New Mexico has the highest rate of untested sexual assault evidence kits per capita in the nation. We’ve talked to advocates, a nurse and law enforcement about their surprise and struggles with decades of ignored evidence in the state. But even if a prosecutor has DNA to use in court, that doesn’t mean an accused rapist is going straight to jail. The biggest hurdle of all might be how hard it is to convince people that survivors are telling the truth.
Only about one-third of all of the sexual assaults in New Mexico get reported to police. And in the end, only a small fraction of people go to jail for it—six for every 1,000 sexual assaults, according to the state Auditor’s Office.
Bernalillo County District Attorney Kari Brandenburg remembered a rape case earlier on in her career. She was sure the jury was going to come up with a guilty verdict. The physical evidence was startling. It looked like a clear win for the newish prosecutor. Instead, the guy walked. "And I can’t think of anything worse than being a victim of rape and having the courage to go through the system and testify at trial, and then have the defendant acquitted," she said.
A quick note: There are lots of other resources that have nothing to do with police or courts that people can get by reaching out to an advocate after a sexual assault. There are free health exams, counseling and even financial help. But for the moment, we’re talking about the court system.
Of the cases that make it to District Courts around the state, about half of them are dismissed entirely. Lack of consent, Brandenburg said, can be hard to argue. "Probably a vast majority of rape cases are what we would call acquaintance rapes where the accused person could use consent as a defense," she said.
Part of the problem in found in a jury box. Juries are made up of a cross-section of people selected from the general public. And that means the nuances of what people believe about sexual assault and who’s to blame can affect the success of a prosecution. "We give a lot of lip service to valuing women in our society—and the majority of rape victims are women although they can be male—but I think that there is somewhat of an undervaluing in reality," she said.
Lawyer Jacqueline James said jurors come in with their own ideas about sexual assault. "There are preconceptions of what a rape is, of how a victim should react," she said. "Juries believe that if she didn’t fight, then that didn’t show that she was raped."
James has been prosecuting adult sexual assault cases in Albuquerque and Bernalillo County for four years at the District Attorney’s Office. She says forensic evidence like DNA can fortify a case. "It can help us, let’s say, if a victim is intoxicated, passed out, or doesn’t remember what happened, it provides the evidence of what kind of sexual assault it was," she said. "So DNA in that case is invaluable to show that something did occur."
Juries like to see DNA evidence, James said. But having DNA doesn’t mean it’ll be easy to prove rape. "In rape you have a few defenses, which is, ‘I wasn’t there,’ ‘I didn’t do it,’ ‘There was no sex’ and ‘It was consensual.’ And arguing the consent portion is the most difficult."
And questions about a survivor’s character, history and personal life can end up getting dragged into court. "It’s devastating. It’s absolutely devastating," James said.
She added that all of what the nurses collect is useful—even when the labs haven’t tested the kits. There are photos, evaluations and information about injuries, and that helps determine what they should charge someone with.
Many cases wind up being settled out of court.
Sometimes a detective might think she’s delivered a clear-cut case with all the evidence necessary to lock up a sexual offender. But DA Brandenburg said prosecutors have to bring a critical eye to the case. "We have to believe that we can get a conviction, we can prove beyond a reasonable doubt," she said. "If we can’t prove that, then we shouldn’t go forward with a case."
She said she wishes it had been possible over her 16 years in the DA's Office to have prosecuted more sexual assault cases. "I have full faith that the ones that we could prosecute and go forward on ethically and professionally, we did," she said. "The ones that we couldn’t, we relinquished that case regretfully."
The incoming Second Judicial district attorney, Raul Torrez, is inheriting this problem, these kits and maybe a slew of assault cases to prosecute. He takes office in January.