DNA supports St. Pete rape claim from woman who is intellectually disabled. Why no charges?

Detectives were ready to make an arrest, but prosecutors didn’t believe they could prove the case. The issue, they said: “Whether the victim is disabled to the point where she could never consent.”
Published March 6
Updated March 6

ST. PETERSBURG — She has seen Law & Order on TV — tidy episodes with the investigation, the arrest, the trial.

She’ll turn to her mother and ask, “Why is it taking so long for my case?”

After all, she reported it to the police. She gave her body and a stained, pink comforter as evidence. A DNA match came back for the man she accused of forcing her onto her bed and raping her.

What’s more, she has been intellectually disabled since birth. She doesn’t drive. She doesn't work. She lives under the supervision of her mother and sister.

So the woman and her family were baffled and angry when they learned that prosecutors weren’t going to charge the man. Now 26, she feels like no one believes her about the attack three years ago.

The Tampa Bay Times is withholding her name because of the nature of the allegations.

“She’s the one that sits there from day to day and wonders, ‘Why is he out there? He could be doing it to someone else,’ ” said her mother Mary Scroggins. “It’s just her beating herself up.”

St. Petersburg police detectives were ready to arrest Wilson Santana Lopez, but prosecutors didn’t believe they could prove the case against him beyond a reasonable doubt, according to a February 2017 analysis from the Pinellas-Pasco State Attorney’s Office. Florida’s sexual battery law has protections for people with mental and intellectual disabilities but leaves room for interpretation.

“The issue really comes down to whether the victim is disabled to the point where she could never consent,” a prosecutor wrote in a memo recommending that the office refrain from filing charges.

Scroggins, 53, and the family’s civil lawyer, Omar Medina, said the woman doesn’t fully understand the concept of consent or the consequences of sex. And Medina contends Lopez knew about her disability — another condition under state law.

Medina pointed to an interview with police in which Lopez said he could tell the victim was “off.”

A prosecutor advised against reading too much into the description.

“That’s a very generalized statement that may mean different things to different people,” said Mike Marr, a division director with the State Attorney’s Office.

Still, in response to a letter from Medina noting the Lopez interview, Marr recently completed a review of the case last week. The office stands by its original decision, Marr said. Lopez faces no charges, and through his civil lawyer, he declined to comment for this story.

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But the investigation highlights a frequently targeted segment of sexual assault victims. People with intellectual disabilities are up to seven times more likely to be victimized than the general population, said Ráchael Powers, a University of South Florida criminology professor who researches sexual violence. At the same time, barriers to prosecution are high, from communication breakdowns during investigation to confusing or unconvincing testimony at trial.

"All of that makes it incredibly difficult to put these abusers away,” Powers said. “That does a disservice to this really vulnerable community."

• • •

While she was a kindergarten student in Illinois, the woman came home from school one day with a scratch on her wrist.

She told her mother the teacher had grabbed her and held her tight because she was acting up in class, Scroggins recalled. The teacher recommended the girl undergo testing.

Scroggins learned her daughter had mental retardation, a term widely used at the time. She was enrolled in special education classes starting in first grade and has been receiving disability benefits since around sixth grade.

Her IQ score hovers in the 60s, a range considered to show mild cognitive impairment. She functions at the level of a young teenager. She was also diagnosed with bipolar and attention deficit hyperactivity disorders.

The woman wants to live like any independent 26-year-old, with a job and friends outside of her mother’s gaze. But her mother says she can’t. Her daughter loves photography, for example, but Scroggins worries about who she may interact with so she won’t let her use an Instagram account.

“She thinks the predators are friends, but she doesn't realize that they're actually predators trying to friend her,” Scroggins said.

Mother and daughter moved to St. Petersburg the first time in 2014. After a brief stint back in Illinois, they returned to Florida in 2016.

During the first stay in St. Petersburg, the mother’s fears for her daughter came true. She developed a relationship with a maintenance man who worked at their complex, Garden Court Apartments.

In a maintenance shed at the complex, he masturbated in front of her, according to an ongoing lawsuit filed against the apartment owners. Management at the complex fired the worker, the lawsuit says. Garden Court’s owner deferred comment to his lawyer, who did not return phone calls or emails.

Soon after they moved back to the complex in 2016, the woman was home alone watching TV when Lopez, who worked as a Terminix employee, came to her door about noon April 11, the woman told police. Her mother was at her job managing a toy store. Her sister had stepped out to run to Publix.

She wasn’t normally supposed to let strangers in, the woman told police, but he said he needed to spray for bugs and he was wearing a uniform and holding equipment.

They started chatting. He asked if she was single and he told her she was attractive, the woman told police.

He finished spraying and left. But he returned shortly after, this time with no equipment, she told police.

According to her account, Lopez pushed her onto the bottom of a bunk bed she shared with her mother.

He pulled down the shorts and underwear she was wearing under her dress, then his own pants, and forced himself on her, she told police. She didn’t fight back. She was afraid he would hurt her. When he was finished, he told her not to tell anyone.

The woman and her mother reported it to police three days later. She told her mom she was worried she was pregnant. It outweighed her fear that no one would believe her.

• • •

The woman had already showered and washed her clothes by the time she told her mother.

So the evidence came down to the pink comforter on the bunk bed. St. Pete police sent it to a lab for testing.

Meantime, about two weeks after the incident, detectives interviewed Lopez. He said he remembered the woman but denied that there was any sexual contact between them. The only thing amiss, he said, was that she seemed “off.”

“She seemed like she was a little off, you know what I mean? Like she seemed a little, like there was something going on,” Lopez said.

The family is suing Lopez and Terminix. A company spokesman said Lopez no longer works there but declined to comment further, citing the pending lawsuit.

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The test results came back in mid-November. A sperm sample from the comforter matched a swab taken from the inside of Lopez’s cheek.

“With this information and that the suspect, Wilson Lopez, denied having any sexual activity with the victim,” Detective Colin Brooks wrote in a police report, “I determined there is probable cause to charge him with sexual battery.”

The agency referred the case to the State Attorney’s Office.

Under Florida’s sexual battery statute, there are extra penalties in place for someone who commits the crime on a person deemed “mentally defective," an outdated term that means a person is "temporarily or permanently incapable of appraising the nature of his or her conduct.”

In applying the term to sexual battery, prosecutors generally consider one’s understanding of the consequences of a sexual decision, said Alexander Boni-Saenz, a Chicago-Kent College of Law professor who studies legal issues for people with disabilities.

The courts assess a person’s day-to-day cognitive functioning through testimony from doctors, therapists and caretakers.

“It’s a legal determination,” Boni-Saenz said. “It's not a medical one.”

In a memo, a prosecutor reasoned that the woman understood the consequences of sex because she told her mother she was afraid she was pregnant. Scroggins said she had taught her daughter that one leads to the other but said the woman didn't comprehend consent or the full range of consequences from sex.

The prosecutor went on to say that he looked at previous cases where victims had mental disabilities and convictions were upheld. The victims in these cases “had more obvious signs of disabilities,” he wrote in the memo.

But the memo doesn’t mention Lopez’s statement to police that the woman seemed “off.” And detectives didn’t ask Lopez to explain what that meant. Nor do records show they interviewed Lopez again after the DNA evidence connected him to the apartment.

“That is a follow up question that probably should have been asked,” said the author of the memo, Justin Reep, now a criminal defense attorney.

St. Petersburg police don’t generally discuss investigatory techniques but stand by the investigation, said spokeswoman Yolanda Fernandez.

Regardless, Reep said, other issues came up in the months he spent analyzing the case with supervisors.

Small details of her story changed over time, he said. For example, she first told police that Lopez knocked when he returned and later she said he just walked in. The changes raised questions for prosecutors about whether attorney Medina had coached her. He said he didn’t.

Removing the “mentally defective” qualifier, there is still room for the defense to argue that the encounter was consensual, Reep said. The woman told police she kissed Lopez after the rape. And she’s had other interactions with men that the defense might try to introduce as evidence the encounter was consensual.

One example, according to Reep’s memo, was a fight between the mother and daughter over a man the daughter had met online and was trying to move in with.

“It’s a tough case,” Reep told the Times. “You feel bad for the girl and everything ... but the problem is, legally, the standard doesn’t work here.”

Division director Marr seconded that decision after a review. Marr said prosecutors have an ethical obligation not to pursue cases they can't prove, particularly if the process could re-traumatize a victim.

To Medina, those examples only demonstrate the severity of the woman’s disability — her naivete, her desire to live an independent life. Nor should past encounters diminish the woman’s account of what happened in that moment, her mother said.

The incident with Lopez was the woman’s first sexual encounter, Medina said.

“They didn't take her medical condition seriously,” he said.

If a case makes it to court, victims who already struggle with communication and sequencing have to endure cross-examination, said Deborah Linton, chief executive officer with the Arc of Florida, an advocacy group for people with intellectual disabilities.

The obstacles mount.

"Prosecutors have to take a case that they believe they can prosecute in court,” said Linton, speaking generally, “and it is believed that many of the individuals we serve do not make good witnesses or are not good testifying ...

“That’s exactly what a predator is looking for."

PREVIOUS COVERAGE: Mentally disabled man testifies of sexual assault while at trial for former Tampa teacher

• • •

In the absence of prosecution, pain mounts for the woman and her family.

Doctors have added depression, anxiety and post-traumatic stress disorder to her diagnoses. She lashes out at her mother and sister, sometimes threatening to hurt them or herself.

Scroggins teared up thinking of happy memories with her daughter, the time they’d spend shading in coloring books then swapping to complete the other’s work.

“We're close, but …” She took a moment.

“She’s got a roughness about her where she just has a lot of anger and hatred,” Scroggins said. “But I guess she has no other way to get rid of it that she knows how to but to lash out at us, the people that care about her the most.”

It’s gotten beyond what Scroggins can handle. She’s searching for a place where her daughter could live with full-time supervision.

Still, the woman has made progress through therapy. She took Aikido self-defense classes for awhile, until some of the concepts became too difficult for her to grasp.

The family may move soon, out of Florida, away from what happened here.

Times senior researcher Caryn Baird contributed to this report. Contact Kathryn Varn at kvarn@tampabay.com or (727) 893-8913. Follow @kathrynvarn.

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