Milwaukee activist Frank Nitty will not be charged in sex assault case

Milwaukee County prosecutors will not file changes against prominent activist Frank “Nitty” Sensabaugh after four women told police he had sexually assaulted them.

Two prosecutors who reviewed the reports at the District Attorney’s Office said they believed the women but did not think they could prove a case in court.

Sensabaugh has denied the allegations and his attorney has said the activist was falsely accused.

The decision closes an investigation that started in November 2020 when Sensabaugh was arrested after a woman told police he had sexually assaulted her.

At the time, Sensabaugh livestreamed his arrest to his tens of thousands of Facebook followers, naming the woman he believed had made the accusation.

Soon after, three more women separately went to police and described experiences of unwanted or coerced oral sex with Sensabaugh.

The back-and-forth played out on social media for much of last year. Some of the women posted videos about their allegations. Sensabaugh denied wrongdoing in his own videos and later, in response to media inquiries, through his attorney.

Three women later spoke to the Milwaukee Journal Sentinel and shared their frustration at the long wait for a decision in the case and lack of communication from prosecutors. The Journal Sentinel published the article in late January, more than a year after Sensabaugh was arrested.

Nearly three months later, the district attorney’s office notified the women it would not issue charges. 

“The DA’s office failed us,” said Tiffany Engel-Rivera, one of the women who came forward, in a statement to the Journal Sentinel.

Assistant District Attorney Erin Karshen said she believes “these things happened” to the women but cited inconsistencies in the women’s statements to police, on social media and to the Journal Sentinel as a barrier to convincing a jury.

She declined to detail the inconsistencies. 

Karshen did acknowledge a “passage of time” between when the police reports were first filed and her decision. 

“Anytime you retell something, there can be minor inconsistencies,” she said.

Psychologists and other experts have long known trauma can influence how a person’s memories of a specific event are stored and retrieved as their body enters a “fight, flight or freeze” state. Police and prosecutors typically receive training on these responses to guide their work interviewing victims and contextualizing a victims’ actions to a jury.

Milwaukee police interviewed Sensabaugh about the first allegation after his arrest. He was not arrested or questioned by police about the other three allegations.

Karshen said the decision not to interview Sensabaugh came after conversations with his attorney, who provided materials to support the activist’s defense. Sensabaugh has maintained any sexual contact was consensual.

The three women who told their stories to the Journal Sentinel said they were never asked by police or prosecutors to explain any inconsistencies and were never given the opportunity to address or refute whatever information Sensabaugh’s attorney provided.

The decision in the case comes as the Milwaukee County District Attorney’s Office is getting fewer referrals for adult sexual assault cases from police and is charging a smaller percentage of them.

Last year, police agencies referred 306 cases and prosecutors issued charges in 40% of them. That’s down from five years earlier, when prosecutors charged 55% of the 551 adult sexual assault cases referred to them.

In general, prosecutors try to make a charging decision within a week of getting a referral from law enforcement, said Matthew Torbenson, deputy district attorney, who supervises the sensitives crimes unit. 

In this case, the decision took 17 months.

It took weeks and months to request, receive and review social media data from large companies, such as Facebook and Google, for the investigation, Torbenson said.

On average, it takes the sensitive crimes unit about 55 days to make a charging decision, but that timeframe is only for cases in which charges are filed, according to data provided by the District Attorney’s Office.

The office does not track the dates when prosecutors make a decision not to charge, so it’s unknown if it took longer to make a decision in the Sensabaugh matter than in other uncharged cases.

‘None of us ever tell an identical story’

Inconsistencies are used to cast doubt on a person’s version of events and suggest they are not credible. Decades of research has shown inconsistencies could have explanations other than a person’s veracity.

When sexual assault survivors tell their stories, experts say, it’s often not as a narrative where they concisely recall first this event happened, then this second one and finally this third one.

Instead, survivors can jump around in their timeline — retrieving their memories as they were stored in a time of stress and danger. It’s because of how our brains respond to a traumatic event.

There’s a biological reason it “comes out fragmented,” said Elana Newman, psychology professor at the University of Tulsa and research director for the Dart Center for Journalism and Trauma. The hippocampus — where memories are processed and stored — works differently during times of high stress, she said.

Those who work with survivors say they learn something new every time a survivor discusses their experience and that does not make one version less true than another. 

Survivors may share their story differently depending on who they are talking to, whether it’s a police officer or a relative or a reporter or followers on social media. It may be easier to tell a police officer a detail in a private interview rather than sharing it with a reporter, for example.

“None of us ever tell an identical story in two different spaces, particularly when there are two different audiences,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Las Vegas.

“Audience matters and the goal of communication matters,” she added.

Inconsistencies also often are seen as solely caused by the survivor, when it’s entirely possible the people receiving the messages recorded or interpreted them differently,  said Erika J. Petty, the executive director of LOTUS Legal Clinic, and Rachel E. Sattler, senior managing attorney, in an email to the Journal Sentinel.

A police officer could forget to note something in a report, a medical record might have a detail missing or a friend could jump to a conclusion about what the survivor meant by “I couldn’t get away,” Petty and Sattler wrote.

“There could be perfectly understandable reasons for those inconsistencies that have nothing to do with the survivor’s credibility,” they added.

Prosecutors linked all four allegations as one case

In the Sensabaugh case, prosecutors never asked for an explanation from the women whose accounts they had described as inconsistent.

Having police re-interview the women could possibly introduce more inconsistencies, Torbenson said.

“It becomes a difficult choice to make on do we do we want to clarify these inconsistencies and seek an explanation or are we going to cause further problems in the case by having someone do that follow up investigation?” he said.

Ebony Anderson-Carter, one of the women who spoke to the Journal Sentinel, said Karshen identified inconsistencies in the amount or use of force described her in various accounts. Even without the use of force, what Anderson-Carter described could fall under the charge of third-degree sexual assault, defined as sexual intercourse or contact without consent.

But the prosecutor said she would not file that charge, Anderson-Carter told the Journal Sentinel.

Karshen confirmed her decision, saying if there were inconsistencies with the use of force, it did not matter what degree she charged because the inconsistencies remained.

The Journal Sentinel had sought the police reports prior to publishing the story in January but the Milwaukee Police Department denied the request because the investigation remained open. A second records request, filed after the prosecutors’ decision, is pending.

Karshen also had decided to group all four sexual assault reports as one case early in the investigation. She said she did so given the “very strong modus operandi” — a similar pattern of alleged behavior —  and she believed it would make “the strongest case possible.”

The decision tied all four cases together, meaning a weakness in one became a weakness for the others even though the prosecutor said not all of the accounts had inconsistencies. 

Anderson-Carter said she disagreed with that approach from the beginning.

“I didn’t want that,” she said. “We just wanted to deal with our situations separately and (Karshen) insisted that we all come together and so on and so forth.”

Anderson-Carter also said she believed her public statements criticizing the investigation and length of time it was taking angered the District Attorney’s Office.

In an interview with the Journal Sentinel, Torbenson said any criticism did not affect the charging decision.

More: Prosecutors will not file charges in a sex assault case that exposed dysfunction within MPD and oversight commission

Sensabaugh’s attorney gave materials to prosecutors

Prosecutors say the case against Sensabaugh is closed unless other information surfaces.

The district attorney’s office had an obligation to both the women and Sensabaugh “to give some finality to our decision,” Torbenson said.

“There’s a hint that more has happened than what we’re aware of,” he said. “A decision not to charge today doesn’t necessarily mean that we can’t revisit that decision based on new information in the future.”

The statute of limitation for most sex crimes in Wisconsin is 10 years.

Anderson-Carter and Engel-Rivera said they believed the prosecutors’ decision will discourage others from coming forward in this case and others. Engel-Rivera filed police reports in Milwaukee and McCandless, Penn. where she said an assault took place during a protest march. Sensabaugh has not faced changes in Pennsylvania.

“Our system often sets up tons of barriers to say we don’t want to hear from you,” said Garvin, the Las Vegas-based crime victim rights expert.

“So then survivors access the forums in which they can start to tell their story in a healing way or to generate attention,” she added. “Then the system all of sudden looks at them and says now we can’t listen to you because it’s inconsistent.”

Some supporters of Sensabaugh had viewed the activist as a victim of a conspiracy of false allegations. The prosecutors said they found no evidence the women knew each other personally before disclosing their assaults. Prosecutors also said they are not investigating the women on allegations they made false reports because there was no evidence they had done so.

Sensabaugh and his attorney have maintained the allegations were false from the beginning and that the activist “has consistently and credibly denied any wrongdoing.”

In a statement, Attorney Craig Mastantuono said his legal team conducted “thorough investigations” of the allegations.

He said he turned over a packet of materials to police and prosecutors that included witness summaries, copies of texts and other communications to Sensabaugh from some of the women, and polygraph results. Polygraph reports are inadmissible in criminal court proceedings in Wisconsin. 

Mastantuono did not share copies of the texts and messages with the Milwaukee Journal Sentinel but said they “called into question the credibility of their accusations and refuted that any alleged assault actually happened.”

His client, he said, “remains committed to the best police and justice system our city and country can achieve.”

There is no data that suggests that rates of false reporting are higher in sexual assault cases than they are for any other crime.

One study recently cited by the Wisconsin Department of Justice estimated the rate of false claims to be 5.9% while an another had an even lower rate, between 2% and 5%, when the accuser is a child.

“There are false accusations in the world but the best we can tell from the science is they are such a small proportion,” said Newman, the psychology professor in Tulsa.

“The larger proportion is people not reporting,” she said.

Women do not regret sharing their stories

Engel-Rivera and Anderson-Carter said they do not regret coming forward.

The prosecutors “decided to take the easiest way out instead of accepting a challenge to help protect future victims from experiencing this trauma we have to live with everyday,” Engel-Rivera said.

But telling her story has helped in her healing journey, she said, and she hopes it will encourage others to do the same.

“Although we didn’t get justice today, I do strongly feel we will get it one day,” she said.

A third woman who reported her allegations to police told the Journal Sentinel she had some hope for justice in the future. She did not want to be named in the Journal Sentinel’s stories about the case, citing fears of retaliation and harassment.

But she also had sharp words about how prosecutors handled her case, saying Karshen was not empathetic and she believed the prosecutor’s actions will prevent others from coming forward.

“It’s shameful of the (prosecutor) to not even try to fight for women survivors of sexual abuse,” the woman said.

The Journal Sentinel typically does not identify victims of sexual assault; Engel-Rivera and Anderson-Carter agreed to be named.

Anderson-Carter, an activist in Madison, said she spoke out to provide an example to her daughter and other Black women.

“I showed my child not to sweep it under the rug,” she said. “I showed my child it’s OK to be honest, vulnerable and angry. It’s OK to tell the truth regardless of who that truth may hurt. It’s OK to tell the truth even when a Black man is harming you.”

The allegations and investigation against Sensabaugh had raised a host of issues, from the competing legal rights of crime victims and the accused to the challenges facing those who report sexual assault. The case also shed light on the underlying racial and gender dynamics of Black women accusing a prominent member of their community.

“To women in Wisconsin, to Black women in Wisconsin, just keep trying,” Anderson-Carter said. 

Where to find help

The City of Milwaukee Health Department has resources for sexual assault survivors here.

Advocate Aurora Health’s Healing and Advocacy Services for sexual assault survivors includes a 24-hour hotline at (414) 219-5555 and a confidential text line (414) 219-1551.

The Sojourner Family Peace Center in Milwaukee operates a 24-hour confidential hotline at (414) 933-2722 and offers assistance with e-filing for restraining orders at (414) 278-5079.

The Milwaukee Women’s Center also offers a hotline at (414) 671-6140.

The Asha Project, which serves African American women in Milwaukee, provides a crisis line from 9 a.m. to 4 p.m. at (414) 252-0075.

Diverse & Resilient, which serves the LGBTQ community, operates the “Room to Be Safe” resource line (414) 856-5428 and has online resources at roomtobesafe.org.

The Hmong American Women’s Association, which serves the Hmong and southeast Asian community, has advocates available at (414) 930-9352 from 8 a.m. to 4:30 p.m. Monday through Friday. The WI Hmong Family Strengthening Helpline is available after hours at (877) 740-4292.

The UMOS Latina Resource Center in Milwaukee offers bilingual, bicultural, domestic violence, sexual assault and anti-human trafficking supportive services and operates a 24-hour hotline at (414) 389-6510.

Contact Ashley Luthern at ashley.luthern@jrn.com. Follow her on Twitter at @aluthern.