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Woman says man sexually assaulted her still free; case never went to trial

By: Genevieve Curtis
EL PASO, Texas -- It's one of the most underreported crimes and local attorneys said it's also the hardest case to win in a courtroom.

Adult victims of rape and sexual assault are finding the system doesn't always work for them and sometimes they are silenced by that very system.

But determined prosecutors and survivors of sexual assault want to see a change, and one El Paso woman is breaking her silence.

KFOX14 normally does not reveal the identities of sexual assault victims, but this woman wants the public to hear her story.

"I screamed again and this time he got really, really angry and he told me that nobody could hear me, that I was his bitch. Who was going to go help me?" said Brenda Fornelli

It's the testimony Fornelli said she would have given on the stand in a court of law.

"When I turned around, that's when he put the first handcuff on. The ground, it just goes under you, the shock. For a minute I thought this is a joke, this has got to be a joke," said Fornelli.

But her case never went to trial. Fornelli says two years after the night she was raped she wants her voice heard.

"I hope you can take a minute of your time, and listen to my story and help me re-open my case," said Fornelli.

Two years ago Fornelli's daughter Gisela Tourk contacted KFOX14's Genevieve Curtis about her mother's case.

Fornelli claims she was raped by a neighbor, a federal officer, in March 2012. At the time, they were frustrated that after several months no arrest had been made.

"All we want is just justice," Tourk told KFOX14 in July 2012.

Fornelli thought she did everything right -- she went to the police and filed a report, she went to the hospital for a rape kit and she told her story over and over again.

"I have a voice and it wasn't heard," said Fornelli.

But the arrest never came, and she said the justice she sought proved harder to find.

"We believe the community needs to know," said Tourk.

Prosecutors said sexual assault and rape cases among adult victims remain the most challenging cases.

"Those are the cases I've had the worst outcomes on," said Assistant District Attorney Penny Hamilton. Hamilton is the Chief of the Rape and Child Abuse Unit.

Hamilton spent about 20 years of her career trying rape, sexual assault and child abuse cases in El Paso County.

"Our society, when it comes to sexual assault, we are not out of the dark ages," said Hamilton.

Not just in El Paso, but across the country; The Rape, Abuse, Incest, National Network, also known as RAINN, reports four out of every 100 rapes in the United States will result in a conviction. Out of every 100 rapes, 40 get reported, 10 result in an arrest, eight are prosecuted and four are convicted.

"The success rate when you do go to trial is not as high (as) when you have a murder," said Hamilton

Hamilton leads an aggressive team fighting for the victims.

Yet justice doesn't always deliver. That's because the question often becomes, who is really is on trial?

"It's a very common defense to go after the victim, as a matter of fact. Typically it's the only defense. The victim is attacked in some way for their choices prior to be sexually assaulted," said Hamilton

A victim's past, lifestyle choices, possible alcohol consumption, even clothing become silent factors in a jury's verdict.

"What in the world were you thinking going to that bar in that short skirt? The victim is scrutinized unlike any other, their behavior is put to the test," said Hamilton

At times it comes down to who seems more credible.

"Then it becomes a matter of who do you believe, an intoxicated victim or an offender who says, 'Everything was good; everything was consensual. She's just mad because I wouldn't give her a ring, or whatever,'" said Hamilton.

Fornelli knows what it feels like to not have people believe her story.

District Attorney Jaime Esparza says his office presented a full case, but the grand jury chose not to indict, meaning there would be no arrest and no trial.

"I went into a state of rage, disbelief, despair," said Fornelli.

Hamilton says it is rare that a grand jury does not indict a case.

While Fornelli's case may be in outlier, sometimes sexual assault cases leave room for a jury's doubt.

"Regardless of whether or not I can prove it, I understand they are a victim of sexual assault in their heart, in their mind, absolutely being able to prove that is something else entirely," said Hamilton.

Even the verdicts in the strongest cases have surprised Hamilton; one in particular stays with her.

"(The victim) suffered such severe injuries during the assault that she almost died. She will never, ever be able to have children. I truly believe the evidence was so incredibly overwhelming in that case I can honestly say I was shocked when the not guilty verdict came in that one. That one -- I will never forget that victim or that case," said Hamilton

Fornelli said the attack has consumed her life for the past two years.

She feels the El Paso Police Department could have done more to collect evidence.

She claims they failed to take photos and document the marks from the handcuffs on her wrist, among other things.

"I recognized and signed his picture, and after I did that, Detective Lara looked at me in the eye and he told me, 'Do you know that you are going to ruin this man's life?' Me ruin his life? What about mine? Mine is not worth anything?" said Fornelli.

"No one knows what it feels like until you've been there," said Tourk.

Tourk said one of the hardest things has been watching her mother's home deteriorate.

Fornelli, an avid gardener, once had a blossoming garden. But since her attack she hasn't been able to go outside and work in her garden.

"I let it die," said Fornelli. "It was the death of me."

The U.S. Department of Justice reported a decline in the number of reported rapes in 2013.

But Hamilton worries the low conviction rate sends the wrong message to other victims not to report their assault, to suffer in silence.

"I absolutely fear that it does," said Hamilton.

Fornelli hopes other voices will join hers to change the community's perception.

"The best thing I can say is speak up, even if you think no one is listening, speak up. I feel that I should advocate for others," said Fornelli.

She's reached out to local lawmakers in an effort to get the police department to reopen her case.

"In my case, justice was not done but it's not over yet, it's not over yet," said Fornelli.

Fornelli is in counseling and says she plans to advocate for victims someday.

KFOX14 crunched the numbers and out of all of the El Paso criminals in the Texas prison system, 3.4 percent were convicted of sexually assaulting an adult victim.

KFOX14 reached out to the El Paso Police Department; this is their response:

"In Sexual Assault cases the El Paso Police Department works closely with the District Attorney's Office, Medical Personnel, STARS and victims to assist them during this critical time and crisis. The El Paso Police Department encourages victims to report sexual assaults immediately to assist in the preservation of evidence. The victim, upon reporting the incident, was taken to a medical facility and evidence was collected as is standard in any sexual assault case. This case was assigned, as are all sexual assault cases, to our Crimes Against Persons unit for investigation. The case was investigated thoroughly and the completed case was forwarded to the District Attorney's Office. We have reviewed this case and determined it was handled appropriately."

For help reporting a sexual assault: