy had had consensual sex before. Ellen points out that Minnesota law is clear on this. Consent has nothing to do with the existence of a prior or current relationship.

 

Bernice Yeung: Ellen also says that Todd Webb didn't think that Rae's secret teddy cam recordings of Randy amounted to a confession. She says Webb instead thought Randy was making concessions, trying to keep the peace so that Rae would sleep with him again.

 

Mark Greenblatt: Webb wouldn't talk with us but, in an e-mail, he repeated many of the same things. He offered another reason he felt that it would have been hard to move forward with the case. He wrote that Rae, quote, "cannot testify as to what happened because she has no personal knowledge of what happened."

 

Ellen Tholen: That was another comment, and I said, "That's because she wasn't conscious. That's why she didn't recall it."

 

Bernice Yeung: Before declining the case, Webb told us he consulted two fellow prosecutors. One was Jim Alstead, who also spoke to Ellen. She says he told her he thought the teddy cam recordings unfairly set Randy up. Ellen disagreed. She reads out loud the e-mail she wrote, documenting their conversation.

 

Ellen Tholen: I asked what her motive would be to quote, "set him up," closed quote, and he said, "Maybe she's on welfare." I told him she was disabled but owned her own home, et cetera. He also thought she lied on the video when she said she did not use drugs but had pled guilty in the last year.

 

Bernice Yeung: There's no evidence for this. I've looked and can find no record that Rae has ever had a drug conviction. Ellen said she found Alstead's excuses appalling.

 

Ellen Tholen: Because they have nothing to do with the evidence of whether a crime was committed or not. Whether somebody ... What their economic status is has nothing to do with being victimized. Whether they have a child who is involved in drugs or has issues, that should not be a factor on whether you're a victim or not. You can be a victim if you're you, me, anybody can be a victim. The reasons they didn't prosecute was based upon, in a large part, Miss Florek's character as they perceived it.

 

Bernice Yeung: We tried to verify the conversation Ellen says she had with Jim Alstead but he wouldn't talk to me about it on the record. He directed me to the Itasca County attorney's office and they declined to comment by our deadline.

 

Bernice Yeung: Herb Tanner sees Rae's case differently.

 

Herb Tanner: I look at this case as being more winnable than the prosecutor who made the decision.

 

Bernice Yeung: Herb spent 10 years as a prosecutor in Michigan. Since leaving that job, he's led a statewide effort to improve the way law enforcement treats sexual assault investigations. Now, he travels the country training prosecutors on more sophisticated techniques for tackling rape cases. We ask him to review key documents from Rae's case, including the video transcripts and sheriff's interviews. Herb says he does understand Todd Webb's concerns.

 

Herb Tanner: Yes, this kind of case comes with a set of challenges, but we know how to overcome them. I start to get the sense that the challenges were given greater weight than investigating how to overcome them.

 

Mark Greenblatt: Itasca County prosecutors say they didn't pursue Rae's case in part because six weeks passed before she made a formal complaint to the sheriff, but Herb says prosecutors could just show the jury how common delayed reporting is. As for concerns that Rae and Randy had some kind of sexual relationship already ...

 

Herb Tanner: Really, the prior sex is pretty meaningless because it would be hard to argue, I think, with a straight face, "Hey, the prior sex made me legitimately think that she would consent to this while she was unconscious."

 

Bernice Yeung: When it came to concerns about the secret recordings Rae made, Herb says prosecutors could have explained that police often help victims due this with alleged sex abusers.

 

Herb Tanner: You're just not asking him or encouraging him or pressuring him to do a criminal act, you're just talking to him. You're asking him questions. It's not entrapment, it's an investigative technique that is used all across this fair land.

 

Mark Greenblatt: Herb says juries have stereotypes about rape that can be hard to overcome in the courtroom. For example, he says juries feel more comfortable convicting when there are physical injuries from rape, which may happen in a violent assault, say, with a stranger, but most rapes happen between people who know each other. In the end, Herb says there's another type of trauma that's more universal.

 

Herb Tanner: What we've learned talking to survivors is that it's that betrayal of trust, it's that betrayal of bodily integrity, it's that taking away of that ability to decide who is going to be inside you.

 

Bernice Yeung: Herb says, in the interest of justice, prosecutors should take on rape cases with good evidence, even challenging ones, and not assume what a jury will do.

 

Herb Tanner: Because there's one thing we know for sure. If you don't try it, you aren't going to get a guilty verdict.

 

Bernice Yeung: Does Itasca County try? Prosecutors there had about 170 sex crime cases brought to them by law enforcement in the last five years, everything from chatting about sex with a child online to rape, and prosecutors accepted around 40% of those cases. That means they rejected more than half, including Rae's.

 

Mark Greenblatt: When you look at what kinds of cases they chose to prosecute, a clear pattern emerges. Over five years, Itasca County charged over 40 suspects with rape. In nearly every case, the victim was a child. In the few cases with adult victims, the suspect used force or coercion.

 

Bernice Yeung: Experts say cases like these play well with juries, but rapes between two people who know each other, cases like Rae's, are much harder to prosecute, even though they're much more common.

 

Mark Greenblatt: After prosecutor's declined Rae's case, she got angry. Her experience with how her rape allegations were handled made her question lessons she'd been taught all her life about a woman's place.

 

Rae Florek: It was to just grow up and be a domestic goddess and have children and that was it. That was it. There were no other ... Like, go to college or anything else like that. It was just, "That's your role."

 

Bernice Yeung: For decades, Rae tried to follow that script, but she's done with it now. In her small town, her case has become well-known, and she was surprised by how some people reacted.

 

Rae Florek: One friend said, "Well, I was raped when I was young and it didn't bother me. I don't know what's wrong with you." Just last week at the parade, a gal said to me, "I do understand. I was raped, too, once by my brother's friend and then again later, but I put myself in the wrong place." It's ingrained. It's ingrained in us here. I don't know if it's like that everywhere but it is here.

 

Mark Greenblatt: For Rae, the last straw came when she heard about another woman who filed a police report against Randy. The woman also accused him of having sex with her when she was unconscious and unable to consent.

 

Bernice Yeung: Through e-mail, Randy called that woman's accusations a lie. Her claims were never prosecuted but, when Rae heard about this, she resolved to take up her own fight in a new way. In the fall of 2015, more than two years after everything started, Rae sues Randy in civil court.

 

Rae Florek: I am worth having my rights validated and protected.

 

Mark Greenblatt: There's a growing movement of rape victims who turn to civil court after the criminal justice system stops moving forward with their cases, but it can set them up for scrutiny about their sexual history and other parts of their personal life, topics that are sometimes allowed to be brought up on the civil side that would likely be barred in a criminal trial.

 

Bernice Yeung: I talk with her at her home the night before that trial begins, wondering what she's expecting.

 

Rae Florek: To be heard. To tell my story.

 

Bernice Yeung: I'm in the courtroom for all three days of the trial. No recording is allowed. The jury hears Rae tell her story. They watch large segments of the teddy cam videos where Randy says he had sex with Rae while she was sleeping. They also hear Randy testify in person. His lawyer asks him, "Are you a rapist?" Randy says, "No."

 

Mark Greenblatt: In court, Randy says he loved Rae but calls her mentally unstable and a bad mom. Randy's lawyer paints a picture of slow, sleepy sex between the two throughout the night. Rae says that's not what happened. The testimony is often personal and acrimonious.

 

Bernice Yeung: Then, before the jury heads off to deliberate, Randy's lawyer tries to frame this case as a big cultural question. He tells the jury it will be a sad day for the world when a dedicated couple would have to have clear verbal consent each time they have sex. He also cautions the jury to be skeptical of Rae's claim, saying that law enforcement wasn't interested in this case and that prosecutors had turned it down.

 

Mark Greenblatt: Civil trials are very different from criminal ones. The level of proof is much lower and the jury is smaller. Just six men and one woman consider two claims against Randy. The first is battery. Jurors must decide if Randy intentionally caused harmful or offensive contact with Rae. They deliberate almost four hours and, for this charge, they answer no.

 

Bernice Yeung: The second claim against Randy is a charge known as negligence per se. The question to jurors is this: did Randy intentionally penetrate Rae when he knew or had reason to know she was physically helpless, in other words, unable to consent? On this question, they answer yes, Randy did.

 

Bernice Yeung: We asked Randy about these charges. By e-mail, he responded that, because the jury did not find him liable for battery, it's evidence he was justifiably never charged with a crime.

 

Mark Greenblatt: We talked to one juror, Jeff [Sol-berg 00:37:20], who says he believes Rae was unconscious or close to it and didn't want to have sex.

 

Jeff S.: I would call it rape, yes. Yes. Anytime anybody is unconscious and stuff, it's ... In my book, it's rape. I don't care if you've been dating for a lifetime. I've been with my wife for 28 years and I would never even think of doing anything like that, and would consider it rape if I did.

 

Mark Greenblatt: To be clear, rape is a criminal charge. Jeff and the other jurors found Randy liable for a civil violation, negligence per se. They awarded Rae $5,000 for emotional distress.

 

Bernice Yeung: After the verdict, Rae celebrates at a busy bar with her lawyer and some friends.

 

Speaker 12: Cheers. What do you want to say?

 

Rae Florek: Justice.

 

Speaker 12: Victory. Yay.

 

Rae Florek: Justice.

 

Bernice Yeung: Rae tells me that, at this moment, she feels relieved and vindicated.

 

Rae Florek: I'm just reeling. I'm just reeling. I got more justice than I really ever expected.

 

Speaker 12: Our justice system succeeded today.

 

Rae Florek: Leads to change.

 

Speaker 12: But they succeeded today.

 

Rae Florek: [crosstalk 00:38:34]. Yeah. Yeah, I do believe in the judicial system when it is applied.

 

Al Letson: The civil case is a victory for Rae but it's an incomplete victory. She's still fighting for a criminal trial, and is hoping a newly elected prosecutor will take on her case. Meanwhile, Randy is appealing the civil verdict. He's also fighting criminal charges for something else. Authorities say that, while he was preparing for the civil trial brought by Rae, Randy posted topless photos of her online. This so-called revenge porn potentially carries prison time. Randy pled not guilty and a trial is scheduled for next month.

 

Al Letson: What happened to Rae in Minnesota isn't uncommon. We dig into the research and find that reported rape cases rarely lead to an arrest or prosecution.

 

Linda Williams: Prosecutors told us that, even if we believe the victim, we think, "What's a jury going to do? Will they believe her? Will they convict?

 

Al Letson: That's next on Reveal from the Center for Investigative Reporting and PRX.

 

Al Letson: From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson.

 

Al Letson: Over the past two weeks, we've seen what happens when a rape is reported to police, and how hard it is for victims to get their case in front of a jury. The people who decide how to handle these cases are the police and prosecutors, and they have discretion whether or not to move cases forward. That's a lot of influence. So big picture, what are they doing with that power?

 

Linda Williams: The vast majority of cases do not go forward, surprise, surprise.

 

Al Letson: Linda Williams is a criminologist and a sociologist at Wellesley College in Massachusetts. She's been studying sexual assault for more than 40 years. She and two partners at the University of Massachusetts Lowell tracked close to 3,000 rape cases through the justice system from start to finish.

 

Linda Williams: We found, in fact, that about only one in five of reports resulted in the arrest of a suspect.

 

Al Letson: The chances of a conviction are even lower.

 

Linda Williams: 189 cases had a guilty outcome. If you took that out of the 2,887 cases, it's really 6%. Pretty dismal.

 

Al Letson: Pretty dismal. A sign of a bigger problem.

 

Linda Williams: It matters because we want our justice system to work. Of course, we want to make sure that innocent people are not falsely accused or convicted and go to prison, and our system is designed to try to make sure that doesn't happen, but, when serious crimes happen, crimes of violence that are really felonies, and cases are not going forward, then we have a concern about whether the system is really serving us in terms of justice.

 

Al Letson: Linda asks, in the face of these statistics, why would any victim come forward?

 

Linda Williams: Why would I go to the police and go through all of this and be upset and lose time from work testifying or being interviewed by detectives and so forth when only one in five chance the guy is going even get arrested and it's not going to end up being adjudicated and he'll still be out on the streets?

 

Al Letson: She says, in this system, rape victims really have to ask themselves what justice means for them.

 

Linda Williams: If you will only be happy if a conviction happens, then you're going to probably not be happy.

 

Al Letson: Linda's research tries to find out what's behind these dismal numbers. She and her partners work with prosecutors and police in six jurisdictions, some big, some small.

 

Linda Williams: These are all police departments that had records that we could review to look at what the allegations were, what the police and detective responses were. Now, that doesn't mean the records were all easy to access.

 

Al Letson: Some of these reports were handwritten and hard to unearth. This is part of what makes Linda's study so very rare and so interesting, because it offers a window into decisions made behind closed doors, decisions that police and prosecutors make that determine the fate of rape cases. Linda wanted to find out ...

 

Linda Williams: What are the factors behind the decision-making?

 

Al Letson: Some of Linda's most interesting findings look at all the cases that don't end up with an arrest or a conviction. Last week, we told you about something called exceptional clearance. Police can clear cases this way if they've established probable cause but something stands in their way of arresting a suspect.

 

Linda Williams: Perhaps he died, or he's already in another prison, he's been convicted elsewhere, or he's left the jurisdiction or maybe the United States entirely.

 

Al Letson: Exceptional clearance is supposed to be used rarely, but our investigation found that many cities clear rape cases this way much more often than making an arrest.

 

Linda Williams: This is a huge proportion of cases that don't go anywhere.

 

Al Letson: In the jurisdictions Linda looked at, her research showed that almost a third of rape investigations were closed using exceptional clearance.

 

Linda Williams: This was a new phenomenon to me, to understand how many cases would end up going that route. We were very surprised by it.

 

Al Letson: Linda says this jump is very concerning, that these are cases where police have the evidence to arrest a rape suspect.

 

Linda Williams: But the problem is that that doesn't happen and, when it doesn't happen, they don't even have a record, their DNA may not even go in to get a hit the next time they do something like this, and they're let go, they're free to go.

 

Al Letson: Clearing cases exceptionally, it's a police decision, at least on paper, but Linda's research shows that prosecutors exert a lot of influence. In police departments she studied, detectives met regularly with prosecutors to discuss cases.

 

Linda Williams: Cases with factors that may be considered challenging to prosecution are rejected at this stage, such as incidents where a victim was engaging in some quote-unquote "risk-taking behavior." Alcohol has a big part in this, too.

 

Al Letson: Prosecutors say, when victims are drunk or taking drugs, that it's harder to win in court, harder to convince a jury to convict a suspect.

 

Linda Williams: Prosecutors told us that, even if we believe the victim, we think, "What's a jury going to do? Will they believe her? Will they convict?"

 

Al Letson: Earlier in the show, we heard prosecutors in Rae's case say they didn't a think a jury would convict. It's one of the reasons they gave for not moving forward with her case. Linda says this concern about juries comes up all the time from prosecutors but that it doesn't really make sense because jury trials turn out to be really rare. Way more rape cases end in plea deals than go before a jury.

 

Linda Williams: It was surprising to me that there were so few cases that went in front of a jury when people have spent so much energy and so much time talking about how to prepare victims and the concern about the jury, and yet, out of 3,000 cases, you have a handful that go to a trial.

 

Al Letson: But Linda argues that more types of rape cases should go all the way to a jury trial. She says, right now, prosecutors are mostly bringing select cases to court, more winnable cases, cases that conform to a jury's stereotype about what rape is and isn't. Linda wants to see prosecutors do more to change a jury's understanding of rape.

 

Linda Williams: In my opinion, the more cases that are brought forward, that's part of educating the community. That's part of educating the jury. If we only take forward those cases that are the classic, I'm using quotes now, the "real rapes," that it was someone in an alley who jumps out and assaults a woman of very good character and standing who hasn't been drinking, who just came from her tea, then those are what people think are real and what happened.

 

Al Letson: The Department of Justice estimates only 20% of victims ever come forward to report rape or sexual assault to police. Linda says one of the big reasons why is they don't trust the criminal justice system to give them justice. After 40 years of doing this work, Linda tries to remind herself that things have gotten better over time.

 

Linda Williams: I'm optimistic but I'm concerned that it's slow. It's very slow, and how much of a lifetime do we have? Will it change? That's the concerning part. There's a lot more work to be done, a lot more work to be done. Yeah.

 

Al Letson: Linda Williams directs the Justice and Gender-Based Violence Research Initiative at the Wellesley Centers for Women. Her new study is expected to be published early next year. It's co-authored by April Pattavina and Melissa Schaefer Morabito, both of the University of Massachusetts Lowell.

 

Al Letson: We gathered lots of original data for the last two shows, data we think you may appreciate seeing for yourself. You can find out how often police in cities near you clear rape cases without making an arrest by going to revealnews.org/casecleared. That's all one word. Again, that's revealnews.org/casecleared.

 

Al Letson: ProPublica's Bernice Yeung along with Mark Greenblatt and Mark Fahey of Newsy reported today's show. Our lead producer was Emily Harris. Brett Meyers edited the show with help from Andy Donahue and Newsy's [La-won] Hamilton and Ellen Weiss. Special thanks to Zach [Ku-son 00:49:24], Kenny Jacoby, Vik Narayan, and Luke Piotrowski of Newsy, Michael Corey and Eric Segara of Reveal, and Sophie Chou, Robin Fields, Lena Groeger, Ryan Grochowski Jones, and Sisi Wei of ProPublica.

 

Al Letson: We'd also like to thank Cheryl Phillips with Big Local News, a Stanford journalism program that will be hosting the data behind our last two shows.

 

Al Letson: Our production manager is Mwende Hinojosa. Original score and sound design was by the dynamic duo, my man J-Breezy, Mr. Jim Briggs and Fernando, my man yo, Arruda. They had help from Kaitlin Benz and Catherine Raymondo. Our CEO is Christa Scharfenberg. Our senior supervising editor is Taki Telonidis. Our executive producer is Kevin Sullivan. Our theme music is by Camarado, Lightning.

 

Al Letson: Support for Reveal is provided by the Reva and David Logan Foundation, the John D. and Catherine T. MacArthur Foundation, the Jonathan Logan Family Foundation, the Ford Foundation, the Heising-Simons Foundation, and the Ethics and Excellence in Journalism Foundation.

 

Al Letson: Reveal is a co-production of the Center for Investigative Reporting and PRX. I'm Al Letson and remember there is always more to the story.

 

Speaker 1: From PRX.