Experts cast doubt on Davis rape statute plan

Criminal law experts say Sen. Wendy Davis' proposal to eliminate Texas' statute of limitations on rape may be politically agreeable, but there is no guarantee it would lead to more prosecutions or prevent other attacks.

The gubernatorial candidate, a Democratic state senator from Fort Worth who positioned herself as a crusader for women's rights with her 11-hour filibuster against a stricter abortion law last summer, has been touring the state in recent weeks touting legislation she passed intended to aid rape victims and pushing a proposal to "classify sexual assault at the same level as other heinous crimes such as murder, manslaughter and human trafficking, which have no statute of limitations."

The proposal comes a few weeks after Davis aired a striking television ad saying her Republican opponent, Attorney General Greg Abbott, sided with a corporation over a rape victim when he was on the Texas Supreme Court. Abbott has said he agrees that the statute of limitations for rape should be abolished.

Eight states already have done so, Davis said during a stop in Houston last Thursday, citing Delaware, Kentucky, Maryland, North Carolina, South Carolina, Virginia, West Virginia and Wyoming.

Those states have no statute of limitations on any felony, including rape, according to information compiled by the National Center for Victims of Crime. In Texas and 11 other states, there are no statutes of limitation for specific sex crimes - cases involving the sexual assault of a child or where DNA has been tested but does not match anyone already in a criminal database.

In Houston, Davis cited three rape cases in which DNA evidence was tested after the statute of limitations had expired, leading to the exoneration of wrongly-accused men in two of them.

Davis said eliminating the statute of limitations would lead to an increase in the number of serial rapists who are caught and suggested that huge backlogs of rape test kits at such agencies as the Houston Police Department and the Texas Department of Public Safety make extending the prosecutorial window even more pressing.

'Mostly symbolic'

Experts, however, say dropping the statute of limitations for rape entirely may not lead to many more successful convictions because the cases already are difficult to prosecute, even more so after a long period of time.

Most states have a decade-long statute of limitation for rape for legitimate reasons, said former prosecutor Amanda Peters, who tried rape cases on appeal for the Harris County district attorney's office.

"One of the downsides to extending the statute of limitations is that the evidence is going to be colder" and witnesses hazier, making juries more wary of handing down guilty verdicts, said Peters, now an associate professor at South Texas College of Law.

"Juries, especially when it comes to a case where it's one person's word against another, they a lot of the time find there's reasonable doubt there because you have two people's word and no evidence, and so that's the challenge in and of itself. There are credibility issues."

University of Houston Law Center professor Sandra Guerra Thompson, director of the school's Criminal Justice Institute, said statutes of limitation on crimes are meant to ensure fairness and accuracy and "encourage law enforcement to move expeditiously."

"The main concern is for fairness because the older a case gets, the harder it is to prosecute," she said. "Memories fade, evidence could be lost and there's a sense that it's not really fair to haul somebody out of their home and make them stand trial for something that allegedly happened so long ago."

With rape, evidence often is washed away with as little as a shower, Thompson said, making coming forward with an accusation so late problematic.

In states that have eliminated the statute of limitations, she said, "it's mostly symbolic because as a practical matter you're not going to see that many cases that old moving forward. I think it would be a real challenge to get a prosecutor to move forward with a case like that."

Even if there is DNA evidence to test in the case, the question of whether a sexual assault occurred often does not come down to whether that genetic evidence is present, but whether the act was consensual, said Phillips Lyons, interim dean at Sam Houston State University's College of Criminal Justice. National statistics show that more than 80 percent of women, who make up the overwhelming majority of rape victims, are sexually assaulted by someone they know.

"The proportion of sexual assault cases that are true whodunit cases is relatively small," Lyons said. "A lot of the time, it comes down to 'Who done what, exactly?'"

Conversely, he said the fact that DNA can be so well preserved now could undermine the need for a statute of limitations.

Still, he said, the problems of fading memories and other things that would give a jury reasonable doubt would remain, meaning that prosecutors may not pursue the cases, anyway.

Could offer edge

The Washington, D.C.-based National Center for Victims of Crime supports lifting statutes of limitation for rape.

"We think that in these cases a fixed number of years for the statute of limitations is arbitrary," the group's Deputy Executive Director Jeff Dion said, noting one successful conviction in Fairfax County, Va., 30 years after the fact. "It they have the evidence available, then they should have that opportunity."

While skeptical about the effect Davis' proposal would have on the number of successful convictions of old cases, Peters, the professor at South Texas, said she thinks it is "fair and not a legal stretch, given that other states have done it and we (Texas) have extended it for cases involving the sexual assault of a child." She also noted it fits with the image Davis has crafted as a crusader for women's rights.

Southern Methodist University political scientist Cal Jillson said the issue is a good one for Davis in that it could give her an edge among white suburban women, one of her key target demographics. He noted it also furthers her attack on Abbott's judicial rulings against rape victims.

Still, he said it will not be enough on its own to chip away at Abbott's substantial lead.

"This is a good issue for Davis, but she needs a series of good issues in the coming weeks to begin to a come back against Abbott," he said.