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.

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Unfounded Concerns

Murphy's concerns that rape kit testing violates victim privacy rights are simply unfounded.

Federal and state laws prohibit law enforcement from gleaning any medical or genetic information from a DNA test.

A rape kit is only booked into police evidence if and when a victim decides she would like to report the crime to the police. Untested rape kits in police evidence storage facilities are not there because, as Murphy argues, they belong to victims who have decided not to report the crime. Rape kits collected from victims who decide not to report their crime to the police are stored in the hospital.

While many of Murphy's arguments are factually wrong, the one that most concerns me is her contention that many rape kits in a backlog are there because the victim didn't want her rape kit tested.

In my experience, rape victims who go through the process of a rape kit examination, and who decide to report their crime to the police, long for justice and believe there is something in their rape kit worth testing. And for women like Stephanie, learning that their rape kit is in a backlog does not bring relief, as Murphy suggests, but rather it contributes to their sense that their cases--and they--don't matter.

Murphy is right to note that the rape kit backlog is not the cause of the criminal justice system's historically anemic response to sexual assault and testing rape kits will not resolve all the problems with the way our society views and addresses sexual violence. Yet rape kit testing matters. It sends a message to the victim that her case is important and what she went through to report the crime and go through the exam was not in vain. It sends a message to the perpetrator that they will not get away with their crime.

As for Stephanie, in January of this year I called the police department on her behalf to check on the status of her rape kit. Thanks to a new law in Illinois, passed in July 2010, all untested rape kits in police storage facilities have to be sent to the crime lab for testing. Stephanie's kit is one of them. It is waiting in a long line. When it's opened, let's hope the investigative information contained in the kit leads to the re-opening of her case and, finally, to justice.


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Sarah Tofte is director of policy and advocacy for the Joyful Heart Foundation, where she works on, among other things, reforming the rape kit backlog in the United States.

For more information:

Ending the Backlog:

3 COMMENTS | Login or Sign Up to post comments



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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!