Rape

Rebuttal: Justice Requires Rape-Kit Testing

Monday, April 4, 2011

In February Women's eNews ran a commentary by Wendy Murphy about excessive attention being paid to a backlog of untested rape kits. Here Sarah Tofte offers a vigorous rebuttal, told in part through the tribulations of one young woman.



Sarah Tofte(WOMENSENEWS)--Last year, while working at Human Rights Watch, I was researching what happens to sexual assault evidence kits ("rape kits") after they are booked into police evidence. During this time I received a phone call from a young woman, Stephanie, from Illinois.

She was raped three years ago by a man whom she met at a wedding that same day. After the rape, Stephanie went to the hospital for medical care, where a nurse advised that she consent to the collection of a rape kit; a lengthy and invasive four-to-six hour process where evidence left on or in a rape victim's body is swabbed, plucked and brushed into envelopes and then sealed in a cardboard box.

Stephanie decided to report her rape to the police. When she gave the police a physical description of the assailant (she only knew his nickname), the beat officer recognized the man she was describing, someone whom, as the officer told Stephanie, had been in trouble for physically assaulting an ex-girlfriend. The rape kit evidence was taken into law-enforcement custody. The last time she saw her rape kit it was in the back of a detective's car as he drove her from the hospital back to her home.

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Stephanie assumed the kit was sent to the crime lab for testing. Why else would she have put herself through all that? When Stephanie's phone calls to the police about her case went unanswered, she assumed that the rape kit test must not have turned up any useful investigative information even though, as she told me, "The guy ejaculated in my belly button and I could see and feel his semen in my pubic hair. I made sure not to wash myself off until I could get to the hospital. I thought for sure they would find DNA to test."

Perfunctory Investigation

Now Stephanie was hearing about a rape kit backlog in her state and she called me for advice on how she could figure out whether her rape kit was in the backlog. I made a few phone calls and confirmed that Stephanie's rape kit had never been sent to a crime lab for testing and was still sitting, unopened, in a small police department's storage locker. She also learned that her case had been closed and the police had conducted a very perfunctory investigation in the case involving only two interviews--one with Stephanie and one with the suspect.

"Wow," she said. "I don't know what is worse: thinking my kit was tested but they found nothing, or knowing that it was never tested. It was so stupid of me to think there would be justice in my case, wasn't it?"

I often find myself recalling Stephanie's words of self-recrimination about her decision to report her rape and have a rape kit collected, and they particularly resonated in February as I read Wendy Murphy's piece here on Women's eNews, in which she argues against testing all rape kits in a backlog .

I don't have the space to respond to all of Murphy's points, but I think it is important to counter her claims that rape kit testing in non-stranger rape cases is: 1) a waste of resources, since the suspect has already been identified and 2) a violation of victim's privacy rights.

Rape-kit testing can produce essential evidence in all kinds of rape cases.

As Linda Fairstein points out in her brilliant rebuttal to Murphy's piece, published in the Daily Beast, rape-kit evidence in non-stranger rape cases can identify serial rapists, including serial acquaintance rapists, affirm a victim's version of events, discredit the assailant and exonerate innocent defendants. In addition, in some cases cops apply the term acquaintance rape even when a prior connection between a victim and a suspect is extremely tenuous and, in any other context, would qualify them as strangers to one another.

Fairstein proves her point by citing the numerous rape cases solved in New York City because the city chose to test every kit in their backlog and every new kit booked into police evidence. She also writes a longer version of her rebuttal.

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Sarah, I had previously commented on Wendy's piece about the backlog and was disappointed in the lack of comments supporting to end the backlog. While I do not have the time to correct all of Wendy's misguided statements, or go back and forth with her in the comments, I do want to leave message...

Thank you Sarah for your words of wisdom in your rebuttal, and to Linda for hers on the backlog blog. It made me smile when I saw you had posted a rebuttal, as I was afraid all of the severely misguided support for Wendy was getting more attention than the ending the backlog support in response to her article was. My fear was that Wendy's article had been swept under the rug; thank you for bringing it to the front of people's minds again. It is very inspiring to see the dedication for the advocacy that you and Linda do continue to shine...it inspires change! Keep up the great work!

Using a stranger rape case to make HER point in fact makes MY point - that DNA testing should ONLY be conducted in cases where identity is in question. I'd even go a step further, as I wrote in my piece, and allow for testing if a case can be made that DNA will resolve an issue other than identity in a particular case. My only opposition is testing all kits because gratuitous testing causes harm to women's interests and creates the dangerous impression that DNA somehow helps us better solve rape cases. It doesn't. And all the nonsense and focus on DNA is distracting us from the far more important and pernicious problem of women not being respected or believed when they report that they were compelled to submit to unwanted sex by someone they know. DNA does nothing whatsoever, period, to elucidate the truth when only consent is disputed.

It's interesting how much this article falls all over itself NOT saying that there are MANY cases where testing DNA benefits nobody - as in the 85% of cases where the perpetrator agrees that penetration occurred. Why would a victim need to corroborate that which is not disputed? Why does this writer suggest that the word of a woman isn't good enough? Why would anyone who claims to care about justice fight to waste so many dollars on needless or harmful DNA testing when the real place where money is needed is to redress the predominant problem of women not being believed when they say they did not consent.

The writer's failure to acknowledge that DNA testing usually provides NO helpful information is extraordinary. Why is the writer so reluctant to concede that at least SOME kits will contain nothing of value to anyone? Her deafening silence regarding this obvious reality is telling and belies a different agenda than the one espoused. Likewise, it is significant that the very same people who want ALL old rape kits to be tested argue vehemently against DNA testing of new suspects and rapists, in today's and tomorrow's cases, when the individual has been arrested but not yet been convicted. Which raises the question - how sincere can advocates for testing of ALL old rape kits really be when they claim a desire to uncover dangerous rapists while simultaneously being opposed to the direct DNA testing of perpetrators in new cases?

This article is interesting for its blatant failure to support the testing of old rape kits ONLY when a showing can be made that testing will reveal information helpful to the victim, the suspect or society. Advocating for an over-inclusive testing standard that wastes precious tax dollars and is guaranteed to cause harm to victims' privacy rights makes no sense for anyone. Indeed, this article should make advocates for victims even MORE suspicious of calls to test all old rape kits because it advances a position endorsed by the criminal defense bar which stands to gain much by way of strategic advantage if law enforcement indulges the silly idea that all victims should always submit to DNA testing. The CSI effect has already wreaked havoc by making jurors expect all violent crimes to be solved by some magic DNA bullet. The myths around the relevancy of such evidence have, for the most part, caused prosecutors to waste extreme amounts of money trying to disprove nonsensical possible defense theories by testing ALL DNA in every corner of every space anywhere near the crime scene. The system has lost sight of common sense principles by overstating the value of DNA -- and the danger of this problem infecting rape cases is even more worrisome because the "crime scene" is often a woman's genitals, which can lead the unintelligent to conclude that "anything in there" is relevant. For sexually active victims, DNA testing is a certain disaster that will unveil irrelevant private information of no use to the elucidation of truth - but highly likely to aid in distortion tactics as the defense will argue that so long as DNA is "taken from the crime scene" and "subjected to DNA testing" - it is per se relevant.

We long ago understood that the purpose of rape-shield laws is to compel the fact-finder NOT to consider a woman's past sexual conduct as relevant on the issue of consent because no matter how many times a woman has consensual sex - she ALWAYS retains full authority to say no the next time.

The falsely constructed relevancy of DNA - in old AND new cases - is an ugly throwback to a time we once found shameful in our legal system - and threatens to undermine a woman's 100% autonomy over her body by rendering presumptively relevant past evidence of her sexual activity simply because it exists at the "crime scene", in DNA form, and was subjected to mandatory "testing".

The mystique of complex science behind DNA testing makes the reality of how harmful DNA testing can be in rape cases harder to see - but is no excuse to buy into nonsensical articles like this one. And the fact that Linda Fairstein is in the "test them all" club is no surprise. Advocates who once believed in her commitment to justice for rape victims watched her jump ship and kiss up to the other side in order to sell books when she said publicly that nearly half of rape allegations are false - something she KNOWS is not true. Fairstein's willingness to disrespect rape victims has given her cache with the boys - as did her silly piece at the Daily Beast.

Meanwhile, a LOT of rapists are happy, knowing their guilt is safe from any judge's eyes, as the backlog of untested kits increases. There must be some collusion, somewhere for this problem to be so severe!

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