California Pursues a Victims-First Approach to Rape-Kit Testing

On a warm Friday night in May 2008, as a young woman and her friend got into a car in Berkeley, Calif., a stranger approached and held a gun to her head. He got into the back seat and ordered her to drive until she reached a dead-end street. There, he first raped the older teenager, and then the younger one.

After the assault, the teens went to a hospital, where the older one agreed to complete a rape kit so that DNA evidence from the attack could be collected from her body.

Had her rape kit been tested right away, it would immediately have revealed that her attacker was a California resident with a long criminal history, according to a 2016 report published by the San Francisco Chronicle.

Instead, her kit sat on a shelf in the Berkeley Police Department’s evidence room until 2014, when it was finally processed by a crime lab.

As a result of the long delay, the perpetrator remained free, and he raped another woman in 2015.

State Sen. Connie Leyva, who represents parts of Los Angeles and San Bernardino counties, wants to make sure that what happened to the young women in Berkeley never happens again. On the first day of California’s 2019-2020 legislative session, she introduced Senate Bill 22 (SB 22), which would require law enforcement agencies and forensic labs to test rape kits within a specific time frame. Twenty-three states have already passed similar legislation. If Leyva and sexual violence advocates across the state have their way, by the end of 2019, California will be the 24th.

“After having been raped and then undergoing an invasive rape kit exam, it is outrageous that a survivor would be led to believe that their rape kit would be tested promptly and then have it sit untested for months or years,” Levya said after introducing the bill. “Each untested rape kit represents a person, and I will not rest until we fully ensure justice for survivors.”

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The bill introduced by Levya—which would require law enforcement agencies to submit rape kits to crime labs within 20 days of collection and crime labs to test the kits within 120 days of receipt—is not new to California legislators. Last September, lawmakers in both chambers unanimously passed an identical piece of legislation—SB 1449. A few weeks later, it arrived on the desk of then-Gov. Jerry Brown. Instead of signing, he vetoed it.

In his veto message, Brown said he supported the goal of SB 1449 but believed the state should find out how many untested rape kits exist before it moves forward with mandatory testing. To that end, the same day he vetoed SB 1449, he signed AB 3118, which will require medical facilities, law enforcement agencies and crime labs to identify and count all untested rape kits in their possession. The law went into effect in January; the audit is expected to be completed by July.

The governor’s move rattled legislators and advocates. “I was absolutely shocked that he vetoed the bill, especially because the bill had gotten out of both houses without a single ‘no’ vote, so it was clearly a bipartisan issue,” Levya told Truthdig. She added that she feels the message he posted when he vetoed the bill was insincere. “It’s really an apples and oranges situation,” she said. The aim of the audit is to establish how many previously collected rape kits have sat on shelves, untested. The bill Levya has pushed for, the one vetoed by Brown and recently reintroduced as SB 22, would ensure that all kits collected in the future are tested within a few months. “My bill would make sure [a backlog] never happens again.”

For advocates like Ilse Knecht, the rape kit backlog reflects a decades-long unwillingness by police and the criminal justice system to prioritize sexual violence and the well-being of survivors. Knecht is director of policy and advocacy at the Joyful Heart Foundation, which works to support survivors of sexual and domestic violence, in part through an initiative called End the Backlog.

The reasons for the backlog are manifold and complex, Knecht told Truthdig. Nationally, many jurisdictions do not have comprehensive, written policies for processing and testing rape kits, which means that decisions are made on an ad hoc or case-by-case basis. Law enforcement officials often lack training in how sexual assault trauma manifests, which means they may make assumptions about whether survivors are telling the truth, which can bias their decisions about which kits are worth testing. Moreover, crime labs and police may lack funds to test and track kits effectively. “It all really does come down to where a department puts sexual assault in their priority list,” Knecht said.

Before the advent of rape kits, there was no standard process for collecting the forensic evidence often left on people’s bodies after an assault. That changed in the 1970s. Emboldened by the women’s rights movement, survivors became more willing to report sexual violence and to challenge the stereotypes and assumptions about the circumstances of assault and how trauma manifests. It was an assault survivor named Martha Goddard, according to CNN, who spearheaded the effort to determine the best uniform way to collect evidence. She also successfully pushed for cops, prosecutors and hospitals to adopt the use of rape kits and recognize their significance.

The first kit was utilized in September 1978, according the Chicago Tribune, and although training for nurses and doctors has improved since then, the evidence collection process remains incredibly invasive. Although kits vary by state, a nurse or doctor often begins by scraping under the survivor’s fingernails. Later, survivors have to undress above an evidence collection sheet and their clothes are bagged and sealed. A black light is used to scan their bodies for sperm and other genetic material. In the last steps, swabs are taken from the person’s mouth, vagina or anus. Because rape kits must generally be collected within 48 hours of an assault, survivors tend to be in the first throes of the trauma they’ve experienced, making the process of evidence collection especially harrowing.

Most assault survivors are willing to undergo this procedure for one reason: They hope evidence will be collected to hold their perpetrator responsible. Patti Giggans is the executive director of the Los Angeles organization Peace over Violence, which supports survivors of sexual and domestic violence and engages in prevention work. “Once you go through this arduous, very intimate, invasive exam, it’s important that you know that you’re doing it for a reason,” she told Truthdig.

In addition to the backlog bill, Sen. Levya has successfully pressed for the passage of a host of other legislation to address sexual violence in California, including SB 820, which was signed by Brown last September. The bill prohibits public and private employers in the state from requiring workers to sign nondisclosure agreements when they settle sexual harassment claims.

Not all of Levya’s initiatives have garnered unanimous support from progressives. In 2016, the Justice for Victims Act was signed into law, eliminating the statute of limitations for rape and felony sex crimes in California. Although the legislation won unanimous approval by both the California Senate and Assembly, it was opposed by some civil society groups, including the American Civil Liberties Union.

When the law was being debated, Natasha Minsker, director of the ACLU’s California Center for Advocacy and Policy, told the Los Angeles Times that the statute of limitations was created for a reason. “When a case is prosecuted literally decades after the event, it becomes much more … difficult to prove that you are wrongfully accused,” she said. For some progressives, eliminating the statute of limitations threatens to undermine the rights of criminal defendants in an already broken and unequal system.

California has been the site of several debates about how to balance criminal justice reform with the rights of survivors, but almost everyone agrees—at least in principle—that rape kit testing should happen quickly, and with as much transparency as possible. In 2017, the state passed legislation requiring law enforcement agencies and forensic labs to use the state’s online evidence collection system, so that the location and testing status of all newly collected kits could be easily tracked. The same year, another bill passed that gave survivors the right to know the status and location of their kits. AB 3118 went into effect this month, and all untested rape kits in the state should be identified and counted by the summer.

With new leadership in Sacramento, Giggans, Levya, Knecht and other lawmakers and advocates are hopeful that SB 22 will not only be passed by both chambers, but signed into law. But even if it is, there is more work to be done. Knecht told Truthdig that once the backlog is tallied, legislators will have to make sure that there’s a plan and enough funds in place to make sure all rape kits are tested. She is also pushing for California to make other changes to its existing tracking system, so that survivors can track where their rape kit with the same ease as people in law enforcement.

But for now, Knecht and other advocates and legislators are focused on securing the next key win. “Getting SB 22 passed is our top priority this year,” she said.

Track the progress of SB 22 on the California State Legislature’s website here.