Between the Cracks: Testing Past the Statute of Limitations

This is the second post in our new series, Between the Cracks, which explores the value of rape kit testing in cases in which kits are commonly not tested, among them: when the perpetrator is known, the statue of limitations has expired, someone has been convicted of the crime or the case was deemed “unfounded.” Click here to read all the posts in this series.

When cities or states undertake to clear their rape kit backlogs, some make the decision to exclude cases on which the statute of limitations has expired. A statute of limitations dictates the time period within which a legal proceeding must begin. Basing the decision whether to test a rape kit solely on whether the case is prosecutable ignores the great value that DNA evidence holds—not only for the criminal justice system, but for survivors as well. 

For many survivors, knowing the results of the analysis on their rape kits can bring long-awaited answers. As one survivor said: 

There are times [when] it feels very old, and there are times when it feels like it happened yesterday. If I could know that the kit was available and could be tested even 25 years later, and the DNA could be identified as belonging to a certain person, I would be able to have that information [for] the rest of my life. For me, it isn’t at all about whether prosecution is still an option; it is about closure.

Whether or not DNA testing provides a perpetrator’s identity or confirms a known perpetrator’s presence, it can bring relief to the survivor. Learning that the perpetrator is already incarcerated for another crime or even deceased can bring peace of mind to a survivor who has been living in fear. For others, simply knowing that the rape kit was tested signals that the police cared enough to spend time and resources on the case, that the case mattered, that their voices had been heard. At the same time, testing all kits puts perpetrators on notice that the criminal justice system will seek to hold them accountable.  

In some instances, although a survivor’s case is no longer prosecutable, there are still ways for her or him to participate in the pursuit of justice. DNA evidence can help to identify a serial offender, and it may still be possible to prosecute the offender for other offenses. A survivor whose case cannot proceed may be able to aid the police in investigating the other cases. She or he may be allowed to make a statement at sentencing in those other cases or even testify during a trial. If the offender is already incarcerated for another crime, the survivor may be allowed to provide a statement to the parole board. 

The story of Lavinia Masters provides a powerful example. Lavinia was raped at knifepoint in 1985, when she was just 13 years old. She courageously underwent a rape kit examination following the assault, only to have her kit sit untested in police storage for 20 years. When police finally tested the kit in 2006, Lavinia learned that the perpetrator was already incarcerated for other crimes, including rape. While the statute of limitations had expired on her case, Lavinia's testimony at a subsequent parole hearing helped to prevent his release. She has said:

[The parole board] called me, and I shared my story. I just wanted him to know that I know who he is. His power in being my fear of the unknown is no longer there. Parole was denied... If he is released, my DNA evidence is on his record. That was enough justice for me even though he couldn’t be punished.

When members of law enforcement decide against testing a rape kit, they very well could be missing a critical opportunity to prevent future sexual assaults. Uploading a DNA profile generated from the evidence stored in a rape kit into CODIS, the national DNA database, can link an offender to unsolved crimes and prevent that individual from remaining undetected in a community, free to attack again. 

Processing a rape kit even when the statute of limitations has passed can bring powerful results. Not only can it solve and prevent crimes, it also honors the courageous decision of a survivor to undergo the often invasive and traumatic rape kit exam and the expectation that survivor had for seeing justice served. 

- By Elizabeth Swavola, February 5, 2014

ENDTHEBACKLOG is a program of the Joyful Heart Foundation to shine a light on the backlog of untested rape kits throughout the United States. Our goal is to end this injustice by conducting groundbreaking research identifying the extent of the nation’s backlog and best practices for eliminating it, expanding the national dialogue on rape kit testing through increased public awareness, engaging communities and government agencies and officials and advocating for comprehensive rape kit reform legislation and policies at the local, state and federal levels. We urge you to learn more about the backlog, where it exists and why it matters. We invite you to take action and support efforts to test rape kits. Help us send the message that we must take rape seriously.

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