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Is Rape A "Crime Without Consequence?"

November 7, 2010 10:54:11 pm
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Thousands of rape kits go untested every year – but that’s not the only reason why so many rapes are never solved.

Early on Easter morning in 1991, 23-year-old Joanie Stewart made the biggest mistake of her life. After getting separated from her friends in a bar and losing her wallet, Joanie found herself in an area of St. Louis she didn’t know, without money or a way home. A stranger offered her a ride.

She felt comfortable accepting since the man assured her he would drop her off at a friend’s place. Instead, he drove her to a dark alley where he brutally raped and beat her so badly that she has suffered from epilepsy ever since.

When it was over, he took her to another remote location and drove away, leaving Stewart bleeding and badly injured on a dark street, where she was found by police and driven to a hospital.  In the ER, medical personnel performed the long, invasive procedure of a rape kit, which involved Stewart having to strip naked and endure a gynecological exam by a male doctor, vaginal and anal swabs, and pulling out samples of her own pubic hair. Police took her statement, but the case went nowhere. Years passed. Stewart, whose maiden name was Skaggs, stayed in St. Louis, married, and had three daughters. She thought about the rape, and sometimes she’d be out in the city and think she saw him – the rapist whose name she never knew.

And then last year everything changed. On March 30, 2009, a St. Louis city detective came to her office with six photographs. Stewart recognized the man in the third photo, who turned out to be 47-year-old Mark Frisella. After a trial, Frisella was convicted of three felony counts for Stewart’s rape in June 2010 and sentenced to 19 years. He is appealing the conviction.

Why did it take 18 years for Joanie Stewart to get justice?

As the detective explained to her at the time, Stewart’s case had gone cold until, as part of an effort to test the state’s backlog of rape kits, they tested the DNA of a woman who claimed she was raped by Frisella in 2001. According to Stewart, police dropped the case for lack of sufficient evidence. When they finally tested the woman’s kit eight years later, they realized Frisella’s DNA matched the mystery DNA taken from Stewart in 1991.

“If they hadn’t tested that old kit, Frisella would be free,” says Stewart.

Stewart owes an indirect debt of gratitude to women’s advocates who have been complaining for years about untested rape kits and other sexual assault evidence.

400,000 untested kits

Typically, a “rape kit” refers to a small bag of evidence in which medical personnel put vaginal, oral and anal swabs, washes, pubic and head hair combings, nail clippings, urine and blood samples from the body of a woman (or occasionally a man) who has come to the hospital after a sexual assault. Depending on the city or state, that kit is either picked up by a police officer, who may be called to the hospital to interview the victim, or collected by a lab which stores it until police request it be tested. Testing includes analyzing the evidence for DNA samples, which can then be entered into CODIS, the FBI’s electronic DNA record, and matched against samples in other cases, or the DNA of known criminals.

According to Human Rights Watch (HRW) there were an estimated 400,000 untested rape kits in the U.S. as of 2009. Media reports around the country, backed up by statistics from Human Rights Watch, demonstrate that after undergoing the often painful process of having a rape kit administered at a hospital, sexual assault victims are routinely forced to wait years for a crime lab to test these kits for the DNA that could be used to catch their rapist.

All this despite the fact that, in 2004, Congress passed the Debbie Smith Act, allocating millions of dollars for testing rape kits. The law was reauthorized in 2008, but problems persisted nationwide. Just one example cited by a Human Rights Watch study: the LAPD backlog continued to grow by 700 to 900 kits a year while the department received $4 million in federal funding that was supposed to be used to test them. HRW also reported that Illinois could only confirm that 20 percent of the rape kits it had received since 1995 had been tested, and that Detroit had an astonishing 10,500 untested kits in police storage.

There has been some action on the state level. In early July, just as the HRW report was released, Illinois became the first state to pass a law requiring police to submit all rape kits, including the backlog of more than 4,000, to the state lab for testing within 10 days of collection. The language of the law allows for wiggle room—it states that a rape kit must be tested within six months “if sufficient staffing and resources are available”— leaving advocates pleased, but concerned that if it isn’t properly funded, the effect will be nil. And in October, Los Angeles County announced that they had sent 4,763 of their backlogged kits to be tested – the last, they said, of department’s more than 5,000 untested kits revealed by the 2008 HRW report.

Towards the end of last year, the federal government got involved again. In November 2009, Sen. Al Franken (D-Minn.) proposed the “Justice for Survivors of Sexual Assault Act of 2009.” Hearings followed. On May 11-12 of this year, the Department of Justice Office on Violence Against Women held a roundtable to discuss rape kits, and on May 20, the Senate heard horror stories of the anguish and anger of rape victims whose hope for justice was destroyed as their rape kits languished in police storage.

Law & Order: SVU actress Mariska Hargitay was among those testifying. Having played the role of sex crimes detective for more than a decade, Hargitay has long received letters from rape victims and in 2004 founded a non-profit that works to empower victims of domestic violence and sexual assault. An episode of the show that addressed the backlog of rape kits in which she starred was aired in September.

But Sen. Franken’s bill languished in committee for nearly a year until this fall, when Judiciary Committee Chair Sen. Patrick Leahy (D-Vt.) introduced the Justice for All Reauthorization Act, which includes several provisions from Franken’s bill, including requiring jurisdictions to report how much of their Debbie Smith funds were used to analyze DNA in sexual assault kits, and prohibiting the practice of charging victims for their rape kits.

And on October 27, the National Institute of Justice announced the creation of a research project to “identify solutions to the nationwide problem of untested evidence in sexual assault cases.” The NIJ will award grants of up to $200,000 to five jurisdictions to explore the problem and come up with solutions.

But while many have cheered these developments, others warn that mandatory rape kit testing is no panacea for the low solve rate on sexual assault cases. According to the FBI’s Uniform Crime Report (UCR) data, 41 percent of “forcible rapes” were cleared by arrest in 2009; no data exists on how many of these arrests lead to convictions. But Carol E. Tracy of the Women’s Law Project in Philadelphia, doesn’t trust those numbers.

“UCR data is suspect” and “notoriously terrible on rapes,” Tracy told The Crime Report.

 

Scott Berkowitz, president and founder of the non-profit advocacy group Rape, Abuse and Incest National Network (RAINN), testified before Congress in September saying that according to RAINN’s analysis of various DOJ reports, he estimates that 15 of every 16 rapists in America will walk free.

‘A crime without consequence’

“Rape is a crime without consequence,” Berkowitz told Senators on the Subcommittee on Crime and Drugs at a September 14 hearing on the chronic failure to report and investigate rape cases.

It’s a point supported by many others in both the legal and advocacy communities.

“If we were to wave a magic wand and test all the rape kits today, there would still be major issues with prosecuting rape cases,” says Kristina Korobov, a former prosecutor in Indianapolis and Loudoun County, Virginia who now a senior attorney for the National Center for the Prosecution of Violence Against Women.

Rape victim advocates highlight a number of shortcomings in the nation’s approach to sex crimes, including the poor UCR data and the fact that, according to Tracy, the FBI’s definition of rape has not changed since 1927; it still refers only to male penile penetration of the vagina, ignoring other orifices, rape by objects and male rape.

Another key problem: for years, local police forces have routinely downgraded and re-classified rapes as non-crimes.  Major culprits include Baltimore, New Orleans and Philadelphia suggesting that sexual assault is simply not a priority for many in law enforcement.

Not surprisingly, perhaps, nearly 60 percent of rapes are never even reported to police.

This most recent federal hearing was called not because of the backlog of rape kits, but because Carol Tracy got so fed up with the FBI’s non-responsiveness to more than nine years of requests to update their definition of rape and get serious about collecting accurate data on the crime, that she took her fight directly to Congress.

“I thought we’d made progress on this issue,” says Tracy, referring to more than 20 years of work by women’s groups to educate law enforcement and the public on marital rape, acquaintance rape and other sexual assaults previously dismissed as non-crimes. “But honestly, I think we’re actually losing ground.”

Tracy points to a powerful investigative report by Justin Fenton of the Baltimore Sun, which revealed that the number of rapes determined by Baltimore Police to be “false or baseless” tripled between 1991 and 2009, allowing police to brag about a nearly 80 percent drop in rapes since 1995. Women interviewed by Fenton told tales of being interrogated by police as if they were suspects instead of victims, and having their allegations dismissed. Newspaper investigations in New Orleans and Philadelphia found similar tactics were common among their police departments as well.

Joanie Stewart told The Crime Report that when the St. Louis city police came to her aid back in 1991, she was put in the back of a police cruiser while an officer sat in the front filling out a report. According to Stewart, the male officer looked at her in the rearview mirror and said, “So, what did you do to make this guy rape you?”

In the nearly two decades since Stewart’s attack, police should have learned a lot about how to treat rape victims and properly investigate cases of sexual assault. In 1994, Congress passed the Violence Against Women Act, and these days most major cities have dedicated Special Victims Units for sex crimes.

But as the investigations in Baltimore and New Orleans show, not every one got the message.

Although she calls the backlog of rape kits “unconscionable,” Tracy of the Women’s Law Project says they are a symptom of poor leadership and “misogyny.”

Is a rape kit always useful?

Michelle Dempsey, a former Illinois prosecutor who is now a professor of law at Villanova University, explains law enforcement tends to classify rape in one of three categories. The first is stranger rape, where the rapist’s identity is unknown to the victim. Joanie Stewart was the victim of such a rape.

The second is an acquaintance or non-stranger rape (some experts believe the term “acquaintance” minimizes the trauma of the rape), where the victim can identify her assailant but the assailant has not admitted sexual contact; and the third is non-stranger rape where the assailant admits to having sex with the victim, but claims the sex was consensual.

In the last group, says Dempsey, DNA evidence that would be revealed by testing a rape kit, “proves elements of the crime that don’t need to be proved.”

“All a rape kit is ever going to prove is the biological act,” says Kristina Korobov, who estimates that approximately 75 percent of rape cases fall into the non-stranger categories. “It isn’t going to prove mindset. People still believe that women want this.”

Korobov doesn’t discount the power of DNA—after all, in the age of CSI, juries expect it to be part of a trial—but she says she believes that close collaboration between lab technicians, investigating officers and prosecutors who can look at the totality of evidence in a rape case and make a determination about which kits should be prioritized is more important than testing every single kit.

Michael Medler, director of the Indianapolis-Marion County Forensic Services Agency, agrees with Korobov. A law mandating testing of all rape kits would, he says, further burden and “complicate” an already struggling system.

Medler explains that about 15 percent of the rape kits his lab collects from area hospitals each year are “non-reporting.” According to Medler, this means that, for any number of reasons, swabs and samples have been taken, but no case file has been opened. Medler says that his lab puts these kits aside, preserving them for a year-and-a-half in a sub-zero freezer until an officer asks for a test. If no test is requested within that time frame, the kit is returned to the appropriate police department for storage.

This, he admits, doesn’t typically include sub-zero refrigeration. If forced to test every kit in the order they come in, he says, kits that are part of investigations where the victim is cooperating and police and prosecutors believe they can make a case against the assailant will be held up.

Although Medler wouldn’t speculate on the average cost of analyzing a rape kit, others have put the price at up to $1,600 per kit, depending on how much biological evidence is found. When public labs (like the Marion County lab) get backed up, they have to send kits to private labs—which means an expenditure of more money, because the state has to constantly monitor the lab to make sure it is following protocol, and because private lab technicians charge the state for testifying in court.

Medler is also concerned that states and the federal government may pass mandatory testing legislation without properly funding it. He points to a statement written in January by the American Society of Crime Laboratory Directors which states that instead of focusing on eliminating rape kits and other DNA backlogs, “grants should focus on building [lab] capacity…or the cycle continues to repeat itself.”

According to recent article by Duke University researchers Christopher Heaney and Sara Huston Katsanis, “labs remain eligible for some federal assistance to process DNA samples only so long as they are running behind,” setting up a perverse incentive for maintaining a backlog instead of becoming more efficient.

What testing won’t fix

Of course, if police aren’t even opening investigations into many rapes and prosecutors are more worried about their win rate than letting a jury hear a tricky case, how can victims and other citizens trust that the testing priorities set by law enforcement are in the public interest?

Dempsey fears that getting lost in the uproar over rape kits are the many other problems involved in investigating and prosecuting rape, including lack of specialized training for officers, and DAs who are reluctant to bring “he said, she said” cases to a jury.

“If an officer asks a suspect if sex was consensual then walks away without asking further questions when he says yes, that’s a problem with training,” says Dempsey. “An officer should ask for a more detailed explanation, and compare it to other interviews and statements to see if there are gaps.”

Dempsey also believes that prosecutors have a role in helping get more rapists behind bars: “In close cases, maybe prosecutors should be a little more brave and take these cases to the jury to let the community decide what our sexual norms are, rather than begging off the case because they suspect the jury will acquit.”

As a former prosecutor, Dempsey acknowledges that certain cases, especially non-stranger cases, aren’t easy to win.

But a man capable of raping an acquaintance is also capable of raping a stranger.  According to Joanie Stewart, the woman who made the 2001 rape complaint against Mark Frisella had told police she knew him personally.

“These are artificial lines we’ve drawn” between kinds of rapes, says RAINN’s Elizabeth Crothers. “Rapists don’t follow rules,” so if we don’t test a kit because the man admits to having sex with his accuser, we may miss the opportunity to solve (or prevent) another rape where the kit was tested.

“I never in a million years thought that my case would get solved,” says Stewart. “I get that it’s expensive [to test every kit,] but can you imagine how many predators we would put away if we do?”

Julia Dahl is a freelance writer and contributing editor to The Crime Report.

Photo courtesy Joanie Stewart.

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