WASHINGTON — Gov. Greg Abbott and other defenders of a new Texas law that bans abortion after about six weeks — even in cases of rape and incest — have vowed to crack down on sexual assault to reduce the need for abortions. Abbott said last month, soon after the law known as SB 8 went into effect, that he would "eliminate all rapists."
An NBC News review of state and FBI data, however, indicates that the clearance rate for rapes in Texas has been dropping year to year and that Texas' clearance rate now lags behind the national average by almost a third.
In 2019, the most recent year for which national and state data are available, the national rate was 32.9 percent, while the rate in Texas had dropped to 23.3 percent. Just four years previously, Texas had cleared 38 percent of rape cases.
The lack of rape prosecutions in Texas has been of such concern that Abbott's office sponsored a study at the University of Texas at Austin that will be published this fall examining why the vast majority of sexual assault cases are never prosecuted.
"Clearing" a case typically means making an arrest or definitively identifying a suspect.
Clearance and arrest rates vary from state to state for many reasons; crime statistics are notoriously hard to compare because of differences in the quality, criteria and style of record-keeping from one jurisdiction to another. The FBI cautions that using its crime data to rank states for their performances can be misleading, as can comparing a state's performance from one year to the next.
Historically, however, the national rate for arrests in and clearance of rape cases has been on the decline since 1996, when it was 52 percent. The clearance and arrest rates for all violent crimes have been falling for years, and rape has always been hard to prosecute and investigate.
Advocates for sexual assault victims say the lack of arrests and incarcerations undercuts Abbott's assertion that he can "eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them."
"When we say we are going to stop all the rapists, that's not even possible," said Houston Police Detective Kamesha Baker, who works in the special victims division and is a member of the governor's task force on sexual assault. Her department investigates 20,000 rapes a year, the most in the state.
The Biden administration has asked the Supreme Court to stop the imposition of the Texas law. The Supreme Court ruled Friday that SB 8 will stay in effect while it fast-tracks a response to the administration's challenge.
Seven other states — Alabama, Louisiana, Mississippi, Missouri, Ohio, Oklahoma and Tennessee — have passed similar abortion ban legislation without exceptions for rape or incest. Courts have blocked all of the laws from taking effect.
The challenge to Mississippi's law is headed to the Supreme Court in a case that may upend the 1973 Roe v. Wade decision, which legalized abortion nationwide.
Rape clearance data are not available for all seven states. However, 2019 arrest rates are available for six of them. Three are close to or just above the national average of 14.2 percent, while three others are below.
Texas' was also below the national average, with arrests in 13.4 percent of cases.
Why is it so hard to move the needle?
The difficulties in arresting and charging suspects in rape cases are not specific to Texas or any of the other states that have restricted abortion.
Former Austin Police Sgt. Elizabeth Donegan, who headed the department's sex crimes unit for nine years, said weak arrest rates for rape are a problem around the country.
"I can't say there is anything unique to Texas," she said. "The issues lie with leadership, training and the truth about what is occurring in our communities in response to sexual assault."
Baker, who is studying for a doctorate in criminal justice with a focus on sex assault, said: "This is a society problem, not just a Texas problem. In reviewing studies and peer-reviewed articles surrounding some other cities and states, it seems to me across the board there is a question of how to provide evidentiary support when the case boils down to consent."
Baker emphasized that her opinions are her own and not those of the police department.
Unlike in other crimes, there are often no witnesses to sexual assault. Most assaults occur in homes or residences where there are no surveillance cameras, Baker said. Some reports are made weeks after the incidents, complicating forensic evidence collection.
Only 9 percent of female sexual assaults in Texas are committed by people the victims do not know, according to research from the University of Texas. The numbers are similar around the country. Former New York City Police Officer Jillian Snider, a lecturer at John Jay School of Criminal Justice, said, "Even though 'Law and Order: SVU' will make it seem like it happens all the time, it's very rare."
When a victim knows the assailant, proving there was no consent can be challenging. Fewer than 20 percent of rapes are even reported to the police, experts say.
Sgt. Christopher Adams, who heads the Dallas police unit that handles sex crimes, said his team of detectives is also often stymied by victims who change their minds about prosecution. "It's not to blame them in any way — this a very traumatic event, and a lot of times they don't want to think about it," he said. "They talk to a patrol officer — and then they kind of just disappear."
Victims' advocates and government data analysts in Wisconsin and Vermont, where the 2019 rape arrest and clearance rates were above the national average, said they were unaware that their states had made arrests at a higher rate than average and did not have definitive explanations.
In Vermont, where 36.7 percent of cases were cleared, a victims' advocate noted that after the high-profile rape and murder of a 12-year-old girl in 2008, the state passed a law setting up special investigative units for each county to focus on the crimes — but said attributing a higher rate to those units would be speculative.
An advocate in Wisconsin, which has a clearance rate of 48 percent, also said he could only speculate about why the state's rate would be higher than average, but he noted that in recent years, the state Justice Department has put considerable effort into training officers in how to interact with trauma victims during sexual assault investigations.
In the state’s largest city, Milwaukee, the police department’s special victims unit, a rape crisis center, a shelter and mental health counselors are all housed in the same building, the Sojourner Family Peace Center. The center's director, Carmen Pitre, said she believes “good people and dedicated resources” contribute to the city's high clearance rates.
Arrests vs. clearance
FBI statistics show an increase in reporting of rapes since the #MeToo movement started in the last decade. Despite the increase, the number of rapes "cleared" by identifying suspects has stayed the same or declined.
Twenty states are participating in a new Justice Department criminal data system that captures the number of rape cases that are cleared by arrests compared to what is known as "exceptional means," a catchall phrase for instances when police "clear" cases by identifying suspects but cannot make arrests for any of a large array of reasons — from the deaths of suspects to the withdrawal of cooperation by victims.
Texas law enforcement officials confirmed that the state's rape clearance rate dropped from 38 percent in 2015 to 23.3 percent in 2019. They declined to break down how many rape cases were cleared by arrest compared to exceptional means.
Donegan made headlines when she revealed in 2011 that she was asked to "clear" rape cases to make the Austin Police Department's statistics look better. The police department launched an investigation and announced reforms.
Donegan said the most important step in improving case outcomes is to train detectives to believe the victims. "If we invested in these cases, we would be a lot further along," she said. "Most of the sex crimes units are doing as best they can, and they are taking cues from their supervisors."
Shima Baradaran Baughman, a law professor at the University of Utah who studies rape clearance rates, said, "The problem with solving more crimes does not come down to prosecutors or more police, but better police investigation."
The governor's response
Texas legislators have pushed through strong anti-sexual assault laws, such as one in 2019 that required the governor to set up a sexual assault survivors' task force and another that mandated that all rape kits be sent to crime labs within 90 days of collection.
As a result, rape kit turnaround has improved in Dallas, police said, but in Houston, Baker said, delays can still be up to 11 months. She said the labs sometimes are so busy that the kits are outsourced to a private lab in Virginia, which further delays results.
Joe Pojman, the founder of the Texas Alliance for Life, which supports outlawing abortion in all cases, including rape, said he agrees with Abbott's goal to crack down on sexual assault. "I commend the governor to do everything possible to assure that a rapist is convicted — justice must be served on the rapist, and it must be very public so it's a deterrent," he said.
A spokesperson for Abbott said in a statement that "Governor Abbott has championed the safety and security of all Texans, and has particularly focused on protecting and supporting woman who may be victims of sexual assault." The spokesperson said Abbott blocked efforts to "defund the police" so law enforcement has "the resources to fight such crimes and investigate rapes."
But for Adams, the Dallas police sergeant, improvement is elusive. "We would obviously love to have [the clearance rate] way higher," he said. "But do I think they are doing the best job they can? One hundred percent yes. We are doing everything we can possibly do."