At a Monday news conference, Dauphin County District Attorney Francis Chardo described a female state employee who accused a former Pennsylvania legislator of rape as “credible.” But Chardo said a grand jury had concluded it was not in the public interest to prosecute Butler County Republican and former state Rep. Brian Ellis. The grand jury “did suggest ways to strengthen the Legislature’s policies on investigating sexual misconduct,” reported Angela Couloumbis of the Philadelphia Inquirer and Brad Bumsted of The Caucus, an LNP Media Group watchdog publication.
This is an imperfect metaphor, but here goes: Imagine that you report a burglary at your home. You are questioned by the police and they believe you, even though you cannot prove what’s been stolen — it’s gone — and so they launch an investigation and arrest the suspected burglar.
Then the district attorney tells you, “I’m not going to prosecute. I also believe you. But I’m not going to seek to punish the culprit who broke into your home because it’s not in the public’s interest that I do so.”
You would be incensed. And crushed. Because a legal system that is supposed to protect you from harm has decided that your interests don’t matter when weighed against others.
And you’d be left wondering why it wasn’t in the public interest to prosecute an alleged criminal.
Or maybe that’s just us.
The crime of rape cannot really be compared to a break-in. Though both are attacks that undermine an individual’s sense of personal safety, sexual assault causes a different and more devastating kind of trauma. And that trauma can be exacerbated by the vagaries of the legal system.
Chardo said, of his decision not to prosecute Ellis, “That does not mean there was not a crime.”
But there were complications, he said. The victim couldn’t recall what happened the October 2015 night of the alleged assault — she believes she was drugged, which resulted in memory loss. Which would only make the alleged crime more horrific.
Jennifer Storm, the head of the state’s Office of Victim Advocate, told The Caucus and the Inquirer earlier this year that the woman “had one-and-a-half drinks, and then lost 12 hours of her life. ... She was not voluntarily intoxicated in any shape or form.”
The woman said she awoke the next morning, disoriented and in pain, in Ellis’ bed, Couloumbis and Bumsted reported. Ellis told her they had had “sex.”
The other complication cited by Chardo: Ellis invoked his right not to testify before the grand jury.
A statement from Ellis’ lawyer, Erik R. Anderson of Scranton-based Myers, Brier & Kelly, called the outcome “proper and just.”
It was neither.
Tragically, it wasn’t all that surprising, either.
In 2016, only 23% of rapes or sexual assaults were reported to law enforcement, according to the U.S. Bureau of Justice Statistics. Research indicates that victims do not report sexual assault for reasons including fear of reprisal, self-blame, humiliation and lack of faith in the justice system.
There’s some justification for that last concern: Fewer than 1% of rapes end in felony convictions, according to sources including the Rape, Abuse & Incest National Network. (And, it must be noted, research has shown that false rape reports are rare.)
A study by three Massachusetts academics published in February — and funded by the U.S. Department of Justice — examined why so many sexual violence cases fall out of the criminal justice system.
“Although prosecutors stated that they were not assessed based on their conviction rates, they emphasized the need to determine and take forward those cases that will be most likely to reach a guilty verdict,” the researchers noted.
“Prosecutors made decisions in anticipation of how they believed a jury would respond to the evidence in a case. This means that cases that involved a consent defense were not often taken to trial.”
Though the Dauphin County grand jury failed to recommend prosecution, it did offer some sound recommendations.
Among them: that the General Assembly create an Office of Legislative Responsibility to better handle misconduct cases.
That office, Couloumbis and Bumsted reported, “would have authority to investigate any claim of misconduct by a lawmaker or employee of the Legislature if it is connected to their official duties.” The office should be granted independence and subpoena power, the grand jurors decided.
“The Office should have a qualified staff and be allowed to conduct confidential inquiries free from interference by leadership, members or staff of the General Assembly or executive branch,” they wrote in the report.
The grand jury also recommended that the General Assembly eliminate any time limitations on institutional sanctions against a member or employee who commits misconduct — an excellent recommendation, given that trauma often causes victims to delay reporting. But this will only have an effect if lawmakers no longer can escape consequences by resigning and keeping their pensions.
The grand jury also recommended that General Assembly members or staff be mandated to report “serious misconduct, such as sexual assault or sexual harassment” to the Office of Legislative Responsibility. This could help to diminish the culture of silence that pervades the state Capitol regarding sexual misconduct. No more covering up for the misdeeds of one’s pals. No more pretending such misdeeds don't occur.
In compiling its report, the grand jury utilized the expertise of the Institute to Address Commercial Sexual Exploitation at Villanova University. The institute’s director, attorney Shea Rhodes, said the Legislature’s existing policies and procedures were “confusing, lacked transparency, and were inadequate to properly address a pervasive problem within that body.”
A Joint State Government Commission found there were more than 550 sexual harassment and workforce misconduct complaints in all three branches of state government over the past five years.
We know the scope of the problem. The grand jury has made some smart and reasonable recommendations for curbing the problem. Now we’ll see if lawmakers act on those recommendations.
For the sake of the General Assembly’s reputation — but more so for the safety of those working in the Capitol — they must.
To the leaders of the General Assembly, including House Majority Leader Bryan Cutler, of Peach Bottom, we’d just add: Acting on this would signal to victims and survivors across the commonwealth that the Legislature takes sexual misconduct seriously. Such a signal is badly needed, especially when prosecutors decline to send it themselves.
Lancaster County 24-hour sexual assault hotline: 717-392-7273