Caught in the gray zone
When Emily Smith reported she was raped, a prosecutor believed her. But believing her was not enough to be able to prove it in court.
Hours are missing from her memory of that Saturday night.
It was Sept. 28, 2013, and Emily Smith was starting her first semester as an IU senior. She can still recall the beginning of that evening, when she put on her favorite blue chiffon shirt before heading out to the bars with her roommate. She can still hear the loud music pulsing from the dance floor at Kilroy’s Dunnkirk. She remembers sharing drinks with her roommate and other friends.
Then it all went black.
When she came to several hours later, a man was moving on top of her, having sex with her in her own bed. She froze. Somewhere in the darkness, she could hear her phone vibrating. She wanted to answer it, but her hands were so numb she could not move them. Then she lost consciousness again.
When Emily, 22, woke the next morning, the man was still in her bed. She recognized his face from seeing him on a couple other nights at Dunnkirk, but she had only fleeting conversations with him and knew nothing about him. Even though she couldn’t remember what happened between them during the missing hours at the bar, one thing was clear to her that morning: she had been violated. Yet the man acted like nothing was wrong.
One year later, Emily has decided to share her story in the Indiana Daily Student. By allowing readers to know her name and see her face, she said she hopes to show others that what happened to her could happen to anyone.
When the IDS contacted the man for his version of that night, he declined to speak on the record and asked not to be identified other than by his first name, Phil. Now 24, he lives outside Bloomington and has never been an IU student. Phil said he had no idea that Emily was as impaired that night as she describes. He said the sex was consensual.
The night after the incident, Emily reported a sexual assault to the Bloomington Police Department. For months, she worked with police to piece together what had happened and to provide any evidence showing that she had been unable to give consent.
When talking about rape, most people long for the clarity of a stranger jumping out of the bushes with a knife. But the majority of rapes are committed by someone the victim knows, in situations that aren’t so black and white. This makes it much more confusing for the victim and much harder to prove in court.
“It’s not stranger danger,” Emily said. “It’s your neighbor. It’s your friend. It’s the cute guy you met at the party who you’re really hitting it off with.”
Her case, like so many others, unfolded in a gray zone — a tangle of missing memories, mixed signals and unclear intentions.
Darcie Fawcett, the sex crimes deputy prosecuting attorney for Monroe County, evaluates all cases of reported sexual assault submitted for prosecution. Having reviewed Emily’s case, Fawcett said she believes Emily was in fact raped. But the prosecutor understood that believing is not the same as proving something to a jury beyond a reasonable doubt. Ultimately, she decided not to charge the man in Emily’s case.
Emily was devastated. As it turns out, the outcome of her case is extremely common in Monroe County.
According to public records supplied by police and prosecutors, 712 cases of alleged rape, sexual battery and other sexual assaults were reported to the Bloomington and IU police departments between January 2008 and early November 2014.
Of those cases, only 58 — about 8 percent — led to criminal charges.
Emily’s story is worth telling not because it is extraordinary but because it is so typical. Her account is a case study in how difficult it is to prove sexual assault.
Her rape, Emily said, was confusing, shameful and traumatic. But what happened next was an ordeal in and of itself. Over and over, she uses one phrase to describe what it was like to report a sexual assault and take her case into the criminal justice system.
“It’s a clusterfuck.”