Livermore National Laboratory/ZUMA Press/Newscom
Imagine for a moment that, quite out of nowhere, police showed up and accused of you raping someone last Tuesday evening. They even claim to have DNA evidence of your crimes against this person, whom you've never met. How might you go about showcasing your innocence?
Naturally, the first step would be to prove you weren't at the alleged crime scene. If others can vouch for your whereabouts on Tuesday evening, you would give them as alibis. You might offer up receipts from bars visited or taxis taken that night, turn over GPS data from your vehicle, or show evidence of cell phone use—texts, calls, photographs—from this time. Detectives could easily check your word against taxi, ridesharing-service, phone, or bank data, and they might ask around to wherever you drank, dined, waited in line, picked up your kids, or whatever to see if anyone remembers seeing you. Maybe they check surveillance video from your subway stop or a 7-11 you stopped in, or get your apartment building's security footage. Maybe they find a neighbor who saw you pull into your garage, go out back to star gaze, take out your recycling…
The point is that unless you live all alone in the forest, there's a good chance you could establish where you were last Tuesday night, and conjure up enough evidence of it to drive reasonable doubt.
That is, if you're innocent. If you're guilty, all of the above works in the reverse (regardless of whether DNA evidence exists). Everyone who saw you, everywhere you traveled, and everything you paid for could place you at or near the crime scene. And for sexual assault cases, where it often comes down to the word of the accuser against that of the accused, these sorts of details could provide the crucial context needed to get a conviction—especially in cases where an assailant admits to being with the victim but claims the sex was consensual. Catching the accused in a lie about other parts of the evening, finding someone who saw them acting or looking suspicious, checking footage from places visited before or after, etc., might lead to tidbits that could help establish guilt.
Of course, this only holds if the victim comes forward soon after the attack. The key with all these potential ledes is temporal proximity: People's memories from a few days ago are still relatively fresh, security footage is still available, you (the wrongly accused in this scenario) still might still have a relevant bodega or McDonald's receipt lying around. A dorm mate or neighbor may remember seeing the assailant.
But imagine instead that the victim waits three months to file a police report. Some of the above—the nosy neighbor, say, or the pocketed receipts—will likely have been lost (who remembers minute details of some random Tuesday night three months ago?). Give it a bit longer, and more potential clues will have disappeared. Now give it six years, or 16, or 20. By that point it's not just the corroborating or exculpating GPS data, bar comrades, and bank records that are lost. Key witnesses may have died or moved off to unknown places. The bar where staff could alibi you no longer exists. All of this makes it much less likely that a victim will see (long-awaited) justice, that a rapist will be held accountable, and that a person wrongly ensnared will be able to prove their innocence. It's a lose situation all around.
Then there's the question of DNA. Any chance police had of finding useful DNA evidence at the assault location is obviously long gone, but perhaps the victim saw a doctor after the assault and had a medical forensic exam (also known, somewhat unfortunately, as a "rape kit"). This evidence, which would include samples from any semen found plus DNA evidence found anywhere on the victim's body, was sent from the hospital to a state crime lab, where it has been stored in vacuum-sealed bag inside a cardboard box inside a storage freezer for several decades. While DNA evidence does degrade with time, it should still be good for a few centuries—if stored perfectly. Thus far, however, law-enforcement forensics units have been notoriously bad at collecting, storing, and analyzing forensic evidence without making mistakes, and the longer these labs are holding on to a rape kit, the more chance for errors human or environmental. Forensic evidence storage areas in a lot of places are hardly high-tech operations, and policies for handling and keeping such evidence often ad-hoc.
Plus, as Matther Shaer put it in an Atlantic feature last year, "science is only as reliable as the manner in which we use it." And research has shown that the way we interpret DNA is highly subjective. In one 2010 study, researchers obtained documents from a 2002 Georgia rape trial in which two forensic scientists said the defendant could not be excluded as a DNA match for the mixture of sperm found inside the victim (the defendant was found guilty). In the study, the same DNA sample was shown to 17 experienced lab technicians, without context, who were then asked whether the mixture included DNA from the defendant. Twelve concluded that it definitely did not, one concluded that it definitely did, and four said it was inconclusive. "In other words," Shaer writes, "had any one of those 16 scientists been responsible for the original DNA analysis, the rape trial could have played out in a radically different way."
A similar DNA sample, processed long after it was collected and long past the point when corroborating evidence in the case is available, could be a powerful weapon of injustice indeed.
In the past, this hasn't been a big problem. But a host of factors—advances in forensic testing, a culture that's more supportive of rape victims coming forward, states storing rape-kit evidence longer, and a loosening of state statutes of limitations on rape charges—mean we could wind up with a lot more cases where sex crimes that rely on DNA evidence are being prosecuted years or decades after they occur. And if this happens, the results could be bad for assault victims, bad for innocent people, and bad for the concepts of due process and criminal justice as a whole.
But the force is strong with this one at the moment. Since the start of 2017, legislatures in Minnesota, Oklahoma, Oregon, Washington state, and Washington, D.C. have considered bills that would drastically expand or outright end the statute of limitations for pressing charges in sexual assault cases. In late 2016, California Gov. Jerry Brown signed into law a measure removing the state's statute of limitations on rape and other sexual offenses entirely; prosecution was previously limited to 10 years.
Supporters of these changes argue that certain circumstances may make it hard for victims to come forward in a timely manner. Those abused in childhood may not come to terms with it until well into adulthood. Those in abusive relationships may be afraid to report. Or sometimes victims do report and there's not enough evidence to prosecute at the time but DNA evidence discovered later changes that. But while all of this may be true, none of it holds up to scrutiny as an argument for ending statutes of limitations entirely.
Why not? For starters, most states already provide victims with a pretty long window in which to come forward; more than a dozen states already exclude rape from statutes of limitations, and the majority set the limit at 10 years or more. But these are just the baseline statutes of limitations. In most states, the clock is reset if new DNA evidence is discovered, and doesn't apply at all if the victim was underage when abuse occurred or if the perpetrator has purposefully evaded law enforcement. Some states carve out exceptions for sexual assaults in which serious bodily injury occurred or a gun was used. In other words, we have already found ways to deal with the exceptional cases that allows justice for victims without conceding that all sex offenses can be prosecuted into perpetuity for any reason. We have found ways of accommodating the fear or trauma that may prohibit victims from coming forward immediately without saying that anyone can just decide, four decades after an alleged attack, that now they're ready to see the person prosecuted.
In conjunction with efforts to end statutes of limitations, victims' rights advocates have also been attempting to reform rape-kit collection and storage procedures. The federal Sexual-Assault Survivor's Bill of Rights, passed in 2016, requires states to keep all rape kits for 20 years or until the statue of limitations for rape in that state has expired. It also stipulates that kits must be collected and stored without charge to victims (regardless of whether they filed a police report), that law-enforcement clearly explain rape-kit testing and storage policies to all potential victims, and that victims be notified if tests yield any matches. Sexual assault victims—or "survivors," in current PC parlance—also have the right to request notification if their kit is set to be destroyed and to request that the evidence be preserved.
The legislation was driven in large part by Amanda Nguyen and the nonprofit advocacy group she founded, Rise. Nguyen launched the group after finding out that her home state, Massachusetts, required sexual-assault victims who had a rape kit done at a hospital to either file a police report or file a written request that the evidence not be destroyed. If not, the rape kit would be tossed after six months. Nguyen was motivated by the experience to try and change both federal law and Massachusetts law, and she succeeded. In fall 2016, the state passed a law stipulating that all rape kits must be stored for 15 years.
This week, Nguyen's group unveiled a new video it made with Funny or Die, featuring Orphan Black star Tatiana Maslany. In the spot—a spoof of 1980s and '90s workplace-training videos—Maslany's character advises a colleague to buy a "sexual-assault survivors' utility belt" since the way police treat victims is such a "drag." The colleague, who had been raped recently, was upset about having to "again" petition police not to destroy forensic evidence from her assault.
Here's how Mashable's Rebecca Ruiz described the video: "It may sound like an unbelievable premise, but it actually happens to countless survivors because the laws preserving rape kit evidence vary from state to state, and the backlogs to test DNA are notoriously long." Tyler Kingkade at BuzzFeed described the video as part of efforts "to fix a patchwork of state laws that allow many cities to destroy rape kits before they're tested, sometimes in a matter of weeks."
The impression given by Mashable, Buzzfeed, Funny or Die, Rise, and Nguyen is that untested rape kits from recent assaults are being tossed before crime labs even have time to get to them and that victims' who want rape kits preserved are subject to capricious cops eager to discard evidence, even in the midst of ongoing investigations. It's incredibly misleading, if not outright false.
The truth is that not a single state allows untested rape kits to be destroyed if a case is open. The backlog of untested rape kits that exists in many areas comes from forensic tests dating back decades, before testing for forensic evidence was possible or common—not new tests for new crimes being added to the end of the queue. And, yes, some states will destroy relatively new, untested rape kits after a certain amount of time, but not if the victim files a police report.
What about victims who aren't ready to file charges right away but want the evidence preserved for when they are? No problem—they just have to notify state authorities of this wish. This was what happened in Nguyen's case: forensic evidence was collected, but Nguyen didn't file a police report. That's why she was required to notify the state after six months that she would still like the evidence preserved, and every six months from there going forward.
This doesn't seem like such an unreasonable policy. Perhaps the extension period could be expanded, but it's hardly outrageous for authorities to decide that they won't hang on to random DNA samples for criminal cases that don't exist and victims who have never indicated they want the evidence preserved. And in cases where the victim has not notified law-enforcement about the assault but does want the state to store evidence, it hardly seems unreasonable that they should have to let the state know this.
Advocates like to say that we don't make victims of other crimes beg police to not to destroy crime evidence. But we also don't let victims of other crimes refuse to file a police report, get forensic evidence collected through a third party, and then have the evidence stored in state crime labs at state expense indefinitely on the chance that they someday decide to report the crime.
The bottom line is that we should be encouraging rape victims to come forward and report assaults to police as soon as possible. I understand that there are myriad reasons rape victims are reluctant to do so, and we must be empathetic with regard to people's individual needs and capabilities (as well as respect the wishes of victims who never plan to pursue prosecution). But coddling victims to the point that we obliterate their chances of seeing justice seems a strange way of showing compassion and respect. And this is exactly what we do when we act as if it's all the same if they report an assault immediately, in 10 weeks, or in 10 years.
We also abandon our normal concepts of justice and rehabilitation with this policy. Sure, everyone hates rapists. But a lot of us believe in redemption and repentance, too. A person who robs a house or fails to get affirmative consent at 22 may be a perfectly law-abiding, non-predatory person by 42. They may have atoned entirely. Yet we should treat this rehabilitated person who committed a crime two decades ago the exact same under the law as the guy who assaulted someone last week?
Ultimately, getting justice and encouraging healing for victims of sexual assault needn't require us to abandon basic principles of due process and criminal justice. There's middle ground between making victims request DNA-storage extensions every few months and keeping all rape kits forever whether victims want it or not. There's middle ground between expanding statutes of limitations to cover circumstances where victims can't easily come forward and saying sexual assaults can be prosecuted 60 years after they occur.
Telling survivors to take as long as they need to report an assault, no questions asked and nothing lost, might feel nice from a social services or social justice standpoint, but we betray victims by being unrealistic about the challenges associated with postponing reporting. If our goal is actually justice for victims and prevention of future assaults, we should be promoting proactive policies regarding rape reporting and police reforms that help authorities better handle rape cases, not encoding into state and federal law a right to wait decades to report a crime.
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