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Wednesday, July 8, 2015

How a Bungled Police Investigation Led to a Possible Rape Victim's Shaming

Posted By on Wed, Jul 8, 2015 at 7:00 AM

Brittany Burke called Jefferson City Police Department because she feared she'd been assaulted. Things only got worse from there. - PHOTO COURTESY OF FLICKR/KOMU NEWS
  • Photo Courtesy of Flickr/KOMU News
  • Brittany Burke called Jefferson City Police Department because she feared she'd been assaulted. Things only got worse from there.

One sexual-assault kit. Clothing — underwear, dress pants, sport jacket, white shirt and shoes. Four vials of blood. One container of urine. Photos of bruises and abrasions on the woman's body. Dried secretions, soil and debris, suspected semen and saliva. Matted hair cuttings. The Jefferson City Police Department gathered all these things from a young woman named Brittany Burke after she called them to report a possible sexual assault on April 9.

She had been in a blackout, and wasn't sure what had happened, but a three-hour invasive exam by a sexual-assault nurse examiner found vaginal abrasions consistent with assault. The nurse also noted on her report that suspected semen was present.

Under Missouri law, because the victim was blacked out, she was unable to consent. Under Missouri law, it seemed likely that a crime had occurred.

"I don't remember what happened to me," Burke told Jefferson City police detective Curtis Finke. "This isn't normal."

Burke also told Detective Finke this: "I'm a female, and I work in politics." A former staffer for Governor Jay Nixon, she was working as a consultant.

The detective's report continues, "Burke stated it's rough for her and the least amount of people that know about this the better."

Fast-forward two months.

Police decided to close the case, even though lab tests from the rape kit had yet to come back — and even though their own report makes clear that no one knew where Burke was from approximately 1 to 3 a.m. on the morning in question. According to Jefferson City police captain Doug Shoemaker, the department closed the case at Burke's request — a claim she adamantly denies. 

And then the police released their report to the St. Louis Post-Dispatch. The paper made the decision to run Burke's name — and all the juicy details dutifully noted by Detective Finke — in a front-page article June 19 that would have been more at home in a tabloid.

See also: How the Post-Dispatch Shamed a Possible Rape Victim -- and Embarrassed Itself

Forget "the least amount of people" knowing. Suddenly everyone knew that Brittany Burke had called the police to report a possible sexual assault. They were told the size of her bar tabs that night; the fact that she'd had a past relationship with former House Speaker John Diehl, even though the politician had nothing to do with the police report she had made; and even the nickname under which she saved Diehl's cell number in her phone.

The way the case was handled flies in the face of common sense, best practices and policy when dealing with possible assault victims.

"When a rape victim calls the police, she is calling for help," says Colleen Coble, CEO of the Jefferson City-based Missouri Coalition Against Domestic and Sexual Violence. "Receiving that help is our community expectation of the police and the right of any of us who are hurt in a crime."

Coble read the 21-page report, and one of many things that stuck out to her from a procedural aspect was that police did not transport Burke directly to a hospital. "They did not immediately get a rape victim to medical care, but questioned her at length first," she says.

"We can and need to do better."

"I Want Him to Burn in Hell"

In the aftermath of the Post-Dispatch's story, advocates rallied to Burke's side, criticizing the newspaper for its focus on the prurient details in the report rather than its reason for existence — a former political operative's report of possible sexual assault while in a blackout.  

But the newspaper's victimization of Burke, troubling though it is, was only possible because of the way Jefferson City police handled her report in the first place. Detective Finke failed to follow best practices in dealing with reports of sexual assault — and even, in some cases, the most minimum of standards. And then police closed the case without even informing the woman at its center, as Burke's attorney confirmed to Riverfront Times last week.

In fact, Burke only learned the case had been closed when she read it in the paper.  

Detective Finke wrote in the report that he closed the case "due to lack of victim cooperation." But if you actually read the report, it's not at all clear that Burke stopped cooperating. And even if she had (a charge she denies), it was still the department's job to follow through with evidence gathered by the nurse.

"I don't know if I was raped," Burke told Finke in what proved to be their final interview on April 15. She did know, however, that something bad had happened. She told him that life had become awful, that people were looking at her funny, that she wasn't sleeping, that she felt lost. She just wanted the whole thing to end.

In that context, "I don't know if I was raped" wasn't an admission from Burke that she had been wrong to file the report — but a cry of despair, of truly not remembering what had happened that night, and fearing the worst.  

Earlier in their conversation that same day, the officer asked Burke what would happen if the lab report came back with a lead — what would she want to happen to the person who assaulted her?

She stated, "I want him to burn in Hell."

Here's how Finke describes his response in the report:

I told Burke if I went out and arrested someone that did this I don't think she would get a sense of relief.

Finke declined comment, referring questions about the case to Shoemaker.

Some states have specific protocols that establish a clear way forward with highly sensitive cases involving potential rape victims. There are none in place in Missouri.

There are still basic standards, however. The International Association of Chiefs of Police (IACP) provides guidance on how to respectfully and professionally investigate sexual assault. Among the directives, one is paramount: The focus should be on the suspect, not the victim. At no time should the officer be tempted to make personal judgments about the victim's "character, behavior or credibility."

Yet the Missouri branch of the Association of Police Chiefs appears to be using protocol that's twenty years out of date. A sample policy posted on the organization's website is from 1994, and it includes the troubling step of running a criminal background check on the victim, including any prior reports of sexual assaults.

Next: How police failed to follow best practices in their investigation.


The Jefferson City police aren't bound by those policies, Shoemaker says. They are just guidelines, and each department operates differently.

But Finke's own police report suggests that he made up his mind about Burke pretty quickly on the morning she called for help. He notes that, as she sat in the detective conference room, "I observed that she was coloring with crayons. This was the first moment I began making behavioral observations of Burke that at times seemed odd for her situation."

Burke describes it differently. She says she was sitting in the detective conference room, waiting. She was still reeling from the night before, freaking out even, for obvious reasons. She was trying to stay calm, to focus on something else while she waited for the detectives — there were crayons in the room, after all.

The IACP guidelines are clear that an observation like the one Finke made that morning has no place in an official report. Making judgment calls on the character or behavior of a victim — and ensconcing those in an official document — can "compromise the integrity of the entire report and the credibility of the victim and the officer," the guidelines note.

In their writeup, the Jefferson City police officers seem more focused on obtaining the exact figures on Burke's bar tab and her "odd" behavior than on getting to the bottom of what happened to her in the early hours of the morning in question.

The Focus Should Remain on the Suspect

According to the police report, Burke was out drinking with friends in Jefferson City on April 8 — first some wine with a political reporter, then Jägerbombs and vodka Red Bulls with a bigger party. But her trail went quiet around half-past midnight, when she would later tell police she blacked out. Phone activity ceased until almost 1 a.m. when she texted a friend for help.

Her texts were confused — she is bleeding; she is sick; leave her alone. The friend offered to come pick her up.  She refused, somewhat belligerent in her text volley. Then, between 1:07 a.m. and approximately 2 a.m., more silence.

Around 2 a.m., the friend and Burke made contact, this time in a phone conversation. Burke was crying. She kept repeating she didn't understand what was going on.

Even then, she failed to connect with her friend. It wasn't until an hour later — around 3:15 a.m. — that she ended up on the porch of her ex-boyfriend, then-house speaker John Diehl, waiting for him to come home. The police report is silent on where Burke had been during the missing hours prior to that point.

Earlier in the police report, the officers indicate that a man followed Burke out of the bar. Cameras inside the bar show that she was in conversation with four unidentified men. It is unclear from the grainy video whether Burke was laughing or telling them off.

When she left the bar a bit after midnight, the report implies, surveillance footage shows an unidentified male leaving the bar after her — according to the police report, "moments later." Four male eye witnesses, having had varying amounts of alcohol from a few drinks to the point of being impaired, told detectives they didn't recall seeing Burke leave as they stood in front of the bar smoking and talking. They didn't recall an unidentified man following her out. And they didn't recall another thing that detectives questioned them about, something also apparently captured on the surveillance video — something catching their attention in the parking lot.

In the police report, an officer named Jambler describes his conversation with one witness: "I described what [Burke] was wearing and also told him about another male walking out behind her moments later." The witness still didn't know to whom the officer was referring. "I asked him about his attention being drawn toward the area of Monroe and High [streets]."

The witness stated he didn't know what he "or any other people" might have been looking at. Another witness said the same. He had no idea what was drawing his gaze toward High and Monroe, but told the detective "he was positive that there was nothing wrong or suspicious going on." This despite his admission that he'd had enough to drink to require a cab to take him home.

More space is spent in the report detailing Burke getting a piggyback from a male friend and the duo's subsequent fall than accounting for the two hours that she went missing — or the unidentified male who followed her out of the bar.

Detective Finke infers in the report that Burke's injuries are consistent with falling. He doesn't explain how it would be possible for Burke to sustain vaginal abrasions.

Victims of Sexual Assault May Recant

Burke felt badgered by the police, she says. She was frustrated and confused by what she did remember from the night before.

She was open and forthcoming in her dealings with the officers from the beginning: She said she had been drinking, and she was clear about the fact that she didn't remember what happened. She indicated that she may have been assaulted (a suspicion at that point, but one later supported by certain wounds at the hospital). She signed all the permissions at the hospital to release findings from the rape kit, including any toxicology reports, to the police, signaling full cooperation.

She even offered a bloodied bandage she'd used on her hand to treat her injuries. The officer declined it, telling her he didn't think they would need it. It remains in a paper bag on a shelf in a closet, waiting.

It isn't clear from medical and police reports if immediate toxicology testing was done on Burke's urine, although she signed her consent to do so. So-called date-rape drugs degrade rapidly in the body, according to the U.S. Department of Health and Human Services' Office on Women's Health. Testing urine as soon as possible is optimal.

Finke picked up the rape kit from University Hospital on April 13. That same day he submitted a lab request for Burke's clothing, blood, urine and forensic evidence collected by the sexual-assault nurse.

Once a rape kit is collected and logged into evidence, Coble says, police have a responsibility to follow through. Even if a victim becomes uncooperative, law enforcement frequently pushes forward in the interest of the State.  

Instead of waiting for the tests, however, Jefferson City police closed the case.

Again, from the IAPC guidance:

"Victims of sexual assault may recant or decline prosecution for various reasons (e.g. fear of retaliation by the offender, concern about not being believed, hesitancy regarding the criminal justice system, and loss of privacy). A victim's reluctance to participate is neither indicative of a false report nor reason to forgo a strong, evidence-based investigation."

Burke's rape kit is still untested. At last check, she says, she was told it could take up to seven months to process.

Sexual Activity vs. Rape in the First Degree

Not everything from a criminal investigation makes it into a police report.  Depending on the officer and the disposition of the case, reporting may vary.

In this case, the most important piece of information not included in the police report is the fact that the nurse indicated she'd found an abrasion on Burke's vagina consistent with sexual assault. That detail is contained in the final hospital report shared with Riverfront Times.

Shoemaker says that the vaginal abrasion wasn't conclusive enough evidence to prove assault might have occurred. More investigation would be required, he says — but, he claims, that was impeded by Burke wanting the case closed.

Instead of detailing the abrasion, however, Finke's report indicates that there was evidence of "sexual activity." This is a misleading interpretation of the nurse's observations at best; at worst, it's another judgment call on the part of the officer that later fed into to the public shaming of Brittany Burke.

Next: Police use an outdated law to file their report

  • Photo Courtesy of Flickr/Jonathan Cohen

It's telling, too, that the charge Finke used to log Burke's initial complaint is no longer Missouri law.

"The critique of the Jefferson City Police Department begins with their investigation of the crime of 'forcible rape' — an offense that hasn't existed in Missouri law since it was changed in 2013," Coble says.

Through strong bipartisan work in the state legislature, the change provided broader protection for victims. Under the 2013 law, rape in the first degree is indicated if the suspect has intercourse with a person who is incapacitated or lacks the capacity to consent.

That's a change from the 2009 law Finke cites in his report, which only allows for the charge of "forcible rape" when a person is drugged without his or her knowledge and rendered unable to consent. 

Now "the offense is rape, first or second degree, and it no longer focuses on a rapist's use of force, but includes a victim's lack of consent or incapacity," Coble says. Yet the way police classified the report suggests they didn't realize the law had changed. At a minimum, they didn't acknowledge it.

In his report, Finke also concludes that Burke couldn't have been in a blackout because she was texting — a charge later echoed by the Post-Dispatch. Police spokesman Shoemaker raises this in an interview with the Riverfront Times to support the department's handling of the case: "Did you see the part in the report where she was texting?"

Yet studies have consistently found that any number of complicated tasks are possible in an alcohol-fueled blackout — from texting to driving. As the National Council on Alcoholism and Drug Dependency notes, "Blackouts are very different from passing out, when a person falls asleep or is rendered unconscious from drinking too much. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or intercourse, with little or no recall." And that doesn't even get into the possibility of what happens when someone is slipped a date rape drug.

Shoemaker also questions Burke's retaining a lawyer. "I can see a suspect having a lawyer, but a victim?"

In fact, Burke says, she got a lawyer because she felt like she had become the suspect. Detective Finke's method of questioning made her uncomfortable.

This from Finke's report: "I next asked if she recalled making any 'advances' toward Diehl while she was at his apartment. Burke took a tone which made her sound shocked to hear the question. She asked me why I would ask that? I then informed her she did not have a bra on while speaking with Diehl at his apartment."

Later that same day, according to Finke's report, is when Burke became "uncooperative." Later that same day, Finke writes in his report, "This case is considered closed with no further actions being taken due to lack of victim cooperation."

If a suspect is ever apprehended — if the rape kit and DNA ever come back — ultimately the results of Burke's medical records will be introduced at trial. Only in that way would they become part of the official record.

Unfortunately for Burke, Finke's error has cost her beyond the humiliation of the police summarily dropping her case, even though she was still actively pursuing it with her lawyer.

"Which Assault Are You Talking About?"

When Virginia Young, statehouse reporter for the Post-Dispatch, filed an open-records request with the department, the police could have declined. The DNA wasn't back. The case wasn't closed — or rather, it shouldn't have been.

Of the report, Shoemaker says, "I wish we never released that thing." But, he says, the city attorney made the call.

The burden of investigation then fell to the veteran reporter.  A cursory reading of the report may have led Young — and by extension her editor, Christopher Ave — to a conclusion: This was no sexual assault. Finke set that up in his opening observations. This was a night of drinking that got out of hand. When the journalists saw Diehl's name attached to the report, and Burke's acknowledgment to police that she'd been involved with him, seemingly the deal was done. The Post-Dispatch had its story.

Burke was completely blindsided by Young's first call, which came four days before the story was published. At that time, Burke says, the reporter announced she would only speak to her on the record.

Had Young given Burke the opportunity to speak candidly off the record, Burke may have been able to discuss her state of mind. Burke could have told Young about the evidence collected by the nurse at the hospital — and that she never asked the case to be closed.

Young could have asked Burke, "Is there anything I'm missing here?  Should I know anything at all before I publish?" Affording Burke or any women who may have been sexually assaulted the opportunity to talk off record before asking for a quote isn't farfetched. It's a best practice.  

But there was no attempt to understand where Burke was coming from, where her story might differ from the police detective's. Instead, she was treated like a target in an investigation.

Young did not respond to our requests for comment. Her editor, Ave, issued a statement a few weeks ago standing by the story, but did not respond to follow-up requests for comment.

It wasn't clear to Burke from her initial conversation with Young that the story was imminent, only that Young was interested in writing about the police report.

Burke asked only that if the story was going to be written, that she be afforded the opportunity to warn her family that it was coming.

The last communication from Young came via Twitter messenger. It read, "Brittany, we are probably running a story today. Please call me if you want to talk on the record. Also, you are single, correct?"

Not long after, the story hit.

In a subsequent radio interview with KMOX (1120 AM), Ave defended the paper's decision to run the name of a possible sexual-assault victim. After hours of thoughtful deliberation with the veteran reporter, senior editors and his bosses, he told radio host Mark Reardon, it was determined outing a private citizen who may have been raped served the public interest. After all, it proved that the former house speaker had a sexual relationship with someone who at one point had been a staffer for Governor Jay Nixon.

When pressed, Ave downplayed the possibility that Burke had been assaulted.

"What assault?" Ave asked. "Which assault are you talking about?" He then added, for good measure, "I mean if she had called a rape-crisis line or something." As if calling the police didn't count.

However, Ave's sentiment is one shared by Captain Shoemaker. When asked whether the police could move forward without the victim's consent he said, "Well, we don't know if we even had a crime."

Since police have closed the report without testing the evidence in her rape kit, much less finishing up on its investigation into those missing hours in the early morning, that remains all too true. We simply don't know.

But we do know what happened after that evening — an "attempt at public shaming," in the words of Burke's attorney, David L. Steelman.

It's an attempt that surely hasn't gone unnoticed by other men or women who might be tempted to file a police report fearing that they, too, may have been sexually assaulted.

Burke and her lawyer ultimately decided to let Riverfront Times use her name in this story. It was a tough decision, but Burke hopes that talking about her experience, and using her real name to do it, will help others.

Through her attorney, Burke says, "I am obligated to encourage other victims of sexual abuse to seek help and report attacks."

Contact the writer via email, or on Twitter @andykopsa

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