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The Louisville Metro Police Department closed hundreds of rape investigations in three years. Officers identified the suspects, knew where to find them and had probable cause to arrest them.

But in a majority of these closed cases, LMPD officers made no arrests.

The officers determined that arrests were just not possible in 51 percent of all 2014-16 rape cases. The agency marked the cases “cleared by exception,” a status intended for exceptional situations, and closed the case.

The LMPD used this designation more than twice as often as they arrested suspected rapists. And a national investigation shows they used it more than almost every other large police department.

An investigation from ProPublica, Newsy and Reveal from the Center for Investigative Reporting found that dozens of law enforcement agencies made it seem like they solved a significant share of their rape cases through exceptional clearance, when the cases were simply closed.

The news organizations shared data with KyCIR from 64 police departments serving populations of 300,000 or more. That data shows Louisville had the sixth-highest rate of clearing rape cases by exceptional means.

LMPD said the agency isn’t using exceptional clearance to inflate their closure rate.

“What it means is that we have done all that we can,” said LMPD spokesperson Jessie Halladay. “We don’t use that as a marker of success when we use cleared by exception.”

LMPD rape case outcomes graphicAlexandra Kanik

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Halladay said those cases were investigated thoroughly, even if they failed to yield an arrest. LMPD data shows most of those cases were closed because a prosecutor declined to take the case to court.

A prosecutor with the Jefferson County Commonwealth’s Attorney’s office said many of those investigations were closed at the victims’ request, and that rape cases require a higher level of proof for skeptical juries.

But experts interviewed by KyCIR said these statistics raise questions about the kind of justice rape victims can expect in Louisville. Advocates say clearing a high number of cases by exception can discourage victims from coming forward.

Cassia Spohn, director of the School of Criminology and Criminal Justice at Arizona State University, studies exceptional clearance rates in rape cases. She said it’s concerning how often Louisville police are not arresting suspected rapists when they say they have probable cause.

“Someone who the police believe has committed a very serious violent crime is left on the streets with the potential for committing sexual assault again,” said Spohn.

Designation Used Most Often In Rape Cases

Between 2014 and 2016, LMPD data shows the department closed 72 percent of its 735 rape investigations. That total excludes 39 rape reports the department ruled unfounded.

Officers made arrests in 21 percent of all rape cases during that same time period. The rest were “cleared by exception.”

FBI rules for clearing a case by exceptional means say the police must have identified, located and established probable cause for arresting the offender but a reason “outside the control of law enforcement” prevents arrest. The FBI lists the death of an offender or a victim’s refusal to cooperate as examples.

The data shows that LMPD rarely clears other serious crimes by exception and instead leaves the cases open. Aggravated assault cases were cleared by exception 11 percent of the time. The status was used in 5 percent of homicide cases, and about 3 percent of burglary cases.

rape clearance rate graphicAlexandra Kanik | wfpl.org

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Halladay of LMPD said closing cases by exception instead of leaving them open is a victim-focused practice.

“If we can’t go forward, then we’re letting the victim know that we can’t get to a point of prosecution in this case,” Halladay said. “So it doesn’t leave any ambiguity.”

Spohn, the Arizona State University researcher, said the idea that it would be kinder to victims to clear cases by exception “doesn’t really ring true.”

“If you leave the case open and continue to investigate the case, there’s a possibility that the law enforcement agency might get the evidence that is needed,” Spohn said.

“If you close it exceptionally, the assumption is no further investigation is going to occur.”

Meghan Wright serves on the Kentucky Attorney General’s Survivors Council, which advises the attorney general’s office on crime victim issues. She is also a survivor of sexual assault, and she said a police department in western Kentucky closed her case by exceptional means.

Wright said survivors want to feel like they’re treated with respect, and that their cases are being taken seriously. She knows that trauma cases are “messy,” and can be difficult to investigate and prosecute.

“But that’s not an excuse,” she said. “You’re never going to move the pendulum towards more reporting when this is the outcome that happens.”

‘Prosecution Declined’

In 85 percent of all the rape cases cleared by exception, LMPD listed the reason as “prosecution declined.”

Maj. Dave Allen of LMPD, commander of the special victims unit until a recent promotion, said in a statement that a police supervisor and the Jefferson County Commonwealth’s Attorney’s office must approve closing a case by exception.

But Assistant Commonwealth’s Attorney Kristi Gray said LMPD’s decision to mark rape cases as cleared “doesn’t really have anything to do with” her office.

Gray, who works in the special victims unit, said she couldn’t speak to LMPD’s clearance rate.

Gray said her office’s rate of declining to prosecute almost 43 percent of all rape cases in 2014-16, according to LMPD data is likely because prosecutors are involved early in the process for rape cases.

Gray said that’s to make sure all avenues are explored, and evidence is collected even if a victim doesn’t want to go forward.

“So if at some point, even if [the case] is not going to be prosecuted at this time, they can develop strong investigations in these cases,” she said.

She estimated that 50 percent of the rape cases her office is involved in end at the victim’s request or refusal to cooperate, though she did not provide statistics or data.

Victims already report rape to police at low rates, said Carol Tracy, the executive director of the Women’s Law Project in Pennsylvania. If many victims are dropping out after that step, Tracy said that indicates a problem.  

“If a victim is treated appropriately and sensitively, they will stay in the criminal justice system,” said Tracy.

For victims who want to go forward, Gray acknowledged her office has high standards for which cases they bring to a judge.

Gray didn’t have statistics available for her office’s rape conviction rates, but she said sexual assault cases are extremely difficult to win.

Many cases are “he said, she said,” according to Gray. There may be delayed reporting or no physical evidence; the victim and the offender may have had or in some cases, continue to have a consensual sexual relationship.

“The public is gradually learning, but we still haven’t gotten to the point where we’re going to be able to get 12 jurors to find beyond a reasonable doubt that something occurred” in those types of situations, Gray said.

Spohn said that’s not a reason for police to clear a case by exception, though.

“By not making an arrest because the prosecutor said ‘we’re not going to file,’ basically, the police are letting the prosecutor make the arrest decision,” said Spohn.

She said police don’t need to prove beyond a reasonable doubt that a rape occurred, like prosecutors do.

A Different Process In Lexington

The national investigation published earlier this month included data that showed the Lexington Police Department used clearance by exception far less often than Louisville.

Lexington Police cleared 27 percent of rape cases between 2014 and 2016, mostly through arrests. About 8 percent of rape cases were cleared by exception.

Lt. Ann Welch, who oversees the agency’s special victims section, said her unit strictly follows FBI guidelines. She said they leave some rape cases open, marked pending.

“We let [victims] have as much input as possible,” she said. “We try to do the right thing. It’s not always with an eye on the stats.”

They also don’t ask prosecutors to approve or decline rape arrests.

“Our prosecutors do not dictate which cases move forward,” Welch said.

Louisville and Lexington have comparable arrest rates for rape cases 21  and 19 percent, respectively, in 2016. That puts both police departments in the middle of the pack of the 64 cities that reported clearance rates to ProPublica.

Halladay, the LMPD spokesperson, said the department is proud of its arrest rate. When asked about why LMPD didn’t make arrests in the 373 rape cases that were closed by exception, she said that the department did all it could.

“The implication that you make when you phrase it that way is that we know who a bunch of rapists are, and we choose not to prosecute them,” she said. “We are working with our partners to make sure that we have exhausted all avenues and determine whether or not there can be a prosecution in that case.”

Halladay and Gray, of the commonwealth’s attorney’s office, both stressed that just because a case is cleared by exception doesn’t mean it can’t be reopened.

And sometimes they are, after an accused rapist strikes again. Gray said a jury is more likely to convict with two victims than one.

“Realistically, we know that these people are going to reoffend,” Gray said. “I think a lot of these people commit these offenses believing that they’re going to get away with it. And if they do in the form of an acquittal, I think it makes them all the more dangerous.”

Gray said sometimes all her office can do is make sure the police gather evidence about an alleged rapist and wait for a second victim.

KyCIR is interested in speaking with anyone who has reported a rape to the Louisville Metro Police Department since 2010. Fill out this form – your answers, name or information will not be repeated or used in a story without your permission – or call the reporters below.

Alexandra Kanik contributed to this report. Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544. Contact Jacob Ryan at jryan@kycir.org or (502) 814.6559.

Eleanor Klibanoff covered Rust Belt decline and revival in Pennsylvania. She also worked for NPR and attended the George Washington University.
Jacob Ryan is a reporter for the Kentucky Center for Investigative Reporting.