How police use a new code when sex cases are 'unclear'

GRAPHIC: Scrutiny brings a shift in coding
Part 1: Women victimized twice in police game of numbers
Police used 'throwaway categories' since 1960s
After FBI questioned one tactic, another was found
Rape squad office? 'It's sort of scary'

Police Commissioner John F. Timoney: “Are we getting rapes coming in that are being downgraded or something like that? That’s not the case. I don’t want to hide nothing.”

Second of two parts

By Mark Fazlollah, Michael Matza,
Craig R. McCoy and Clea Benson
INQUIRER STAFF WRITERS

Despite Police Commissioner John F. Timoney's campaign for accuracy in crime reporting, Philadelphia's rape squad is still keeping some sexual assaults out of the official crime count.

The practice of dumping cases in obscure administrative categories, where they do not appear in the city's crime statistics, has greatly diminished under Timoney's command.

But it has not gone away.

Over the last two years, the Special Victims Unit has put 400 complaints - about 5 percent of its caseload - in an administrative way station called Code 2625, "investigation, protection and medical examination." It is a "non-offense" code not intended to designate crimes - much less a crime as serious as rape.

The women usually do not know their complaints have been written off as noncrimes. Some say investigators showed little interest in their cases, seemed skeptical of their accounts, and rarely made contact after an initial interview.

An Inquirer review of cases labeled "investigation, protection" this year and in 1998 raised questions about how police are using the code.

In several incidents, the department now acknowledges, the cases were crimes - sexual assaults.

Timoney and Capt. Joseph M. Mooney, commander of the Special Victims Unit, say that those were isolated mistakes, that police are using Code 2625 appropriately, and that every case classified that way is vigorously investigated. They say police need a special category for complaints too murky or ambiguous to be declared crimes.

In one of the cases reviewed by The Inquirer, a 5-year-old girl told police she was raped by her brother and sexually assaulted by a man in a Mount Airy home.

In another, a 24-year-old woman told police she awoke in her East Frankford rowhouse at 3 a.m. to find herself naked from the waist down, with a man on top of her.

Police now say the first case should have gone on the books as a rape or attempted rape, the second as an indecent assault.

Other victims whose complaints were labeled "investigation, protection" include:

A Kensington woman who told police that a man raped her in a car while she was unconscious from the sedative Xanax.

An Olney woman who said she fell asleep at a North Philadelphia house where several men were staying and woke up to find her clothes off and one of the men molesting her.

A Northeast Philadelphia woman who told police she was raped on a couch by a man she had just met.

The sex-crimes unit, established in 1981, has a long history of using noncriminal codes to keep difficult cases off the books.

For much of the last two decades, the rape squad dumped about 500 to 1,000 cases a year - about 30 percent of its caseload - in a bureaucratic limbo called Code 2701, "investigation of person." Many of those cases got little or no investigation.

At the end of 1997, the rape squad stopped using Code 2701 after the FBI and departmental auditors questioned it. Investigators are now forbidden to put sexual-assault cases there.

But no sooner did the unit abandon "investigation of person" than it began using Code 2625 - though on a much smaller scale.

Top police officials say that's progress.

"We're doing the best that we can," said Mooney, a 22-year veteran who was named commander of the unit in December 1998. "You can see the reduction in the number of these jobs" put in noncriminal categories, he said.

Many of the cases placed in Code 2625 involve women who called police to report sexual assaults, but who were unconscious, drugged or drunk at the time of the incidents - a growing problem with the spread of date-rape drugs - and who thus could not give detailed accounts of what had happened to them.

In that respect, the "investigation, protection" cases bear a strong similarity to those dumped in "investigation of person" in years past.

They are difficult or ambiguous cases, not likely to be solved quickly or easily; often cases involving women with drug habits or mental problems; cases that, if classified as rapes, likely would drag down the squad's "clearance" rate - the percentage of cases it solves.

Gary LaFree, a University of New Mexico criminologist and an expert on rape, said Philadelphia's practice of putting complaints in noncrime categories, whatever the name, served no valid law-enforcement purpose.

"I bet anything if you dig into them, they are cases that for one reason or another, the police don't want to deal with," he said. "It's a way of deep-sixing cases."

Rape of a child

coded a noncrime

Fourteenth District patrol officers responded to a 911 call.

"Juvenile female states she was sexually assaulted by one juvenile male and one adult male," the officers wrote on their incident report. "Complainants and parents transported to Special Victims Unit."

The juvenile male was the victim's 11-year-old brother, police said last week. They offered no information about the man.

Based on the incident report and some subsequent investigation, a sex-crimes officer coded the case 2625. A lieutenant approved the classification.

After The Inquirer asked the department to review the case, police acknowledged last week that the coding was mistaken and that the incident was a crime - a rape, at the least an attempted rape.

The department said the case, more than a year later, remained under investigation. Timoney said the investigator and lieutenant who initially handled the case were transferred from the sex-crimes unit as part of a reorganization late last year.

The other elements of the unit's overhaul were increased training and staff, the assignment of detectives to the unit for the first time, and the appointment of a new commander - Mooney.

On second look,

it's called a crime

On the night of Oct. 11, 1998, she fell asleep while hanging out with an acquaintance named Rob. About 3 a.m., she awoke to find herself naked from the waist down, with Rob on top of her.

In several recent interviews, the woman, who works as a telemarketer, spoke forcefully and with clarity about what happened that night.

She was home for the evening and had taken Xanax. The drug, a prescription sedative, is also sold on the street and frequently used recreationally. Then, Rob, whom she knew casually, came to the door to visit. She let him in.

They watched television. He began using cocaine and marijuana, she said, and she fell asleep under the influence of the Xanax. When she awoke with Rob on top of her, she pushed him off, then lost consciousness again, she said.

The next morning, the woman said, "I woke him up and said, 'What are you doing here?' He pretended as if I wanted to give it to him. I was afraid to curse at him, because he's really big."

Rob left. The woman called 911 and reported a rape, police records show.

Patrol officers from the 15th District took her to Episcopal Hospital, one of the city's two designated rape crisis centers.

From the start, the woman said, police seemed skeptical that a rape had taken place.

"They said it was going to be hard to prove that it was an actual rape because I let the person in my house," she said.

Within three weeks, the rape squad had coded the case 2625 and declared it "inactive," police records show.

After reviewing the case last week at The Inquirer's request, Mooney said the incident was a crime - an indecent assault.

"Am I going to sit here and tell you that every investigation that we conduct is perfect?" he said. "I'm not going to do that."

Mooney added that a test administered at the hospital did not yield evidence of rape.

Until reporters spoke with the woman this summer, she didn't know that her case had been coded "investigation, protection and medical examination" - and not as a sexual assault.

"Medical investigation? What's that?" she said. "I didn't want to have sex with him."

A new use

for an old code

The unit also began letting more rapes into the official count. The department's report to the FBI of major crimes for 1998 included 752 rapes - a 16 percent increase. Police commanders say the surge reflects accurate incident-reporting, not an actual increase in rapes. Nationally, the rape rate has been falling.

In addition, the squad returned to an earlier practice of "unfounding" rape complaints - dismissing them as groundless - in large numbers. The percentage deemed "unfounded" doubled in one year - to 18 percent in 1998, the highest of any major American city.

Women's advocates in Philadelphia and nationally said the unfounded figure was a sign that something was amiss.

"There are not that many women that are falsely reporting," said Penny Harrington, a former police chief of Portland, Ore., who is now head of the National Center for Women in Policing.

Timoney said Philadelphia's "unfounded" cases were rejected legitimately, based on solid investigation. He said the percentage was higher than in other cities because police elsewhere found ways to keep such cases out of the system at the start - and therefore did not have to "unfound" them later.

Code 2625 - "investigation, protection and medical examination" - was once used for cases in which police picked up teenage runaways. But that hasn't been a crime for 22 years.

In 1977, running away from home was decriminalized by the state legislature and Code 2625 no longer had any use as a crime category. By the 1990s, it had all but disappeared from police records.

Then, in the last three months of 1997, it surfaced again. Thirty cases - all of them handled by the sex-crimes unit - were given that label.

In 1998, the rape squad relegated 238 complaints to Code 2625, records show. They were a mixture of sexual assaults and child-abuse cases.

So far this year, 171 cases have been designated "investigation, protection."

Mooney, the unit commander, said the code was needed for "ambivalent or unclear" situations described by women who call police to report sexual assaults.

"For instance, a woman will be with someone - either go to sleep, pass out unconscious from drug use or something like that - awake and for whatever reason feel that something might have happened to her," Mooney said.

"Maybe she has a physical feeling in a body part, or there's a wetness, or someone tells her. Whatever the case, it's not clear at the point of the report that this person's reporting a crime. So that's when we use the Code 2625."

Lt. Thomas McDevitt, a rape-squad supervisor, cited another circumstance he said required Code 2625: when a woman reporting a sexual assault to police cannot state explicitly that a man forcibly penetrated her.

In such a case, he said, police are barred by FBI incident-reporting rules from calling it a rape.

FBI officials said in interviews that there is, in fact, no requirement that a victim specifically recall the act of penetration - especially in cases where a woman might have blacked out.

If a woman says she has reason to believe she was raped, but cannot recall details because she was under the influence of alcohol or drugs, the incident should be counted as a rape, said Maryvictoria Pyne, spokeswoman for the FBI's Uniform Crime Reporting program. Pyne spoke after consulting with bureau officials on the issue.

If subsequent investigation proves that no rape took place, police can subtract it from their crime total, Pyne said.

The FBI "green book," considered the authoritative source on crime reporting, urges police to believe complainants unless they have good reason not to.

It says "offenses reported or known to police" should be listed as crimes - and investigated.

Timoney said he was "completely satisfied" with how Code 2625 was being used.

"Are we getting rapes coming in that are being downgraded or something like that? That's not the case," he said. "I don't want to hide nothing. Nothing. We're probably overreporting, overcoding."

When is a victim

considered a victim?

Was she the victim of a crime?

The woman called 911 at 4:40 a.m. April 2 to report a rape. Patrol officers in the 24th District drove to her apartment on Kensington Avenue and took her statement.

"Above complainant stated that between 12:30 a.m. and 3 a.m., male raped her while she was unconscious from taking Xanax," the patrol officers wrote in their incident report.

The male was an acquaintance, whom the woman described in detail. She told the patrol officers he raped her in his dark blue Chevy Lumina.

The officers took her to Episcopal Hospital and notified the Special Victims Unit.

Sex-crimes investigators did not interview the woman. Mooney said that she declined to talk to them that night and that investigators had been unable to reach her since then.

They coded the case 2625.

Mooney and Timoney said that was appropriate because the woman could not have known what occurred if she was unconscious.

"She says she was raped but doesn't know what happened," Timoney said.

Added Mooney: "How can you be unconscious and know that you are raped? That's the issue."

Chief Inspector Vincent R. DeBlasis, head of the department's crime auditing bureau, said in a separate interview that the case should have been called a rape because the woman said she was raped and investigators had no evidence to the contrary.

She never heard

from the police again

But her job was dangerous.

As a stripper, she was a prime target for sexual assault.

Mary Ann Layden, a psychotherapist who runs a therapists' training program at the University of Pennsylvania Health System, said research has shown that workers in the "sex trade" make up a disproportionate share of rape victims.

When strippers say "it's OK to visually invade my body," they inadvertently encourage some men to do so physically, said Layden, who has interviewed numerous strippers, prostitutes and sex offenders.

The 20-year-old woman said she was sexually assaulted in the early morning hours of Feb. 23 after leaving a club where she had been dancing.

The sex-crimes unit said it had no evidence that a crime occurred and classified the case "investigation, protection and medical examination" - Code 2625.

In interviews with The Inquirer, the woman said another stripper from the club had invited her to go out with some men after closing time. One of the men drove the group to a house on Oxford Street in North Philadelphia.

When she arrived there, one man made a pass at her. She said she rebuffed him.

She was tired and intoxicated, she said, but her friend wanted to stay at the house.

The Olney woman said she went to a bedroom by herself and went to sleep fully clothed.

She told The Inquirer that when she awoke at 9 a.m., the man who had made the pass at her was molesting her. Her jeans were off and her underwear was missing. She said she left the house immediately, took a bus home, and called police.

Hospital records show that she gave the same account to physicians at Episcopal Hospital, where police took her for a rape exam.

The records, which she permitted The Inquirer to review, indicate that she told doctors: "I think I was raped." She also told doctors that when she woke up, the man was touching her between the legs.

The woman said she related the same set of facts to sex-crimes investigators.

Rape-squad supervisors said last week that she did not. They said the woman never told them she had been touched, much less raped.

The woman said the sex-crimes investigator assigned to the case "kept trying to make it seem like I gave consent. She kept trying to make it seem like it was my fault."

The woman said she never heard from the rape squad again, though she tried several times to make contact by phone. The investigator handling the case declined to comment.

"I told them I wanted to press charges," the woman said. "I don't know why nobody helped me."

Police believed her,

but didn't count it

According to the rape squad's investigative report, the alleged rapist was a man introduced to her by a girlfriend. On an October night two years ago, the report states, the three of them were together at the man's house.

When the girlfriend left to go to the store, the man made sexual advances toward the Northeast woman. When she rebuffed him, he forced her onto a couch and raped her.

She did not report the rape to police immediately.

"I didn't want to prosecute," she said in an interview. "I just wanted to put it behind me."

Five months later, she called police to say she had been raped. She said she was pregnant as a result of the rape, sought a Medicaid abortion, and was informed by her clinic - mistakenly - that she needed a police report to qualify. In fact, the requirement for a police report had been struck down several years earlier.

Roscoe Cofield, the sex-crimes investigator assigned to the case, said in a recent interview that, despite her delay in reporting the incident, he believed the woman had been raped.

"I thought her story was on the level," said Cofield, who worked 10 years with the rape squad.

He said he remembered the case distinctly because it was one of his last before he retired last year.

"Actually, this is a rape," said Cofield, 56. "It should have been coded as a rape. . . . I really believe what she said happened, happened."

Nonetheless, Cofield said, he classified it under Code 2625 because that was the squad's practice when women did not want to press charges.

Last year, departmental auditors determined that the case should have been classified as a rape. On the incident report, an auditor quoted an FBI guideline that a victim's willingness to press charges should have no effect on how the incident is coded.

"Even though the victim refuses to cooperate, count an offense," the auditor wrote in neat script, quoting from the FBI's incident-reporting manual. "The offense took place and must be scored."