Massachusetts, like some other states, has a relatively long statute of limitations on sexual assault. Prosecutors in the state have up to 15 years after a crime to file charges against the alleged offender. But police practices, including official police policies, in Massachusetts, have a way of undermining that technical deadline.
Untested rape kits, which often languish in police storage facilities, are destroyed after six months on file. That’s crucial evidence, evidence that can often make or break a criminal prosecution, that disappears after six months.
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Amanda Nguyen, a Harvard-educated Deputy White House Liaison to the State Department, says this policy is only one failing of an utterly broken system. Nguyen, 24, who was sexually assaulted in Massachusetts, is forced to remember the trauma twice a year, when she returns to demand that her rape kit be preserved.
Speaking to Broadly in February 2016, Nguyen said: “the six-month rule makes me live my life by date of rape.”
But it doesn’t have to be this way. In many states, it’s not. “Had I been raped in a state like California, Colorado, Illinois, or Texas,” Nguyen continued, “this wouldn’t happen to me. Those states have civil rights measures that don’t allow the destruction of evidence before the statute of limitations.”
Many public officials agree that the policies in place to prosecute sex offenders are broken. But their efforts to fix the problem often stop at increased funding for law enforcement. Nguyen is leading the charge to put more of an emphasis on survivors’ rights, by drawing together legal protections that already exist in some states, albeit in fractured form.
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Along with Florida State Rep Debbie Wasserman Schultz and Missouri Representative Ann Wagner, Nguyen helped draft the Sexual Assault Survivors’ Rights Act, a bill introduced in the Senate by New Hampshire Senator Jeanne Shaheen on Tuesday, February 23, 2016. The bill, which has bipartisan support, would establish that:
If the bill passes, all of these rights would hold whether or not a survivor reports the assault or cooperates with a police investigation.
Currently, survivors’ rights are patchy, varying widely by state. That’s “unconscionable,” Nguyen told Broadly, “justice shouldn’t be dependent on geography.” In her own state, Massachusetts, survivors are actively disenfranchised by police procedures. To gain her own rights, Nguyen had to “pen them into existence.”
It costs anywhere between $1,000 and $1,500 to test any one rape kit, according to EndTheBacklog.org. That, apparently, is prohibitively expensive now that law enforcement budgets are being cut across the nation. DNA evidence, however, has become more and more important to the pursuit of criminal justice. Nearly every criminal investigation now produces its own trove of genetic samples, all of which needs to be tested, preferably in a timely manner, by public crime labs that are strapped for cash, losing personnel and overloaded with work.
That’s a problem for every criminal investigation, but sexual assault cases seem to get the short-end of the stick. Perhaps more than any other victims, survivors of sexual assault are fundamentally changed by their experiences. Psychological trauma reduces the likelihood of a timely disclosure. Fearing retaliation, and more often than not, intimately acquainted with their abusers, survivors of rape can be hesitant to participate actively in the criminal justice process. But police detectives and prosecutors interpret this understandable hesitation as being “uncooperative,” and survivors can be labeled as “uncredible,” or vilified as liars, by the very professionals hired to protect their rights.
All of these factors make it less likely for prosecutors to deem a rape case “winnable,” despite the fact that testing an evidence kit could go a long way in confirming a suspected offender’s identity. Rape, for that matter, may be the crime most-suited for the use of DNA evidence, since offenders leave behind a myriad of biological markers, from saliva and skin particles to semen.
As for rape kits, they get logged, stored as evidence in police facilities – and then languish there without being tested. Either that, or the kits are submitted to a crime lab – only to languish there, as well.
Nationwide, tens of thousands of rape kits remain unanalyzed, according to the Rape, Abuse & Incest National Network. That means tens of thousands of rapists (at a minimum) have thus far evaded justice.
In 2009, CBS News published the results of a 5 month investigation into the rape kit “backlog.” In Detroit, they identified 5,600 kits that the city’s police had never submitted to a crime lab. In San Antonia, it was 5,100 untested kits. In Houston, 3,800 and in Albuquerque, 1,100.
Most cities, on the other hand, didn’t have any idea how many of the rape kits in police storage had gone untested. That was true in Chicago, Cleveland, Oakland, Baltimore and 8 other major American cities approached by the reporters.
Under the Violence Against Women Act, a federal law passed in 1994, rape survivors (irrespective of gender or biological sex) are legally entitled to free forensic examinations after an assault, regardless of whether or not they intend to file a police report. Usually, the exams are subsidized by funds from the state’s crime victim compensation program, but that money doesn’t always cover the entirety of an exam. Many states ask survivors to file insurance claims to make up the difference but, for privacy reasons, survivors are often unwilling to file those claims.
In essence, you have a rape kit that’s nominally free, but is actually paid for through a hodge-podge of sources – at least one of which, insurance, is actually paid for by survivors themselves.
Beyond monetary concerns, access is another major barrier that stands in the way of survivors, especially for Native Americans and people living in underserved rural areas. Post-rape examinations are most often performed by sexual assault nurse examiners (SANE), registered nurses who have finished specialized courses. SANEs are also critical in the prosecution of alleged offenders, testifying in court cases and making sure that evidence isn’t tampered with or lost. But according to the Urban Institute, people living on tribal lands or far from metropolitan centers have difficulty accessing the hospitals and rape crisis centers that employ sexual assault nurse examiners.