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D.A.: The New York Times got it wrong
by Sean Carroll
Both Anna's lawyer and the Times have responded to Tantillo's claims. Their responses can be read below Tantillo's comments.
Geneva, N.Y. -- Ontario County's District Attorney said the New York Times got it wrong.
Sunday's front page report, about a Hobart and William Smith College student who claimed she was raped, portrayed a case that was fumbled by not only the school but law enforcement, as well.
District Attorney Michael Tantillo said, however, the The Times picked the wrong case to highlight the issue of rape on college campuses.
The report shows a process that resulted in no criminal charges or school discipline against members of the football team who were accused of rape.
The alleged victim was weeks into her freshman year and goes by "Anna".
The Times highlighted portions of a transcript from the college panel that reviewed this case - a panel that seemingly lacked basic understanding of sexual assaults.
The report also pointed out errors in police reports and a criminal case that was quickly closed.
Tantillo told 13WHAM that The Times, in this case, got its facts wrong.
"Once you start piercing the facts of this particular case, anyone who has access to the information knows that the actual facts do not support the conclusions drawn in this particular case by the Times," Tantillo said. "The Geneva Police Department met with the alleged victim and her mother and urged them to pursue the case criminally. They declined. In the first two or three weeks after this was reported, I believe the Geneva Police met with them or spoke with them or their attorney at least six times urging them to pursue the case criminally so they could conduct a real investigation. They were rebuffed every single time, and in fact, the alleged victim's first attorney told police - 'I don't want you contacting her anymore, don't talk to her.'"
Tantillo went on to say he is not one to shy away from these cases but can only pursue them when there is sufficient evidence.
Additional Comments from D.A. Mike Tantillo:
Witnesses: "Many witnesses testified that the alleged victim and the suspects were together voluntarily, engaged in sexual contact voluntarily. Even after the first alleged act, when she had the chance to leave with her friends, she said she wasn't going to and she was going to continue to go with the person who is listed as the suspect."
"She actually was quoted as telling a friend of hers that she was going with this other suspect because he wants to have sex with her...I mean, there's a lot of evidence in this case that was not referenced at all in the New York Times article. Essentially all of the evidence that would indicate this was a consensual act was omitted from the article."
Consensual or Criminal? "I have other documents as well, including Geneva city police reports. I reviewed them all several times and, in all honesty, this is not a close case. There is nothing to indicate this is anything other than a consensual encounter."
"At the time I was presented this, I advised the police, we do not have a basis to go forward with any criminal case. It's not even close. Upon my review of this entire file, my conclusion is the same."
"If I had a different conclusion, I would convene a grand jury to hear the allegations in this case. But I really only am ethically empowered to do so if I have reason to believe there is a reasonable basis that a crime was committed, that criminal charges could be returned and that I could gain a conviction. I do not have that reasonable basis in this case and therefore it would be ethically inappropriate for me to pursue a criminal case if it's just not there."
Prosecuting these cases: "I think our office is as aggressive or more than any other in the State of New York in prosecuting these cases. I have personally prosecuted many date-rape or acquaintance-rape cases, including athletes from Hobart William Smith College. If you remember, I tried the Preston Wido case a few years ago, he got six years in prison after assaulting a student there. I don't shy away from these cases but I also have an ethical responsibility to only pursue cases when there is sufficient evidence to warrant it. I have a responsibility under the law and under the canon of ethics to not just gain convictions but to do justice and that means I am duty-bound by my oath not to bring charges when I don't believe there's reasonable cause to believe the crimes occurred. And this case falls in the category."
The rape kit test: "The police learned that she had gone to Thompson Hospital for an examination and a rape kit was collected. The police asked her attorney for access to that kit so it could be sent to a crime lab for analysis. The attorney said no, we only want this for civil purposes; it was never given to police, it never went to a crime lab. Months later, they sent it to a private lab in another state but there is nothing we can do anything with.
"For six months they rebuffed every effort by the police department and my office to get involved in this investigation and only requested an investigation a half year later after the disciplinary hearing went against the alleged victim and the appeal from the hearing went against her. You know, six months later it's really too late to do an effective investigation, especially when we have been deprived of all the evidence that was collected in the case.
"When they did request that, the Geneva Police Department reopened the case and collected as much evidence as they were able to, of course we're only able to rely on statements by security now. We were never given access to the physical evidence that was collected by the attorney and, based upon a review of everything that was collected at that time, it was the determination of the Geneva Police Department that no conclusion could be drawn other than this was a consensual activity. My own independent review of the same evidence resulted in the same conclusion."
On the NY Times Report: "The way the facts in this case were portrayed in that article was fundamentally unfair. Again, from the perspective that a lot of contrary evidence of consensual activity was never referenced in the article and a lot of the stuff that was referenced in the article was twisted grotesquely out of its original context or meaning."
"I actually have a couple of real complaints with the article. I have read the entire transcript of the proceedings before the review board several times. I've also read the New York Times article several times. I have a couple of pretty significant concerns. First, the New York Times omitted references to the vast majority of evidence indicating this was a consensual act. Secondly, on a number of occasions, testimony was presented at the hearing was taken completely out of context and the meaning was twisted entirely opposite in the New York Times article from what was actually said at the hearing."
On the hearing transcripts: "The alleged victim said she didn't recall what happened, that she only knew about what happened because of what someone else told her. So the review board asked her repeatedly 'what did this person tell you he saw? What did he say specifically?' They were just trying to get at what the alleged victim had been told by her friend. That was not referenced in the article. Instead the text was completely twisted to make the review board look frankly foolish."
The New York Times:
Our article was an examination of the disciplinary process involved with the allegations of rape at Hobart and William Smith. It was not an attempt to establish guilt or innocence. That is the job of a prosecutor.
As we reported, Mr. Tantillo decided not to pursue the case. He said his review included Geneva police reports. Our examination shows that one of those reports, which summarizes the facts, was riddled with inaccuracies.
Mr. Tantillo's claim that "essentially all the evidence that this was a consensual act was omitted from the article" is flatly untrue. In various places, our article reflected the accounts given by the accused. It also recounted an instance where a friend tried to stop Anna from leaving a party with one of them, but she went anyway. Similarly, Mr. Tantillo's accusation that The Times took quotes from the disciplinary hearing out of context is false, as any fair reading of the passages would show.
NOTE: The New York Times provided a small passage of the hearing transcript obtained in the course of its investigation. The nature of the transcript is graphic and names parties involved in the incident. So as to avoid any further suspicion or confusion 13WHAM News is holding off on releasing that small passage. 13WHAM News is also attempting to further corroborate the content of the transcript while also hoping to provide further context by obtaining more of the transcript.
Anna's core story of what happened in that fraternity room has not changed since she remembered the assault. Anna has been very honest that she does not have a full memory of all events and at the outset she had no memory. That is not uncommon in rape cases. Don't forget, she was not the one who called the police; it was third parties who were concerned that she had been drugged and raped. She still has no memory of the pool table assault at the barn and that was observed by an eye witness. Anna made changes to a statement to the police to correct it when she was speaking to the police but for the police to characterize that as changing her story is highly misleading. It is the prosecutor who tellingly misstates the record against Anna when he says "she actually was quoted as telling a friend of hers that she was going with this other suspect because he wants to have sex with her." That is not what was said. There was no BECAUSE. The New York Times had it right. It is the prosecutor who is misquoting and being unfair--however his interpretation explains a lot about his decisonmaking in this case.
It is astounding to me that the police did not see any alterations in the football players' version when reporting to the prosecutor despite the football players' own admissions of not having "come clean" and lying previously. Even without those admissions, a simple comparison of their stories as was done by the New York Times makes clear how much they lied. That alone should make anyone wary of depending on the police in this case and the foundation upon which the prosecutor made his decisions.
For me one of the most critical facts is that Anna's statement to the campus police and before there were any medical reports known or lab tests is consistent with the medical records showing blunt force trauma, the SANE nurse determination of multiple partners or very forceful sex as well as the forensic evidence showing the presence of sperm and semen. Those same records are completely inconsistent with the statements of the senior football player yet the police and prosecutor believe the football players and disbelieve Anna. The prosecutor overlooked the true nature of this case; it was not a he said-she said. It was a she said, an eye witness said and the suspect said it didn't happen. How can this be a consensual act when the senior football player denies there even was an act because he was too tired from football to get it up? Why is it that Anna is the one to be disbelieved?
The prosecutor is seriously misstating the record as to the rape kit testing. When I came on the case I wanted the police to do the testing and to do it right away. We were advised in no uncertain terms that they would not do the DNA testing unless Anna was willing to file formal charges and make a formal criminal complaint. Otherwise we would have to have it tested civilly. Anna had felt discouraged from going through the police process by a school administrator and at that time we had some confidence in the school system to do justice on appeal. As to the testing itself, it was done by a very reputable lab that handles many police investigations. The rape kit has been preserved for DNA testing. We have a clear chain of custody and I do not think even this prosecutor can claim that Anna fabricated the semen and seminal fluid. In bringing criminal charges after the school's decision, it was our expectation that the police would be able to obtain DNA to compare as we would not have access--one of the reasons Anna decided to go through with criminal charges. The police did not do so and now they are blaming the victim once again because they refused to have the rape kit tested unless formal charges were filed and did not obtain DNA for comparison before completing their investigation once she did bring charges.
The prosecutor's view of this case is very disturbing. It is true that Anna does not have a complete memory but does the prosecutor in this case believe that Anna made up the SANE nurse conclusion of sexual assault? Did Anna fabricate the physical evidence of blunt force trauma? Did Anna fabricate the sperm and seminal fluid? Did Anna fabricate the text messages she sent that night about being scared and that he won't leave me and the text messages from the girl enlisted to contact Anna to go over the senior football player's story? Did Anna fabricate the eye witness?
The double standard of credibility of victim versus football player continues to endure and is particularly heartbreaking in this case. While Anna is labelled the liar (though what her motive is remains unclear) this case shows that it is acceptable for the accused rapist to admit to lying is exonerated even on the issue of whether he is a liar-at least by the police. I have to say that having done criminal defense work for nearly 25 years it is not my experience that it is the innocent who lie repeatedly when they are confronted with a crime. Not only did the senior football player (and the other accused) lie but the senior football player repeatedly enlisted other people to contact Anna in direct violation of a no-contact order. Is this another strategy of the innocent? In my view, this is the perfect case to see not only how broken the system is, but how double the standard remains against victims and women and why women who report such crimes are vilified even by the agency that purports to do justice on their behalf.
It is one thing to say (as the prosecutor did to me) that there is not enough evidence to prove guilt beyond a reasonable doubt because the guy has lawyered up and has had time to change his story and it has been too long after the event and witnesses have been contacted and Anna's memory is incomplete. It is quite another thing to throw the survivor under the bus by attacking her credibility in the press in order to justify a decision that has come under fire. Little wonder that survivors avoid going to the police in these cases; if they ever doubted it before, they will certainly have a clearer picture now given Mr. Tantillo's comments. Anna certainly does.
You can read the original report here.