When Stephanie Stewart invited a home security sales representative into her Carmel home in June 2019 to give her a cost estimate on an upgrade to her system, she had no idea the encounter would leave her traumatized and covered in bruises.
The sales representative arrived around noon. Shortly after, Stewart blacked out. He left over four hours later — three hours before an unconscious Stewart woke up to a body inflamed with pain. She would later have flashes of memory, telling him to stop.
The next day, she reported to the Carmel Police Department that she had been raped in her home.
But when law enforcement presented her case to the Hamilton County Prosecutor’s Office, their response brought her more suffering: They wouldn’t be pursuing criminal charges against the man she alleges raped her.
“I immediately just started sobbing. Like, I was devastated,” Stewart told IndyStar. “I couldn’t believe it.”
Stewart’s experiences with prosecutors in the following days and months convinced her that the state’s laws against rape need to be strengthened. Various Indiana lawmakers have pushed for reform for years, but for reasons often left unclear at the Statehouse, they are having trouble reforming the law despite bipartisan support.
They hope this year is different.
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Stewart hopes no one has to go through what she did to prove her rape, only to not have charges filed. In an attempt to understand what had happened to her, Stewart saw medical professionals at St. Vincent Hospital, who performed a forensic examination on her body.
“It was evident from exam that this was a non-consensual act,” one nurse practitioner wrote.
Likewise, video footage from a neighbor’s security camera showed the suspect leaving her house hours after their scheduled appointment, according to an attorney she hired.
The Hamilton County Prosecutor’s Office did not respond to requests for comment by IndyStar. Stewart said the office told her it refrained from launching a court case because her toxicology report came back negative.
She said she was told by a deputy prosecutor that Indiana’s consent laws are inadequate. The lack of a broader legal definition of “consent” would have made it difficult for them to argue her case in court, they said.
Rape law loophole
This legislative session Rep. Sharon Negele, R-Attica, is pursuing a bill with Rep. Sue Errington, D-Muncie, and Rep. Donna Schaibley, R-Carmel, to fix what they see as a glaring loophole in Indiana’s rape law.
Indiana law states that intercourse is only considered rape if it’s done by force or if it occurs with someone who is mentally incapacitated or unaware that it’s happening.
But what happens when the case, such as Stewart’s, appears less clear cut to prosecutors or juries.
Negele’s bill, House Bill 1079, would clarify that someone commits rape if there is a “lack of consent, expressed through words or conduct.” A person, for example, pulling up their clothes could demonstrate a lack of consent, Negele said. So could verbal phrases, such as “stop.” That bill is scheduled to be heard in the House Courts and Criminal Code committee on Wednesday.
“Typically there has to be some kind of proof of damage to the individual,” Negele told IndyStar. “And we know that rape doesn’t always occur like that.”
It’s unclear how many survivors the bill would have helped. Advocates generally don’t track the number of cases that are deemed unsuccessful because of the unclear rape definition.
But advocates of the change think it could help improve some of Indiana’s dismal rape statistics.
“There’s so much underreporting when it comes to rape, and there’s a tremendous amount of fear,” Negele said. “I just hope that our laws can mirror some other states that have caught on to this and realize that they needed to update their rape statute.”
The language in House Bill 1070 is similar to language from Utah that defines rape as “intercourse with another person without the victim’s consent.” According to the Indiana Coalition to End Sexual Assault and Human Trafficking (ICESAHT), 20 states define consent within their criminal codes. That’s where Indiana lags, they argue.
According to ICESAHT, 20% of Hoosier women have been sexually assaulted, but 85% of sexual assault cases go unreported. Meanwhile, Indiana ranks fourth highest in the nation for the number of reported rapes among high school girls.
“Clearly something is going on in Indiana, where sexual assault is not successfully being identified and prevented and we want to make sure that there is clarity and consistency within the criminal code,” said Beth White, incoming president and CEO of ICESAHT. “We believe that the clarity among our partners in law enforcement — that would be either police officers who are investigating these cases, prosecutors who are bringing and then prosecuting these cases in court — that any kind of consistency is a step in the right direction.”
An uphill battle
Negele’s legislation faces an uphill climb. Various representatives from both parties, primarily women, have championed bills to clarify Indiana’s definition of rape since at least 2015 with little success.
Part of the topic’s demise can be attributed to the general dismissal of bills filed solely by Democrats in Indiana, due to the Republican supermajority in both chambers. Lawmakers are largely at the mercy of what the powerful committee chairs — all Republicans — deem is important enough to call for a vote when time is limited.
But even the bills championed by Republican lawmakers addressing rape loopholes failed to advance until 2021.
In 2021, lawmakers hoping to close the loophole had their first major win: with Indiana prosecutors on board and kinks in the language worked out, the House passed a nearly identical bill to House Bill 1079 with only four dissenting votes. But once it reached the Senate side, Indianapolis Republican Sen. R. Michael Young, the chair of the Corrections and Criminal Law committee and an attorney, was able to kill the bill by himself, never calling it for a vote.
“I didn’t like her bill,” he said during the 2021 committee hearing, when explaining why he wasn’t going to allow his committee to vote.
A spokesman for Young said there was “disagreement on the way the bill was worded last year,” but Young declined to elaborate further or agree to an IndyStar interview.
He also declined to comment on Negele’s 2022 bill, so its future remains unclear. He likely has the power to bottle it up again, if he wants to.
Still, Errington and Negele aren’t giving up. The issue, they say, is too important.
“You’re never totally confident but if you don’t try, you’re not getting anything done,” Errington told IndyStar. “We’ll keep trying and trying to find the right mix of senators who can help Senator Young understand why this is needed.”
‘This change isn’t necessary’
Opponents of attempts to change Indiana rape law argue the bill is unnecessary.
Bernice Corley, executive director of the Indiana Public Defender Council, said that past legal cases have shown perpetrators can be charged for rape when there is no obvious physical force. She pointed to a case from 1883, Pomeroy v. State, in which a doctor raped a woman who had an unspecified mental illness that he was treating. The state found that evidence of force wasn’t necessary to charge him.
“This change isn’t necessary because it’s already Indiana law,” Corley said. “There’s no loophole here at all.”
Sometimes, she added, due to the makeup of the jury, the facts in the case or the strategy of prosecutors, prosecutors just don’t win. That doesn’t necessarily mean there is a loophole, she said.
The issue, the Indiana Prosecuting Attorneys Council said during a committee hearing on the language in 2021, is that some judges don’t allow lawyers to describe past legal cases in their arguments to a jury, which can lead to inequity across the state.
Courtney Curtis, an attorney and representative for IPAC, told IndyStar in an email that she was unable to name specific judges or comment on past judicial decisions “due to the rules of professional responsibility,” but added that judges are given wide discretion to run their courtroom.
“We have disparate treatment for victims and defendants from courtroom to courtroom even without going outside the county,” Curtis said during a 2021 hearing. “This is easier to file, but also easier to defend, if we’re all playing off the same playing card.”
Still, Corley worried the proposed language in House Bill 1070 is too confusing.
“Not only was there no loophole, the proposed language really, I think, would have added a lot of convolution,” Corley said. “We’re just concerned about what the interpretation of this language could look like and it’s just so vague, that it’s just concerning.”
But Emma Walker, a social worker who works at the YWCA in Fort Wayne, believes additional language in the law may have helped her bring a case against the man she says raped her after a night hanging out with some friends in 2014.
Walker, who was a DePauw University student, had fallen asleep on a couch at a fraternity house on another campus when she was awoken by a freshman she had met earlier in the evening. He asked if she wanted to sleep in his bed in a shared dorm area instead, and she accepted.
Shortly after she fell asleep, the student woke her up and raped her, she said. An investigation by the student’s university later found that the incident was non-consensual.
The student was prohibited from residing in the fraternity house, according to a letter from a dean at the student’s university that Walker provided to IndyStar. He was also ordered to take classes on “sexual respect.”
But Walker, who was 19 at the time, never pursued criminal charges. On one hand, she was so distressed by the incident that the idea of having to relive it under the microscope of law enforcement and prosecutors scared her.
She was also deterred, however, because she says she was told by a worker at the women’s center at DePauw University that Indiana’s consent laws made her case difficult to try in court.
“I did not want to be drug through a months-long process if it was going to result in nothing,” Walker said.
Rape by fraud
A 2018 Buzzfeed article painted a clear picture of another potential hole in Indiana’s definition of rape: it doesn’t clearly prohibit rape by fraud. That rare scenario would be clarified in Negele’s bill as well.
The Buzzfeed story detailed the account of a Purdue student who said she had sex with another student, Donald Grant Ward, in her boyfriend’s bed because she believed it was her boyfriend lying next to her. But prosecutors were unsuccessful in charging Ward with rape.
“Just because they are lying or being deceptive doesn’t make it rape,” his attorney Kirk Freeman said in an interview with WLFI at the time.
Corley said it’s unclear whether Tippecanoe County prosecutor Patrick Harrington used all the tools available to him. For example, he could have also pursued sexual battery charges, she said, which a jury might have been less reluctant to find Ward guilty of, due to the less severe punishment associated with it.
“Perhaps if the sexual battery had been filed, which is a level six — the lowest felony there is — than perhaps the jury might have thought, ‘you know I think there’s enough here for that,’ and perhaps he would have been convicted of that,” she said. “But when you have no back up at all and you go for the highest offense, you don’t leave yourself a lot of options for success, if success is defined by a conviction.”
Prosecutors, she said, already have the tools they need in both types of cases. But survivors like Stewart believe additional legal tools, like those in the bill proposed by Negele, could help open a path to justice for more women in Indiana.
“It is important to me because of what happened to me, but I have friends. I have daughters. I have friends with daughters,” Stewart said. “I really hope it gets passed this time.”
Call IndyStar reporter Kaitlin Lange at 317-432-9270 or email her at [email protected] Follow her on Twitter: @kaitlin_lange.
Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at [email protected] Follow him on Twitter @IndyStarJohnny
https://www.indystar.com/story/news/politics/2022/01/12/indiana-general-assembly-lawmakers-try-close-rape-law-loophole/9023171002/