Change the law to make prosecution for rape more possible in Nome and across Alaska, experts say

A woman in a purple jacket stares into the distance

This is the third in a five-part series from KNOM called “Seeking Protection, Wanting Justice” that explores the community dynamics around sexual assault in Nome, and efforts by law enforcement to heal long-standing mistrust within the Alaska Native community.

Western Alaska has the highest rate of sexual assault in the state, and those are just the cases actually reported to authorities. And even when a sexual assault case is reported immediately and an investigation is done right away, statistics show most cases won’t go to court. If they do make it, cases can take years to go to trial.

In Alaska, prosecutors and experts say the legal system requires a high burden of proof: Some said an outdated statute dealing with consent ensures most sexual assault cases won’t result in convictions.

Advocates and survivors say it’s time for some of those laws to change. 

Many Referrals, Few Charges

On a late November afternoon, sunlight streamed through the window in the Nome District’s Attorney’s office, illuminating boxes packed floor to ceiling, filled with hundreds of old case files. The files are being digitized. Some of the older, less-serious misdemeanors may be disposed of forever. 

“But the sex cases — we always keep those no matter what happens,” said John Earthman, the Nome District Attorney.

Man sitting at desk being interviewed. Boxes stacked up behind him.
Nome’s District Attorney John Earthman in an interview with KNOM. (Emily Hofstaedter/KNOM).

He said felony cases and more violent crimes will always be kept on file. And Earthman gets plenty of them. Over four years, from 2014 to 2017, police and troopers referred 102 cases of sexual assault and sexual abuse of a minor to the Nome DA, who is tasked with deciding which reports will lead to criminal charges. Data indicates the number of sexual assaults being reported to Nome Police is increasing. 

Earthman, who has been in the Nome DA’s office since the late nineties, gets cases from the Alaska State Troopers, Nome Police, and law enforcement in the Kotzebue area. But it’s sexual assault cases that are most difficult for the people involved, and the most difficult to charge, he said.

“I’m not even supposed to charge something unless I have a reasonable belief that I can get a conviction that I can prove this case beyond a reasonable doubt,” Earthman said.

That’s a strict order from the Department of Law, said Earthman. In the span from 2014-2017, only 36% of sexual assaults on adult victims were charged in Nome. And the rate of charging statewide is barely higher — just 38%. 

The burden is on prosecutors to prove elements of the crime are beyond all reasonable doubt, as in every criminal case. The most straightforward cases include DNA evidence and a confession from the assailant. Earthman said those are rare.

One of the most challenging things a prosecutor has to prove is that an encounter wasn’t consensual — as defined very strictly by state law.

“Without consent, by statute, by law, is ‘with or without resisting,'” said Earthman. “This happens because of force or happens because of a threat of injury.”

In other words, a survivor has to prove they feared physical harm. If they didn’t actively say no, and weren’t physically forced into the act, the State of Alaska could interpret sex as consensual.

Most referrals don’t have enough evidence to speak to Alaska’s legal definition of consent, and therefore don’t meet the definition for assault, explained Earthman.

“That’s where most cases get screened down — that’s what we call it.”

The law is a challenge for educators who want to teach what healthy sexual relationships should look like.

“In the work that we do, consent means it’s an ‘affirmative’ consent. You say you give your consent or you don’t give your consent. If you don’t give your consent, the person doesn’t have it. But that’s not how the law necessarily works,” said L. Diane Casto, executive director for the Alaska Council on Domestic Violence and Sexual Assault (CDVSA).

Not a law that helps survivors

It has been almost 40 years since the definition of “without consent” was updated by the State of Alaska. Survivor advocates say the definitions are highly problematic for a number of reasons.

Keely Olson is the Executive Director of Standing Against Rape. She doesn’t think the law accounts for the way someone typically behaves after surviving sexual assault. 

“Unfortunately, under the law, unless they can express that they fought back — they pushed, they screamed, they made it very clearly known that this was not something that they wanted to do, but rather that they froze and they just lay there — that doesn’t qualify under the statute as a sexual assault,” she said.

That type of “freeze response” behavior can be especially common in previous sexual assault or child sex abuse survivors, Olson said. A recent report from the state health department reported over 13% of Alaskans experienced some type of childhood sexual abuse, and the number is closer to 20% for Alaska Native women. Almost all of the women who spoke with KNOM for this series reported experiencing some type of molestation or rape before they reached adulthood. 

When an adult survivor of childhood sex abuse is assaulted, Olson said, it’s common for their body to remember old trauma responses.

“You’re very likely to go back to the same kind of response that helped you survive as a child, which was to pretend you were asleep, to be very quiet, to not make any noise, to just kind of go away in your mind and wait for it to be over,” she said.

And then there are the cases involving alcohol. It is illegal under state law to have sex with someone who is “unaware,” which includes someone too drunk to consent. But as Earthman pointed out, he still has to prove the assailant knew the person was unaware.  

“We see that as a trauma response, that [freeze response] isn’t really codified in the law,” said Olson.

Prosecutors in both rural and urban Alaska say alcohol is a common factor in sexual assault cases. Often, both assailant and survivor have been drinking, which can lead to troubling situations.

“For example, one person reports, ‘Look, I was so drunk. I know that I wasn’t capable of making a valid consent.’ Pretty traumatic, right? So the cops go talk to the other person. ‘Yeah, I was there. I know. I had so much that if anything happened, I know I could not have agreed to anything that happened between us. I couldn’t have done it.’ I’ve had that scenario,” Earthman said. “Who do you charge there?”

After serving as the DA in Fairbanks, Tom Hoffer now serves as the DA in Bethel. Alcohol is a complicating factor in both places, he said.

“The biggest impediment in prosecution is where alcohol influences someone’s body or impacts them, where they’re not able to remember what happened. And that makes it harder,” Hoffer said. “You know, that’s one of those factors — if a witness doesn’t remember what they saw or what happened to them.”

Man standing behind podium in court house.
Earthman faces the jury, gesturing as he makes his argument in defense of the State of Alaska in 2020. (Emily Hofstaedter/KNOM).

Both prosecutors said drunkenness can’t be used as a legal defense to get away with assault. Even if the assailant doesn’t recall the assault they can still be charged. But prosecution requires more evidence, such as DNA, and strong accounts. Alcohol can shrink the already narrow threshold prosecutors have to prove a case.

The Nome Police Department regularly reports most of the incidents they respond to “involve alcohol,” but that’s a designation left up to the individual responding officer.

Sergeant Wade “Gray” Harrison formerly worked as an investigator for the Nome Police and still assists the department with many investigations, particularly sexual assaults. He said the designation is extremely broad.

“Basically, at any point, during the forensic exam with the victim, if they disclosed that they were drinking, or the suspect was drinking… or if they were at a party where alcohol was involved, that was a factor,” Harrison said. “And it’s just a simple ‘Alcohol-involved?’ Check it.”

Survivors say the NPD’s emphasis on drinking plays into racialized stereotypes about Alaska Native people. 

Some survivors said they felt they were less likely to be taken seriously if they were drinking or drunk at the time of the assault. Most of them reported using alcohol as a way to cope with past trauma or sexual assault. Despite high rates of alcohol misuse, there are no in-patient substance treatment facilities in Nome. 

And when alcohol becomes a complicating factor in why a survivor’s case can’t be prosecuted, it often compounds feelings of self-blame.

Dr. Ingrid Johnson works as an associate professor at the University of Alaska Anchorage Justice Center. She studies different elements of the ways sexual assault survivors seek help.

She said low prosecution rates are often one of the cited reasons sexual assault goes unreported. 

“You don’t want to have to go out, you know, essentially air your dirty laundry out, and have your name dragged through the mud,” she said.

Woman standing on Front Street looking towards the former location of the Nome courthouse. (Brisa Alarcon/KNOM).

Looking for laws to keep people safe

Earthman said he sees many instances of what he calls “sexual trauma” that can’t initially be charged in court.

“Some of these cases can be revived and can be charged if there’s another similar case later on,” he said. “Tragically, that means someone else has been a victim.”

When a suspect is reported for a sexual assault, data shows there’s a 17% chance they’ve assaulted the person reporting them before, in advance and addition to the incident that’s being reported.

Those statistics are galvanizing for people like Geran Tarr, an Anchorage-based representative in the Alaska House.

“I just am constantly amazed at how spectacularly the laws fail to keep people safe,” she said.

Tarr is trying to change the Alaska consent statute. Her legislation was one of dozens of pre-filed bills for the January 2021 legislative session. In her proposal, individuals involved actually have to give active consent to have sex.

Tarr points out that Alaska’s laws weren’t written by the people they’re primarily failing.

“Women weren’t involved in writing these laws,” she said. “They weren’t members of the governing bodies at the time.”

As Tarr drafted the legislation, she spoke with groups from all over the state: Survivors, activists, prosecutors, and experts in other states.

Alaska’s consent laws are based on even older state laws: the paragraph defining “without consent” hasn’t been updated since 1982. Meanwhile, other states have adopted updated sexual assault laws based on more contemporary understandings of rape and consent. A state like Montana defines consent as “words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact.” 

A recent report from the Alaska Justice Commission shows that 46% of survivors in the state are Alaska Native women, despite Alaska Native people making up less than 20% of the total population.

Advocates said there are a lot of reasons Native women are so overrepresented in those numbers. They include a history of trauma from colonization, leading to increased vulnerability to poverty and homelessness, as well as a lack of resources for mental health and addiction. 

But with so few cases going to court, some people like survivor advocate Lisa Ellanna of Nome see the statute as particularly failing Native women who try to hold their assailants accountable.

“The people that are most disproportionately affected by this issue are Alaska Native women,” Ellanna said. “That is another protected class. This is a discriminatory policy.”

Re-visiting the consent statute is a good step forward for someone like Casto of the CDVSA, but she pointed out it will always be difficult to try sexual assault in the courts.

“No matter what legal definition you have, it becomes incumbent upon the victim to kind of prove that there wasn’t consent,” she said.

A woman in Nome stands at a crossroads in Nome in front of the Bering Sea. (Prisa Alarcon/KNOM).

This portion of the series was written by Emily Hofstaedter with reporting contributed by Jenna Kunze. The remaining parts of this series will examine how Nome Police have handled cases in the past, what they hope to do in the future, and explore what community members, survivors, and law enforcement see as a path forward.

If you need to talk with someone while reading this, or need help, here are some resources:

Bering Sea Women’s Group: (907) 443-5444; Toll Free: 1-800-570-5444.
Behavioral Health Services at the Norton Sound Health Corporation: (907) 443-3344, emergency number: 443-3200 Alaska Native Justice Center: (907) 793-3550
STAR Alaska: (907) 276-7273; Toll Free (800) 478-8999
ANDVSA: (907) 586-3650

If you are outside of the Bering Strait region, here is a list of resources compiled by the Alaska Network on Domestic Violence and Sexual Assault.