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"The cases [from OPD] I saw come through, they do a good job of investigating. They're going to take it to the charging D.A., who might ask them to do further investigation."
One consideration unique to prosecuting sex crimes is the necessity for the survivor's participation.
"Normally in criminal law — in most felonies, for example, robbery or car-jacking — even if the victim does not want to prosecute, the D.A. can bring a case," Drenick said. But in sexual assault cases, "we often can't do it without the victim. If there's an eyewitness to it, we could do it without the victim's testimony."
However, she said there is no one common thread among the sexual assault cases that are turned away by the charging D.A.
"Literally every case we review is unique," Drenick said. "It's a totality of the circumstances surrounding the alleged assault."
Each type of specific sexual assault crime is defined in the California Penal Code, and "every crime has certain elements that have to be proven beyond a reasonable doubt," Leventis said.
For example, non-spousal rape is defined in Penal Code Section 261 and rape of a spouse in Section 262. Other types of sexual assault, such as forcible oral copulation and forcible penetration by a foreign object, are defined in other sections of the code.
The different circumstances under which an act of rape can be established include the use of force or intimidation, or the victim's inability to consent to sexual intercourse because she's unconscious or mentally disabled. Proving both the occurrence of one such circumstance and the alleged attacker's knowledge of that circumstance is necessary to establish the crime of rape.
When an accused attacker is on trial for the crime of rape, the judge reads specific instructions to the jury. As spelled out in the Judicial Council of California Criminal Jury Instructions, the jury must determine what is sometimes the hardest detail to prove: whether the accused understood that there was no consent, but acted anyway.
"With these forcible crimes," Leventis said, "part of the instructions [to the jury], is if the perpetrator believes there was consent, the jury has to find them not guilty."
If Oakland police are not arresting people because they suspect that prosecutors won't pursue the case, then police may be closing down some investigations early, based on that assumption.
But while Oakland is not alone in its frequent use of "clearance by exception," only three other surveyed law enforcement agencies used that rationale to close cases more frequently.
Seven other California departments provided their data for this survey — although notably not San Francisco — and every one used exceptional clearance less frequently than Oakland's 47 percent rate. Long Beach cleared 41 percent of its cases by exception, Los Angeles 38 percent, Bakersfield 20 percent, San Diego 18 percent, Kern County and Sacramento 5 percent each, and Sacramento County only 2 percent. However, every one of those agencies also reported more unsolved cases than Oakland's 40 percent rate, with Long Beach at 46 percent, Los Angeles at 48 percent, Bakersfield at 55 percent, Kern County at 69 percent, San Diego at 73 percent, San Jose at 87 percent, and Sacramento topping out at 91 percent of cases unsolved.
Could it be that police in Oakland are not less effective than police elsewhere in California but are merely choosing to present their efforts in a more favorable light than warranted by the facts?
When it comes to a comparison of 2016 arrest rates, which are more tangible and less subject to semantics than clearance rates, the data shows that every California agency in the survey appears to be doing a poor job of investigating sexual assault. Where Oakland boasts an arrest rate of 13 percent and the other California agencies average about the same, the average of the U.S. agencies surveyed is closer to 22 percent.
Perhaps someone at the OPD could explain the agency's apparently poor performance in this area. To learn answers to these questions and others, this reporter has asked to meet with OPD several times, beginning in mid-January of this year. But the Oakland Police have not responded to multiple requests for information or an interview, except to ask for a list of questions in August — which they promptly received but have not answered.
Here are some of the questions that the agency should answer:
How do Oakland Police officials explain their agency's low arrest rate in sexual assault cases and its extremely high rate of exceptional clearances? What are the barriers to identifying perpetrators? How has the department managed its backlog of unprocessed rape kits? If Oakland police believe they have probable cause for arresting a suspect, what is so frequently keeping them from doing so? Do sex-crime investigators have enough resources? Was exceptional clearance properly applied in all of these cases? Is the department identifying perpetrators only to find that survivors no longer want to press charges, or that prosecutors don't believe the evidence will prove the claim in court? Are police doing something that discourages survivors from pressing charges?
By now, the department has sent the FBI data for the years 2017-2018, as required by law. However, despite a formal written request for that data, the Oakland Police Department did not release it for this article, as is required by California law. Without this more recent data, it's impossible to know whether the OPD's track record of investigating sexual assault has improved in recent years.