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Woman who says she was raped by San Jose cop seeks to file late claim against city

Woman who says she was raped by San Jose cop seeks to file late claim against city

By Tracey Kaplan tkaplan@mercurynews.com

POSTED:   09/18/2014 08:43:09 AM PDT1 COMMENT| UPDATED:   2 DAYS AGO

SAN JOSE -- The woman who prosecutors contend was raped last year by an on-duty San Jose police officer is asking the courts to waive the six-month deadline for filing a financial claim against the city and the cop, arguing that she was too traumatized after being sexually assaulted to file on time and was misled by government officials about her legal rights.

Without a timely financial claim, the woman, who is undocumented and speaks limited English, cannot file a lawsuit against the city and Officer Geoffrey Graves for physical and emotional injury, mental distress, medical and counseling costs and loss of earnings.

Late last week, the woman petitioned the courts to force the city to consider her claim, which she filed last month -- more than three months late. The city immediately denied the claim and now plans to oppose her petition for reconsideration.

"A deadline is a deadline," City Attorney Rick Doyle said Wednesday. "We've got to protect the city's interests ... and look out for the taxpayers' interests."

The woman could not be reached Wednesday, and her lawyer, Roger Hecht, declined to comment. But in the court petition Hecht filed last week, he essentially describes the woman as being caught in an almost Kafka-esque, bureaucratic double bind -- at the same time as she is suffering from a diagnosed case of chronic post-traumatic stress disorder.

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Her predicament is that the law requires her to file a claim within six months of the incident -- and a lawsuit about six months later, if the claim is rejected -- or forfeit her chances of being compensated via state court for even the medical costs or loss of earnings associated with the alleged rape. She could file a lawsuit in federal court, but it might be tougher to prevail.

But suing the city and the officer might well jeopardize the prosecution's chances of convicting Graves, whose lawyers could argue to jurors that she's just after the city's money. Graves, who has pleaded not guilty, is free on $100,000 bail and on paid administrative leave.

In the petition, Hecht suggests that police, who interviewed her three times, and representatives of the Santa Clara County District Attorney's Office purposely misled her.

"In the course of SJPD's interrogation of her, as well as in her interactions with DA's Office, she asked whether she needed to do anything more to protect her interests. ... She was never told she needed to submit a formal claim within six months. To the contrary, she was told to do nothing until the criminal case was concluded ... and then was to 'go through' them."

The petition states that she and representatives of the District Attorney's Office specifically discussed her interest in obtaining a visa, which can be pursued after the case resolves. In a declaration attached to the petition, the woman also says she was told she would have to wait until the case was over before she could proceed with "any filing," not just the visa.

Carlos Vega, the prosecutor handling the case against Graves, said Wednesday that the obligation of the District Attorney's Office is to obtain justice for the victim and the community, not to make sure victims are financially compensated for their trauma.

"We ethically prosecute those who violate the law," said Vega, noting that the woman met only with a victim advocate and paralegal from the office, not him. "It's what society asks of us. We don't advocate for civil or monetary gain." Vega added that the office filed the rape charges only three weeks before the woman's six-month deadline.

The woman was raped the day before her 34th birthday, according to the petition. The assault sent her into a tailspin, in which she "spiraled in depression and fear, losing her ability to think clearly and act appropriately." She blamed the stress for her Oct. 13 arrest for drunken driving, saying she had "never done such a thing before, let alone be arrested for anything at any time." She pleaded no contest to the DUI charge and was sentenced to three years' probation, nine days in county jail if she violates probation and eight days on the weekend work program, most likely cleaning up freeways. She also was ordered to pay fines and fees of about $1,900.

She didn't consult an attorney until Aug. 1, more than 10 months after the Sept. 22 rape. Four days later, Hecht filed an "application to present a late claim," which the City Attorney's Office returned as untimely on Aug. 8.

"It feels like the system is set up in conflict with the survivor's best interests," said Sue Barnes, director of the Rape Crisis Department of the YWCA of Silicon Valley. "We're very, very hopeful the judge will make a decision in her favor, given the extraordinary circumstances. She shouldn't have to suffer more."

Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.

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