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VOL. 124 | NO. 125 | Monday, June 29, 2009

The Politics of Rape: What went wrong at MSARC

By Bill Dries

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There’s no such thing as a textbook rape victim. There are, however, some very thick and detailed textbooks on how medical and legal authorities should come to a victim’s aid.

Those two realities collided violently in March inside an examination room at the Memphis Sexual Assault Resource Center.

The attack of a forensic nurse examiner by an adult rape victim and the nurse’s firing by the city were first steps toward a public revelation of problems at the center.

Memphis Mayor Willie Herenton recently announced the movement of child rape examinations from MSARC to the Child Advocacy Center. But it was a decision made by District Attorney General Bill Gibbons and other members of the Child Protection Investigation Team (CPIT). The crisis then took a new turn with Herenton’s combative appearance before the Memphis City Council. Herenton said he did not have to explain what went wrong at MSARC. -- PHOTO BY LANCE MURPHEY

The political spotlight produced more problems, some having nothing to do with the crime of rape and its treatment. Those problems created their own force, which pulled along the agency founded nearly 40 years ago.

The politics of rape has come to include a local government bureaucracy divided, as always, by personalities, as well as the gulf that separates city and county governments. Even by Memphis political standards, the crisis included an enormous dollop of attempted face-saving. Although Mayor Willie Herenton announced in May that treatment and examinations of child rape victims would move to the Child Advocacy Center, it was a decision he did not make.

Gathering evidence

From July 1, 2008, through the end of May, 323 rapes had been reported in Memphis. There were 454 reported from July 1, 2007, through June 30, 2008.

Over the past 12 years, the number of rapes in Memphis peaked at 964 in 1997, according to the latest annual report from the District Attorney General’s office, which measures the number of rapes by a conventional January-December calendar. From 1996-2007, local rapes declined 39 percent, but increased 12 percent from 2006-2007.

But police, prosecutors and medical professionals acknowledge many rapes are never reported. It is a problem that lives in the deepest shadows of local culture.

The statistics kept by law enforcement agencies and groupings of the numbers by government fiscal years aren’t adequate to define rape as a phenomenon whose effect reaches far beyond the horrific criminal act.

But health care professionals and forensic investigators must make distinctions in pursuit of the truth and its consequences.

“You have to define what is a non-emergency rape,” Norma Lester told The Memphis News. Lester is a legal nurse consultant who once worked as a forensic nurse examiner at MSARC. “It’s not the police that determine it’s an emergency. … They may think it’s an emergency, but by the protocol, it may not be an emergency. It’s the nurse who determines that, and if it’s more than 72 hours out, it’s not an emergency.”

So the first step is usually a discussion about what happened, and it is invariably something the victim does not want to talk about.

“A lot of times people don’t want to tell anybody – even adult women don’t want to tell anybody,” Lester said. “Family members may pressure them … and it may be three days, four days, five days. Then that person – all you can do is examine them for bruises or any medical condition they may have. They need more counseling at that stage than anything else unless there are some very evident injuries.”

For those kinds of injuries they usually would go to a hospital emergency room first.

“People need to understand,” Lester said. “The sole purpose for forensic nursing is simply ... to gather the forensic evidence. In 72 hours that evidence is greatly diminished if there’s any there at all, period. By that time, there’s no reason for a forensic nurse to see that individual – not as an emergency.”

When it is an emergency, a forensic nurse who is on call is alerted and arrives at MSARC. A rape kit is used for the examination and the examiners probe as gently but directly as possible for a detailed account of the rape.

“We’re trained to take evidence from everywhere,” Lester said. “We’re wanting to know those details so that we know where to swab the person. We want clothes. There’s clothing at the center because sometimes we want to keep the (victim’s original) clothes – especially the underwear.”

The set of procedures used at MSARC is the National Protocol for Sexual Assault Medical Forensic Examinations. It is exhaustive and covers every conceivable scenario once someone says they have been raped.

Not a sudden eruption

District Attorney General Bill Gibbons said the first signs of trouble at MSARC came in the fall of 2008.

“There was clearly a shortage of nurses,” Gibbons told The Memphis News. “What I kept hearing was that there was no real hands-on management at MSARC at that point.”

Betty Winter remains director of MSARC. She was appointed by Mayor Willie Herenton after the position remained vacant for about a year. But she was appointed before the agency was transferred to the health department effective July 1. For the next three months, MSARC will operate as it is. -- PHOTO BY LANCE MURPHEY

The center’s director, Julie Coffey, had left that spring.

With no permanent leadership on site, directions to the center were coming directly from Yalanda McFadgon, the deputy director of the city’s division of Public Services & Neighborhoods and a controversial presence at City Hall. A former Memphis police officer, McFadgon pleaded guilty to federal drug charges in 1998 and served five months in prison.

Several years after she got out, the former supervisor of Herenton’s security detail was tapped by Herenton to head the city’s newly created Second Chance program, a jobs counseling program for ex-convicts.

The city’s Public Services division was overhauled at the start of Herenton’s fifth term in 2008, when McFadgon became deputy director to division director Kenneth Moody. Moody began his government career as administrator of the Mayor’s Citizen Service Center in 1997. He became deputy director of Park Services in 2001, deputy director of public services in 2004 and then director in 2008.

By late 2008, a national economic recession had settled in and for MSARC it meant more than belt tightening.

A nursing coordinator, Judy Pinson, was running the center on a day-to-day basis and was on call for a growing number of hours. There was still no replacement for Coffey. City Hall was citing budget problems.

Morale at MSARC began to deteriorate, Lester said. The problem was there was no daily interaction with the nurses, only directives from City Hall.

“Nurses will basically do whatever you tell them to do as long as it doesn’t violate their practice or their protocol because their licenses are at stake,” said Lester, who has been acting as a spokeswoman for the nurses. “It’s when people don’t understand the practice of nurses and how far we can go and certain things that ethically we just cannot do, that it becomes extremely frustrating. Their position was that the administration did not understand that and was treating them with total disrespect of their practice. It was a snowball effect.”

Three nurses resigned when their residency was questioned. City of Memphis employees are required to live in the city.

Letter goes unanswered

With the new year, Gibbons became an important player in the developing City Hall crisis in which raised voices behind closed doors were becoming more and more audible.

“In terms of adult rape victims, the Memphis Police Department or any other law enforcement agency can refer those adult victims anywhere they want to,” Gibbons said.

MSARC serves the region under federal grants it receives specifically for the forensic examinations the nurses perform.

In the case of child rapes and any other kind of child sexual abuse, Gibbons is lead officer in Shelby County of the state mandated Child Protection Investigation Team.

CPIT controls where those victims go and includes the Memphis Police Department, the state Department of Children’s Services and the Child Advocacy Center.

“We’re the ones who are involved on a daily basis, reviewing new cases that come in every 24 hours,” he said.

Most of those cases involve children younger than 13. CPIT becomes involved in the cases of 13- to 17-year-olds “if the alleged perpetrator is a parent, guardian or someone else living in the home with the victim.” Otherwise, MSARC is where the teenage juveniles are examined and counseled, along with adult rape victims.

By February, Gibbons had not seen an improvement in the problems at MSARC.

“It continued to kind of accumulate,” he said.

At a CPIT meeting that month, everyone around the table had enough concerns that the group told Gibbons to write a letter. Gibbons did and sent it to Moody with a copy to Herenton. To date, Gibbons has not received an answer – at least not in writing.

‘An administrative crisis’

There’s another protocol for rape victims who are under the influence of drugs – either as part of an assault or because they were using drugs before it. A victim who is unruly or unresponsive isn’t supposed to be brought to MSARC by police.

That is what happened in March.

“The protocol is that anyone that has a serious medical condition or (is) psychotic – they are not to be seen at the center,” Lester told The Memphis News. “They are supposed to be taken to a hospital.”

Memphis police took the woman from an unidentified hospital to MSARC despite that.

“She was psychotic,” Lester said. “She was on drugs and she just went berserk and injured the nurse. The nurse ended up with a concussion.”

An advocate was also injured in the attack.

Safety policies were still being reviewed in the wake of the attack when Pinson was ordered to fire the nurse and the advocate with no explanation.

“The nurse had five years of service and an unblemished record,” Lester told The Memphis News.

More MSARC nurses began resigning because of that. There were six nurses on staff. Pinson gave 30 days’ notice and then there was no supervisor either.

One night in late April, a Bartlett and a Memphis police officer each pulled onto the center’s parking lot with alleged rape victims in their cars. And each was told to schedule an appointment days later at MSARC.

The crisis went public with Bartlett officials later producing an audio recording of an obviously upset police officer complaining about waiting several hours and mentioning McFadgon by name.

This is the point where Lester and others say politics began not only to dictate events, but to obscure the truth.

Only 49 of the 93 shifts at the center were manned by April.

Kenneth Moody, left, became director of the city division of Public Services & Neighborhoods in 2008 as the Herenton administration entered its fifth term. Yalanda McFadgon, right, became deputy director of the administration with direct control of MSARC. -- PHOTO BY BILL DRIES

“To us, that’s not a nursing shortage,” Lester told the City Council later. “That’s an administrative crisis.”

A time of confusion

The initial reaction from City Hall was silence.

Dr. Betty Winter, an early intervention program manager at the Memphis Police Department, was hired in early May as MSARC’s director. It had been a year since Coffey left the position. Nurses also got a pay bump, going from $30 for an on-call shift and $100 per emergency case to $50 on call and $200 per case.

Herenton assembled the press on May 18 to announce changes about the victims MSARC would see effective June 1. Victims younger than 13 would be seen at the Child Advocacy Center in a special clinic staffed by forensic examiners and nurses from Le Bonheur Children’s Medical Center. Before and after business hours, the same experts would be available at the Le Bonheur emergency rooms for emergency cases.

“Only in recent days and weeks have we faced some major challenges,” Herenton said. “I acknowledge those challenges, but I will move beyond acknowledging challenges.”

Asked why it took him so long to act, Herenton said the question was a “subjective assessment.” But he acknowledged problems in running the center as well as the fact that Gibbons’ warning went unanswered and he didn’t know why.

“The news today is that the city of Memphis has forthrightly taken aggressive action to address a critical need,” he said. “We care and we are doing something about a problem.”

But it was Le Bonheur that pitched the idea of staffing a separate clinic at the Child Advocacy Center. The decision wasn’t Herenton’s to make and he didn’t make it.

“Given the problems at MSARC and given what Le Bonheur was willing to do, the Child Protection Investigation Team entered a written agreement,” Gibbons told The Memphis News. “That is our decision. Legally, we decide who is going to conduct those exams and we’ve made that decision.”

While MPD brass are a part of the CPIT team, Gibbons said he and others in CPIT didn’t seek permission from Herenton before making the move, which took effect June 1.

“No. It is strictly an agreement between CPIT and Le Bonheur,” Gibbons reiterated.

Much of CPIT is already housed at the Child Advocacy Center, a 19th century house on Poplar Avenue near where the interstate now runs into what used to be a hillside. Longtime Memphians may know it as the old “Four Flames” restaurant.

Before the problems at MSARC, child rape victims were driven to the CAC for counseling and forensic interviews after their forensic examinations at MSARC.

The room set aside for the Le Bonheur operation has a hardwood floor, an old sealed fireplace and a large mirror over a mantle. It has a child-sized table with child-sized chairs and some toys. In a bookcase is an assortment of Dr. Seuss as well as “Good Night Dora” and lots of stuffed bears of different sizes resting on top. Just two steps away is a full-grown examination table.

By the examination table is a closet with several filing cabinets behind an old but sturdy door locked with a skeleton key.

Across the hall is what used to be the house’s parlor.

“It’s easy to say it went wrong,” Memphis city attorney Elbert Jefferson told reporters after they asked about mistakes at MSARC while it was under city control. A March attack of a forensic nurse and a patient advocate by a rape victim was one of several incidents that accelerated a staffing shortage at MSARC after the nurse and advocate were fired by the city. -- PHOTO BY BILL DRIES

With the high ceilings, you might think voices would carry. But the walls of the house are formidable in that regard. They are 18 inches thick and they’ve heard and kept many secrets over the past century.

“It’s only sexually abused children that we see,” said Nancy Williams, the CAC’s executive director. It is usually a child’s mother who brings the child to the house.

“It’s very confusing,” Williams told The Memphis News when asked how children react. “We can’t call what happens here simple, but we can simplify some of the more complex perceptions. We have people who talk to children all day. They are child interview specialists. We have family advocates who can tell if a mom is really, really out-of-her-mind frightened and they can get a counselor. We can tell a DCS person that mom is really, really angry.”

Most of the children, 80 percent by Williams’ estimate, are seen by appointment because they have been chronically abused as well as manipulated and coerced “for a long period of time by someone that the child knows and trusts,” she said. The children’s reactions can range from anger and confusion to a focus on the toys all around the reception area.

Williams recalled one counselor who saw a sullen little boy sitting in one of the child-sized chairs who crossed his arms and responded to nothing for quite some time. He studied the goldfish bowl, the child-like drawings of dogs and cats and flowers and the stuffed animals on a bookcase. Finally, he told the counselor, “This isn’t an in-trouble place.”

The meaning of acronyms

While counselors and nurses are working with the children and their families, they are also conducting an investigation to determine if the allegation is true.

Getting a dozen agencies to work together out of a single site is called co-location, and Williams admits it was difficult in the case of the CAC. But she said it’s worth it “so that in a confusing time, kids don’t have to be confused by all the places they go.”

“I don’t mean to diminish medical exams at all, but it is one of a constellation of services.”

The CAC and Le Bonheur had offered to do the forensic rape exams on children years ago. It didn’t work out then and it’s an idea some in the organizational mix are still getting used to.

“Right now, at this point, I think it’s in the best interest of child victims for Le Bonheur to handle this,” Gibbons told The Memphis News. “If MSARC gets its act together a couple of years down the road and it wants to make a proposal to (CPIT) regarding child victims, we’ll certainly entertain it.”

Lester emphasized that no victim ever went untreated or without an examination at MSARC. And she said the staffing shortage has been resolved. While she said the nurses she speaks for wanted MSARC to remain a city agency and continue to examine child victims, Lester said she and the nurses will support the transition.

“We need to take our time and we need to do this thing right,” she said. “I just want them to do it right.”

Sometimes it takes a crisis

The Child Advocacy Center in the 19th century home that most Memphians know as the old Four Flames restaurant was already home to several agencies dealing with victims of child sexual abuse, assault and rape. The CAC is now the site of child rape exams once performed at MSARC. -- PHOTO BY BILL DRIES

What happened over a matter of a week this month wasn’t always about the best way to help rape victims. But the events undeniably affected the changes in how rape is dealt with on a case-by-case basis.

On June 1, Gibbons led a press conference in front of the Child Advocacy Center to mark the formal beginning of the agreement with Le Bonheur. The event included City Attorney Elbert Jefferson, but not Herenton.

Soon enough the questions from reporters turned to what went wrong at MSARC.

“For all those patients who have been seen over the years, it went right,” Jefferson responded. “It’s easy to say it went wrong.”

Asked again by another reporter, Jefferson cited budget concerns.

“Council members have indicated time and time again that there are not sufficient resources to do this and do that,” he continued. “There are a combination of things that make a perfect storm. But the employees have done their job.”

The next day the City Council hoped to hear from Moody and McFadgon. Two weeks earlier, they showed up in committee sessions for several routine items but left the room when council members tried to talk to them about MSARC.

Council chairman Myron Lowery then requested in a letter to Herenton that both appear.

An hour before the council’s executive session, Herenton sent word that they would not be coming. But Herenton would. By then Herenton had already prepared to give the council a full explanation of what went wrong at MSARC. But his chief administrative officer, Keith McGee, counseled him not to.

“I wanted to tell you the real … nitty-gritty of what was taking place over there. Keith McGee backed me off of that,’ Herenton said. “There’s a lot that I know that transpired. There were some agendas – some hidden agendas within the personnel complement. There were some hidden agendas among some of the elected officials on both the city side and the county side. … This thing was so convoluted and I don’t want to get into that.”

McGee and Herenton had settled instead on a prepared statement Herenton would read. But the words on the paper never survived his preliminary remarks intended to set the stage for it.

“There is only one CEO called the mayor and right now that’s Willie Herenton,” he told the council as he took firm hold of the political third rail.

“No, I wasn’t as upset about that particular incident and it doesn’t mean I’m insensitive to rape victims. I’m sensitive to all victims of crime,” he said referring to the Bartlett rape victim. “When you come up, or any of you, and you’ve got a hue and cry because there’s some well-connected people in the community got your hot button – got your attention – and you think I’m going to be moved by that? Hell no.”

Herenton said he had ordered Moody and McFadgon not to answer council questions.

He acknowledged a move by some County Commissioners as well as council members to move MSARC to county government control, specifically the Memphis and Shelby County Health Department. It wouldn’t happen as long as he was mayor, Herenton said, calling his decision firm.

Still later he told the council, “We don’t allow one pressure group because of who they are connected with to exert pressures, ignite media and get more attention than those who do not have that sophistication, the economic wherewithal, may not know some people in the newspaper establishment, may not be in a civic organization, may not be a leader in Midtown and East Memphis to motivate us to give more concern about one of those victims or citizen needs than the other. We treat everybody the same.”

The remark prompted council chairman Myron Lowery to respond.

“We hear from the same individuals that you do – be they special interests or not. And everyone is treated equally whether they represent a group or as an individual,” Lowery said. “And the purpose of this hearing today was to get some answers we did not get two weeks ago. … We heard what you said. … The public wants some answers.”

“What public?” Herenton responded.

“The public and individuals who have written us and e-mailed us,” Lowery replied. “I just want you to know that, respectfully, we all hear the same things. We represent the same constituents and we have the same goals.”

Fanning the flames

Herenton had not just failed to quell the controversy; when he walked out of the committee room, the crisis was bigger than when he walked into it. And the next day the director and deputy director of the city division in charge of MSARC were due to sit at the end of the same table.

Moody appeared nervous as he entered the council committee room with McFadgon for the evening budget committee session. It wouldn’t be the first time a division director had sweaty palms during budget season. But Moody was prepared for something beyond that.

“I’m in God’s hands,” Moody said to a well-wisher as he stood waiting for the gavel to fall on the session. “I haven’t had this much press since I’ve been in politics,” said the former University of Memphis basketball player.

McFadgon sat to his right.

Moody, McFadgon and McGee, seated nearby with Jefferson, were prepared for one or more council members to ask Moody what went wrong at MSARC. They were prepared for Jefferson to then intercede and say they would not answer such questions. But no council members asked.

Council member Jim Strickland went to his motion to cut all $712,000 in city funding contingent on Shelby County government or some third party taking control of MSARC. It passed in committee.

With the first of three key votes on the proposal settled, the budget committee took a break.

Moody seemed a bit more relieved, but just a bit.

“It’s not over,” he said as the center of attention in the room shifted and diffused into dozens of conversations.

The next day, Shelby County Mayor A C Wharton Jr. approached Herenton. Some of Herenton’s closest advisers outside of City Hall were also talking with Herenton and expressed their concern that he had not put the controversy to rest. His appearance at the council committee session had given the political potboiler new life.

The following Monday, both mayors assembled reporters at the health department with about two hours’ notice. They announced MSARC would become a part of the health department. They also tried to convince reporters that it wasn’t what it was – a move to county government control.

For the past two fiscal years, the city has been setting up a move away from any responsibility and funding for the health department. The Herenton administration even used one last dose of city funding for the health department – $3.5 million – as the carrot to secure total city ownership of The Pyramid.

Herenton left immediately after taking the question, saying little to Wharton, who was clearly uncomfortable and just as clearly determined not to express his frustration in words.

Creating a diversion

Herenton changed the political topic three days later as he filed to run in the 2010 Democratic congressional primary. His filing came the day after an old adversary, former U.S. Rep. Harold Ford Sr., turned up on the host committee of two June fundraisers for incumbent Democratic Congressman Steve Cohen.

The day after the City Council approved an operating budget and a new property tax rate, ending the city budget season, McGee announced his retirement as CAO effective July 4. Then Herenton announced his own resignation late last week, saying he would leave office by July 10 to focus on his congressional run and to pursue business opportunities with his son, Rodney.

Regardless of the static surrounding these larger political issues, Lester says MSARC needs experienced nurses as new hires are trained.

“A major success to the change in management would be to offer these individuals their jobs back,” she said, referring to the nurses who were fired or left. “It is unrealistic to expect Dr. Winter, the new director, to expediently execute change without input from someone experienced in the field.”

Some of the MSARC nurses who left in the turmoil have returned, Winter said.

Terre Fratesi, the lead prosecutor for the DA’s office at Shelby County Juvenile Court, told the City Council it takes experience for forensic nurses to be ready to testify at the trial of an accused rapist. The problem is deeper than filling shifts.

“This problem is not solved. ...” she told the council. “It takes three to six months minimum for these nurses to get the experience that they need to be qualified for prosecutors to be able to utilize them to make prosecutions.”

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