Rape Victims and Prosecutors
To increase the conviction rate, some district attor- neys have established sex crimes prosecution units with specially trained lawyers. Traditionally, prose- cutors whose performance was judged on the basis of their won/lost records preferred offering lenient pleas rather than risking defeat by going to trial. Prosecutors prefer to negotiate an out-of-court
A rape kit is a collection of evidence gathered by a doctor or a sexual assault nurse examiner (SANE). Over the course of about four to six hours, hairs, saliva, blood, and semen are collected from the victim’s bodily fluids, skin, nails, clothing, mouth, and genitals. As part of the medical exam, a test for sexually transmitted diseases might be conducted and a pill to prevent pregnancy might be offered.
When scientifically tested, forensic evidence can identify an assailant who was a stranger, even in cold cases from years ago, or confirm that an accused acquain- tance indeed had physical and sexual contact with the complainant (but cannot answer the question of consent). The material in the kit can link the suspect in one case to other unsolved sex crimes, and it can exonerate men who insist on their innocence. Since the late 1990s, the evi- dence from the victim’s body can be tested to see if it matches the DNA of a suspect contained in the FBI’s Combined DNA Index System (CODIS). Departments that test the evidence in kits often discover “cold hits” that lead to arrests of suspects whose DNA is on file in data- banks, and consequently achieve higher solution rates (Herbert, 2002; Kristof, 2009; and AP, 2011b). When about 8,000 kits that had accumulated from police departments in Ohio over the years were finally tested, nearly 1,500 hits provided important clues for detectives to investigate (AP, 2014).
A problem arises whenever either police departments don’t send rape kits off to crime labs for testing or the labs allow large backlogs to develop.
In 2006, the Justice Department estimated about 180,000 unutilized kits languished in storage facilities across the country. By 2014, that estimate of the backlog had grown to 400,000. In nearly 20 percent of all sexual assault cases between 2002 and 2007, forensic evidence was collected but was not sent off to be lab tested (Chemaly, 2014). A National Institute of Justice study concluded that the actual number of unopened kits could not be deter- mined because so many police departments have “anti- quated” noncomputer-based systems of cataloging and tracking forensic evidence (White House Council on Women and Girls, 2014). An audit of police departments in Texas discovered about 20,000 untested kits sitting on shelves in evidence storage areas in 2012 (Grissom, 2013). A lawsuit filed against the police in Memphis, Tennessee, claimed the department threw away as many as 15,000 kits or allowed the evidence in them to spoil over several decades (Lessmiller, 2013).
The evidence in kits stored by law enforcement agencies and prosecutors’ offices often goes unanalyzed for several reasons: inadequate government financing to pay
for all this testing (each analysis costs from $800 to about $1,500); certain sexual assault cases are assigned a low priority because they are likely to end with an acquittal (especially those involving acquaintances, heavy drinking, or complainants who have decided to stop their coopera- tion); DNA collected from murders, robberies, and burglar- ies are given higher priorities; the prosecutor’s office didn’t ask the police department to have the evidence tested; and the understaffed and overworked crime labs that have limited storage space already are unable to process the growing number of requests in a timely manner and would be completely overwhelmed by the arrival of all the kits departments have accumulated (White House Council on Women and Girls, 2014).
The consequences of the accumulation of huge backlogs are that assailants escape apprehension and may strike again, and victims don’t achieve closure and a sense that their complaint was taken seriously and acted upon so that justice could be served.
Once a kit is processed, the DNA profile can be used by the prosecution to get a “John Doe” warrant that can keep the manhunt going until the statute of limitation expires. As of 2014, in 34 states the statute of limitations on filing charges of sexual assault or rape ranged from 3 to 30 years. However, in 27 states the time limit could be extended or even suspended if DNA evidence already has led to a hit (matches the DNA of a suspect in the CODIS database) but not an arrest yet (Smith, 2014).
The solution to the backlog problem, according to advocates, is to require departments to monitor how many kits remain untested and then to find sufficient resources to process the evidence at the labs in a timely manner. In 2010, Illinois became the first state to require its police departments to send all kits to crime labs (Human Rights Watch, 2010). Houston, Texas, passed an ordinance enabling the city to collect a fee from strip club patrons and earmarks that money to pay for kit testing (Grissom, 2013). In 2013, Congress passed the Sexual Assault Foren- sic Evidence Reporting (SAFER) Act that requires law enforcement agencies to audit and make public the size of their backlogs. The bill also provided additional funding to pay labs to test the kits (RAINN, 2014b). In 2014, Congress provided still more resources to test kits when it reauthorized the “Debbie Smith DNA Backlog Grant Program” (Cox, 2014).
An untested kit symbolizes that solving a particular case has not been assigned a high priority. If victims had the right to be kept posted about developments in their cases, then they would know if police departments were allowing their untested kits to languish in storage lockers.
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settlement unless the complainant fits the narrow stereotype of the kind of victims who are believed by jurors and elicit their sympathy: wives and mothers who are well educated, articulate, visibly upset but not hysterical while testifying, and attrac- tive but not too sexy (Vachss, 1993).
Even though more rape cases go to trial than any other type of charge except murder and aggra- vated assault, the overwhelming majority of cases are still resolved through plea negotiations. The percentage of rape cases that go to trial varies greatly by jurisdiction (Boland and Sones, 1986). About 10 percent of all rape cases were resolved by a trial, with the prosecution victorious about 70 per- cent of the time, in the 75 largest counties during 1994 (Reaves, 1998). Fifteen years later not much had changed: Trials were held in only 8 percent of all rape cases, of which about 70 percent led to a conviction (Reaves, 2013).
A negotiated plea is often justified on the grounds that it spares the accuser from having to recount under oath with great specificity exactly what happened to her. If she serves as a witness for the prosecution, she also faces the prospect of a tough cross-examination intended to undermine her credibility. It is widely assumed that testifying at a trial months or years later would lead to retrau- matizing the victim. But a study of the experiences of nearly 140 women who had testified about rapes and other sexual assaults committed against them did not turn up clear evidence that symptoms of PTSD burdened them once more (Orth and Maercker, 2004).
Besides creating special investigation and pros- ecution squads, a number of other reforms have been enacted to try to improve arrest, prosecution, conviction, and incarceration rates. In most jurisdic- tions, the chances of conviction in sexual assault cases have been enhanced by new legal codes and sentencing structures that specify graded levels of seriousness from improper sexual contact to forcible rape, each carrying a corresponding penalty (Bienen, 1983; and Largen, 1987). In many court- rooms, evidence of rape trauma syndrome can be introduced during trials to account for any ques- tionable behavior on the victim’s part (concerning
reporting delays or failure to actively resist) that in the past would have undermined her credibility.
And yet despite many reforms and attempts at improving the criminal justice system’s handling of rape cases, most attackers still are never arrested, prosecuted, convicted, and certainly not incarcer- ated (see Lisefski and Manson, 1988; and Senate Judiciary Committee, 1993). By the end of the adjudication process in state courts, of all the defen- dants arrested for rape, 61 percent were convicted, 58 percent of felonies and 3 percent of misdemea- nors, according to a nationwide study of 75 large counties (Reaves, 1998). Fifteen years later, the conviction rate in large counties had risen to 68 percent, with about the same proportion (57 per- cent) guilty of felonies; the improvement in the conviction rate was due to a rise in the number (11 percent) pleading guilty to mere misdemeanors (Reaves, 2013). The following example illustrates how convicted rapists might receive lenient sen- tences for a misdemeanor:
A 15-year-old girl is lured to the home of an 18- year-old young man on the pretext of helping him work on his MySpace page. Suddenly, his 17-, 18-, and 19-year-old friends barge in, encircle her, and take turns raping her. All four assailants plead guilty to first-degree rape, but only the ringleader who masterminded the plot gets a sentence of four years in prison. The three others will each serve a year in jail. The prosecution justifies the negotiated plea as a way of sparing the high school sophomore the ordeal of being subjected to four separate cross-examinations at the trial. But the girl tells reporters that the one year jail sentences are “nothing” as she is escorted by police from the courtroom amid catcalls, taunts, and threats from the young convicts’ relatives. (Bode, 2007)
Optimists emphasize how much progress has been made over the past several decades by the pro-victim, antirape movement. It has tried to eliminate unfair roadblocks on the path to justice by dismantling the institutionalized expressions of discrimination that put victims at such an unusual disadvantage in the not-too-distant past (see Fairstein, 1993). Pessimists, however, point out
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how many antivictim practices persist within the legal system.
The degree of success achieved by the antirape movement could be evaluated by examining a number of criteria. One sign of success would be gains in the willingness of complainants to report the crimes and to press charges. Additional indica- tors of progress would be decreases in the number of complainants who conclude that the entire fact-finding and decision-making process was emotionally painful and degrading. Of course, hard evidence would be necessary to back any claims that the way the criminal justice system handles rape cases is better now than in the “bad old days”: statistics indicating increases in the per- centage of cases solved by making arrests, cases prosecuted rather than dropped or dismissed; defendants convicted rather than acquitted, and rapists incarcerated and then rehabilitated rather than freed to become recidivists (see Goldberg- Ambrose, 1992; Spohn and Horney, 1992; and Bachman and Paternoster, 1993).