Most Rape Cases Are About Consent, Not DNA

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(WOMENSENEWS)–Throughout the country we hear constant outcry about DNA rape kits that never get tested.

Women’s eNews has run commentaries about this supposed outrage and just two weeks ago The New York Times reported on a presumably shocking stockpile of untested kits in Texas. A couple of years ago, New York Times columnist Nicholas Kristof compared the problem to something more likely to occur in Afghanistan than the United States, which turned up the clamor about untested kits.

Hold on.

The U.S. legal system may be embarrassingly bad at providing meaningful redress for rape victims, but untested DNA kits are not the problem. To the contrary. Public attention to the untested kits makes the problem of systemic injustice worse because it saps precious resources and distracts us from the real issues.

DNA testing is not only a red herring wrapped up in a Trojan horse, it’s a gigantic neon whale, stuffed inside a Trojan elephant-in-the-room.

Rape kits may be stacked up in criminal evidence closets all over the country, but not because there isn’t enough money or political will to demand testing. It’s because as many as 90 percent of the kits contain evidence that is, at most, irrelevant.

Eighty-five percent of victims know their attackers and the defense is focused on consent, not whether the act occurred. In such cases, DNA tells us nothing about the issue in dispute. A rape kit could contain the DNA of three men, five sheep and the Loch Ness monster, and it would have nothing to do with whether the victim consented to sex on the night in question.

Ugly Legal History

The United States has an ugly, historic and pervasive habit of prosecuting a far greater percentage of theft crimes than sex crimes, and punishing thieves more harshly than rapists, which partly explains why rape is the least reported of all crimes. Why would any woman bother to call police when studies show that victims are often blamed for the man’s crime and only 2 percent of rapists spend even one day behind bars?

But that problem isn’t caused by the failure to conduct expensive tests on tens of thousands of untested rape kits. It’s that we live in a culture where women’s bodies and rights are disrespected by violent men and have a legal system that refuses to hold them accountable.

This well-known concern notwithstanding, it’s hard to find a newspaper or advocacy organization that hasn’t written, instead, about the need to test "all" old rape kits.

Human Rights Watch at one point found that over 12,000 kits in California went untested for years.

Kristof and others seized on this for outpourings of outrage.

But 90 percent of those 12,000 cases involve victims and perpetrators who know each other. That means only about 1,200 kits should even be considered for testing. Of those, there’s a good chance a majority will be rejected for testing because studies have long shown that many rapists do not ejaculate.

If we tested only the small minority of cases where DNA might actually help elucidate the truth–or where the offender is unknown–we’d have a much smaller backlog of kits stacked up. This targeted use of resources would, in turn, free up funds for expedited processing in the stranger rape cases where DNA is critically important.

Violations of Privacy

If wasting money were the only problem, I might not be so cranky.

But conducting needless tests on already traumatized victims causes gratuitous violations of privacy and due process rights; not only for victims but also for their consensual sex partners, who can get dragged into these cases.

The government has no authority to conduct invasive tests on a victim’s constitutionally-protected bodily fluids unless such tests are ordered by a judge after a hearing where the tests are deemed necessary to resolve an issue legitimately in dispute at trial.  Since almost all rape cases involve a consent defense, few of these hearings will take place, and even fewer will be successful. As it should be.

The way it works now is not only backward, it’s nutty. Medical professionals working as agents of the government inject medical implements into the victim’s body cavities and take samples of deeply personal biological material.

The victim typically signs a document indicating she consents to the intrusion, but she has no knowledge at that time that the examiner may uncover information about her–such as HIV status and DNA from consensual sex partners–and that this material will unfairly be shared with the defense, used against her at trial and revealed in public documents and in open court.

There is no "knowing, intelligent and voluntary" consent to the testing because she has not been provided with a full understanding of the consequences of her consent. There is no due process or court hearing to ensure that only truly relevant and material evidence is obtained. No warrants are issued. Nothing. It’s like the police entering your home without a warrant and conducting a search of your medicine cabinet after you agree to let them in because they told you they’re looking for an escaped murderer.

Bottom line: If there’s a rape kit sitting on a shelf, chances are it’s not proof of some grave injustice, but rather, evidence that a victim’s privacy rights are intact.

Wendy Murphy is an adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She’s a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Murphy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.

6 thoughts on “Most Rape Cases Are About Consent, Not DNA

  1. Very interesting points made by Ms. Murphy. I would hesitate to stop doing DNA tests, as this could result in the focus changing back to the rapist attempting to hide his identity. Modifications are needed such as if the rapist is known and identified quickly, then do not do the rape DNA test, and for those done, once the rapist is identified without legal question, then the kit is destroyed. The resources thus saved must then be placed on ensuring that consent is not speciously affirmed, however that can occur, whether by change of law or of advocacy or of legal practice.

  2. Consent and DNA are not mutually exclusive concerns in rape cases

    I could not agree more with Wendy that the presence or absence of consent is a far more common issue in most rape cases than determining the identity of the attacker. I also emphatically agree that survivors of rape often feel re-victimized by the process of collecting, testing and reporting the results during criminal and other proceedings. Those points are so important that I do not them to get lost by an overstatement of the argument. Three points I think are worth making. Wendy suggests that:

    “. . . 90 percent of those 12,000 cases involve victims and perpetrators who know each other. That means only about 100 kits should even be considered for testing.”

    First, the 90% figure might be too high. The U.S. DOJ 2005 National Crime Victimization study estimated that about 2/3 (i.e., 67%) of rapes and 73% of sexual assaults were committed by non-strangers. But even if we go with the 90% figure, 10% of 12,000 is not 100, it’s 1200 or 12 times what she estimated. That’s a significant difference.

    Second, by suggesting that the survivor’s knowing the attacker renders forensic identification unnecessary, assumes that the attacker will always admit to having had sexual contact. Not even close to being true. Those of us who work with rapists and sex offenders know how common this kind of minimization and denial is. Some rapists will intentionally lie about having any contact, hoping that there is no DNA or other evidence to contradict them. Some will admit everything short of penetration, especially in cases involving child sexual abuse or incest. As one offender told me “For the longest time, I just couldn’t admit to crossing ‘that’ line.” Or consider this scenario: an offender puts Rohypnol in his “date’s” drink. After she loses consciousness, he rapes her. She has no specific recollection of the assault due to the amnestic effects of the drug and he subsequently denies that sexual contact ever happened. DNA testing might be the only way to disprove his denial. So the issue isn’t just “Does she know the identity of the attacker?” but also “Can prosecution prove that he did have sexual contact with her?” Once we establish that he did (perhaps with the aid of DNA testing) we can move onto the vital consent question that Wendy raised. So in some cases, both identification and consent are at issue, one after the other, rather than being mutually exclusive concerns.

    Third, Wendy points out that:

    “Of those, there’s a good chance a majority will be rejected for testing because studies have long shown that many rapists do not ejaculate.”

    There are at least three problems with that claim. First, it is not always easy to determine with certainty whether the rapist ejaculated so it is hard to know which cases to reject for testing. Second, Cowper’s fluid (a.k.a. pre-seminal fluid) can contain DNA so ejaculation might not be required for identification. In support of this, a recent study in the United Kingdom found that 41% of subjects in a study “produced pre-ejaculatory samples that contained spermatozoa.” If jurisdictions have policies that automatically reject testing if it is believed that the rapist did not ejaculate, we might want to reconsider them. And third, what about other bodily fluids such as saliva?

    The bottom line: Wendy is right. DNA testing is not the most significant concern in most rape cases. In addition, our current policies and procedures can have harmful effects on survivors and distract us from focusing on issues of consent. On the other hand, DNA testing can be an important tool for enhancing perpetrator accountability in more cases than some of us might think. But we need to keep its importance in perspective and make sure that we use that tool in a way that is experienced by survivors as part of the solution, not part of the problem. And way too often, that has not been the case.

    Scott Hampton, Psy.D.
    Executive Director, Ending The Violence
    Dover, NH

  3. I really appreciate these comments. Thank you for taking the time.
    I want to clarify that we did fix the math typo – oops.
    Also – I am not opposed to TAKING samples – so long as the victim gives knowing, intelligent and voluntary consent. And I far prefer that samples are TAKEN, but not TESTED, precisely for the reasons stated – that we don’t always know what evidence will be needed. I point out the averages, generally, to support the point that we are overdoing it in light of how rare it is that DNA actually makes a difference.
    That said – I long ago proposed the use of mini-kits – meaning that samples are taken but nothing is tested unless and until a judge orders specific testing for a specific purpose. This enables the scientist to look ONLY for that information deemed relevant and material to the case. Using my sheep-sex example – if there were to be sheep DNA in a woman’s body – a court order that allowed only exclusionary testing – to rule IN or OUT the defendant on trial – we could never find out that sheep DNA was present. This is how it should be – and it’s what the constitution requires in all other circumstances where such important privacy rights are at stake. Only rape victims are made to endure the indignity of full disclosure of all biological material FIRST – figure out relevancy later. This is where the integrity of the case suffers, needlessly, and the revictimization takes hold.
    And because we can’t “unring the bell”, there’s little hope of preventing the harm once testing is done, especially given the nature of the “crime scene”. It’s hard for people to conceive of the idea that all things found in the vagina aren’t somehow inherently relevant.
    We used to understand this better – thirty years ago – when we were proposing rape shield laws (stay tuned for my next piece where I argue that rape shield laws should be abolished). The seemingly magical nature of DNA has us forgetting that this information is almost always irrelevant – is almost always deeply personal and is almost always destructive to the case and harmful to the woman.
    I had written a longer piece but we ran short on space – so I also could not include a point worth making here. The criminal defense bar and ACLU are not opposed to this over-testing that goes on with victims- yet they are fiercely opposed to DNA testing in general – and in particular for rapists – unless and until there’s been a conviction. If the “test them all” idea would REALLY uncover lots of dangerous rapists – as is often claimed in the misleading news stories – wouldn’t these groups be OPPOSED? If they oppose testing in the absence of a conviction, wouldn’t they be opposed testing where there isn’t even a CASE?
    My sense is that they are very much supportive of the “test them all” model because they know it will lead to far more unjust acquittals than objectionable intrusions of rapists’ privacy rights. For groups that claim to care about privacy rights, their silence in this debate is deafening and disturbing. Especially in light of things like – the fact that the Mass. ACLU recently filed suit to compel the government to destroy DNA that had been gathered from men in a certain community during a murder investigation. Hundreds of men volunteered to give samples, and the killer was identified. But thereafter, although the men’s DNA was not placed in any database, the ACLU in Mass. fought to compel the government to destroy the samples because it is “unconstitutional” to retain such private biological material. Why isn’t the ACLU similarly interested in filing an action to compel the government to destroy the thousands of rape kits, or to at LEAST destroy the kits where there is no question re: the identity of the offender and no doubt that the kit contains nothing of evidentiary value
    Finally, it is important to note that the information gleaned from “test them all” programs will likely hurt women as a class, if the Innocence Project’s work is any indication. Their claim that over 250 men have been “exonerated” with new DNA tests is often misunderstood as a clim that all 250 are factually innocent. Indeed, the vast majority are quite guilty – but the fact that new DNA tests were done – and uncovered evidence of a different man at the “crime scene” – caused a judge to reverse the conviction and order a new trial. In many cases, the man had served his time, or the witness are gone, so the case is not retried – but the man is not “innocent” – he’s simply persuaded a court that new DNA tests provided evidence that had, technologically, not been available earlier. The vast majority of the IP cases are sex crimes/sex murders – and the “new DNA” tells us very little about what really happened. It often indicates only that the victim had consensual sex with someone else around the time of the crime. I mention all this because the misleading data has led commentators to claim that the Innocence Project has demonstrated – with scientific certainty – that women are disproportionately likely to lie about rape – compared to people who report other kinds of crimes.
    I fear this ugly myth about victims will grow like wildfire when the “test them all” project grows – and people start to say things like “In Texas – we tested all the kits and found that only 10% contained the DNA of the man suspected in the crime” – etc.
    Whatever the numbers, the data will be quite misleading and I not only don’t want to facilitate scientific support for more lies about women’s credibility – I want to avoid spending my tax dollars to do it (which adds tremendously to the legitimacy of the misleading data because it will be hard to argue against “government funded” results as “biased in favor of offenders”.

    Wendy Murphy

    • I appreciate Ms. Murphy taking the time to respond to our comments, and to do so in such a thorough way. Her knowledge is important to all who are or who work with rape victims.

  4. To be honest with you Wendy, I do not have the energy to sit down and give evidence of every lie and misconception your blog features; it would take a countless amount of hours. I would much rather my time be spent on being an advocate for abuse victims than be spent trying to correct a person like you, who apparently is not going to “wake-up”, and is only attempting to set any progress that is being made and has been made on rape kits and the backlog back to the beginning. There is only ONE reason I decided to spend time correcting some of your obvious ignorant claims: the women and students who you reportedly “educate”; I would not even call what you do “educating”. These women and students are being taught exactly what to do to allow abuse to continue and make no effort to prevent it, and that is something which disgusts me. Instead of encouraging victims to seek justice, which yes, wait for it….often requires DNA evidence to convict, you are telling them everything to do to NOT fight against the rape and rape kit backlog epidemic.

    Because of the fact you clearly don’t know, rape is rape, no matter who the perpetrator is. Date rape is rape, stranger rape is rape, not consenting to sex while being drunk is rape. Rape is rape no matter what form it comes in. Rape is NEVER a victim’s fault, and rape is ALWAYS WRONG. How dare you make the claim that an acquaintance rape victim should not have a rape kit tested. Every rape victim should have a right to a rape kit and justice, and every victim deserves those rights. Aquaintance rape does not make the rape any less wrong than stranger rape. As I already said, rape is rape, and is ALWAYS WRONG.

    How dare you attempt to degrade the extent to which a rape victim has been violated by making some rapes seem less important to seek justice for than others. Your claims are a disgrace to society, and you are allowing violence to happen by encouraging justice not to be sought after. Despite what you believe, rape kits are an important part of seeking justice.

    I’m not sure where you obtained your information on repeat offenders, but it is wrong. One 1982 study shown that on average, a rapist commits SIX rapes each ( 20 years later another study found a rapist commits an average of how many rapes….yes, you guessed it, SIX ( What does this mean? This means that it’s OBVIOUS that DNA is an ESSENTIAL tool in preventing future rapes and getting justice for those who have not been able to get justice until DNA testing is done. What does this also mean? Rape kits play an ESSENTIAL role in taking rapists off the streets and preventing future rapes too. It is sickening that you call DNA evidence, especially in rape cases, irrelevant and state that it does not make a difference. Why don’t you tell that to rape victims who finally get justice because a county or police department finally decided to make sure to clear their backlog….see how they react to your claim DNA and rape kits don’t play a vital role in justice.

    I feel sorry for any victim who was in one way or another represented by you when you worked in Sex Crimes, because if you did your job based on the claims you made in this blog, I would not doubt there was much injustice done for the victims you represented. When you get some spare time, re-read the job description and the standards expected in the Sex Crimes Unit. And when you’re seeking out a television show to watch, why don’t you take in a little Law and Order: SVU. Though I get the feeling you would strictly oppose everything the show represents, regardless of the fact you worked in Sex Crimes, you should take on the challenge of actually paying attention to the purpose of the Sex Crimes Unit, because what they do is help victims get justice and prevent future abuse by putting away the rapists, not discourage the whole process like you do. On a side note, I will admit that I have not read your book, but if it has any of the baseless claims you have stated in this blog, I’m positive I will add it to my Fahrenheit 451 book burning list. As someone who advocates for abuse victims, unlike what you’re doing, I strongly suggest you re-take any sexual violence training courses you’ve taken in the past. Maybe then you’ll finally realize who and what misguided refers to concerning this blog….(Hint: it is not the courageous people working to end the rape kit backlog that are misguided). Until then, put yourself in the victims’ shoes. Ponder how you would feel if someone told you exactly what not to do when seeking justice for your attack. The things you’re telling victims NOT to do are exactly what they SHOULD do which gives them the best chance in seeing their attacker put behind bars.

  5. I see that you wanted to “correct” certain things I said. I haven’t seen any such corrections. I made no claims about valuing certain victims’ suffering more or less than others. Non-stranger rapes are the least respected of sex crimes, thus are precisely the focus of my work as an opponent of the “test them all” policy. DNA testing has undermined the integrity of prosecutions involving non-strangers by injecting into the mix of evidence “presumed” to be relevant ALL DNA found at the “crime scene” simply because it was “tested”. This often includes biological material from consensual sex partners, which makes justice elusive for non-stranger victims, especially for sexually active women, prostituted women, etc. The defense gets full access to this information, which becomes the basis for unfair credibility attacks at trial. Perhaps you missed this during the Kobe Bryant trial where the victim’s past sex with her boyfriend became the basis for the false claim by the defense that she’d had “sex with three men in three days”. They argued that evidence of other men’s DNA obtained during the Rape Kit testing process was relevant and admissible against her to explain how she came to have vaginal tears. The tearing was actually caused by Bryant, but because DNA from two other men was found, Bryant’s team was allowed to argue that her promiscuity caused the tearing. Had there been testing ONLY to determine whether Bryant’s DNA was present, which is the model I propose, none of this would have happened. This type of unfair treatment of the victim occurs all the time thanks to “test them all” Rape Kit policies.

    The fact that samples are TAKEN from all victims’ bodies is not the problem. It’s the CONDUCTING of tests to “look for” DNA that produces results showing that victims have had private, lawful and consensual sex with others – which then gives the defense fodder to make wild claims about their character, etc.

    Restraint on testing will protect non-stranger rape victims better from these sexist and vile credibility attacks. “Test them all” strategies facilitate rather than insulate victims from these tactics.

    I’m very eager to have this kind of conversation. I appreciate even the most fierce criticism but try to keep it factual, please. And identify yourself so that others can make assessments about your qualifications.

    No matter how much I disagree with any comment, I will not lower myself to name-calling – so you can be assured a dignified response. It would be helpful if you would consider elevating your comments to such a style.

    Wendy Murphy