Between the Cracks: The Importance of Testing All Kits

At ENDTHEBACKLOG, we often talk about the value in testing every rape kit booked into police evidence. In addition to identifying an unknown assailant, rape kit evidence can confirm the presence of a known suspect, affirm the survivor’s account of the attack, connect the suspect to other crime scenes and exonerate innocent suspects. 

Over the coming weeks, we will feature a blog series, Between the Cracks, exploring in even greater depth the many ways in which rape kit testing can bring healing and justice to survivors. In particular, we will focus on cases in which kits are commonly not tested—when the perpetrator is known, the statue of limitations has expired, someone has been convicted of the crime or the case was deemed “unfounded.”

To kick off this series, we would like to revisit the powerful words of one of Joyful Heart’s fearless board members, Linda Fairstein. Linda is the former chief prosecutor of the New York County District Attorney's Sex Crimes Unit and a bestselling crime novelist. In a 2011 Daily Beast article, Linda made a compelling argument in favor of testing all rape kits based on her experience as a prosecutor for thirty years and devastating real-life examples. Here is an excerpt:

“It is stunning to see how science can take the onus off the witness and ultimately ease her progression through the criminal justice system.

For 26 years, I was the prosecutor in charge of the country's pioneering Sex Crimes Unit in the Manhattan District Attorney's Office. I was among the first lawyers to be introduced to the revolutionary science of DNA in 1986, three years before it was accepted as a valid technique by our courts. When the first databank became operational in 1994, my colleagues and I watched with amazement as computers began to solve cases, matching offenders' genetic profiles to evidence gathered during a sexual assault investigation—cases in which the crime scene is the victim's body. By the late 1990s, the law enforcement community knew that rape kits, which were previously only tested if specific suspects were identified by the police for comparison, were mounting by the thousands. 

Are more women raped by acquaintances than by strangers? There is no question that in greater than 75 percent of reported rapes, the victim knows her attacker. And at many of these trials, the issue is not the identity of the man accused anyway, but whether or not the sex act was consensual. Again the naysayers are dead wrong, because even in these cases DNA can be a powerful prosecutorial tool. Frequently, the defendant's claim will be that the witness is ‘crying rape’ and that his ex-girlfriend just had him arrested because he broke up with her. The finding of his DNA on her vaginal swabs makes him a liar from the outset, and forces him to change his story in front of a jury, now admitting there was sex but claiming it was consensual. This midstream change in story alone can convince a jury to convict, and if not, DNA found in the victim's anus, along with rectal tears, may seal the deal.

The bigger myth spread by the anti-backloggers is that men who rape women they know couldn't possibly be serial rapists, so why waste time and money testing kits in cases of marital and date rape? Charles Courtney, the man who was convicted of raping his wife and then abducting two young women at knifepoint, thousands of miles apart, is the poster boy for disproving that argument.”

We could not have said it better. To read Linda’s article in its entirety, click here. Check back soon for more in our series. 

- Liz Swavola, January 6, 2014

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