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May 17, 2019 Feature

Untested Rape Kits: Delays, Destruction, and Disregarded Victims

By Erin Gordon

For the past several years, the issue of tens of thousands of untested rape kits languishing on shelves across the country has garnered attention from state lawmakers and advocacy groups, spurred policy changes, and secured funding or grants to test the kits and clear the backlog. But another equally disturbing problem has come to light: the destruction of rape kits before the DNA evidence is tested.

According to an investigation by CNN, since 2010, 25 law enforcement agencies in 14 states destroyed rape kits in 400 cases before the statutes of limitations expired or when there was no time limit to prosecute.

The 2018 report “Destroyed: How the Trashing of Rape Kits Failed Victims and Jeopardizes Public Safety” notes that once the physical evidence contained in these shoe box–sized containers is gone, it can “never be used to lock up a rapist or set free the wrongfully convicted.”

System Fails Rape Victims

Criminal justice experts say that, as with the plethora of untested rape kits, the destruction of rape kits indicates a systemic problem in our culture—a distinct failure to regard sexual crimes as seriously as other violent crimes. “Show me another crime where it’s okay to destroy evidence before we learn its value,” says Rebecca Campbell, a psychology professor at Michigan State University in East Lansing whose research focuses on sexual assault.

Mass destruction of rape kits also illustrates how uncoordinated and unsystematic the criminal justice system is. “The destruction of rape kits signals a fundamental misunderstanding by crime labs and law enforcement about statutes of limitation and policies regarding the destruction of evidence,” observes Campbell, who served as lead researcher for the Detroit Sexual Assault Kit Action Research Project, a four-year multidisciplinary study of Detroit’s untested rape kits funded by the National Institute of Justice in Washington, D.C.

“It’s very concerning that biological, forensic evidence is never even being analyzed,” she adds. “That means it won’t inform sentencing or affect the investigation. The process of getting an exam is difficult for victims—it’s invasive. Destroying the results before finding its value says we don’t value this evidence, this crime, these survivors.”

Indeed, sexual assault is regarded as a low priority by many in law enforcement, says Ilse Knecht, director of policy and advocacy at the Joyful Heart Foundation, a New York City–based organization that works to heal and empower sexual assault survivors. It was founded in 2004 by TV actress Mariska Hargitay, star of Law & Order Special Victims Unit. “Our society doesn’t recognize sexual assault for the violent crime it is, doesn’t understand the impact it has on victims,” Knecht points out. “There’s a complete underplaying of how violent an act—how dehumanizing and invasive—it is.”

Advocates for rape kit reform say victims have the right not just to have their kit promptly tested but also to be kept apprised of its status in the system.

Value of Rape Kit Evidence

Law enforcement and prosecutors don’t always understand how useful rape kits can be to a legal case, according to Bradley Campbell, a University of Louisville criminal justice professor who has spent years studying the backlog of rape kits. Plus, “if a victim doesn’t want to move forward, law enforcement usually doesn’t move a case forward” by testing the kit anyway, which is a distinct risk to public safety, he explains.

“Rape kits are not only useful in helping specific victims but also in getting violent criminals off the street,” Campbell adds.

In particular, rape kits can help identify serial rapists, link rapes to homicides and other violent crimes in different locations, and be used to reopen cold cases. No less important, Campbell notes, rape kit DNA can exonerate the wrongly accused. When kits are trashed, that evidence is gone.

With little across-the-board policy, investigators and detectives are often forced to make one-off decisions about tossing rape kits even though they’ve received no training in DNA evidence.

Bias Against Victims

Knecht notes that another concern is investigators who do not understand trauma and how victims might behave after a sexual assault. Specifically, he says sexual assault victims who do not want to talk about an incident over and over should not be equated with an unwillingness to cooperate. Plus, avoidance and withdrawal are common PTSD-related responses from rape victims.

What’s more, typical law enforcement comments about a sexual assault victim—“she was laughing through the investigation,” “she couldn’t remember the details of the assault,” “her story doesn’t add up”—similarly show that there’s a lack of training about the neurobiology of trauma and how it prevents victims from encoding memories.

And even if victims do not file a report with law enforcement at the time the kit was collected, that does not negate their right to report the crime and have the kit tested in the future, according to the Joyful Heat Foundation’s model policy.

Institutional bias and prejudice also play a role in the destruction of rape kits, according to Knecht. “Many rape victims come from marginalized groups—sex workers, drug abusers, the mentally ill—the exact people targeted by predators,” she explains. “To some in law enforcement, these people are throwaways. No one cares that they’re victims. And there’s often just one person making that decision [to destroy a kit].”

Why Preserving Kits Is Crucial

Though several organizations, including the National Institute of Justice, have recommendations and model legislation regarding the preservation of rape kits, each state’s evidence laws are different, and local jurisdictions can also enact their own rules. The Joyful Heart Foundation has developed a survivor-centered model for comprehensive state legislation to end the rape kit backlog and recently amended it to address premature destruction of kits.

“Kits associated with a reported crime that is uncharged or unsolved should be preserved for 50 years or the length of the statute of limitations, whichever is greater,” says Knecht, who created the DNA Resource Center at the National Center for Victims of Crime, Washington, D.C., and formerly led its efforts to reform policies and practices related to rape kit testing.

Preserving rape kits for decades is necessary, particularly in the case of child rape kits, because the average age to come forward from childhood abuse is 52, according to Professor Marci Hamilton, CEO of CHILD USA, a think tank at the University of Pennsylvania in Philadelphia dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect.

“A child has a whole life to come forward,” Hamilton points out. “We cannot destroy the best evidence of sexual abuse.”

Although there are no scientific studies about how common the destruction of child rape kits is, according to Hamilton, “anecdotally, the best children’s hospitals are convinced it’s a problem. The CNN story raised awareness that it’s not just a backlog problem. Some kits are disappearing.”

In the case of child sexual assault, investigators may persuade themselves that no assault occurred so it’s okay to destroy evidence. “But they may not understand the way child predators operate, the ways assaults are covered up,” Hamilton notes. “Plus, law enforcement may not be fully aware of the statute of limitations. One very easy thing to do is to have a place for the statute of limitations on the forms they fill out—it will wake up investigators and prosecutors.”

Officials typically cite constraint on resources and high caseloads at labs and sex crimes units as reasons for not pursuing cases and destroying kits. To initiate meaningful reform, every jurisdiction should launch top-to-bottom assessments of sex crimes units, analyzing the policies, caseload, and distribution of resources, Knecht advises.

How Periodic Reviews Can Help

For the last 18 years, the Women’s Law Project in Philadelphia has conducted a yearly case review of sexual assault claims designated as unfounded and therefore not investigated. As part of that review, a cross-section of 10 to 12 experts, including lawyers and social workers, spend a few days combing through files.

“We sit down with the captain of the special victims unit and a shift supervisor and go through files we have questions about,” which is usually about a third of that year’s cases, says Carol Tracy, the Women’s Law Project’s executive director.

Sometimes the case reviewers find that a particular investigator had a tendency to conduct victim interrogations rather than interviews. Sometimes they uncover gender bias. Rape kits, Tracy explains, are one part of the case review. They also analyze, for example, whether a decision not to move forward with a case was made before the kit was processed.

These kinds of assessments are “a systems improvement project, not a ‘gotcha,’” Tracy says. “If law enforcement has confidence in their work, they’d welcome advocate review.”

Notably, Pennsylvania does not have a problem with destruction of rape kits or even with backlog.

The Joyful Heart Foundation similarly recommends that all jurisdictions conduct periodic reviews of randomly selected closed sex crimes cases. Auditors, Knecht says, should go through files page by page, asking whether the detective’s notes illustrate bias, whether the victim had an interpreter and was given a ride to the hospital, whether law enforcement kept up contact with the victim throughout the case, whether the case was closed prematurely or incorrectly, and, of course, whether the rape kit was preserved.

Since the CNN report, Knecht notes that the Joyful Heart Foundation has received quite a few calls from individuals and jurisdictions eager to shift to a more victim-centered approach.

Calls for Reform

Rebecca Campbell suggests a bottom-up approach to rape kit preservation policy. “While we work on advocacy regarding laws preventing the destruction of evidence, in our own jurisdictions we can establish protocol and policies,” she says. “Already there are Sexual Assault Response Teams and Multidisciplinary Teams, and we need more.”

Sexual Assault Response Teams, which typically include advocates, law enforcement officers, forensic medical examiners, forensic laboratory personnel, and prosecutors, assist survivors through the maze of community services available to them. Multidisciplinary Teams focus on overarching policies, help develop model procedures, and provide information to stakeholders and community members.

According to Bradley Campbell, state and local agencies could enact mandatory submission laws that would require that rape kits be submitted and tested within a certain number of days, require every law enforcement agency to have at least one person specifically trained in rape kit handling, and require that victims be updated about the status of their rape kit.

Kentucky, for example, enacted Senate Bill 63 after a 2015 audit revealed more than 3,000 untested sexual assault kits. The state, Campbell says, is still working to fully implement it because the crime lab remains under resourced.

Also in Kentucky, Senate Bill 97 was introduced in February 2019 and signed by the governor in late March. The new act provides that if a victim chooses not to pursue a case, a website will inform the victim where the rape kit is being stored and the date it is eligible for destruction.

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By Erin Gordon

A former lawyer, Erin Gordon is a San Francisco–based legal affairs journalist and the author of the women’s fiction novels Cheer, Heads or Tails, and Beshert.