Members Only | February 17, 2022 | Reading Time: 4 minutes

Rape victims are damned if they do, damned if they don’t

Hundreds of thousands of rapes are reported but evidence ignored. Hundreds of thousands of rapists are free to rape again.


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The San Francisco Chronicle reported this week a story about a woman’s DNA, stored in a rape kit, being used to catch her for an unrelated property crime. 

While there isn’t evidence of rape kit DNA being used to prosecute any other cases, it has been confirmed that it is standard practice in San Francisco to use a database of rape kit DNA in other investigations. 

This could be a statewide or even nationwide problem. 

The charges in this case are not being pursued. The San Francisco DA cited Fourth Amendment issues. But that doesn’t mean such standard practice is technically illegal or isn’t indicative of larger problems in how the legal system treats rape and gender-based violence victims. 

Even though every 68 seconds an American is sexually assaulted, only 310 out of every 1,000 rapes are reported to police. Only 50 of those reports will lead to an arrest. Only 28 will lead to a felony conviction. 

The truth is our society just doesn’t really care about abuse victims. I wish I was surprised by this latest story but really, I’m just exhausted.

First, you might be wondering how this could possibly happen. 

When a victim is raped, they might undergo a forensic examination to collect evidence of the assault. This is commonly called a rape kit

The examination can take between four to six hours. It involves a detailed medical history, head-to-toe photographs while undressed, biological evidence collected through swabs and a vaginal exam. 

While important to ensure full medical treatment and evidence collection if one wants to press charges, the rape kit exam can also be emotionally and physically invasive and traumatizing.

If a victim chooses to pursue charges, they release the rape kit evidence to law enforcement in order to investigate their crime. They expect the perpetrator’s DNA to be entered into a criminal database to identify the rapist or other crimes the rapist has committed. 

It’s highly doubtful, however, that any rape victim expects their DNA to be in a criminal database to be used against them in the future.

Victims puts themselves through this traumatizing and invasive exam because they have hope police will use it to investigate their rape. 

In reality, there is a huge rape kit backlog of untested rape kits. 

Rape kits aren’t tracked. Experts and the public have no idea how many untested rape kits there are. End The Backlog estimates, however, that there are hundreds of thousands of untested rape kits. 

Consider what that means, practically. 

Hundreds of thousands of crimes that have been reported but evidence is being ignored. Hundreds of thousands of rapists likely facing no criminal punishment or criminal investigation. 

There has recently been a spike in crime rates around the country and many rightwingers are trying to blame this spike on police reform efforts and “defund the police” activists with little evidence

Just this week US Senator Ted Cruz of Texas blamed judicial nominee Nina Morrison for elevated crime rates because she worked for the Innocence Project. It works to get innocent people out of jail. 

Morrison’s efforts had nothing to do with police reform but because the Innocence Project exposes the flaws in the system, it’s easy to apply a bad faith accusation, that it contributes to crime spikes. 

There is some evidence that increased policing can provide a short-term solution to rising crime, but how much help can police provide if they don’t even investigate reported crimes?

It is estimated that in the US one in six women will experience a rape or attempted rape in her lifetime. One in 33 men will, too. 

Even though every 68 seconds an American is sexually assaulted, only 310 out of every 1,000 rapes are reported to police. Only 50 of those reports will lead to an arrest. Only 28 will lead to a felony conviction. 

Rape is clearly an underreported crime and the rates of conviction are abysmal. The rape kit backlog and traumatizing treatment of victims who do report are huge reasons why the conviction rate is so low. 

In 2019, the Times reported that women brought unrelated civil suits in seven cities to force police to investigate their rapes. 

Officials claimed that half of the reported rapes in their precincts were false. (It’s believed that false rape accusations account for 5 percent of rapes, though that number is likely much higher than the reality.) 

In 2016, Heather Marlowe filed a federal civil rights lawsuit against San Francisco for not investigating her 2010 rape. The Supreme Court declined her case but a Texas class action suit was settled last year. 

Additionally, the US Justice Department can put pressure on local governments to better investigate sexual assault. This practice, however, lessened when Donald Trump was president. 

In 2021, Milaukee settled a lawsuit brought by a rape victim who said police mishandled her rape case. She moreover alleged that police likely comitted ethics violations in their investigation. 

These are just a few examples of rape investigations that were so badly bungled women turned to civil lawsuits to try to get some justice. 

Our society blames women if they don’t come forward. We expect them to put themselves through the traumatizing experience of reporting and examination. Then our justice system fails them. 

Worse than not investigating rapes, however, is the case in San Francisco. A rape kit could ultimately serve to criminalize rape victims. 

Why would anyone come forward and report their rape if they knew the evidence could be used against them at a later date? 

Why should we as a society support police if they can’t be bothered to investigate crimes brought to them? How can anyone say with a straight face that they’re concerned about getting criminals off the streets if they don’t care about prosecuting an entire class of criminal?

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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