KOJO NNAMDIYou're tuned in to The Kojo Nnamdi Show on WAMU 88.5. Welcome. Later in the broadcast we'll talk about changes to the District's 311 and 911 programs. But first in Maryland and across the country sexual assault survivors and their advocates are claiming that law enforcement agencies aren't handling sexual assault cases with the best interests of survivors at heart.

KOJO NNAMDIIn some cases, polices are encouraging survivors to waive their right to an investigation. In others, rape kits are sitting on police department shelves for years untested. Legislators and advocates in Maryland are pushing to change that. Joining us by phone is Mark Greenblatt. He is a Senior National Investigative Correspondent with Newsy. Mark Greenblatt, thank you for joining us.

MARK GREENBLATTGood to be with you.

NNAMDIMark, you wrote about the practice of extraordinary clearance as part of a joint investigation with Reveal, Newsy, and ProPublica called "Case Cleared: How Rape Goes Unpunished in America." What's extraordinary clearance and how is it used by police departments to clear rape cases?

GREENBLATTWell, what our study found -- the really first of its kind to approach to studying law enforcement agencies across the country is that far too many are claiming success publically, claiming that they solved rape cases by clearing them. Effectively in the police agency's speaking terms that is how they talk about how successful they are at solving cases. But what we found is we unpacked those cleared cases and we found they use this term called exceptional clearance, which the FBI has intended to be used in only very rare circumstances such as when police really have solved a case. They have probable cause to make an arrest, but perhaps the suspect is dead and he's not arrestable.

GREENBLATTThere's some other loop holes that can fall in here. But what we really did find is that many police agencies are really abusing this tactic. They do not always have to tell the FBI how often they're using it. They just report the aggregate number of cleared cases. And they make is sound like they're clearing a lot of rapes, when in fact they're really often times leaving suspects on the streets. Closing cases with no justice and very sadly some of these people that we tracked that are left on the streets go on to strike again.

NNAMDIHow widespread is the process of exceptional clearance around the country?

GREENBLATTYou know, it's very disparate depending on what agency you look at. You can look at one police agency that tells you that they clear a certain number of cases and they're really largely telling the truth and providing an accurate picture for the public. But then there are cases for instance in Montgomery County, Maryland where, you know, they tell that public that they have a clearance rate of 83 percent for the crime of rape in a recent year. When we unpacked it through a (word?) requests and data requests, we found that they were actually exceptionally clearing 61 percent of the cases.

GREENBLATTMeaning only 22 percent in fact were arrested, but they claimed publically to be clearing almost four times that amount. So you can the difference in the messages that the public hears versus how many people are really actually being taken off the streets.

NNAMDIWhat's wrong with this practice? There seems to be a consensus between sexual assault survivors, advocacy groups, and the International Association of Chiefs of Police that this is not within best practices for responding to sexual assaults.

GREENBLATTWell, it's allowed, again, in these rare circumstances. But when police agencies are telling a survivor that, you know, we can't arrest or prosecute the person who has done this thing to you. But we believe we have probable cause to make the arrest. That's one of the requirements to be able to claim a case is solved by exceptional clearance. You actually have to have probable cause. So what they're effectively saying to survivors is, look, we have probable cause to make an arrest here. We're just not going to do it for one of several reasons.

GREENBLATTIn cities like Austin, Texas we found, you know, more than 1,000 cases like this that were happening there over several years. And, you know, police really telling their community, we believe we have probable cause to arrest, you know, more than 1,000 rapists, but we aren't doing it. And so that's the rub here. It's a public safety issue or a communications issue with the truth -- telling the truth to the public about how many cases they're actually solving.

NNAMDIJoining us now also from studios at the Baltimore Sun is Catherine Rentz. She's an Investigative Reporter with the Baltimore Sun. Catherine, thank you for joining us.

CATHERINE RENTZThank you, Kojo. Hey Mark.

NNAMDIYou did an investigation for the Sun about how this practice has been used in this region. What did you learn about how rape cases are investigated around here?

RENTZWell, very similar to what Mark was talking about. We found that a couple of agencies including Baltimore County and Montgomery County were -- they had exceptionally high rates of clearance, which, you know, on the police balance sheet so to say, makes it look like they're doing a very good job at arresting perpetrators. However, what we found is that actually a high percentage of that is coming from these exceptionally cleared cases.

RENTZSo thanks to Mark's work and those at ProPublica they had really pulled apart the data to show that. And Baltimore County, for example, they had a 68 percent clearance rate. Well, about half of that was actually due to these exceptionally cleared cases. And it was even higher in Montgomery County. So of the 331 rape cases reported in 2016, about 83 percent were cleared. But, you know, a very small percent just 26 percent were actually cleared by arrests. The rest was from these exceptionally cleared cases.

NNAMDIAnd you report that police departments in the Baltimore area prompted sexual assault victims to waive their rights to investigation 223 times according to a survey by the Baltimore Sun. But why would someone choose not to have police investigate a sexual assault that they survived?

RENTZRight. So we found out about these waivers that the International Association of Police Chiefs recommend against using -- and they initially recommended against using them back in 2005. And one of the waivers that one of the consultants, who actually wrote the police chief's recommendation -- she uses this waiver as an example, comes from Baltimore County. And so victims sign -- we found -- we dug into a few cases here in Baltimore County, which had a very high number of these waivers. There were 172 over the last couple of years and so that was about a quarter of the rapes reported to the county.

RENTZAnd so, you know, what we understand from police is that they were given them these forms after they said that they did not want to report. They didn't want to participate in an investigation. And so they signed these forms. Now, what was interesting is that in Baltimore County they didn't do this with any other kind of crime only with sexual assault survivors. And so the implication from women's rape advocates we spoke to said they're doing this in a way to kind of get rid of the case so they can exceptionally clear it or clear it off their desk essentially. These are sometimes complicated cases involving alcohol and involving acquaintances. Sometimes it can be a he said, she said.

RENTZBut some of the cases we looked at really, you know, one might think that they could go to court. Some of them were very much like the Brock Turner case for example, in Stanford where you have women, who are incapacitated or who appear to be incapacitated. And what's more is what was concerning to a lot of experts we spoke to was that some of these forms about not prosecuting were signed while they were at the hospital -- while the victims were at the hospital either before or just after.

NNAMDISo then in these cases the victim was in a traumatic state and apparently according to the police chose not to have an investigation at that point. But during the time of that traumatic state the victims decision making ability might have been significantly impaired. I want to bring in Sarah Elfreth to the conversation. She's a democratic state senator representing District 30, which is Anne Arundel County in the Maryland State Senate. Senator Elfreth, thank you for joining us.

SARAH ELFRETHThank you for having me.

NNAMDIYou reached out to the office of Anne Arundel County executive, Steuart Pittman, after reading this piece. What did you hear from him about this practice?

ELFRETHWell, first I want to thank Catherine and Mark for bringing this to our attention. I reached out to our county executive within about 20 minutes of reading the article to make sure that he was aware of this, because I was not. And within another 40 minutes he made the decision and our county police department made the decision to stop this practice. And Shelly Hettleman, a delegate from Baltimore County, did the same thing with her county executive, Johnny Olszewski. And again, the Baltimore county executive did the right thing in a timely manner. So I just want to thank everybody involved for bringing this to our attention and we were able to resolve it in a quick time period.

NNAMDIWell, Mark Greenblatt, Montgomery, Prince George's, Howard County have a policy not to give waivers to sexual assault survivors. But despite Prince George's County having that policy they did have eight of the forms filled out over the past two years. They said that the forms were filled out erroneously. Meaning they were intended for other types of crimes, which we heard Catherine talk about. How common are waivers for other types of crimes?

GREENBLATTThey're not common from what we looked at, but I want to underscore the importance of this. You know, we looked deep into Baltimore County's files and really reviewed probably 180 or close to 200 exceptionally cleared cases. And so many of these cases in Baltimore County, for instance, really were being cleared, because the police officer, the detectives, and the sex crimes units were going to victim's and saying, sign this form. And we saw cases where in their files where there was survivor, who was telling an initial responding officer, I want to report a rape.

GREENBLATTThey're saying, well, do you want to take a rape test kit? Sure, they say. They go to the hospital. They prepare themselves to take a very invasive very traumatic physical experience in order to try to bring justice. And in these moments we saw time and again where there were actually detectives from their sex crimes unit that would in fact go to the bedside. Right there, right where they're preparing to take a rape test kit and have some kind of conversation that's not documented that ends up leading to the person saying, Okay, I don't want to take the test kit anymore. And I'm going to sign this form and that's going to be the end of my case.

GREENBLATTAnd so there's something that was happening there that went from a victim wanting to report a rape to police to all of a sudden after a conversation with police no longer wanting to participate in the process. And this was all happening as you point out right in a moment of high trauma. And what the International Association of Chiefs of Police is really worried about here is not putting pressure on people during moments of high trauma. Letting them breathe for a little while and sort of investigating in a manner that sets up a way that's comfortable for people to tell the truth and not feel pressured.

GREENBLATTAnd so the actions of the local lawmaker here, who's joining in on the show and the local county leaders, who are responding quickly, you know, this is not just about paperwork here. This is about real people and how real victims, you know, are afforded the chance to get justice.

NNAMDIJoining us now by phone is Lisae Jordan, Executive Director and Counsel for the Maryland Coalition Against Sexual Assault. Lisae Jordan, thank you for joining us.

LISAE JORDANThank you for having me.

NNAMDIWe've just heard the kind of examples that Mark Greenblatt and Catherine Rentz have been reporting about people signing these waivers hours after a sexual assault. Two questions, one is that alarming to you, and, two, why do you think police urge people to do this?

JORDANKojo, it's absolutely outrageous. And I think that one of the reasons it's so outrageous is because this is nothing new. This is a policy that's been in place since 2005. Across the country we recognize that waivers are completely totally inappropriate in sexual assault cases. These are women and men who have just experienced great trauma. They are now being asked to have an extremely invasive very long very detailed very difficult examination.

JORDANAnd then to say, oh, you don't want to continue with the exam or you don't want to answer my questions right now or you don't want to continue with this process right this second. Here, sign this form and we'll stop everything. It's absolutely outrageous and it really speaks volumes about the suspicion that people have about rape survivors, the worry that people have that they're going to be perceived as not being responsive, and the unwillingness to really address the issue.

JORDANI think what's so frustrating is that, you know, I had the same conversation 10 years ago and the same conversation 10 years before that. Now, I respect Johnny Olszewski, for sure. I knew him as a legislator. I think he and his staff are sincere. But they are saying the same thing that his predecessor said. And we've heard this over and over again. And we really need to do a better job at increasing transparency and developing trust between law enforcement and rape survivors, otherwise, 10 years from now we're going to have exactly the same conversation over again.

NNAMDIGot to take a short break. When we come back, we'll continue this conversation, encouraging you to join it. I'm Kojo Nnamdi.

NNAMDIWelcome back. We're talking about efforts to change local sexual assault investigations with Catherine Rentz, Investigative Reporter with the Baltimore Sun. Mark Greenblatt, Senior National Investigative Correspondent with Newsy. Lisae Jordan is Executive Director and Counsel for the Maryland Coalition Against Sexual Assault. And Sarah Elfreth is a democratic state senator representing District 30, Anne Arundel County in the Maryland State Senate. On to the phones. Here is Nick in Winchester, Virginia. Nick, you're on the air. Go ahead, please.

NICKHi. Kojo, I'm a male obviously, I hope, about your age. And I have one ancillary comment. We talk about people drinking and we assume that they are adults. If they are drinking and a woman's judgment is impaired, it might be reasonable to conclude that the man's judgment has been equally impaired -- not necessarily equally, but has also been impaired. And that's all I think I wanted to say at this point.

NNAMDIWell, you seem to be suggesting and since you seem to know my age then I will infer from your comments that you are a senior citizen and that you seem to be suggesting that if both individuals are impaired, then there's really no one at fault here.

NICKI'm simply saying that they both have responsibility for their actions.

NNAMDIWell, allow me to have Lisae Jordan respond to that. Lisae Jordan.

JORDANWell, alcohol is not an excuse for rape. And I think that when we think of other crimes, we never permit alcohol to be an excuse for the crime. And certainly it's true that alcohol is involved sometimes in sexual violence. That we see that and it can make it more difficult to prosecute a case, but it doesn't make it impossible. And our laws don't allow people to have sex with people with who unable to consent. So I appreciate the question. We need to acknowledge that alcohol is involved in these cases and it can be important for juries to hear information about the role of alcohol and sexual violence. But it's not an excuse.

NNAMDICatherine Rentz, if someone signs one of these waivers, is there any way for that person to reverse that decision if that person changes their mind?

RENTZAbsolutely. There is. And everybody listening should know that. In fact, many of these cases, the women did as early as a day after. I mean, some of the women were quite frankly -- one of them was legally drunk when she signed this form and she, you know, is now suing the department. But many women have reversed course and once they go through the thought process of, you know, what happened and then later decide to reopen. So a lot of them have. And some -- like Anne Arundel County made clear on its waiver form that their case can be reopened.

RENTZAnd Baltimore County eventually did. Its waiver form for many years did not have that option, but in 2016, it said, you can reopen it. But at the same time it also said, by the way, you're evidence is going to be destroyed within a year, which was its policy then. Which has since changed, in part because of legislation that Lisae and others have pushed through the state legislature to keep rape kits, to keep evidence around for another 20 years.

NNAMDIWe are going to get to that rape kit issue in just a second, but first, I wanted Bruce in Washington D.C., you're on the air. Go ahead, please.

BRUCEYeah, thank you very much for taking my call. I mean, I'm sitting here listening and I'm really pretty incredulous. I mean, it seems to me we shouldn't need a policy to tell officers that convincing woman in this state of distress that they should drop their investigation. It seems, like, the officers have so thoroughly violated their duty to serve and protect. They should be fired for, you know, both gross and grotesque violation of their duty.

BRUCEAnd Senator Elfreth said she read about this and within 20 minutes she took action, within 40 minutes the policy was stopped, that's great. I mean, it's definitely the least we should do. But what's being done to investigate what the reporters found? These people should be fired.

NNAMDISenator Elfreth.

ELFRETHThank you. And thank you for your question. I think it's also important to note that no other crime to my knowledge is only reported at 20 percent of when it's committed. And it's so important that we build trusting relationships between the police who are here to do the right thing and victims of these cases and at the same time making sure that victims feel as respected and supported as possible.

ELFRETHSo I have not had conversations with our county executive or the Baltimore county executive about investigating these further. But it's a great recommendation and I'll move forward on it. Thank you.

NNAMDIYou've also been working on passing a rape kit reform package. What would that legislation do if it passes?

ELFRETHThere's a couple of bills that go into that. And, again, Delegate Shelly Hettleman from Baltimore County has led the way along with Lisae on this issue for the last few years. I am on -- have been on the job for about 40 days now in the Senate. So I want to make sure Shelly gets credit for all her work. She's working on a couple of bills. One bill that we are working on together, she has the bill on the House of Delegates -- I'm sponsoring it in the Senate -- would provide a fund to match local jurisdictions, municipalities, and counties to test backlogs of rape kits.

ELFRETHThe federal government provides grant funding. We want it to stay at the state and we haven't designated a number yet, but we want it to be as supportive as possible to help our local jurisdictions tackle these backlogs and really face this issue head on.

NNAMDILisae Jordan, what exactly is a rape kit and how are they used in sexual assault investigations?

JORDANRape kits, they're a system of collecting forensic evidence. So that's evidence that you're going to use in court. And they are head to toe. So head to toe a nurse talks to a rape survivor about what happened. They find out where she or he was touched, where there might have been exchange of bodily fluids, what sort of actions happened. And then they go from the very tip of your head and they collect evidence from every single part including internally to see if we can kind DNA evidence, to look for evidence of abrasions, to look for evidence of other injuries, look for anything that corroborates what happened.

JORDANThey are long. They are involved and for many survivors they are really a source of re-traumatization. So as community members, we have to do everything we possibly can to support and lift up these brave women and men who agree to go through a rape exam. It's not something they're benefiting from personally. Yes, there can be great satisfaction in bringing a rapist to justice, but this is something they're doing to help protect the whole community from a sex offender. So they're very difficult and we need to be very careful with that evidence so we can use it in court.

NNAMDIRebecca writes on our Facebook page, If you read what a woman has to endure to get these kits done in the first place, you'd be 10 times as disgusted that they are sitting untested. Senator Elfreth, why is there such a backlog of untested rape kits in Maryland?

ELFRETHThank you for your question. I got this when I was walking onto the floor of the Senate last week as well. You know, and I'm not going to talk about why I think for decades we've had this backlog. It's clear that we have not had enough women in elected office, enough women in police or state's attorney's offices. Right now I can tell you we have more elected women in the Maryland General Assembly than ever in our history and we're working together to tackle this from all sides and all angles, and making sure we're funding this as well. We're not passing on unfunded mandates to our municipalities and counties. We're working hand in hand with them. As we saw yesterday, thanks to the Baltimore Sun reporting that we're trying to be solution oriented as we move forward.

NNAMDILisae Jordan, what are reasons that a police department would not run a test on a rape kit?

JORDANWell, one of the reasons we've heard is money. They say that they don't have enough funding to go forward. Another reason is that they sometimes are looking at cases just at an individual basis. They say, all right, in this particular case, we already know the identity of the rapist and the only issue is consent, but in other jurisdictions where they've tested all of the rape kits, one of the things that we've learned is that many rapists rape a lot of people.

JORDANSo this idea that rape is a he said, she said is really not typical. It's often he said, they said. And if we don't test those kits, we're not going to be able to connect the dots between the different cases. And that's one of the reasons it's so important that we always test these rape kits. Money is not a good excuse.

NNAMDIMark Greenblatt, is this lack of testing of rape kits consistent with trends in the rest of the country?

GREENBLATTYeah. I think it is an issue that's affecting a lot of police departments around the country. But I really want to underscore something Ms. Jordan just said there. We spoke to some of the senior most criminologists that study this sort of things around the nation for our report. And one of the things that really really surprised me was that what they said consistently -- you know, there's this myth almost out there that rapes, you know, that should be prosecuted are the ones that are the stranger rapes where you're walking down the street at night and someone nabs you and rapes you and those certainly need to be prosecuted.

GREENBLATTBut what we've seen happening in far too many places is prosecutor's offices that take this sort of rape that is actually far more prevalent the kind where you know you're attacker. It might be someone you're dating. It might be someone that you work with and those are the ones that become these proverbial he said, she said cases. But they happen far more often than the stranger rapes. And the thing that really struck me about these is that criminologists who've studied it say that those who have raped someone that they know, a non-stranger rape actually are often times, you know, of the predilection to do it again.

GREENBLATTAnd so the importance of testing these kits, the importance of really prosecuting cases that, you know, where you do have some evidence and sworn statements to move forward on and perhaps obtaining this evidence from the head to toe examination that you've heard talked about here, it really is important not just for the one rape victim, but also for those that criminologists will say are likely to become victims in the future.

NNAMDICatherine Rentz, we got an email from David, Does the research say anything about how a report by a victim ever gets on the books in the first place? For example, any evidence that police downgrade the offense to a different offense or not record it at all if the victim doesn't want to prosecute, do a rape exam, or testify against the offender?

RENTZWell, in a lot of these cases I found that they were classified as unfounded or exceptionally cleared. And so, you know, there are a lot of them that end up on the police balance sheet so to say. But at the same time a lot of them as I understand there's another category called suspicious circumstance. And those do not get on the police balance sheet. That's something I'm looking into right now. But, you know, as Mark was talking about before when you exceptionally clear something that is a way to improve your clearance rate. It looks like you cleared it. Some people might think it was cleared by arrest, however, in reality, it has not been.

NNAMDIHere now is Neil in Gaithersburg, Maryland. Neil, you're on the air. Go ahead, please.

NEILGood afternoon or is it good morning still?

NNAMDIIt's afternoon.

NEILNo. It is afternoon. So I have two questions. I'll ask the first. Hear the answer and then if you will allow me the time I have a second question. This conversation started in an aspect of exceptional clearance rates and such. And it's kind of gotten more broadly into sexual abuse case issues. And I wanted to bring it back and just ask a statistical question. I heard a -- I'm sorry. I read a long newspaper article on this same issue of very high exceptional clearance rates in a few police departments associated with sexual abuse or rape or whatever similar cases.

NEILAnd the thing that I wondered then and still wonder now is are those rapes of exceptional clearance -- and clearly one would suppose that in some cases at least they're in order to improve the balance sheet as one of your guests just said. Are those really relegated to just these types of sexual assault cases or murder, arson, you know, a lot of other very serious crimes? Are there similar pushes to push a lot of them into the exceptional clearance, again, in order to look at balance sheets look better?

NNAMDIMark Greenblatt.

GREENBLATTGreat question, smart question. You know, we did look at other crimes and what we saw was that sure. Exceptional clearances are allowed by the FBI as part of the uniform crime report for any kind of crime that's required to be reported under their rules. But we saw again and again that police departments had a higher percentage of doing this and using this type of clearance for sexual assault cases, for rape cases in particular is how they're reported on the violent crime balance sheet.

GREENBLATTAnd let me just underscore something that's Maryland specific here going back to Baltimore County. One of the key cases that we profiled in our report to let you understand, you know, really the challenges here. There was a case of a young girl, who was being investigated by the Baltimore County Police Department for -- she wasn't being investigated. She was a victim rather of someone, who is now an alleged child sex predator, who had driven from far north in the country in Michigan to have sex with this young girl. This young girl told a police agency in Maryland about it. There was motel receipts. There were emails. There were text messages that were part of the file that eventually landed at the Baltimore County Police Department's hands.

GREENBLATTAnd they ended up closing this case exceptionally without ever having a conversation with the suspect, because the young girl grew uncomfortable working with the sex crimes detectives. And she stopped cooperating at one point. And what ends up happening is this suspect without ever being investigated is left on the streets. And he was later arrested in Wisconsin for having sex with another underage girl.

GREENBLATTThey found child porn on his phone at the time and, you know, he -- the detective there told me that they also found evidence that he had had contact with yet another underage girl in Ohio. So essentially, you know, it appears as if they had exceptionally cleared this case. Claimed credit, you know, bumped up their clearance rate, made themselves look better while leaving this guy on the streets who went on to prey again. And so there really are some high stakes here while -- when it's being used, you know, there are some high stakes and some people that really could pay the price.

NNAMDIWe're almost out of time. But Senator Elfreth, last year Maryland was awarded $2.6 million in grant funds to test rape kits and hire victim advocates. Has the state made progress in dealing with rape cases since the grant?

ELFRETHI can't speak to that. That's a better question for Lisae. I can tell you I'm about to walk into the committee hearing on a bill we have to do that same thing, but on college campuses, which we all know is a huge challenge as well, is to provide modest attorney fees for victims of rape and sexual assault on college campuses. So we are tackling this from as many angles as we can think of within this 90 day session. And I promise you we're going to look at it -- continue to look at it over the interim and come back next January with more solutions.

NNAMDILisae Jordan, any progress in dealing with rape cases since that grant?

JORDANWell, Kojo, although we did hear that we got the grant in September, unfortunately, the federal shutdown and other issues of the Department of Justice delayed things. So we are just now beginning to plan for the grant and hopefully are going to be able to start on March 1st.

NNAMDIOkay.

JORDANThat will be for old kits only, but we are very pleased to have victim advocates who can support survivors through that. It's good going backwards. But I completely agree with Senator Elfreth. We have a lot of work to do going forward. And so everything from preventing HIV for rape victims to protecting their privacy to having mandatory testing of rape kits, all of those things are in front of the general assembly this year. And we really need to pass all off those bills to make good progress.

NNAMDII'll have Chanel Covert in Maryland have the last word. Chanel Covert is a force community organizer and collective member. Chanel Covert, you only -- we only have about a minute left. But go ahead, please.

CHANEL COVERTHi. Thank you for having me. I just wanted to say I'm so grateful for the work that you all are doing on this. And I wanted to raise the issue of intersectionality when thinking about this topic. We've been doing a lot of community building work in Baltimore city around getting the support from victim survivors and hearing what they have to say.

CHANEL COVERTAnd one of the things that come up in a community forum that we had regarding feelings about the Baltimore Police Department is that there is not good and consistent training on ways to interact with victim survivors of sexual assault. And in particular we think about sexual assault especially as it relates to women of color, people of color, and gender non-conforming folks of color that venom is very much there. And so we definitely need to think about these institutional structures that inform the way that police officers and the way that legislators think about how victim survivors are treated.

NNAMDIThank you very much for your call, Chanel Covert. And thank you all for joining us, Catherine Rentz, Mark Greenblatt, Lisae Jordan, and Sarah Elfreth, thank you all for joining us.

ELFRETHThank you.

GREENBLATTThank you.

RENTZThank you.

NNAMDIGot to take a short break. When we come back, we'll talk about changes to the District's 311 and 911 programs. I'm Kojo Nnamdi.