What can sexual-assault survivors do when so many hospitals are unequipped to perform tests, and police stations and crime labs are stockpiling neglected kits?
In April 2014, Seattle resident Leah Griffin woke up bleeding heavily with little recollection of the night before. After piecing together what she did remember, it didn’t take long for Griffin to realize that she’d been drugged and raped. So she did what victims are instructed to do under such circumstances and went to the nearest emergency room. “They looked at me and said, ‘We don’t do rape kits here,’” she recalls. Hospital administrators gave Griffin two options: Drive herself to the nearest hospital that did perform rape kits, or foot the bill for an ambulance to take her there.
Griffin was in shock from the trauma and she also felt disoriented from the lingering effects of what she would later learn was Xanax, a prescription benzodiazepine that causes sedation and memory loss when mixed with alcohol. In this state, Griffin felt she couldn’t safely drive herself across the city to another hospital. She consented to a medical exam at the first hospital—but they told her she didn’t have any serious injuries and she was sent home. It wasn’t until several hours later when her head had cleared that Griffin was able to get to the second emergency room in order to have a rape kit done.
Griffin also reported the attack to the Seattle Police Department; after months of waiting, she was informed that prosecutors had decided not to pursue charges against her rapist. The delay in care between the first hospital and second hospital was a deciding factor in this decision. Prosecutors told Griffin that the defense would argue that she took the Xanax herself in the hours between her hospital visits. They also said they couldn’t prove a definitive timeline of events because of the time that passed between when she left the first hospital and when the physical evidence was gathered at the second. Devastated, Griffin recalls that she could barely eat for months and she took a leave from her job.
Griffin’s case sounds like it should be a horrible outlier, but she’s far from the only victim to receive inadequate care after a sexual assault or rape. Samantha McCoy was accompanied by police to a hospital in rural Indiana after reporting her rape in 2015. With no Sexual Assault Nurse Examiners (SANE) in her town, McCoy was subjected to a process that she describes as “chaotic and devastating.” The staff members on duty took photographs and swabbed, but McCoy says that, because there was no trained professional on staff, certain evidence was either lost or never collected and she believes this is the main reason criminal charges were never filed against her rapist.
SANE medical professionals are trained in an evidence-collection process that begins with a victim standing on a sheet of butcher paper and completely undressing. The paper collects trace evidence that falls from the victim’s body and clothes. The medical provider then swabs the victim’s genitals, rectum, mouth, and body surfaces to collect semen, saliva, blood, and any other bodily fluids; plucks pubic hair and head hair; scrapes under their fingernails; and photographs the genital area. The nurse or doctor will also gather the victim’s medical history and record their account of the assault.
The rape-kit crisis in America is multi-faceted and, for many victims like Griffin and McCoy, it begins right at the hospital. As of 2015, only 17 percent of acute-care hospitals in the U.S. had SANEs who could perform rape kits. In the cases of victims who do arrive at these hospitals, rape kits are completed, sealed, and turned over to law enforcement—presumably to be tested. But far too often, that’s not what happens. Because most jurisdictions don’t count or track rape kits, the exact number of untested kits is unknown—but according to research conducted by End the Backlog, a program under the umbrella of actress and activist Mariska Hargitay’s nonprofit the Joyful Heart Foundation, there are hundreds of thousands of untested rape kits in police and crime lab facilities across the country. As of February 2018, it was estimated that New York City alone has a backlog of 17,000 untested rape kits. While thousands of rape kits sit collecting dust, an investigative report conducted by CNN found that other victims’ rape kits are actively being destroyed without their knowledge. According to the report, kits from at least 400 cases in 14 states were destroyed before the statutes of limitations expired. (And in the cases of some of the destroyed kits, there was no statute of limitations at all.)
Failed by the medical system and the legal system, survivors like Griffin are working to fix these problems so future victims won’t encounter them. Griffin reached out to members of Seattle City Council and King County Council as well as state and federal congresspeople. “I ended up finding a couple of champions, one being [U.S. Senator] Patty Murray,” Griffin says. “I met with her office and she couldn’t believe that hospitals don’t all provide access to evidence collection and the sexual assault nurse examiners needed to administer them.”
Murray and Griffin crafted Survivors’ Access to Supportive Care Act (SASCA), legislation that (among other things) seeks to develop national standards of care for sexual assault survivors and increase access to SANE services—particularly for rural and tribal communities. SASCA was originally submitted in 2015 and went nowhere, but this past July, it was re-introduced as a bipartisan bill with the support of Senator Lisa Murkowski (R-AK). “We’re very excited to have Republicans and Democrats working together and acknowledging that no rape survivor should be turned away from an ER when they go there for help,” Griffin says.
The consequences of survivors being turned away because hospitals can’t perform rape kits are far-reaching. Not only does the absence of a rape kit make it nearly impossible for police officers and SVU detectives to build a case, but it prevents the perpetrator’s DNA from being entered into CODIS (Combined DNA Index System) and potentially being used to solve future crimes.
When and if SASCA passes, it will be a significant step forward in addressing the rape-kit crisis in America. But it’s just one piece in the puzzle of a horribly broken system. Justin Boardman, founder of Boardman Training & Consulting and a 15-year law enforcement veteran with substantial time in SVU, says that more emergency rooms could already be performing rape kits. “Even if a nurse isn’t trained, they can do it via Skype or FaceTime,” Boardman tells me. “They can contact a trained nurse or doctor that’s on call in another area of the state or country and that person can talk them through the process. It’s not terribly hard except for maybe documentation with a camera.”
The trouble is that a lot of ERs simply don’t want to perform rape kits. Boardman says the two main reasons for this are they take between four and six hours of a nurse’s time, in addition to taking up the “real estate” of a hospital room. Although one would think it’s illegal for a hospital to deny care, there’s a catch: Rape kits aren’t considered medical care.
Jeffrey Swartz, a criminal law professor at Western Michigan Cooley Law School and a former judge in Miami-Dade County, explains that rape kits are considered a “processing of evidence” issue, which isn’t a hospital’s legal responsibility. He says that one can argue medical personnel should feel it’s morally correct to perform a rape kit. “[But] in the absence of direction by departments that administer hospitals, or funding from government agencies for the training of the personnel, it is unlikely that hospitals will want to take on the responsibilities,” Swartz tells me.
Although it could certainly be argued that it’s better than nothing, having a nurse who hasn’t received SANE training do the procedure with the help of FaceTime or Skype presents its own set of issues. Falen O. Cox, a defense attorney in Georgia, says that SANE nurses typically receive training that prepares them to testify in court. If a case goes to trial, the state will likely call the nurse as a witness to testify about the details of the exam, his or her findings in the collection of forensic evidence, and his or her opinion.
“In addition to the obvious benefit the State has when its witness has been trained to testify in court, the SANE nurse’s training helps make he or she more credible to the jury,” Cox says. “If, on the other hand, a nurse who has not received SANE training performs traditional SANE duties, he or she can expect to be confronted about that during cross-examination.” Defense attorneys will be sure to ask questions that lead the nurse to tell the jury there is special training available, discuss the nature of that training, and admit that they’ve never received it.
Dr. Mellissa Withers, associate professor at the University of Southern California (USC) Institute for Global Health and an expert in gender-based violence, says rape kits are expensive to test—but that’s not the reason for the backlog. “The cost factor [is used] to justify why these kits aren’t getting tested, but really the one main problem is that they aren’t seen as priorities,” Withers says. “And that points to gender inequality and the acceptance of sexual violence in our society in general.”
Boardman says another reason rape kits go unprocessed is that attorneys will decide it doesn’t help their case. “Most of the time it comes down to the horrible four words of ‘he said, she said,’” he explains. “And that’s a cop-out, literally and figuratively.” Although those dreaded four words are the reason so many perpetrators walk free, Boardman emphasizes that it’s still important to test each and every rape kit because doing so means the suspect’s DNA is entered into the CODIS database and this can be beneficial to future cases. For example, if the suspect walked after the first “he said, she said” rape but there’s a report that he facilitated the assault with alcohol, several years later he could be named in another rape with the same modus operandi. “His DNA will hit on [the previous case] and the current one that was also facilitated by alcohol. Now you’ve got a pattern and you can prove the pattern,” Boardman explains. “That’s why it’s so important.”
After being raped while she was an undergraduate at Harvard, Amanda Nguyen diligently followed up on the status of her rape kit every six months. “At the hospital, they gave me a bunch of pamphlets and one of the pamphlets said kits will be stored at the Massachusetts police lab for six months, and quote, ‘At the end of six months it will be destroyed,’” Nguyen told HuffPost in 2016.
With the help of Senator Jeanne Shaheen (D-N.H.), Nguyen spearheaded The Sexual Assault Survivors’ Bill of Rights, which gives survivors the right to know the location of their rape kit, whether or not it has been tested, and (if applicable) the test results. The bill passed unanimously in both chambers of Congress and, as a result, victims of federal sexual assault cases must be notified 60 days before their rape kits are destroyed. The passage of the Sexual Assault Survivors’ Bill of Rights is a major victory—and an accomplishment which earned Nguyen a nomination for the Nobel Peace Prize.
But there is still a tremendous amount of work to be done on local, state, and federal levels in order to ensure that survivors have access to rape kits that will be tested rather than treated like trash. And, if recent history is any indicator, the burden of creating this desperately needed change will continue to fall at the feet of survivors. “It’s disturbing that victims are the ones that have to push this along,” Withers says. “It’s [an] example of the government’s low prioritization of sexual violence against women.”
In Griffin’s case, fighting for change and working on a bill that has the potential to help future rape victims has been empowering. But the amount of emotional labor involved can’t be overstated. In her efforts to make SASCA a reality, Griffin says she’s told her story “thousands of times to individuals with varying degrees of knowledge and concern about the topic” and has flown across the country several times in order to advocate for the bill. “I’ve done it all on my own time with my own resources. It’s a bipartisan bill that’s not controversial, to solve an absurd problem,” Griffin says.
“For me doing this work has been really empowering because I didn’t get justice and I’ll never get justice,” Griffin tells me. “And so if I can’t get justice, then I can change the law so that maybe somebody else will. That’s as close as I’ll ever get. So, for me, that has to be enough.”
Challenges and more hard work lie ahead for survivors and advocates. It takes a tremendous amount of tenacity and determination for survivors to continue fighting for legislation to help future victims — it’s something Griffin has been working on for four years. There’s also the larger societal issue of rape culture, which helps many government officials get away with placing legislation like SASCA at the bottom of their priorities list.
Withers puts it bluntly: “Sexual assault is just not that alarming to a lot of people.” As myths about false allegations and “perfect victims” persist, the trickle down effect is a lack of awareness about access to rape kits and the rape kit backlog. We can all do our part to combat this culture by educating ourselves and having important conversations with those around us. The culture certainly won’t change overnight (or, realistically, anytime in the near future), but as we chip away at rape culture we can help clear the way for legislation that will help survivors get the justice they deserve.
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