The Final Exam
At the end of August, a twenty-year-old University of Colorado student was kidnapped by six Asian gang members as she walked home in the gray pre-dawn light. They pulled her off the street and into their van with such unexpected force that her feet left her shoes, then drove her into the mountains and raped her for two hours. Then they left her to wander, barefoot and terrified, in Lefthand Canyon. After thirty minutes of walking, she reached a home and banged on the door for help. She was driven to Boulder by police, examined in a hospital emergency room and then taken to a quiet little building in Niwot that houses the Child and Family Advocacy Center -- the parent organization for the county's Sexual Assault Nurse Examiner program.
Here, in a room filled with angel images, she was met by SANE nurse Lynn Kimball and given an intensive three-hour physical examination. "She was very brave and very smart," remembers Kimball. "Those exams are hard to go through. They're invasive.
"Afterwards, we came out of the room, and I walked her down the hall to the kitchen. The rape crisis counselor, the victim's friend and the detective announced they'd just made chocolate chip cookies. There was a pile of them on the table, and the whole place smelled like cookies."
"He Aims to Plea,"
Previous Westword articles
September 24, 1998
D.A. Alex Hunter knows how to keep a lid on crime: Ignore it.
"He Aims to Plea,"
Kimball sighs. "I know it's such a little thing, but I think in times of grief, the things I remember are people bringing food over. I don't know what the victim's experience of that was. She was probably in shock. She hadn't slept for hours. But I hope that somewhere she stored that away, that she was in a safe place."
The SANE program that helped this victim, however, was on very dangerous ground.
Lynn Kimball is a Boulder Community Hospital nurse with 27 years of experience behind her. She has worked in intensive care and with damaged newborns wavering between life and death. She knows how to coach and pace a rape victim through an exam; she communicates visualization techniques and teaches teenagers terrified of needles the breathing exercises used by women giving birth.
It was Kimball who went to Boulder's Community Hospital in December 1997 to examine a comatose Susannah Chase shortly before she died. Chase, 23 years old, had been found on a downtown Boulder street, bloodied and horribly beaten, a puddle of vomit near her face.
"Emotionally, I did what any nurse or doctor does," Kimball says. "You block off the pain...You don't get into that part. You turn it off, the part that looks at what used to be a person and...She was gone. She had been injured so badly, I knew she wasn't going to make it. I just went very methodically through what I needed to do. We always have to take hair from victims. You take these strands of hair and you think, oh, she has beautiful blond hair, and then you stop yourself. You don't go down there. You don't go any further than that."
But then Kimball adds, "There was nothing I thought about other than that case for a long time."
SANE nurses see every kind of case.
Former SANE nurse Cindy Quinlan had graduated from nursing school in 1987 and gone to work in labor and delivery, first at Denver General Hospital and then at St. Joseph's, where she still practices. Like Kimball, she has seen brutality. She speaks of a thirteen-year-old girl, a runaway from a foster home, who was picked up on the Pearl Street Mall by a man who said she could sleep in his camper. The girl had been on the street a couple of days, says Quinlan, and was exhausted. The man drove her to Nederland, tied her up, assaulted her and kicked her out of the camper. She was found wandering the roads at 4 a.m. By the time she reached the center, "she was very belligerent," Quinlan says. "She just wanted to sleep. That's all she wanted to do. So I tucked her up on one of the couches and let her sleep for three hours. After that, she was completely cooperative, just a lovely little girl."
Quinlan also remembers a Longmont woman who had been tied up, stabbed and raped, and came in with duct tape still clinging to her wrists.
Some of Quinlan's cases were simply inexplicable. One woman said a stranger had attacked her in her house, beaten her with a baseball bat and raped her with a broken beer bottle with the cap still on it. The woman had a big knot on her forehead, two black eyes, multiple bruises -- and no vaginal injury. None. Something had happened to the woman, but in terms of rape, "it was a false report, completely," Quinlan says.
She's heard other false reports. A mentally ill young homeless woman came to the center repeatedly, each time having picked up a man, had sex with him and then reported him to police. Every time she came in, Quinlan explains, the woman got a clean set of clothes, clean underwear, a new toothbrush and a teddy bear. "We decided if she came through again, we would give her the clothes, the toothbrush and the bear," she says, "and not do an exam."
Quinlan is aware that some false reports are made by teenage girls whose parents caught them having intercourse. But other cases are murkier. The mores of the current student population differ from those of their parents. Male and female students room together as friends, flop down on each other's beds to talk or watch videos, sometimes cuddle non-sexually through the night. Occasionally a man takes advantage of this informality to rape (see related story, "A Date With Rape"); sometimes -- though rarely -- he enlists the aid of GHB (gamma hydroxy butyrate), known as the "date rape" drug. On the other hand, some women have taken the feminist maxim that a woman should be able to say "No" at any point during an encounter to the height of absurdity.
"I got a lot of, 'I went home with him and took off my clothes but I didn't want to do anything' cases," says Quinlan. "Some of these girls will wait until the man has his penis in their vagina and then say, 'Wait a minute. I don't want to do this.' I felt sorry for those boys."
Often the situation is exacerbated by alcohol and drugs.
Quinlan saw education as an important part of her job. "Some girls are surprisingly innocent, over-trusting," she says. "You tell them about date-rape drugs; you talk to them about ways to keep safe. Sometimes you're just screaming in your head, 'Why did you put yourself in this situation?'
"The hardest thing is the number of really young girls -- twelve, thirteen, fourteen -- who are sexually active. Kids from neglectful families, or whose moms and dads are away a lot and they just need someone to hug them."
The first SANE program in the country was set up in 1975 in Amarillo, Texas, by a nurse named Edith Rust. She worked with local prosecutors, hospital administrators, doctors, police and concerned citizens to create a system that would help rape victims and at the same time provide prosecutors with viable forensic evidence.
In 1997 Judy Houchins, executive director of the private, nonprofit Niwot-based Child and Family Advocacy Center, which takes a comprehensive approach to child-abuse cases with an emphasis on sexual-assault situations, decided to expand the center's scope. Working with Carolyn French, then-director of Boulder County's Rape Crisis Center, Houchins secured grants to set up a SANE program in Boulder County.
Houchins has a background in social work and had previously helped establish two medical facilities in Texas. She had also volunteered with the Boulder County district attorney, and she realized that a SANE program could prove beneficial for that office as well as for the county's rape victims. In fact, two deputy DAs, Mary Keenan and D.D. Mallard, became members of the board charged with overseeing the SANE program.
Houchins asked Dr. Lori Long to be SANE's medical director. Long had moved to Boulder two years earlier to practice occupational medicine. Before that, she'd worked in emergency care in Baltimore; in 1993 she'd helped start a SANE program at Mercy Hospital there. Long had twice testified in court on rape cases; she'd also worked with nurses on their courtoom testimony.
With Long on board, Houchins enlisted the help of Dr. Patti Rosquist, assistant professor of pediatrics at the University of Colorado School of Medicine and a member of the Kempe Child Protection Team at Children's Hospital. Rosquist consults widely on child abuse and has testified in child-abuse and neglect cases in Colorado and around the country. She agreed to work with the center on child assault cases.
SANE supporters attribute the success of the Boulder program largely to the coming together of these three dedicated and knowledgeable women.
Seven more women -- five nurses and two physicians' assistants -- were recruited to take the 48 hours of classroom training and 96-hour practicum required before they could begin performing physical examinations. They learned what to look for in sexual assault cases and how to collect evidence; they were sent into courtrooms to observe legal proceedings. They themselves paid $200 for this training. Eventually, they received remuneration: $1 an hour for the examinations they conducted for SANE. They were paid nothing for the time they spent on call.
In the two years of SANE's existence, these women examined some 140 clients -- every woman who reported being raped in Boulder County during that time period.
The DA's office said it would take a week to document the disposition of those cases. But according to Quinlan's records, which are not complete, in 31 cases there was insufficient evidence to charge; ten were known false reports; thirteen were plea bargains; in six no suspect was identified; and in ten the victim refused to cooperate. There are 36 cases pending for which Quinlan does not know the outcome.
Before the SANE program, Boulder County rape victims were usually taken to hospital emergency rooms, where they might wait hours to be seen or find themselves left with their legs in the air while the entire medical team rushed off to respond to a cardiac arrest down the hall. The atmosphere in an emergency room is usually chaotic; for those who've been through the trauma of rape, it can exacerbate their terror.
One of the SANE nurses, Mariellen Dionne, has spent years working in Denver emergency rooms. She remembers examining a woman at the Niwot center who'd been forced at gunpoint to perform oral sex on her attacker. "All I could think was, thank God she didn't have to spend four hours in an emergency room before she could rinse her mouth out," Dionne says.
When she first joined the SANE program, Dionne, who has been a nurse for 22 years, was astonished at its quality. "I couldn't believe how it had come together," she says. "The nurses averaged twenty years of experience, and they had a great deal of maturity. They'd trained in different fields, from psychology to ER. The center itself was great -- basically, one-stop for the victims. It was an excellent, excellent program. And finding someone like Dr. Long -- that's a needle in a haystack."
In her experience, Dionne continues, nurses and doctors are extremely reluctant to get involved in rape cases. She says she once asked a doctor she worked with if he would consider volunteering for SANE. "He said, 'No way. I wouldn't go near that. They wouldn't get me in court testifying.'"
Theirs is often thankless work, admits Kimball. The victim tends to be numb, angry or in shock. Even understanding the necessity for a pelvic examination, she may feel violated by it. The nurses realize this and take their own sorrow and anger to each other. "I stuck it out because of the work," says Kimball, "and because of the team."
Until this summer, the Boulder SANE program received almost universal praise. Chief Detective Joe Pelle of the Boulder Police Department says SANE saved his officers hours of waiting around in emergency rooms and was "much more friendly to the victim. The nurses are there to support her, and the detective is able to talk to her in a more reassuring, relaxed situation."
Janine D'Anniballe, director of the Rape Crisis Center, says her counselors had "nothing but good to say" about the SANE nurses and their work. Judy Houchins received positive evaluations from the center's board; Dr. Long was given the Boulder County Outstanding Victim Service Provider Award by the DA's office in April.
But by the end of August, Houchins had resigned from the center, as had six of the seven SANE nurses and medical director Long.
Dr. Rosquist said she would see out her commitment to the center, which runs through next June, but made the following statement: "I support the decision of the SANE nurses and the medical director and the executive director to resign. I understand their frustration."
Even as nurse Lynn Kimball examined the CU student assaulted by gang members, Boulder's SANE program was essentially over.
Throughout his 26 years in office, Boulder County District Attorney Alex Hunter has been attacked over and over again for flabby or non-existent prosecution ("He Aims to Plea," September 24, 1998). Critics joke that two groups of people find Boulder the most hospitable place in the country: criminals and defense attorneys.
Chief Deputy District Attorney Mary Keenan, however, has been viewed by many as a shining exception to the office's general mediocrity. Specializing in sexual-assault cases, Keenan has established a reputation as a hard-hitting prosecutor. The mental-health community views Keenan as a highly effective advocate for women and children, according to psychology professor Louise Silvern. "Mary Keenan has been our champion," says Chuck Stout, director of the Boulder County Health Department. "She has brought about the prosecution of folks others wouldn't have touched. She's established enormous credibility with victims."
In 1993, Keenan prosecuted Richard Wallen for sexual assault. Although he had been found guilty of three misdemeanors in Florida and one in Nevada, the judge did not allow testimony on these cases in the courtroom, and Keenan lost the case. After that, she worked with colleagues from the Colorado District Attorney's Council to persuade the state legislature to pass a statute making evidence of prior sexual-assault convictions admissible in sexual-assault trials. "We made a strong legislative declaration telling judges, 'You're supposed to let this in as evidence,'" Keenan says. "Sexual assault is different from other crimes."
The change went into effect on July 1, 1996. At the end of August, Wallen committed another rape. "This time," says Keenan, "we were able to introduce one of the prior incidents, and he was convicted."
"I always loved the irony of that," adds her colleague, D.D. Mallard. "It was the loss of the first case that got everybody's ire up. And we were able to use the first application of the new law against the same person who had been found not guilty previously."
Prosecutors have successfully used the legislation in a number of cases since. Wallen is now appealing his conviction.
During the Boulder SANE program's first two years, no examining nurse had ever been asked to testify in court. But this past July, Mallard was preparing one SANE case for court.
The case was a tricky one. In January, a young woman told Boulder police the following story: She had gone out with some friends after work and walked around the Pearl Street Mall. They had stopped first at a restaurant and then at a bar for drinks and pool. In all, she had consumed a Stoli and cranberry juice and seven beers. She then went to the apartment of Cary Whitaker, one of her friends, and at around 3:30 a.m. decided to spend the night there. He asked if she wanted to sleep on the floor or in his bed; she chose the bed. He loaned her a T-shirt and boxers. Whitaker had previously stayed at the woman's apartment two or three times, and they had slept together without making sexual contact. This time, however, Whitaker began touching her in a sexual way, the woman said. She'd told him, "This is too weird. We're friends," and later said, "No, I don't want this." Then, overcome with drowsiness, she fell into a deep sleep, she told police.
She woke at around 10:30 the next morning, naked. Whitaker, too, was naked. He had his hand on her butt, she told police. She could feel his erection. She asked where her clothes were, and he responded, "Are you cold?" She dressed rapidly and asked him to drive her home. Nothing was said in the car about what had happened, although she was feeling intensely agitated. When they arrived at her apartment, she finally said, "I'm kind of a spaz, but what happened last night? Why was I naked?" She said Whitaker responded, "It was the simplest form of naked."
She assumed the comment was sarcastic but didn't ask for an explanation, just jumped out of the car. Later, with her roommates, she wept. She said she didn't understand what had happened to her. At some point, a friend suggested she go to the hospital to be checked out. She arrived at the Niwot center at 6 p.m. She still did not know if she had been penetrated.
It was Cindy Quinlan who examined the young woman.
Because a rape victim usually does not lubricate or shift her pelvis to accommodate the rapist, rape can cause tissue damage in very specific areas. These vary according to the position of the two bodies and how and where the rapist was attempting penetration. Quinlan documented injuries that she found consistent with the woman's account of events. She also thought she saw non-motile sperm in the woman's vagina.
Mallard filed charges against Cary Whitaker. Despite its difficulties, she had every intention of seeing the case through to the end. "I had actually enlisted the assistance of a woman from CU to educate the jury about being a student in 1999," she says. "That there's more casualness now around shared living arrangements.
"It was an unusual case for us," she continues. "We had an unconscious victim. Because she was so totally unaware, the police and the SANE nurse suspected GHB. They took a specimen from her, but by then, more than sixteen hours had elapsed, and there was no evidence of it. She was completely consistent in saying, 'I don't know what happened to me.'"
Then word came from the Colorado Bureau of Investigation that it had found no trace of sperm on the slides SANE had sent. Now everything hinged on the injuries. Medical director Long had reviewed the videotape of Quinlan's examination; she, too, found areas she thought looked damaged. On Friday, July 23, Mallard phoned Quinlan and told her to be ready to testify in court the following Tuesday. Over the weekend, Quinlan studied Mallard's questions.
On Monday, Mallard learned that the defense had enlisted the expertise of two Boulder doctors, Sherburne MacFarlan and Mary MacSalka, both highly respected obstetrician-gynecologists. Their observations rocked her. "I was totally prepared for the defense to produce an expert to say these injuries could be caused by consensual sex," says Mallard. "I did not anticipate a defense expert to say there are no injuries.
"Both doctors told me it was a perfectly normal presentation of a vagina and cervix."
The DA's office dismissed the case.
Long and Quinlan, who had not been consulted before the dismissal, were left disappointed and angry. "Dr. Long and I were certain we could have presented a good case in court," says Quinlan.
Given the weaknesses of the case -- the drinking that preceded the alleged assault, the plaintiff's confusion about what had actually happened, the lack of hard evidence -- the prosecutors' decision to drop it was understandable. Less understandable were their actions afterward.
On the last Friday in July, Judy Houchins told Cindy Quinlan that, on orders from the SANE board, she was being forced to suspend her from doing sexual-assault examinations. Quinlan was given no opportunity to explain or defend herself to the board.
Quinlan says she thinks the boardmembers did not understand the seriousness of the step they had taken. At a later meeting, one of the members, a detective, compared Quinlan's situation to that of a cop who had shot someone. But for a nurse, suspension threatens licensure.
"I think they felt they could just reprimand me and save face for having lost the case," Quinlan says.
On August 3, a strong letter from Whitaker's attorney appeared in the Daily Camera. It attacked Mallard, as well as the paper for printing her comments on the case. "There was no semen," lawyer Robert Miller said.
And Rocky Mountain Laboratories "could state with certainty that the individual had not been provided with any GHB the night of the incident," the letter continued. As for the videotape, Miller reiterated the two ob-gyns' opinions: "They both stated, absolutely and categorically, that there was an absence of any signs of trauma."
But in reality, the medical facts were not as cut-and-dried as Miller's letter suggested. Although it may seem counter-intuitive, gynecologists tend not to be the best experts on sexual assault. Most doctors in her specialty rarely examine rape victims, says a local ob-gyn who has no connection to SANE or the Whitaker case. There was a time when Boulder gynecologists were called in on suspected assaults, she adds, but "we weren't doing a good job, so the ER doctors took it over."
And the SANE nurses received even more specific training in identifying sexual trauma than the ER doctors. What the eye can see in a pelvic examination, this doctor adds, is usually far more accurate than what can be discerned on a videotape. She herself has not seen the disputed evidence.
Dr. Rosquist, however, has. "While there were some findings that can be normal," she says, "there were also findings that are consistent with acute sexual assault."
But damage can also occur during consensual sex. That's why a diagnosis of sexual assault is made only after putting together several elements, including the patient's history and the medical reports. "It's difficult to make a diagnosis just looking at a videotape," Rosquist says, "and that's not how we practice medicine."
Quinlan had thought she'd seen sperm in another case in which the CBI later found none. It is impossible to tell from these two examples whether Quinlan had a tendency to over-interpret evidence or the lab test was insufficiently subtle to pick up what she had seen. The presence of non-motile sperm is a "difficult call to make," says Rosquist.
In the medical community, problems and disagreements are discussed in full knowledge of medicine's many gray and troubling areas. But the culture of prosecution is different, and Mary Keenan is a prosecutor.
In what Keenan describes as a push for quality assurance, she began calling in people from various disciplines who had worked with or observed the SANE program -- police, administrators, social workers -- and questioning them about any errors or weaknesses they might have observed. "There was no looking for criticism," she says, "just taking input."
"It was like a Star Chamber investigation," counters one observer. "Secretive. Calling in witnesses in private rather than discussing possible problems in the open."
SANE board chair C.J. Galbraith says the board discovered a letter Quinlan had written almost a year earlier to the Colorado Coalition Against Sexual Assault (CCASA), which coordinates the ten SANE programs around the state. Quinlan had complained about CCASA's lack of support for the Boulder program, saying the staff had been forced to spend five months "developing our own policies and procedures, medical forms and protocols from scratch."
When they read Quinlan's letter of October 9, 1998, boardmembers -- who say they had known nothing of SANE's problems with the parent organization before -- were thoroughly alarmed.
"It had been our understanding that for the most part, the program at the Center was a clone of the state program -- in terms of training, protocols and quality assurance," Galbraith wrote in response to Westword's questions. "To be aware for the first time of the deep rift between CCASA and the Center program was deeply disturbing to us."
Despite repeated requests, Quinlan says, the Boulder SANE staff had been unable to get the training, guidance or materials it needed from CCASA. So the protocols originally used by the Boulder program had been developed under Dr. Long's supervision and were based on those used by SANE programs in other parts of the country. After receiving her October letter, CCASA called a statewide meeting of SANE programs, Quinlan says, and Boulder finally received the state protocols and some continuing education.
No one from the board ever asked for an explanation of the letter or to look at the protocols, Quinlan adds.
Keenan met with doctors Long and Rosquist and the SANE nurses early in August. Mallard was not present. Keenan characterizes the session as "constructive"; the nurses call it "the meeting from hell." They say that Keenan was hostile and arrogant, that she behaved as if she were in a courtroom conducting an interrogation, that she spoke darkly of possible lawsuits against the nurses and the center for false arrest, and that she paid no attention to the comments of the two doctors.
"We were absolutely concerned about liability issues," says Keenan. "Our concern was with the possibility that there had been an error. [In the future], if Cindy were to do an exam, give an opinion, and the person was arrested based on that opinion, and two months down the road it turned out there had been a mistake -- and we knew about the possibility of prior mistakes and had done nothing...I intended to make sure that we had an advocacy center next year."
"It was, 'I am right and you are wrong, and I want you to admit you're wrong,' and that's the attitude that prevailed from the beginning to the end of the meeting," says Kimball.
The other nurses were shocked that Quinlan could be suspended simply because, as they saw it, defense witnesses had disputed her findings. "These cases are always controversial," says one. "It would only be a matter of time before it happened to me."
"For us, the issue was trust," continues Kimball. "And the fact that we were treated like dirt. Mary was angry. Incredibly angry at the situation and at Cindy. It didn't make sense to me. What happened that she just flipped?"
A mediator was brought in for a second meeting. This time Mallard was present but Keenan was not. "We met for hours," says Mallard. "I reaffirmed for them the personal commitment we bring to the program. I left thinking we had made a great deal of progress."
She was wrong. The next night, on August 19, four of the nurses tendered their resignations effective September 1. So did director Judy Houchins. Dr. Long had already resigned. Two more nurses would resign in the days that followed.
"D.D. sounded like she really wanted to work this out at the mediation," Kimball says. "But Mary Keenan was not there. She was out of town. We're saying, let's have the meeting when she can be present. She's our primary problem here. If Mary Keenan had made any kind of gesture to us that she personally was sorry for the manner it was handled and was willing to work it through...
"She did not do that, ever."
And so Boulder's award-winning SANE program called it quits.
Mary Keenan is currently exploring the idea of running for Alex Hunter's job in the year 2000. But the current DA's top sexual-assault prosecutor won't find much support from the former SANE team.
Keenan insists that center director Judy Houchins resigned voluntarily. After intense questioning by the board, she adds, Houchins was asked if she wanted to stay on and responded in the negative: "She handed us a written resignation. We had not even discussed whether there would be a resignation, whether we would accept one or not."
Although both Houchins and her attorney declined to speak with Westword, the SANE nurses believe she was pressured into resigning. The board only began discussing the possibility of her staying on, they say, after she retained an attorney.
Mallard says the DA's office, along with the Rape Crisis Center and the Child and Family Advocacy Center, is committed to bringing the SANE program back, possibly under the aegis of a local hospital. Cory Hilser, the one SANE nurse who did not resign, is coordinating the effort, she adds. (Hilser did not return Westword's calls.)
"I feel sad when I think about how much time and energy I've put into this program to just say goodbye and walk away from it," says Marilyn Gandolph, another of the SANE nurses. "But we all have our integrity to maintain. We all have licenses we'd like to keep. Until there are changes in the DA's office, I don't see how the SANE program could come back."
"Everybody looked into their hearts," says Kimball, "and realized, this is it. This program is just blown."
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