THE BLOG
09/14/2013 02:46 pm ET | Updated Nov 14, 2013

A Problem of Evidence

Click here to read an original op-ed from the TED speaker who inspired this post and watch the TEDTalk below.

Anas Aremeyaw Anas' "immersion journalism" approach to rooting out corruption and human rights violations in Africa is noble, effective, brave.

It's a brand of reporting that seeks honest answers to difficult questions and deploys facts toward justice. He gets wrongdoers thrown in jail and his work leads to tangible reform because, as he puts it in his TEDTalk, his potent undercover footage provides "hard-core evidence" of malfeasance.

Evidence is a powerful way to challenge deeply inhumane wrongdoing. But it also raises the question: What happens when evidence is hard to come by in individual acts of violence, like rapes and sexual assaults?

That's an issue my reporting partners and I encountered when we spent a year investigating the ongoing sexual assault and rape of agricultural workers in the United States.

Our reporting team -- journalists at the Investigative Reporting Program at UC Berkeley's Graduate School of Journalism and my reporting partner at The Center for Investigative Reporting, Grace Rubenstein -- traveled to farming communities across the country, from Washington to Iowa, California to Florida.

Wherever we went, we heard excruciating stories. There were the female workers at an Iowa egg processing plant who say they were routinely raped by the same supervisors in company trucks and boiler rooms. And there was the Oregon tree farm employee who says she was forced to have sex with her boss while he held gardening shears to her throat.

We learned that the problem is el secreto a voces -- the open secret -- in America's fields and packinghouses.

But these violations rarely led to criminal prosecutions. Two-thirds of sexual assaults and rapes go unreported and even when they are, law enforcement and prosecutors may decline to take on the case.

Why? Not enough evidence.

The standard of proof in criminal cases is high, and these crimes are often committed in private, where there are no witnesses to corroborate the claims. These are classic he-said, she-said cases.

Even rape kits often aren't enough -- they can only prove that sexual intercourse had taken place, not that there had been the use of force.

Kris Zuniga, a police sergeant in the California farming town of Avenal has investigated and testified in a farmworker rape case. He said that with or without physical evidence, it's hard for rape victims to win criminal trials.

Here's why: "If you get into a courtroom and there is no physical evidence, it's a tough nut to crack," Zuniga told us. "If there is some evidence, he can say it was consensual and then you're back to a he said, she said."

Prosecutors say they have to be strategic in the cases they take, and the he-said, she-said nature of rape and sexual assault cases present significant challenges. "Ultimately, it comes down to what you can prove," says Randy Flyckt, the prosecuting attorney in Adams County, Wash.

Flyckt said that this means that prosecutors can't always pursue rape or sexual assault cases, even when they believe that the crime took place. "Prosecutors are always facing situations where we have a very strong hunch that someone may have committed a crime, but we may not be able to prove it," he says.

It's hard for all sexual abuse victims to produce physical evidence. A recent government study found that only half of the rape or sexual assault reports spur law enforcement investigations, which collects evidence in 19 percent of cases. In the end, one in 20 rape cases leads to a felony conviction.

For victims who are agricultural workers, a favorable outcome in the criminal courts is even less likely. The majority of farmworkers are from Latin America and some came to the country illegally. Although there are special visas for non-citizens who aid a criminal prosecution, agricultural workers are less likely to report a crime because of language barriers, fear of deportation and concerns that they'll lose their job. And when they do come forward, their cases are no more likely to see a criminal prosecution.

The case of Olivia Tamayo offers a window into the challenges that farmworkers, in particular, face when they are sexually abused at work.

Tamayo worked for Harris Farms, a major agribusinesses based in California's Central Valley, and she said she was raped by a gun-carrying supervisor named Rene Rodriguez in a desolate almond orchard just after her mid-morning break. Rodriguez would then force himself on her twice more, she said.

The U.S. Equal Employment Opportunity Commission filed a lawsuit on Tamayo's behalf, using civil rights laws that make workplace sexual harassment illegal.

But civil sexual harassment lawsuits are an imperfect way to address allegations of violent crime. For one, it's the company that faces trial, not the alleged perpetrator.

Tamayo's case went to trial in 2004 and the jury returned a verdict in her favor, finding that the company had not done enough to prevent the rapes. She was awarded $800,000.

But the Fresno County Sheriff's Office did not investigate the case and Rodriguez was never criminally prosecuted.

The accused supervisor retired in 1999. At a recent interview at his South Texas home, Rodriguez denied the allegations. "No, no, no, no," he said when we asked him about Tamayo's rape accusations. "If that was how it was from the beginning, I would have been jailed or something."

Rodriguez insisted that he and Tamayo had dated and she had only accused him of rape because she wanted money. The owner of Harris Farms also told us that the relationship between Tamayo and Rodriguez -- which they say they did not know about at the time -- had been consensual.

Tamayo's case fits a larger pattern. Our reporting team looked at dozens of federal sexual harassment cases involving farmworkers who claimed that they had been assaulted or raped on the job. We could not find a single case that led to a criminal prosecution.

Even a 2002 case involving rape claims by five women at an egg factory in Iowa -- which prompted an investigation by the FBI and local law enforcement -- did not result in a criminal prosecution.

Retired Wright County Sheriff Paul Schultz took statements from the Iowa egg factory workers who reported that supervisors had routinely raped them. He told us with regret that the local prosecutor told him that despite the police reports he collected from multiple women, there was not enough evidence to take the case to court.

Law enforcement and prosecutors say that the cases that have the greatest chance of succeeding involve victims who report the rape or assault immediately.

Since our reporting project debuted in June with documentaries airing on PBS Frontline and Univision, plus articles printed in newspapers like the Seattle Times, we have received calls from prosecutors who are interested in improving the relationship between law enforcement and farmworkers.

Though the challenges of proving rape and sexual assault cases remain, that's one solid step toward making sure that when there is evidence of violent misconduct, it's collected and eventually, deployed toward justice.

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