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Police: Attempted kiss is not a crime

Copyright © 2017 Albuquerque Journal

Victoria Martens

Victoria Martens

Five months before 10-year-old Victoria Martens was sexually assaulted and murdered, both the state Children, Youth and Families Department and the Albuquerque Police Department were told about an allegation that her mother’s former boyfriend had tried to kiss the young girl.

But an attempted kiss is not a crime, according to police.

Spokespersons for both CYFD and APD said their departments followed policies and were limited in what actions they could take.

CYFD referred the complaint to APD. Detectives talked to the mother, Michelle Martens, and Victoria, but they didn’t learn anything that gave them probable cause to suggest a crime had been committed, according to Celina Espinoza, an APD spokeswoman.

“An attempted rape, or a report of a rape, is a criminal charge,” Espinoza said. “There is no statute for attempted kissing.”

Espinoza said that’s why they did not write a police report or document the call in any other way. Because there are no written reports, it’s unclear exactly what the mother and daughter said had happened or what the circumstances around the attempted kiss were. It’s unclear who the former boyfriend in this case was, but Martens said she had kicked him out of the house.

A couple of months later, CYFD received other complaints regarding Victoria’s sibling and she was again interviewed. CYFD found no evidence of abuse, but it generated a report.

Connie Monahan, the statewide Sexual Assault Nurse Examiner Coordinator for the New Mexico Coalition of Sexual Assault Programs, said Victoria clearly fell through gaps in the state’s system designed to protect children.

She said she is concerned that other at-risk children are falling through the same gaps and believes the agencies should review their policies in the wake of Victoria’s horrific death.

“That’s when we say as a group: ‘Let’s revisit this policy,’ ” Monahan said. “What do we have in writing? Where is it weak? Where is it not flexible enough to say this is an exception?”

CYFD called on March 28

When someone called CYFD on March 28 to say that Martens’ ex-boyfriend had tried to kiss Victoria, the department sent the information to the Crimes Against Children Unit of APD.

That’s because CYFD handles only allegations involving a parent or guardian or a person who lives with the child and has prolonged contact with him or her, according to Henry Varela, a CYFD spokesman.

“That was never investigated by us because it didn’t meet our criteria for investigation, but it was immediately cross-reported to law enforcement,” Varela said.

He said they never received any other reports about kissing or sexual contact of any kind.

In the months that followed, Martens herself called CYFD twice about neglect or hygiene concerns involving her other child’s father. Caseworkers interviewed Victoria and her younger brother, but didn’t discover any physical or sexual abuse. All investigations were closed as unfounded.

Last week, CYFD released a summary of their four contacts with Victoria and her younger sibling. None of the contacts was for sexual or physical abuse.

The department determined caseworkers were thorough, followed procedures and uncovered no evidence of physical or sexual abuse in their interviews.

Varela said they didn’t find any flaws with the way the call was referred out.

“Hindsight is 20/20 on this case because of everything that we now know that happened,” he said. “I know we followed all policy procedures and laws when it came to screening out the portion of that call.”

Monahan said CYFD has to limit themselves by only handling cases involving people who live with the child in order to prioritize cases where children is at higher risk. However, this means cases like this are quickly referred to another agency and may not get the attention they deserve.

“That is one of the weaknesses overall,” she said. “It is unfortunate and it’s an example of where protocols are limited based on limited resources.”

APD detectives check allegation

When the Crimes Against Children Unit was told about the allegation of a mother’s ex-boyfriend trying to kiss a young girl, they went to check it out.

However, Espinoza said, they didn’t find anything amiss.

She said the department has looked into anything that could have been done differently and hasn’t found anything else they should have done in this case.

“We don’t want any children to have to incur any type of abuse,” Espinoza said. “It looks like at this time, everyone did everything they were supposed to.”

It wasn’t until detectives attended Victoria’s autopsy that they got proof she had been raped before Aug. 24, the night she was killed.

Police have arrested Martens, Martens’ boyfriend, Fabian Gonzales, and his cousin Jessica Kelley, in Victoria’s death.

An autopsy revealed Victoria had the sexually transmitted disease human papilloma virus, also known as HPV, as well as some other signs of previous sexual penetration.

Kimberly Hansen, the coordinator for the Sexual Assault Nurse Examiner unit in Roswell, said it’s impossible to know exactly when Victoria contracted the virus. But, she said, she could not have gotten it the night she was killed.

“It takes a while to show up,” she said. “It could take a month or two months; a person may have been exposed many years ago.”

Espinoza said detectives, along with the FBI and CYFD, are continuing to investigate previous rapes, including Martens’ statement that she invited men to her house to rape Victoria. No one has been arrested in that case.

“We’ve solved the homicide case involving Victoria, but since the autopsy revealed there were possibly other rapes that may have previously happened that’s still open and active,” she said.

Monahan said agencies have to prioritize some cases over others in order to make sure they address the children who seem to be in the most danger first.

She said there’s not always enough resources to make sure there are no gaps in the system.

“If we had more resources, anybody in this work would have recognized this young person was at risk for further harm,” she said. “But at that moment, it wasn’t enough to trigger the next step based on policy.”

And she said she worries about other children in the state who are being abused and aren’t getting the help they need.

“This is not just relevant to Victoria,” Monahan said. “This is relevant to many kids. This is happening every day to children in New Mexico.”