Blinders on: Denver DA refused 7 of 10 felony rape cases

DENVER -- Brittany, a 20-something-year-old former Denver resident, had always considered herself cautious when it came to first dates. Like many professional single woman, she had tried several social media apps as a way to meet others.

RELATED: Why FOX31 identified a sexual assault survivor

One evening in July 2015, she swiped her phone’s Tinder screen the “like” direction. A man who described himself as a pilot replied in kind. The pair texted back and forth, deciding to meet at a local hotel and bar, NATIV.

Brittany

Brittany

Brittany said she picked that location because she knew the doorman and the bartender, and that some of her friends would be there. Brittany described it as a “safe place.”

By all accounts, the first hours of the date went well, but as midnight turned into the early-morning hours, she told the man she needed to head home. He offered to drive and drop her off at Brittany’s secure apartment building.

When they arrived outside, she reported her date instead pulled into a parking garage and asked to come up to her place for some more conversation. The Denver police report states neither used drugs or had more than a few alcoholic beverages that night.

In a recorded witness statement contained in Denver police records, Brittany said she told the man clearly “nothing was going to happen that night.” His witness statement agrees that is what Brittany said.

“There weren’t any huge red flags,” Brittany said. "He said 'Now I feel stupid.' I said, ‘Why?’ He was like, 'I thought we had a great night.' I said, ‘We did?’”

As it got even later, Brittany started to feel pressure to let him stay until sunrise.

“It was one manipulation after another, making me feel bad," she said. "It was getting late and he didn’t want to have to drive home.”

Brittany said she agreed to let him stay in the apartment, but again reiterated her “no sex” stand.

"We had a conversation that nothing was going to be happening and he said he was okay with that," she said.

When asked if she gave him a clear no, Brittany said, "Yes. We had a complete conversation over that. We both agreed on nothing happening.”

Police reports state Brittany waited until the man was asleep before going to bed, along with her computer and her dog. Brittany also told detectives she put on shorts and pajamas.

What happened next is also listed in the police report.

“She did not know how long she was asleep and she woke up on her stomach and was disoriented. Someone was having sex with her when she woke up. She was face down and her hands were behind her. She tried to scoot to the side of the bed to get leverage to get up because he was holding her hands behind her. She was trying to move around. She was resisting and it was happening and she quit struggling because she could not get off her bed.”

What Brittany did next is described by sexual assault experts as exactly what a sexual assault victim should do: She called police. She didn’t shower. She went to the hospital to undergo a rape exam.

The examination indicated Brittany had been raped and received multiple injuries during the alleged assault. Photos taken at the hospital showed large bruises on Brittany’s lower back, arms and legs.

Brittany, in an interview with FOX31 Denver.

Brittany, in an interview with FOX31 Denver.

“You could see fingerprints on each of my arms because I was pinned down,” Brittany said. "Thumb prints on each of the back of my arms. There was a bruise on my neck and then two large bruises on my back where my arms were pinned down and one on my wrist.”

But what Brittany thought was a “slam dunk” rape case never materialized.  A year later, the Denver District Attorney’s Office told Brittany it was not going to file charges. The DA’s office put it in the category of “Refused by the DA -- No Likelihood of Conviction.”

"Dragging me through the mud for a year never mattered -- it didn’t make a difference," Brittany said. "It was incredibly frustrating but at the same time, they are ultimately saying to me as a victim that you’re lying. His statement trumps what you’re saying.”

His statement was not made available through public records, but a summary of it sheds light on the suspect’s view of the date.

"He woke up to her grinding on him and thought she had changed her mind so they continued and then when it was over she acted weird and told him to leave. So he left," the suspect told police.

He also told police, “He woke up thinking she wanted attention so he gave some to her.”

Police records show the suspect hired a defense attorney who formerly had spent many years working as a prosecutor at the Denver District Attorney’s office.

Because the suspect was never charged, he is not being identified. The man's attorney declined to add anything further beyond the client’s statements to police.

The Denver Police Department recommended that the suspect be charged with first-degree sexual assault, a felony.

Three-term DA Mitch Morrissey and other employees in the office spoke on background about Brittany’s sexual assault case file, but citing privacy concerns, declined to address the specific reasons the office refused to prosecute.

Morrissey agreed to his office’s statistically weak sexual assault prosecution rate and the difficulties of pursuing rape cases in the modern world of dating through social media apps like Tinder.

Refused by DA -- No Likelihood of Conviction

Files on felony sexual assault cases from from the Denver District Attorney's Office.

Files on felony sexual assault cases from from the Denver District Attorney's Office.

The FOX31 Problem Solvers analyzed every felony sexual assault case investigated by the Denver Police Department and presented to the DA's office from August 2014 to August 2016.

Of the 398 cases, the DA refused or dismissed entirely at least 278 of them. That's seven out of 10 rape victims who never got their day in court.

Of those, 222 were stamped with the same code: “Refused by the DA -- No Likelihood of Conviction.”

An analysis of the remaining 120 cases where someone was charged with a sexual offense found 43 adult rapists were convicted, with 27 sentenced to prison.

Denver District Attorney Mitch Morrissey in an interview with FOX31 Problem Solver Chris Halsne.

Denver District Attorney Mitch Morrissey in an interview with FOX31 Problem Solver Chris Halsne.

Morrissey said he expects Denver detectives to bring him every single sexual assault complaint so his team of prosecutors can make the decision whether or not to charge. Some other jurisdictions allow police to decide which cases are good.

“Would you rather have a district attorney saying that the elements of sexual assault are there or aren’t there or a sergeant from the police department? They don’t have law degrees,” Morrissey said. "Does that make our statistics look bad? I’d rather have our statistics look bad than have a victim be overlooked.”

Although Morrissey and his staff rereviewed Brittany’s case file, citing privacy concerns, they declined to go on the record as to the specific reasons they refused to prosecute.

Morrissey did understand Brittany’s case is similar to hundreds of others they declined.

“She says this wasn't consensual. He says it was,” Morrissey said. "You make sure you have what you have when you charge somebody with rape. That's a very serious allegation in this state. It carries a life sentence.”

Denver District Attorney Mitch Morrissey, holding a sign from the "Start by Believing" campaign.

Denver District Attorney Mitch Morrissey, holding a sign from the "Start by Believing" campaign.

“It sounds like you're weighing toward the accused rapists to give them a better break than the victim?" Morrissey was asked.

"When you say the system is weighed toward the rapist, towards the defendant, it is and it always has been," he said.

“I think the victims I've talked to who feel they haven't found justice from this office just want you to roll the dice a little,” Morrissey was told.

“We have the burden of proof. This isn't a ‘toss-up'. This isn't something you just throw up to the wall and see what the jury does,” Morrissey said. "That's not our business and it would be unethical to behave that way.”

Morrissey reiterated he is far from soft on sex crimes, citing his construction of a special sexual assault unit, expansion of cutting-edge DNA equipment and a new crime lab, plus an innovative Title IX program on college campuses.

And rapes tied to social media app dates aren't making prosecutions any easier, here or anywhere else in Colorado.

15 Tinder app rape reports in less than two years

Brittany’s case was not the first Tinder app-related sexual assault investigated by local police. There were eight alleged Tinder app rapes in Denver in the past 18 months.

Tinder, a dating app.

Tinder, a dating app.

Research located five more Tinder rape complaints in Colorado Springs, and one each in Boulder and Aurora over that same time frame.

A number of additional law enforcement agencies in Colorado could not locate Tinder app-related cases because they had no ability to conduct keyword searches.

Karmen Carter, executive director of the rape crisis center The Blue Bench, said dating apps have added a new way for perpetrators to pick potential victims.

“Unfortunately, all of the dating apps, we have victims who have met people through those, in that that way,” Carter said.   “It’s never the victim's fault and so by going out on a date with someone met on Tinder doesn’t mean you did something wrong. Perpetrators have a purpose, so they are going to be super nice, do a lot of good things because they have this goal to ultimately hurt someone.”

The Blue Bench did not criticize the DA’s office, but did compliment the Denver Police Department.

Carter said police have fully embraced the national campaign "Start by Believing," promoted by End Violence Against Women International.

“Our community, our culture really doesn’t support victims of sexual assault,” Carter said. “Victims of sexual assault are often not believed. Their behavior is almost always questioned.”

Carter emphasized The Blue Bench works with survivors who might or might not want to seek justice, but it’s important to walk with them through the healing process either way.

“It makes a difference; if the first person they tell believes them, a friend a family member, hotline or police, if that first person believes them they have more hope others will believe them,” Carter said.

As for Brittany, she said she hopes her treatment gives other rape survivors the courage to move forward.

“I have nothing to be ashamed of, so by me reporting it, I wanted to save someone else from what I had to go through,” Brittany said. “A sexual assault is a sexual assault. Like, just because I agreed to meet someone and go on a date and I ended up being assaulted doesn’t make it any less of an assault.”

If you've been sexually assaulted and need help, visit TheBlueBench.org. You can call the sexual assault hotline at 303-322-7273 or 888-394-8044. For help in Spanish, call 303-329-0031.

If you need to report a crime in Denver, visit Denvergov.org.