Rapists draw lighter sentences when DNA test backlogs delay prosecution
In 2018, a rape kit that had gone untested for a decade linked Dane Mullen to the brutal assault of a college student on the banks of Lake Superior in Duluth, Minnesota.
Though delayed, justice was swift. At the end of a two-day trial in 2019, jurors deliberated for just a few hours before finding Mullen guilty.
The victim asked that he be sent to state prison for at least 6½ years, the amount recommended by the state’s sentencing guidelines. Anything less, she told a judge, would be “an extremely disheartening end to my marathon of a battle to get justice.”
“It’s time for him to be incarcerated for the serious crime he committed against me,” she said. Paste BN does not name victims of sexual assault without their permission.
But time ended up working to Mullen’s advantage.
In the decade that it took Duluth police to test the woman’s rape kit, Mullen had served a sentence for armed robbery and then seemingly cleaned up his act – successfully completing a lengthy period of parole, gaining full custody of his daughter, building a family and finding steady work.
Weighing his sentence, Judge Jill Eichenwald acknowledged she was struggling to square his crime with his relatively clear record in the decade since.
“I would like to punish you as harshly as I can and I don’t look to do you any favors, real honestly, but my job is the safety of society,” Eichenwald said. “I hope to God that I am making the right decision. I don’t necessarily feel particularly good about it.”
Mullen spent a year in the county jail. Eichenwald postponed his 18-year prison sentence in favor of a long probation.
Mullen did not respond to requests for comment. Eichenwald declined to comment other than to point out Mullen also received sex offender treatment and 20 hours of community service for every month of his 15-year probation.
More than 100,000 backlogged sexual assault kits have been sent for testing over the past decade, many with funding from a federal grant program known as the National Sexual Assault Kit Initiative. Only a fraction of those cases will result in criminal charges, and even fewer in a guilty verdict. And, like Mullen, many of those convicted will serve little or no time behind bars.
In some cases, Paste BN found, the years or decades it took to bring the case works in the defendant’s favor, garnering a lesser sentence from a judge.
Prosecutor Nathaniel Stumme, who worked on the Duluth case, said the outcome still gnaws at him.
“It’s very frustrating for me, for those involved in the (backlog) program,” he said, “And most especially the victim. The passage of time doesn’t take away from the impact or the seriousness of the underlying crime.”
Earlier this year, Paste BN's investigation into DOJ's rape kit grant program found cases hit the same roadblocks they did when victims first came forward: kits left untested, haphazard or cursory reviews by police and prosecutors, and a reluctance to inform people about what happened to evidence collected from their own bodies. By the Justice Department's count, the program has led to 100,000 kits being tested and 1,500 convictions so far.
The average effective sentence for Duluth’s cases from the backlog was about five years, according to Paste BN’s review of their prosecutions.
That’s compared with the statewide average for rape cases of 11 years in prison. First-degree rapes, the most serious, average about 16 years and second-degree is closer to nine years.
Nationwide, the median rape sentence remains around 10 years, according to prison data compiled by Kristen Budd, a research analyst at The Sentencing Project, a nonprofit that advocates for capping sentences for all crimes at 20 years.
Still, Budd said it was concerning that Paste BN found cases where rapists are being given reduced sentences because of the passage of time.
“If the justification is that so much time has passed since the crime, I don’t find that just for survivors,” Budd said. "When the median is 10 years, for me that raises a red flag on why there’s so much deviation.”
Some, like Boston College law professor Kari Hong, have campaigned for years to reduce rape penalties.
Her theory is that rape cases are notoriously hard to prosecute in the United States and both law enforcement and juries are hesitant to convict perpetrators knowing they could face decades behind bars.
“The vindication that occurs from acknowledging the wrong, that’s closure,” said Hong, who has since moved on to nonprofit work. “It doesn’t matter what the sentence is, and many victims don’t want long sentences. It’s not a contract, you don’t get made whole by someone else’s suffering.”
'Different stories’ of life in Milwaukee
Milwaukee detectives cracked a stranger rape case from 2007 with funding from the state’s backlog testing grant.
A 14-year-old was held down and assaulted by three men in an abandoned home. Her evidence kit sat dormant until 2018 when it was tested and identified the man who left his semen behind.
The woman decided in 2022 she was ready to participate in the criminal proceedings. By then, her assailant, Justin Sims, was living a quiet life with his family in Arizona.
Milwaukee prosecutors extradited him for a criminal trial this year and, at the final moment, Sims pled down to a lesser second-degree assault charge. That left Judge David Swanson to mete out justice for the conviction that still could have put Sims behind bars for four decades.
Instead, he weighed Sims’ risk to the public, his need for rehabilitation and deterrence. He sentenced Sims to four years behind bars.
“Here we have two completely different stories of your life, because in the last 16 years you’ve done a lot right,” Swanson said at the January sentencing. “You didn’t take responsibility early on, but you did today, that is a positive factor, and the court weighs it in your favor.”
So far in Wisconsin the state's effort to clear a backlog of rape kits has charged 21 people resulting in 11 convictions or pleas. The sentences varied widely from probation up to 25 years in prison. The median sentence has been seven years.
In 2008, a man near Madison raped a girl under 16. Years later with federal funding, police identified Herman Gomez Garza with DNA from her kit.
At the time in 2021, Democratic Attorney General Josh Kaul championed the charge and said the kit testing “can make the difference in whether investigations result in prosecutions and justice for survivors.”
But Garza also took a plea on the third-degree felony charge that could have sent him to prison.
Instead, he was issued a $376 fine and 30 months of probation for a misdemeanor.
No Wisconsin agency tracks sentences of offenders statewide. A commission disbanded in 2009 said sexual assault against children is generally met with prison sentences.
That group found in 2007 the median sentence lengths for prison was eight years for first-degree sexual assault of a minor, and five years for second-degree.
Pleas lead to lower sentences in New Mexico
Most criminal cases, including sexual assaults, are settled through negotiated pleas. In Albuquerque, New Mexico, prosecutors accepted deals that avoided trial in 23 of 28 cases from the backlog. Though some of those cases ended in lengthy prison stays, more commonly people were given a few years at most.
A handful received suspended sentences – meaning they were sentenced to prison but told they would serve no time if they stayed out of trouble.
Manuel Ulibarri, one of those men, made it six days before he violated his agreement and was sent to prison. Ulibarri had been pulled over with a fraudulent license plate, a pair of handcuffs and a loaded 9mm handgun, nunchucks and a tomahawk, weapons barred to him after he'd become a felon days earlier.
In a quarter of the plea deals in Albuquerque, the defendants pleaded “no contest,” meaning they did not admit guilt. Four were given what’s known as “conditional discharges.” Under such agreements, they can petition to have the case cleared from their record after a period of probation.
One defendant, Christopher Teufel, has already successfully gotten his conviction dismissed despite violating his probation by failing drug tests. Teufel had been charged with three second-degree felony rape charges, but pleaded down to fourth-degree attempted rape and received no time in prison.
Another man who was given a conditional discharge, Mark Cuoccio, was back before a judge weeks later. He was facing decades in prison for rape, but instead received a suspended sentence of seven years. He failed to pay restitution to his victim and violated his probation, according to court records.
Jack Jacks, the lead prosecutor in the backlog cases, pointed to a string of recent cases that led to lengthy prison sentences of 18, 30 and 36 years. His team of prosecutors secured a conviction in late November where a man is facing 72 years in prison for a 1994 rape. On Thursday, another man was sentenced to 270 years in prison for assaults tied to eight separate rape kits.
The prosecutor’s office also consults with victims and their families when pleas are offered. In Cuoccio's case the victim did not want to testify at a trial after she vomited at a preliminary hearing, Jacks said.
“In general, we do give weight to the desires of the victim,” Jacks said. “We know that going through the court process can retraumatize victims. So if they have strong feelings about going through the process, it’s important to listen and allow them to have some control over what happens.”
Florida men often get light sentences
Jacksonville, Florida, had a backlog of nearly 2,000 sexual assault kits when it was among the first sites chosen by the DOJ for the federal effort. Since then, prosecutors worked to charge 38 suspects.
Of those, 29 men have been convicted or taken a plea. Sentences ranged from a few months to life. The median sentence was 6½ years.
Statewide, the average minimum sentence for sexual battery was around eight years, excluding life sentences.
Florida, like Tennessee, allows the death penalty for sexual assault of a child.
In 2006, a woman reported being raped by a stranger after he offered her a ride. He raped her repeatedly at gunpoint and kidnapped her, dropping her off naked the next morning in a wooded area.
A decade later, federal funding helped test the kit and in 2017, DNA matched to Frank Hampton – a serial rapist linked to several other assault investigations.
The case languished in the court system for years until Hampton signed a plea in 2021. In Florida, offenders face a criminal punishment scoresheet that determines minimum sentences based on severity and past offenses.
Hampton had points from six other offenses on his card, plus penalties for the sexual penetration and felony offense. He faced a minimum of 11 years in prison and supervision.
Judge Meredith Charbula sentenced him to four years in state prison and 10 years probation.
Contributing: Yoonserk Pyun, Tricia Nadolny, Gina Barton, Paste BN.
(This story has been updated to say that Paste BN does not name sexual assault victims without their permission.)