Recently KTVB reported that “the Nampa Police Department has collected more than 100 rape kits since 2010, but only 12 have been sent to a lab.”
The news report goes on to explain that ‘Those who support sexual assault victims…” (as opposed to those who do not give a hoot about sexual assault victims) “…argue that every kit should be tested.”
As a criminal defense attorney, who has handled numerous sex offense cases, I am puzzled as to how this ever became news to begin with.
It is not surprising in the least that many so called ‘rape kits’ are never tested. I have never worked for a law enforcement agency, and so I cannot speak with experience as to every possible reason that a rape kit may go untested, but I certainly can come up with a myriad of reasons from my experience as a criminal defense attorney.
1. Not every sexual assault results in penetration.
A rape kit includes more than just the sampling of body fluids, it also includes various other exams by a doctor. But the part of the rape kit that gets sent to the lab examines the bodily fluids to identify DNA. The only way the DNA will be relevant is if the suspect penetrated the victim. If the victim is not alleging penetration, then analyzing the sample will be a waste of time and money.
2. Sexual contact is not in dispute.
Often in a rape case the Defendant’s defense will be that he had sex with the victim, but that the sex was consensual, thus not rape. In these cases it is not necessary to prove that the Defendant had sex with the victim because the Defendant has already confessed that they had sex, he is simply arguing that the sex was consensual. Clearly proof that the Defendant had sexual intercourse with the victim would be of no value in a case where the Defendant concedes that.
3. The Defendant pleads guilty.
Many rape cases resolve quickly as a guilty plea. When the Defendant enters a plea agreement with the State, an analysis of the Defendant’ DNA is irrelevant since the Defendant has entered a guilty plea admitting that he had raped the victim. Again, in those types of cases an analysis of the bodily fluids has no value. I do not know the percentage of cases that plead guilty in State Court, but in Federal Court 95% of the cases end in a guilty plea. So it’s not hard to imagine that many if not most of the rape cases in State Court also end in a guilty plea.
4. The accusation was a false accusation.
Regardless of what many people think, false rape accusations do happen, and sometimes they are caught early. I can think of two false accusations of rape on the Greenbelt that were reported in the Idaho Statesman within the last two years. If a victim has gotten as far as a rape kit before coming clean about her false accusations there will be a rape kit, but no reason to analyze the kit.
Despite these obvious examples of where an analysis of the bodily fluids from a rape kit are irrelevant, there are many concerns that people still have regarding law enforcements failure to process these kits. I would like to address those concerns here.
1. If we are not sending in rape kits, how are we keeping track of perpetrators DNA?
One way that we keep track of DNA is through a law that requires that every defendant convicted of a felony (any felony) in the State of Idaho to submit a sample of their DNA to national database. So any defendant that pleads guilty of any felony will be required to submit his DNA to the database, and that is how they track him.
Another way they keep track of DNA is through the kits that are submitted. For example, if the rape perpetrator is unknown, those kits will surely be submitted for cross referencing as part of law enforcement’s investigation. Now I concede, if there are instances that this has not happened, then there is a serious problem. But the media has not reported that this specific problem has occurred. They have only made a general complaint that there are kits that have not been processed.
2. If we are not analyzing rape kits, then either guilty defendant’s are being set free, or innocent defendant’s are being found guilty.
This is most certainly not what’s happening. Guilty defendant’s are not being set free because of unprocessed rape kits, and innocent defendant’s are not being convicted because of unprocessed rape kits. If the Defendant’s defense is that he did not have sexual intercourse with the girl, then his attorney has the power to request that the kit be processed, and the State will be required to process the kit. If the State’s case rests on the issue of whether sexual intercourse occurred or not, they most certainly have the ability to process the rape kit. In my experience I have never seen or heard of an unprocessed rape kit becoming an issue at trial.
3. The victim has to go through all that humiliation of getting the rape kit done, and then nothing is done with it. This adds insult to injury.
Getting a rape kit done is important in order to maintain the integrity and efficiency of the system. A rape kit is done on day one. On day one no one knows how the case is going to proceed. No one knows if there will be a guilty plea, or if intercourse will be disputed, or if the accusation is legit. They know absolutely nothing, and a rape kit is time sensitive. So it is essential to collect and preserve this evidence. It will not always be used, and most of the time it will not be needed. But in those rare instances where it is needed, it is good to know that it’s available. It is important to understand that although collecting the sample is time sensitive, the processing of the sample is not time sensitive. It can be processed at any time since the samples are not disposed of, but retained.
Without the rape kit being done, a perverse incentive would remain for guilty defendant’s to dispute sexual contact. With the rape kits this incentive is diminished.
Most victim’s will be happy knowing that the defendant has been caught, convicted, and appropriately punished for his crime, whether the rape kit needed to be processed or not.
Media selling emotionally charged stories.
The problem with the media is that they take emotionally charged issues, and present them in a way that gives a false impression of a serious problem. The media presents statistics without context, and do not present any specific instance where this has become a real concrete problem. Only general complaints are presented that appeal to strong emotions.
As a criminal defense attorney, it is easy for me to come up with complaints about how law enforcement does its job. However, this is not one of those instances. I have no reason to believe that law enforcement is being negligent or careless in the way they handle and process rape kits in Idaho. Rather, it is the media that is being careless in the way they present stories with no context or background to explain why a large number of rape kits may go unprocessed.