Rape Tests to go National
Good news for women and bad news for the dirty pigs that prey on them. All 50 states will now be required to pay for “rape kits” that allow women to anonymously obtain evidence against their rapist without needing to go to the police, an experience that women may feel to afraid or too ashamed to endure, right after being raped.
Here’s how it works:
Starting next year across the country, rape victims too afraid or too ashamed to go to police can undergo an emergency-room forensic rape exam, and the evidence gathered will be kept on file in a sealed envelope in case they decide to press charges.
Now these kits aren’t new, many clinics have them, many counties do as well, as does the entire state of Massachusetts (the news means nothing to them since they were already paying for it) but many places refuse to pay for the rape test unless you file a police report. As it stands such a position doesn’t sound too unreasonable, but many women will not go to the emergency room to be examined if they know they have to go to the police immediately, because of the trauma. By the time they’re ready to go ahead and go after the rapist, evidence has been lost.
These new rape kits will only have a number on the outside of the envelope containing the evidence, and police will only know the identity of the victim if she chooses, an option that the FBI has been recommending for almost 10 years.
bad idea, semen dna –no police report. what is to prevent a women from framing her husband boyfriend lover etc..with no police report and no demonstrative evidence of a RAPE( ie:bruising, marks, torn clothing, evidence of a break in, date rape drugs in the system etc etc ) all you have is a womens word and here we go with a seman dna match..gee so she HAS to be telling the truth. ANY GUY WITH A FEW DOLLARS in his bank account or a jealous girlfriend better watch his ass. I know of a case of a female deputy sheriff in northern california who claimed rape after a night of drinking with a date to get even with her ex who was a deputy also… lucky for that guy the patrons of the bar witnessed the female deputys amorous antics like kissing him and lap dancing for him etc etc. it was after 3 days that she filed rape charges against him does this post facto revisionist accusation look possible with these kits ?? I wouldn’t want to bet MY future on them thats for sure. by the way the gentleman was found not guilty.
judge alan, as you note, that scenario is entirely possible now, even when charges are filed days after the encounter. Making the no-cops test available isn’t particularly going to change that. I don’t know exactly what’s in the kit, but I would imagine that the nurse conducting the exam can take (and include in the kit) photos of any bruising, etc.; certainly they will at least be noted in the report.
Indeed, the ability to get the no-questions-asked test would likely be highlighted by the defense attorney in scenarios like the one you describe if the woman didn’t go get one immediately. Thus, an unscrupulous woman like you describe would have to decide to conduct the frame-up immediately, not let it percolate in her mind for 3 or 4 days.
At any rate, all the DNA will prove in that situation is that sexual contact occurred. It will say nothing about consent, and if sexual activity did take place, the man ought not be denying it to begin with. If he denies having any sex at all, when they did, then he deserves what happens to him when his lie is disproved.
Claudia, thanks for passing on the news. This is a good development. A major question, though: do the cops do ANYTHING at all besides store the kit? I would have serious concerns if they were to, say, add the DNA from the kit into a DNA database or something.
Claudia,
Is there any "mandated" reporting required for the ER staffs that may be involved in this new developement? As with child abuse cases (here in California) medical personnel are required to report their suspicions to CPSP units or the local law enforcement if CPSP is not available within the area. Interesting developement for sure, given the number of women that come into ER’s with black eyes and bruises after hitting their heads on cabinet doors and the like or so they say!
Seems like the gathering of "evidence" should be done in conjunction with the reporting of a crime. Without a crime the kit is not evidence - it’s an unwarranted invasion.
"In Allegany and Cecil counties in Maryland, evidence is kept at least 90 days. So far, 13 women have submitted anonymous evidence, and none has returned to press charges."
So it’s done nothing in those counties to-date.
What are the rules on maintenance? Who keeps it and for how long? Protections/standards for probable cause?
OK, let’s do this by order of comment.
"Judge" alan: How about actually, you know, reading the story before commenting. If you did you would see that amongst the things done by a specially trained nurse in these cases is take pictures of bruises, tears etc. (as Pat noted). In fact, the rape kit does not gather any different sort of evidence than any normal test does. It is in fact the normal set of tests (DNA extraction from semen, skin, hair etc., pictures of tearing, explorations, blood tests etc.) done on any rape victim. The ONLY difference is that these tests can now be done without reporting to the police, and be kept under a number instead of a name. If the evidence in the envelope is insufficient to prove rape (it can show consensual sex) then there will be no conviction.
Pat, so far as I know the police does nothing unless asked to do so. I’m not even certain that it’s the police that stores the kits, though that would make sense. The envelopes are supposed to remain sealed and untouched unless charges are brought by the victim. Adding anything to them would be considered tampering with evidence, and using the DNA for a database sounds downright unconstitutional to me.
Patrick, I don’t have any idea about rules for medical staff. I do know that in the case of minors, they are obligated to report any suspicions of abuse, but I don’t know that it carries over to adult women. I would think not, but I can’t say for sure.
Marc, every state gets to decide how long it keeps the evidence before it’s destroyed.
To everyone, you may be taking this as a more major development than it is. The tests involved, the burden of proof etc. HAS NOT CHANGED. Quite simply, if there isn’t enough evidence to convict there will be no conviction. A woman who makes a false rape accusations has exactly zero more weight using this kit than doing it the ordinary way. All this does is ensure that women can gather evidence without being forced to press charges automatically, in a moment of their lives when they may feel emotionally unable to face the prospect.
marc… an "unwarranted invasion" of whom? Not of the women, surely, as they have consented to the exam, even sought it out. Nor is it an invasion of the men whose DNA is collected. In legal terms, they abandoned their bodily fluids with her, and thus no longer have any reasonable expectation of privacy in them. She is legally free to do whatever she wants with them. If that includes storing them in a rape kit, that’s her business. If the man doesn’t want to take that risk, there’s a simple solution for him: don’t have sex with the woman. (Note: I use the phrase "have sex with the woman" here because I’m describing the rare scenario where the woman has decided to frame an innocent man for rape; obviously, the rapist has no expectation of privacy in anything left behind after he’s raped a woman.)
Since the subject came up, I would add that I am not generally in favor of mandatory reporting of injuries by physicians. I’m willing to make an exception in the case of suspected child abuse, but I would not extend that to cases of domestic violence and certainly not of rape. We need to encourage people to go to the doctor when they’re injured; making the doctors rat out their patients turns the doctor into an agent of the state. The medical staff’s sole function should be to treat the injuries of the patient.
Hospitals seal the kits and store them securely to preserve the chain of evidence. Wikipedia has a reasonably accurate descript of rape kits and the examination process.
In legal terms, they abandoned their bodily fluids with her, and thus no longer have any reasonable expectation of privacy in them. She is legally free to do whatever she wants with them.
Wasn’t there at least one case where the courts ruled that not only could a woman use semen collected during a consensual sexual encounter via a condom to impregnate herself, but that the donor had to pay child support? I know the case was real, but I’m not sure about the ruling itself.
Tully, the general practice when the rape has been simultaneously reported to the police is to maintain the rape kit for a relatively brief period of time until it is transferred to the police or crime lab for processing. After that, it’s not the hospital’s problem any more.
The anonymous kits pose different issues for the hospital. They don’t routinely store little boxes of potential criminal evidence. They’ll need at least one and probably more locking refrigerators (or at least a refrigerator in a locked storage room) which are accessible only by a very limited number of staff, who will all need to be trained in the chain of custody concept. They will also need policies or statutory requirements on how long the kits must be maintained. Plus, rather than disposal after the end of the mandatory retention period, are they to just destroy it, or are they supposed to notify the woman and offer her the chance to claim it? I could see where some hospitals may be reluctant to undertake the burden of storage and other handling of the kits.
I could see why they’d be reluctant too, Pat. Most larger urban hospitals already have the controlled storage–or could add it at minimal cost in regular records–but the specialized training and paperwork and space rqmts could sure stack up. Hospitals are already somewhat concerned with secure record storage. Not just any staff or doctor can run in and go through the files–they have their own version of chain of custody designed just to keep track of who has requested what, and what’s gone in and out. When records are requested they generally forward copies, not originals.
I was a little surprised to see the story mention just an envelope–sounds like a somewhat abbreviated kit just for the biologicals.
Yeah, it’d be a pain for them. Refrigeration/freezing is really only required for long-term storage of larger samples though, such as blood draws for drug testing. With a 90 day "clock" it’s not needed for swabs and slides. Makes me wonder how abbreviated the required anonymous kit is as compared to the full kit.
Tully, Pat, the article has this to say about the kits:
I suppose then that only hospitals with a capacity sufficient to handle the care of the kits would be equipped with them. The article also states that a specially trained nurse will be in charge of collecting evidence. Training a nurse for that purpose isn’t cheap I’m sure. I of course don’t know how they would do it, but I’d bet that the kits would be dispensed to General Hospitals, public access hospitals in the cities, places that are already mainly under government control.