Q & A : The Trouble and Trials of Prosecuting Sex Crimes

Gary LaFree, chairman of the sociology department at the University of New Mexico, has spent a quarter century studying rape and is among the nation’s leading authorities on the crime and its punishment.

In his 1989 book “Rape and Criminal Justice,” LaFree described the twists and turns taken in the criminal justice system by 900 rapes in Marion County, Ind.; only 50 of them resulted in prison sentences. As part of his research, LaFree worked in the Indianapolis district attorney’s office and observed more than 60 rape trials over two years. He has continued his research and expanded it nationwide for the second edition of the book, which is expected next year.

In rape cases where there is physical evidence or eyewitness testimony, trials usually boil down to whether the suspect can be positively identified. More difficult to prove are cases that focus on the issue of consent: Did the victim willingly engage in sex, and then change her mind?

These “consent cases,” as they are called, force a judge or jury to choose between the victim and the accused and decide whom to believe. Societal stereotypes about rapists, circumstances surrounding the incident and the victim’s personality often affect the outcome of such cases, LaFree said.

After reviewing news accounts of Edward Patrick Morgan Jr.’s criminal history and his alleged rape and murder of Leanora Annette Wong, LaFree talked with The Times.

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Question: What are your first impressions of this case?

Answer: From the victim’s point of view, and from the residents of California’s point of view, (this is) the worst-case scenario. The sense of outrage that the community feels, and certainly other victims must feel, is certainly palpable.

It sounded like this offender is in serious need of help.

This guy represents the worst scenario, a kind of predatory offender, with probably a very high likelihood of recidivism. He’s relatively young, he’s committed four serious violent offenses that we know about--and probably some we don’t know about. The calculating aspect makes you real nervous about his future behavior as well.

This is the guy that the national “three strikes” legislation is aimed at, clearly, the guy that scarce prison resources are specially designed for.

There’s no rehabilitation that’s going to give people a very safe feeling about releasing this guy. The problem is that if you make a mistake in releasing someone like this, it’s going to have very serious consequences.

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Q. Morgan has been convicted for rape three times in the past decade. While out on parole in 1993, he was arrested again for rape, but prosecutors chose to let him go back to prison for a parole violation rather than file new charges. Why would they do that?

A. Parole is a bit like a plea-bargain decision. If you get someone to cop a plea you’re going to get immediate prison time. It’s attractive to the system because it involves no resources--a court trial is a very costly enterprise.

Everyone in the system does their best to avoid trials. Nobody really benefits from a trial except, possibly, the victim.

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Q. Do you think the criminal justice system failed in this case?

A. It almost always fails. About the best (the system) can do is keep predatory, serious offenders like this off the streets until they get too old to do any mischief. It didn’t in this case. That is a failure.

Prosecutors have a tough situation in the sense that they always have scarce resources. Do you use a large portion of those resources to do the right thing, even if there is a strong likelihood that you’ll fail?

Basically it’s a deal with the devil.

(In the 1993 Morgan case), the prosecutor was faced with a definite year in prison for a parole violation versus a possible acquittal. At trial you’ve got approximately a 50% chance of acquittal; in consent cases (like Morgan’s) you’ve got even less of a chance. In a plea-bargain or in a parole violation, you’ve got a 100% chance that he’s going to serve time.

I think (the system) failed. I understand the rationale of the prosecutor, but I think he made the wrong decision. I think the prosecutor was taking it from a strictly managerial point of view. You have to take on some cases--even though you may not win--because they’re important.

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Q. Many rape victims refuse to testify, but in the 1993 case, the woman came forward. How important is the victim’s testimony?

A. Nothing’s going to happen without (the victim’s testimony), because the victim is the key to the whole thing. Virtually every state in the country now has some form of rape shield law (that protects the identity of the victim). Cases are getting into court that did not get in before.

I think it was too bad (the 1993 victim) didn’t get her day in court.

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Q. Can you explain some of the various rape charges?

A. One of the problems in dealing with rape is that we do include a whole range of crimes, from the sort of predatory violent behavior all the way down to statutory rape, where the crime is essentially the age of the victim. Those cases can be very different. Having a range of punishments available is probably good for society because the crimes can differ a lot.

Statutory rape applies to a situation that is rape just because of the age of the victim. It may or may not involve force or violence. A lot of jurisdictions don’t prosecute it at all, or prosecute it very mildly.

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Q. What are the challenges, in general, of prosecuting rape?

A. From the prosecutor’s point of view, the best case is one involving identification (of a stranger who raped). The ones that are the nastiest are the consent cases, because basically you end up in a situation where it’s one person against another.

In cases involving consent (in my study), right down the line they were less likely to result in arrest, less likely to be prosecuted as felonies, less likely to be indicted by grand juries, less likely to result in a guilty verdict, less likely to result in prison time for a convicted offender--and this despite the fact that they’re usually violent cases.

The best predictors of verdicts in our data had to do with our victims’ moral character. If the victim had been drinking or using drugs, or had been having sex outside of marriage--or was even assumed to have been doing those things--they were less likely to get convictions. Even things like a gun were less important than the victim’s moral character.

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Q. How do societal stereotypes impact prosecutions?

A. Almost everybody involved in the system is operating on stereotypes. They’re looking for stranger cases, they’re looking for squeaky-clean victims, they’re looking for cases where an offender breaks into a house.

What’s really going on in trial is, is the victim telling the truth? Can we believe the victim more than the offender?

The jury wasn’t there, the criminologist wasn’t there, the judge wasn’t there, and there are rarely other witnesses. If there are things you associate with violence it’s going to look better: if there’s a gun, if there’s a knife, if the victim is injured. But if there are things that look like a consensual relationship--if there’s alcohol, if there’s drugs, if there’s a bar--then it’s not going to look so good.

The terrible thing about these cases is we have incomplete information. In the absence of complete information we rely on stereotypes: Is she the kind of woman who would have fabricated a story? Is he the kind of man who could be a rapist?

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Q. By all accounts, Morgan is a good-looking weightlifter who picks up young women with sweet talk and then dramatically changes personality when he gets them alone. Is this the profile of a typical rapist?

A. It’s not a typical profile, but it’s not atypical either.

The jurors in our study would frequently say, “He looks like the guy next door, how could he have done it?” After all of the television we’ve watched over the years, we have a definite idea of who the rapist is.

All of us, essentially, use the same stereotypes--including the offender, because he knows what the stereotypes are, he’s working it. We’re all thinking ahead to how is this going to play on the six o’clock news or in the courtroom.

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Q. Do you think sentencing for rape fits the crime? Does society take this crime seriously enough?

A. Part of what’s going on is social change. The consent kind of rape case (was) less important 40 years ago when women were not in the work force as they are now, when many more people were in monogamous relationships. . . . We’ve changed. We’re going through some of those growing pains.

We’ve still got a criminal-justice system for the ‘50s, and a social system that’s far ahead of it.