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When rape is not a crime: Indiana case spotlights statute of limitations
By Tim Evans
A man walks into the Marion County Sheriff’s Department and confesses to raping a young woman in 2005. In Illinois, Ohio, Michigan and Kentucky — as well as 28 other states across the U.S. — he would have been arrested and prosecuted. But in Indiana, Bart Bareither walked out a free man. Why? Because in this state, rape charges no longer can be filed if the incident took place more than five years ago. Indiana is among just seven states with a statute of limitations of five years or less for filing rape charges. In 11 states, the statute of limitations is from six to 9 years. In 12 others, it ranges from 10 to 20 years. And 20 states have no limit at all. The unique set of circumstances highlights the delicate balance between liberty and justice that plays an integral part in a criminal justice system based on the classical belief that “it is better that 10 guilty persons escape than that one innocent suffer.” It also comes as advances in DNA technology are prompting some states to re-examine decades-old limits on prosecuting rape and other sex crimes. Last year, Kansas lawmakers threw out the state’s five-year limit. Now, a rape charge can be filed at any time in Kansas. Similar legislation is pending in Ohio, where advocates are pushing to scrap a 20-year limit. “The need for justice and the need for healing,” said Katie Hanna, executive director of the Ohio Alliance to End Sexual Violence, “do not suddenly go away after some arbitrary number of years has passed.” Limits questioned Statutes of limitations have been around nearly as long as there have been laws, dating to ancient Roman law, and are typically set by state lawmakers. The limits — in place for most civil claims and criminal acts other than murder — are a critical component of the U.S. legal system aimed at deterring potentially fraudulent and old claims. But they have often been questioned. Oliver Wendell Holmes Jr., who five years later would become a U.S. Supreme Court justice, raised the issue in an 1897 Harvard Law Review article: “What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after 20 years than before?” Ryan W. Scott, a law professor at the Indiana University Maurer School of Law in Bloomington, said the traditional rationale for time limits is tied to the two basic concerns acknowledged by Holmes. “One has to do with repose. At a certain point, a person should no longer have to fear they will be charged with a crime that occurred years ago,” he explained. “The other has to do with difficulty of proof. After a certain time, it becomes harder to get reliable evidence, physical evidence deteriorates and the memories of witnesses fade.” The passing of time can be as troubling for a defendant as for a prosecutor, Scott said, citing as an example the death of a potential alibi witness. Still, Scott said, the law places no limit on murder and some other serious crimes. In Indiana, for instance, there is no statute of limitations on Class A felony charges, what the state deems the “worst of the worst” criminal offenses. That includes murder, as well as other charges such as dealing in more than three grams of cocaine, methamphetamine or a narcotic drug, armed robbery resulting in injury and child neglect resulting in death. State lawmakers also saw fit to include in that category aggravated rape, which involves the use of a deadly weapon or serous injury to the victim. But if neither circumstance applies, rape is a Class B felony with a five-year limit on bringing charges. No outcry to change law Indiana lawmakers are in the midst of finalizing a major criminal code overhaul set to take effect later this year, but the legislation does not address statutes of limitations. Anita Carpenter, CEO of the Indiana Coalition Against Sexual Assault, said there has been no real outcry about the five-year limit on rape charges. “The only thing we’ve been having discussion on, and they have been very preliminary, is eliminating the statute of limitation for child sex abuse cases because children are often afraid to come forward,” she said. Carpenter said she was not aware of a situation like the one involving Bar either’s belated confession ever having come up in Indiana, at least not in recent years. And she said it is tragic that the victim was, in some ways, revictimized by the confession and discovery that the rapist could not be prosecuted. “It’s probably something worth looking at in the future,” she said. Sen. Michael Crider, R-Greenfield, said he was recently contacted by the family of Bareither’s victim and was stunned by what he learned. “This is just a horrible situation,” Crider said. “It just strikes me that when you have a person traumatized at that level it is worth discussing whether or not we might need to make a change.” Crider said it is too late for the legislature to take up the issue during this session, so it will have to wait until 2015. “It is something,” he said, “I am definitely going to explore next year.” Making her case Kansas lawmakers took up the topic in 2013 and eliminated the state’s five-year statute of limitations for rape. The change was driven by dramatic victim testimony, said Joyce Grover, executive director of the Kansas Coalition Against Sexual and Domestic Violence. “There was this feeling that there were a lot of rapists out there that had not been apprehended and that they would never be held accountable,” she said of opposition to the five-year limit. Grover said the widespread collection of DNA evidence also contributed to the change. Cindy Hillenbrand, 62, Pompano Beach, Florida, was among those who testified in support of the change in Kansas. She had been raped during a night out with friends in Topeka in 1999. Her rapist was identified more than a decade later through DNA evidence collected in connection with another crime. It matched DNA collected during the investigation of her rape. Hillenbrand recalled being elated that the person responsible for the crime that forever changed her life was finally going to be prosecuted. “But then,” she said, “we learned the statute of limitations had expired. So my rape, to him, is now free.” When she found out there was a move underway to change the law in Kansas, Hillenbrand volunteered to share her story. “The law could not stand the way it was,” Hillenbrand told The Indianapolis Star on Thursday. “It was great to get the law that was just stupid changed to make sure people like me and so many others will never again have to go through something like I did.” Ohio roadblocks A push to eliminate Ohio’s 20-year limit on prosecuting rape cases has run into a roadblock at the statehouse in Columbus, said Hanna, who heads the Ohio Alliance to End Sexual Violence. The bill filed last year still has not received a committee hearing. The primary opposition, Hanna said, comes from a surprising opponent: The Ohio Prosecuting Attorneys Association. She said the group wants any exception to the current 20-year limit to be tied to the existence of DNA from the victim. The problem with that, Hanna said, is that it would deny justice to victims who did not come forward at the time — and, thus, no DNA would have been collected. “We know a lot of survivors don’t come forward for years,” she said, “but the trauma never goes away.” Victim’s story Bareither’s victim, Jenny Wendt, 35, doesn’t think any time limit should prevent the prosecution of her rapist. She has to live with the pain of what happened for the rest of her life. Like the majority of rape victims, Wendt never reported the crime. Instead, she said she has spent the past decade focused on trying to move past the nightmares, the self-doubt, the guilt and the fear that prompted her to go out and buy a handgun. So when she learned Bareither had confessed, Wendt felt like she was getting a second chance. And this time, Wendt said, she was strong enough to move forward with a prosecution. Then the detective who had told her about the confession dropped the bombshell. Even with the confession, she told Wendt, prosecutors could not charge Bareither. Instead of finally receiving the justice she was denied by the humiliation and fear that kept her from reporting the rape when it happened, Wendt said she once again finds herself a victim — this time of an Indiana law that lags those in most other states.
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