Anna Borkowski accused three men of rape. Why did prosecutors stop her?
This story was published in partnership with New York Magazine.
One night in October 2017, Anna Borkowski and her best friend Annie went for happy hour margaritas at a Mexican restaurant in Towson, Maryland. She got a text from a guy she knew at the University of Maryland, Baltimore County, which was where Borkowski had gone to school before transferring to Towson University in 2015. He was with a couple of friends from the UMBC baseball team, and they all met at a bar called the Rec Room, where they continued to drink and dance. Anna remembers that the guys put their hands under her dress and that she told them to stop, distancing herself from them by dancing in a circle with her friend.
Later, the guys came back to Annie’s apartment. Anna and Annie left them in the living room with a bottle of vodka and a bottle of wine while they went to change clothes. When they came back, the guys offered them drinks. “We noticed that the guys weren’t drinking,” Anna says. “I remember taking a sip and passing it, and they’re like, ‘No, we’re good. Like, we’re pretty drunk too.’”
The next thing Anna remembers is coming to at the foot of Annie’s bed. She says one of the men was behind her, and another was in front of her, and they were both having sex with her. “I remember it felt like I had paralysis, like I couldn’t move — I could see with my eyes, but I physically couldn’t move.” She looked across the room and saw her friend Annie on her back, her eyes closed and her head tilted at a weird angle. The third man was on top of her.
The next morning, Anna woke up confused and in pain. She had no pants or underwear on, and her vagina hurt badly. She found Annie wrapped in a towel on the couch, clutching an aching jaw. Anna had only that partial memory; Annie remembered nothing at all. Anna texted the guy she knew best.
“What happened last night,” she wrote.
“Who the fuck knows,” he responded. “Never speak of it ever.”
“What,” she wrote back.
“We are never bringing it up again lol,” he said.
Six months later, on March 22, 2018, two Baltimore County police detectives and a uniformed patrol officer knocked on the front door of the home in Baltimore where Anna Borkowski lives with her grandparents. They were sent out of their jurisdiction, into the city of Baltimore, by Baltimore County state’s attorney Scott Shellenberger and assistant state’s attorney Lisa Dever, who directed them to tell the 21-year-old Borkowski to stop trying to file charges against three men she said raped her.
So began the other half of what became a double ordeal for Anna: Trying to bring her alleged rapists to justice and suing a police department and a prosecutor that, she says, have a long pattern of mishandling sexual-assault investigations. Until now, Anna has refused to talk publicly about her case. She is a quiet, reserved person, a social worker in the oncology department of a local hospital who is devoted to her family and her dogs. But it takes an exceptionally tenacious person to weather almost four years of a federal suit. Anna says she doesn’t want to give up until there’s some accountability for what she went through.
She thinks it’s particularly important to speak out given that Shellenberger, a Democrat who has helmed the Baltimore County state’s attorney’s office since 2007, faces his first-ever primary opponent this summer. His challenger, Robbie Leonard, says the office’s “disgusting” treatment of sexual-assault survivors was one of his main motivations for running against Shellenberger. “We don’t get to hear the stories of women like Ms. Borkowski, who were denied their right to file charges against somebody and have a perpetrator prosecuted. We don’t know how many women are out there like that,” Leonard says.
In his deposition in the case, Shellenberger said that he directed detectives to her grandmother’s house out of concern for Anna. “I was genuinely worried that the men who she was accusing were going to either sue her civilly or go to a commissioner and try to take out charges against her,” Shellenberger said. “And we were concerned that she should know that that could happen.”
Anna doesn’t buy it. “Growing up you want to believe that law enforcement will have your back, but there’s not always good people in positions of power and authority,” Anna says. “I mean, I’ll always have that anger toward the people that violated me, but then these people — like, do your job.”
Following that night in October 2017, Anna and Annie spent the entire next day being interviewed by detectives and submitting to a SAFE exam, an invasive forensic procedure designed to glean all available evidence of a sexual assault. Anna’s vagina had been torn, and the SAFE exam was excruciating. It confirmed that Anna suffered “injuries consistent with sexual assault,” according to the suit she later filed.
Because Anna and Annie had blacked out, they thought the men might have drugged them. But her suit claims that BCPD detectives didn’t gather any evidence from Annie’s apartment, including failing to test the suspicious vodka bottle, which Anna said she found emptied out in the sink the next day. Anna’s attorney, Rignal Baldwin V, said the police did virtually no investigation, including failing to subpoena surveillance video from the bar or the apartment building. (The Baltimore County Police Department said they are unable to comment on Anna’s case but noted that they had revised the department’s policies after a Sexual Assault Investigations Task Force was created in 2019.)
Anna heard nothing about the case for weeks. It was only after she called to check in on the status of the investigation that detectives interviewed the suspects — a full 26 days after she filed her report. The detectives met the three baseball players at a Chick-fil-A restaurant to conduct the interviews, which were all completed sequentially in under an hour.
The day after the interviews, Lisa Dever, the assistant state’s attorney, informed the police the county would not be bringing charges. BCPD officially closed the case, noting that it was “exceptionally cleared” — a designation used by the FBI when law enforcement has identified a suspect and even has enough evidence to make an arrest but can’t make the arrest for some reason. It’s supposed to be reserved for cases where an offender dies during an investigation, has been extradited for other crimes, or a victim refuses to pursue charges; none of these circumstances applied to Anna’s case.
A detective called Anna to explain they were not pursuing her case. Upset and bewildered, she says she then had a series of calls with detectives and Dever. Anna says one of the calls ended with a detective hanging up on her. “She just said to drop it, that that was her decision, and it’s not going to change, that I need to let it go,” Anna says.
“This is not a ‘failure to protect’ lawsuit, it is about intentional misconduct designed to cover up justifiable complaints of sexual assault.”
She felt deeply violated and began to spiral into anxiety and depression. She solicited the help of Baldwin, her attorney, and that’s how, in March 2018, she landed at the district court commissioner’s office, which in Maryland can bring charges directly based on a victim’s sworn statement. The first commissioner Anna tried, upon hearing her statement, asked her to leave the room and called Dever. Undeterred, Anna went to another commissioner, who did charge the men with first-degree rape and second-degree sexual assault, among other charges.
When news of the charges reached the state’s attorney’s office, Dever was displeased. “I was very upset,” Dever said in her deposition in Anna’s case. “I wanted to try and communicate somehow that she needed to stop going to the commissioner’s office.” In his own deposition, Shellenberger elaborated. “We were concerned for Ms. Borkowski,” he said. “I said I think we need to give Ms. Borkowski some advice, and I said that she should have the detectives go see Ms. Borkowski to advise her that if these defendants keep getting charged, and potentially arrested, that we were concerned that they, the defendants, would sue her civilly or may try to charge her with a criminal violation.”
Two days after the commissioner filed the charges, Dever and Shellenberger sent detectives to Anna’s grandparents’ house. According to Detective Kristen Burrows’s notes of her meeting with Shellenberger and Dever, she was directed to tell Anna that continuing to pursue charges against the men could result in the accused bringing a “civil lawsuit or, worse, criminal charges” against her.
Anna also faced pushback from the three men, who were suspended from UMBC’s baseball team when the charges were filed. In an email to UMBC’s Title IX coordinator, an attorney for the three accused men called Anna’s claims “false and defamatory” and said she “seems willing to go to any lengths to pursue her vendetta against my clients.”
On March 23, 2018, the state’s attorney’s office dismissed Anna’s case. That September, Anna sued the Baltimore County Police Department, Shellenberger, Dever, and others in federal court, claiming that law enforcement’s handling of her case violated her civil rights. “This is not a ‘failure to protect’ lawsuit,” Anna’s attorney wrote in the complaint, “it is about intentional misconduct designed to cover up justifiable complaints of sexual assault.”
In December 2021, U.S. District Judge Deborah Chasanow denied a motion for summary judgment filed by Shellenberger and other defendants, allowing Anna’s lawsuit to move forward. Judge Chasanow wrote that the detectives’ visit “occurred unexpectedly” and was “carried out by detectives and an armed police officer outside their jurisdiction. A reasonable jury could find that these facts amounted to a ‘gratuitous show of uninvited law enforcement interest.’” She added that there was evidence that could suggest that the defendants “sought to bully Ms. Borkowski,” whom she called “a recently traumatized 21-year-old student.” The case will proceed to trial in September.
Baltimore County has repeatedly come under fire for its handling of sexual assault investigations. In 2016, BuzzFeed News reported that BCPD dismissed 34 percent of all reports of rape as “unfounded,” at times with no investigation at all, at a rate far higher than the national average of 7 percent. That same year, the Baltimore Sun reported that the county had thrown out rape kits, sometimes without investigating the crimes.
In 2018, ProPublica documented that BCPD reported a clearance rate of 70 percent for rape cases in 2016, nearly twice the national average. A closer look showed the department marked rapes “exceptionally cleared” half as often again as it actually arrested suspects. “It is well documented that police manipulate crime numbers, including clearance data, to meet desired ends,” said Meaghan Ybos, the executive director of People for the Enforcement of Rape Laws. “This is a clear pattern of behavior with the obvious intent of dissuading rape complainants from pursuing cases through the criminal system.” The Baltimore County Sexual Assault Investigations Task Force’s 2021 audit found that of 54 randomly selected cases, nearly one-quarter had been “exceptionally cleared.”
Anna’s suit argues that her experience was part of a “concealed epidemic of sexual assault in Baltimore County.” The complaint notes that “when a woman reports a sexual assault to Baltimore County, there is approximately a one in ten chance an accused perpetrator will be arrested,” as opposed to the national average of 16 percent. Her attorney claims that, in response to media scrutiny of the county’s classification of a high number of rape cases as “unfounded,” BCPD began coding a large number of cases as “suspicious” or, as in Anna’s case, clearing them “exceptional” circumstances, which the suit argues was done “in order to avoid reporting and investigating reports of sexual assault.”
Anna’s lawsuit alleges other systemic problems, including that the police department improperly disposed of rape kits. A Baltimore Sun report found that in one case, a victim discovered her rape kit had been destroyed untested. The 2021 task force audit notes that in 2019 “most rape kits were not tested” — 78 percent of those in that year’s audit. That number has improved — in 2021, less than 5 percent of rape kits were not tested.
There are other problems with the BCPD’s initial investigation that may come under scrutiny. “Interviewing suspects in a Chick-fil-A one after the other seems to be among the worst practices I have ever heard of,” Carol E. Tracy, executive director of the Philadelphia-based Women’s Law Project, told the Baltimore Sun in 2018. During the discovery process, Anna found out that the detectives had investigated her class schedule and knew where she was doing her internship. Furthermore, it turns out the BCPD actually closed Anna’s case less than 24 hours after she made her report, according to documents received during the discovery process of her lawsuit. According to Anna’s lawsuit, “the only reason it is known” that the case was closed before detectives even interviewed the alleged perpetrators “is because a date-stamped copy of the report was faxed to [Towson University Police Department] at 5:47 a.m. on October 21st.”
BuzzFeed’s 2016 investigation of BCPD noted that the high rate of “unfounded” sexual-assault cases partly stemmed from an interpretation of Maryland’s rape law at the time, which required the perpetrator to use “force or the threat of force.” This led police and prosecutors to require victims to have shown physical resistance to charge a suspect with rape, a police spokesperson confirmed at the time. That law was changed in 2017 — before Anna’s alleged assault — but prosecutors still focused on the use of force when deciding whether to investigate her case, according to court documents. They also zeroed in on the fact that she was drinking and drew a distinction between “intoxication” and “incapacitation.” In a deposition, Dever explained that because Anna “recalled performing fellatio,” he believed she had the capacity to “both consent and engage” in intercourse and did not meet the threshold for incapacitation. “I truly believed that had she been sober, she would not have made the decisions that she made, but because she was intoxicated, these were the decisions that were made,” Dever testified.
“They were saying that you can get vaginal tearing from consensual sex, and I have never had vaginal tearing from consensual sex in my life,” Anna says of her conversations with detectives. “They’re just trying to make it seem like we wanted it, like we asked for this. No, never.”
The BCPD detectives and the state’s attorney’s office argue that, in Anna’s second attempt at pursuing charges against the men with a commissioner, she said the men used force, which is required to meet a first-degree rape charge, and that she did this knowing it was false because the interactions did not meet the legal standard of force. The defendants also argue that the video of the detectives knocking on Anna’s grandmother’s door shows the interaction was “objectively not intimidating.”
But Anna says that when the BCPD officers showed up at her home, it dissolved the scrap of emotional safety she had been able to hold onto after her harrowing experience. Following her initial report, she went back to her grandparents’ home where she completely redecorated her room: new bedsheets, new bed covers, even a new paint color for her wall. The room she had been living in felt soiled, and she desperately wanted a fresh start. She began spending more and more time in that room, sleeping much of the time she wasn’t in classes. She felt like her grandparents’ home, with her sister and her dogs, was the only place she felt truly safe. Her mental health worsened; she began partying heavily as a way to cope and sometimes, she says, self-harmed. In May 2018, she spent several days in a mental-health facility.
Anna filed a civil suit against the three men in 2018; the three men countersued Anna in 2019 for malicious prosecution and defamation. The men’s suit was resolved in 2020, though its outcome was confidential; Anna’s was also resolved confidentially that year. But the men did receive a $450,000 settlement from UMBC in December 2021; its student-run paper had run the names of the accused in 2018. The Baltimore Sun reported that the men were “part of a national trend” of accused men “turning [the] tables” on their accusers in court.
“Was the investigation handled in the most professional manner? Probably not. Would this ever have been a case that a prosecutor would have wanted to pursue? I doubt it,” said Ronald Schwartz, the attorney for the three accused men, by email. “This was a complicated case, where what actually happened was not obvious, but became a campus ‘cause celebre’ because of the zeitgeist of the moment, and the State of Maryland wound up paying a lot of compensation to my clients because they allowed their student newspaper to get caught up in it.”
“I think there are plenty of cases where women have not gotten due process, all right? Plenty of them,” Schwartz added by phone. “The facts in this case — Anna Borkowski is not a good fact situation for a woman that’s been abused by the process. You know what I mean? That’s my personal opinion. But she’s not a good test case.”
Baldwin, Anna’s lawyer, says that the police and prosecutors investigated Anna more deeply than they did the alleged perpetrators. “The idea that a woman would walk into a police station and be dehumanized, degraded, doubted, and insulted simply because she is a woman reporting a crime is unacceptable in the most fundamental sense of the word,” Baldwin said. “It’s not okay.”
Anna’s lawsuit is part of a wave of litigation from women around the country who are suing police departments and prosecutors over their mishandling of sexual-assault investigations. Earlier this year, the Austin City Council approved an $875,000 settlement for 15 sexual-assault victims who argued they were “re-traumatized by the law enforcement system at nearly every turn,” including by failing to test their rape kits for years, refusing victims their case files, and not alerting them when their cases were closed. In New York, dozens of women have an ongoing lawsuit against Columbia University and New York–Presbyterian hospital alleging they were sexually assaulted by gynecologist Robert Hadden. In December, 79 of those women reached a multimillion-dollar settlement with Columbia and New York–Presbyterian. Some of Hadden’s alleged victims, including former Democratic presidential candidate Andrew Yang’s wife, Evelyn, say former Manhattan district attorney Cy Vance “grossly mishandled” the sprawling sexual abuse case. (Vance allowed Hadden to enter a 2016 plea in which he served no prison time.) Calls for justice from Yang and others led in part to the U.S. Attorney for the Southern District of New York indicting Hadden in late 2020 for allegedly sexually assaulting dozens of his patients. Hadden is currently awaiting trial.
In Louisiana, a woman named Priscilla Lefebure — who said she was raped by an assistant warden at the Angola penitentiary in 2016 — sued the local DA over his handling of her case. According to her attorneys, though Lefebure’s rape exam showed vaginal bruising and other injuries, “the grand jury heard none of that.” A recent court filing in the case states that “at the time of petitioner’s rape, respondent had a policy, coordinated with the local Sheriff’s office, of not collecting, not processing, and not investigating evidence from rape kits. This policy, sex-discriminatory on its face, led a repeat rapist to believe he could violently rape petitioner with impunity. The rapist was right.” After a federal appeals court ruled in October that Lefebure doesn’t have standing to sue the DA, her high-powered legal team, which includes Ken Starr, took a writ to the U.S. Supreme Court, which might hear the case.
“This is a big, bureaucratic machine, and one of the things they want to do is they want to process quickly and efficiently. But these cases are messy,” says Aya Gruber, law professor at University of Colorado Boulder and author of The Feminist War on Crime, about prosecuting rape cases. “There’s part of the bureaucracy where they’re like, ‘Okay, this is going to be high-profile, and we’re gonna go guns blazing, the most punitive.’ On the other hand, there’s also this tendency — and we see it over and over again — of, like, a very famous football player or a privileged person, to cover it up. These are different ways that the bureaucracy isn’t doing anything about the problem and isn’t really serving victims.”
After graduating from Towson in December 2018, Anna got her master’s degree in social work. She’s slowly built her life back up — she spends much of her day at her job in the oncology department of a local hospital — but she still struggles to feel safe outside her home. “I’ve always been, like, super on defense. Even to this day, when I have to come home, if it’s nighttime and it’s dark, I have to have my grandma turn the back porch light on, unlock the door, and literally stand in the doorway,” she says. “I have this immense fear that someone’s gonna try to do something to me. This just sucks. Like, when is it ever gonna be normal? That I won’t have to run from my car to my back door?”
But Anna is hopeful that five years after the alleged assault occurred she can finally put it behind her. “Maybe this is when I’ll finally get the accountability that I’ve always wanted,” Anna said. “I feel as though I’ve gotten the short end of the stick since 2017, when I’ve just been trying to get justification and accountability for what happened to myself and to my friend for something that — you know, it changed our lives forever. Forever.”