Unsealed court documents say 2005 sexual assault allegations against Arroyo were ‘unfounded’

Law enforcement does not question truthfulness of his alleged victim

Boston City Councilor Ricardo Arroyo spoke to media outside Suffolk Superior Court in Boston after his hearing request.David L. Ryan/Globe Staff

A Boston police detective in 2006 found that sexual assault allegations made against Ricardo Arroyo when he was a teenager were “unfounded,” meaning they did not constitute a crime, according to documents unsealed Friday.

“There was no crime committed,” wrote Assistant District Attorney Tara Burdman in a Feb. 17, 2006, e-mail to an investigator about the allegations made by one of Arroyo’s high school classmates.

In an unredacted version of the e-mail obtained by the Globe, Burdman goes on to say, “There is no indication that [defendant] threatened or was violent towards [victim].”

Arroyo, a candidate for Suffolk district attorney, went to court to obtain the documents after The Boston Globe published several stories about investigations of possible sexual assault by him when he was a teenager, one in 2005 and the other in 2007. The disclosure prompted numerous high-profile politicians to withdraw their support of him.

But the documents do not say the alleged victim lied or that the conduct she alleged — that Arroyo repeatedly pressured her into giving him oral sex when they were high school classmates — did not occur.

Instead, the documents show that the alleged conduct by Arroyo did not legally constitute rape. At the time, prosecutors generally did not pursue rape charges in cases where the defendant did not use force.

Arroyo’s campaign said the file “confirms what Ricardo Arroyo has been saying all along — he has never sexually assaulted anyone.”

But others, including the alleged victim’s attorney, said the documents Arroyo released fell far short of exonerating him.

“The documents confirm that my client always told the truth and no one doubted that she did,” said the woman’s lawyer, Leonard H. Kesten. “The district attorney had to evaluate whether the office could prove that a crime was committed and in 2005 an assistant district attorney decided that, if there were no threats or violence, a crime was not committed.”

The documents also further undercut Arroyo’s contention that he did not know about the rape allegations until he was informed by Globe journalists last month.

Arroyo is fighting for his political life in the final stretch of the race for Suffolk district attorney, in which voting has already begun and the primary is Sept. 6, after revelations surfaced last week that he was twice investigated — though never charged — for sexual assault as a teenager. He has maintained his innocence.

On Friday, Arroyo released four pages of redacted files he received from the court. The case file itself is much longer. But two documents that Arroyo did not release directly contradict his claim he was unaware of the allegations at the time, according to copies obtained by the Globe.

They include a handwritten note that reads: “lawyered up,” indicating the defendant had an attorney. The other is a Boston police sexual assault unit case form that lists “defense counsel” as “Jose Vincente.”

Moreover, the Globe previously reported that a police report showed an officer spoke to Arroyo, his mother, and an attorney named Jose Vincenty. Arroyo has denied speaking with police, and said Vincenty only represented him in school-related matters.

In her February 2006 e-mail, prosecutor Burdman wrote that when she told the alleged victim that Arroyo’s alleged conduct did not constitute a crime, the alleged victim told her “it wasn’t consensual.”

Her attorney Kesten also said it was “unfortunate” authorities never investigated whether Arroyo had sent the alleged victim “obscene and threatening emails” on Nov, 2, 2005, the day before she complained to school officials and police.

The woman previously told the Globe she wasn’t sure what happened to end the criminal case. She said she did not pursue the matter because after she complained to officials, she stopped seeing Arroyo in school.

A spokesperson for Suffolk District Attorney Kevin Hayden, Arroyo’s primary opponent, said Arroyo’s efforts to vindicate himself are contradicted by the file at the DA’s office.

“Nothing in the file questions the validity of the victim’s statements,” the spokesperson, Renee Algarin, said Friday. “The campaign to sabotage this victim’s credibility is shameful.”

Arroyo’s campaign fired back at Hayden, suggesting his allies leaked selective information to the media about the two sexual assault investigations.

“It is clear from these new documents that the person who illegally leaked this issue to the media intentionally left out information that proved these allegations were unfounded in order to falsely attack Ricardo and try to win an election,” the Arroyo campaign said. “More importantly, the leaking of these files harms people’s trust in the confidentiality of their complaints.”

A Superior Court judge Thursday granted Arroyo access to redacted versions of some investigative documents from the 2005 sexual assault allegations.

Calling the circumstances of the case “unprecedented,” Suffolk Superior Judge Debra Squires-Lee ruled that Arroyo “will suffer irreparable harm if he is denied the requested materials to respond to the public allegation.”

She ordered the city of Boston to provide Arroyo with the Boston Police Department’s investigative file of the 2005 case by 2 p.m. Friday. But she ordered certain information to be redacted, including allegations from the accuser featured in the narrative portion of the incident report, an entire follow-up investigation report, and an entire sexual assault unit case update.

The woman in the 2007 case initially told the Globe she had nothing to do with Arroyo and just wanted to be left alone, but after Arroyo reached out to her directly, she said he had never assaulted her.

But in an interview with the Globe, the woman from the 2005 case said she stands by what she told police, that Arroyo pressured her to perform oral sex several times when the two were high school classmates, and sent her threatening e-mails. She said she never wanted to speak publicly about her alleged assault, but that watching Arroyo deny even knowing about the allegations made her feel that she had to speak.

“It makes me feel sick, sick to my stomach,” she said on Monday. “I see so many people continuing to endorse him without finding out more. As the potential DA, women are not going to feel safe calling his office. Their cases won’t get heard. ... All those people will be afraid to come forward.”

The documents released Friday included an e-mail from ADA Burdman to the detective who was handling the case explaining her decision in February 2006 to close the case. Burdman’s e-mail also said that, when it came to the threats, she did not “have enough info on that as to who the suspect would be.”

The e-mails were sent to the woman anonymously, several months after the alleged coerced oral sex. She told police Arroyo was making threatening phone calls to her and hacking her e-mails. “watch ur back [expletive] and understand ur mine you WILL NOT make it through this school year,” one of the e-mails said.

Burdman said that even if she did have more information on the threats, those charges would be handled by district court, not superior court where she was assigned.

She wrote that the alleged victim stopped responding to her after Burdman offered to meet with her to explain the decision not to prosecute.

Five months after Burdman sent that e-mail, a new Boston police detective was assigned to review the case, according to the documents released Friday. That detective reviewed the file but did not conduct any further investigation.

It was that detective who marked the case “unfounded.”

Within the police community, there is some divergence over the use of the term, “unfounded.”

Thomas Nolan, a retired Boston police lieutenant and college professor, said in a Twitter post that the department’s procedures define unfounded as, “investigation revealed that conduct did not occur.”

But Joe Giacalone, a retired New York City police sergeant and adjunct professor at John Jay College of Criminal Justice, said he dislikes the term “unfounded” because it can connote that the incident itself did not happen.

“I think a better word to be used when you can’t prove that something happens, particularly in a sexual assault, the term should be unsubstantiated, meaning there isn’t enough physical evidence . . . to be able to bring charges or establish probable cause,” he said. “We all know sexual assaults are very difficult to even develop probable cause from because it becomes a he said-she said.”

Rosanna Cavallaro, a Suffolk University law professor, said prosecutors today would present to a jury many rape and sexual assault allegations that were deemed “unfounded” in years past.

“So it’s very difficult to know today how or why these accusations from years ago were deemed unfounded, or if a similar determination would be made if the allegations were investigated today,” she said.

The Boston Police Department had previously refused Arroyo’s request for access to the files, citing privacy laws that protect sexual assault victims.

Thursday’s court hearing came just days before primary day. But because of mail-in voting and early in-person voting, tens of thousands of ballots have already been cast in the race even as the controversy continues to unfold. As of mid-Thursday morning, nearly 32,000 people in Suffolk County had voted, of which more than 29,000 were Democratic ballots, according to the Massachusetts secretary of state’s office.