A Needed Revolution: Rape and U.S. Justice

The U.S. has struggled to make progress in the way the criminal-justice system addresses violence against women and girls. Only in the last 40 years have laws and systems been put in place to prohibit a victim’s prior sexual activity from being entered into evidence, to eliminate the requirement that there be a corroborating witness to a rape, and to create procedures to collect physical evidence from victims.

Today police and prosecutors are extensively trained in how to move cases forward, and sexual-assault investigative and prosecutorial units are common in most major cities.

Yet despite these reforms, the number of reported rapes that lead to an arrest—much less a conviction—remains intractably small. In 2010 the arrest rate for rape was 24 percent, which was exactly what it was in the late 1970s, when the FBI first began tracking such data. Too many rape cases in this country don’t just remain unresolved—they remain uninvestigated.

Most reported rapes are perpetrated by someone the victim knows, and law enforcement operate on the misguided assumption that these so-called acquaintance-rape cases are too hard to prove or are false reports by victims motivated to harm the accused. Consequently, these “non-stranger” rape cases often languish after they are reported, and, even when they do move forward, law-enforcement officers see no need to test a rape kit in the case, since they already know who the suspect is.

This approach to non-stranger rape cases ignores the reality of sexual violence and rape-kit testing—government studies show that very few victims give false reports of rape; research has found that non-stranger assailants are the most likely to be repeat offenders; and rape-kit testing can provide investigative information in all kinds of rape cases, including non-stranger cases.

New York City adopted a policy of testing every rape kit booked into evidence, after discovering a backlog of 16,000 kits in 1999. The tested kits have resulted in at least 2,000 cold hits (when the DNA profile from the rape kit matched a DNA profile from a separate crime scene or offender in a local, state, or national DNA databank), as well as 200 active investigations, arrests, or prosecutions. Testing the rape-kit backlog also exonerated a wrongfully convicted defendant.

While the DNA test results identified assailants in stranger-rape cases, they also created leads in cases that police and prosecutors were not expecting. For example, prosecutors told me of tying the same assailant to multiple acquaintance-rape cases that might otherwise have been difficult to move through the criminal-justice system. Said one, “We had an assailant who raped drug addicts coming to him to buy drugs. These are women who may be particularly vulnerable to rape because of their addictions or their socioeconomic status, but whose cases are hard to get a jury to believe. But when we could connect the same guy to a number of rapes, we could get a conviction.”

Since the rape-kit testing was completed in 2003, the NYPD has seen its arrest rate for rape increase dramatically, from 40 percent to 70 percent of reported cases, and there are increased numbers of prosecutions and convictions for rape.

Rape-kit testing will not solve all rape cases, but it has the ability to move more of them forward. National studies have shown that cases in which a rape kit was collected, tested, and contained DNA evidence of the offender’s contact with a victim were significantly more likely to move forward in the criminal-justice system than cases in which there was no rape kit collected.

In order to clear the rape-kit backlog in the U.S., and ensure that it never recurs, state and federal rape-kit policies need to change. States should require that every rape kit now booked into police evidence that was never sent to the crime lab for testing be counted, inventoried, and then sent on to the crime lab for testing—regardless of how old the case is, whether it was identified by other means, or whether the perpetrator was known to the victim or a stranger.

Once the kits that have been sitting in police storage facilities are shipped to the crime lab, police departments must adopt policies that eliminate detective discretion from the process of rape-kit testing by making it mandatory that once a rape kit is booked into police custody and a victim has given permission, the kit is automatically sent to the crime lab. This will ensure that a new backlog doesn’t develop once the old one is cleared out.

Crime laboratories will need more personnel and funding if they are to keep up with an increase in rape kits coming to them for testing, and state and federal governments should find money in their coffers to give labs the support they need to do their job.

Above all, states should empower survivors of sexual assault by giving them regular access to information about their kit, and their cases. California has a victim-notification statute that requires law enforcement to provide information about the status of the rape kit to the victim. While the statute could be stronger, it points in a hopeful direction. Providing victims with information about their rape kits will hold the government accountable to each individual victim.

—This article is excerpted from the new Human Rights Watch book The Unfinished Revolution, edited by Minky Worden.