Justice for All: Testing Rape Kits in LGBT Cases

As we have shared previously, ENDTHEBACKLOG has undertaken a new project—The Accountability Project—to determine whether there are untested rape kits at police departments in 15 U.S. cities. We often hear a variety of reasons why all kits should not be tested: the suspect’s identity was known, the suspect said the sexual contact was consensual, the survivor was “uncooperative.” 

A recent explanation, however, was one we had not heard before. In listing instances in which kits were not sent for testing, documents from one department stated, “No male suspect.” Upon further investigation, we learned this notation meant the case was “a female on female sex crime.” 

At ENDTHEBACKLOG, we believe every rape kit booked into evidence and connected to a reported rape should be tested, and that includes LGBT cases. DNA testing can identify an unknown suspect or confirm the presence of a known suspect. It can affirm the survivor’s account of the assault. Testing can connect a suspect to other unsolved crimes. It can exonerate innocent suspects. Rape kit testing can achieve these powerful results regardless of the suspect’s gender.

This department’s response seems to underscore that there can be confusion among members of the criminal justice system around LGBT sexual violence, and who can be a perpetrator and who can be a survivor. It certainly does not honor the decision of a survivor who reported the crime and underwent an invasive rape kit collection exam in the aftermath of the assault. To learn more about what this example says about law enforcement’s response to sexual violence, we turn to two experts who work to bring justice to survivors of violence who identify as LGBT. 

Sharon Stapel is Executive Director of the New York City Anti-Violence Project, the mission of which is to “empower lesbian, gay, bisexual, transgender, queer, and HIV-affected communities and allies to end all forms of violence through organizing and education, and support survivors through counseling and advocacy.” Sharon writes:

Sexual violence is all too common in LGBT communities. According to the U.S. Centers for Disease Control and Prevention (CDC), approximately 1 in 8 lesbians (13.1%), nearly half of bisexual women (46.1%), and 1 in 6 heterosexual women (17.4%) have been raped in their lifetime. Nearly half of bisexual men (47.4%), 4 in 10 gay men (40.2%), and 1 in 5 heterosexual men (20.8%) have experienced sexual violence other than rape in their lifetime. 

In a recent report on hate violence in the U.S. by the National Coalition of Anti-Violence Programs (NCAVP), 5% of LGBT people reported that this bias-related violence was sexual violence or sexual harassment. Transgender survivors were 1.8 times more likely to experience sexual violence compared to overall survivors and undocumented LGBTQ survivors were 3.4 times more likely to experience sexual violence when compared to legal permanent residents and U.S. citizens. Despite these numbers, NCAVP reports that fewer than 50% of all LGBT survivors of hate violence and fewer than 20% of LGBTsurvivors of intimate partner violence report to the police, and nearly 3% of bias-related sexual violence cases were reported to have been perpetrated by the police. When survivors do report to the police, they tell us that the police are often ill-equipped to understand how LGBTQ people experience sexual violence or rely on homophobic and transphobic stereotypes, such as men can’t be raped or transgender people were engaged in sex work and therefore could not have been assaulted.  

Testing rape kits, while critical, is just one piece of the response. Law enforcement must also have competence in working with LGBT communities, understand the ways in which LGBTpeople experience sexual violence and understand the unique barriers LGBT people face in engaging with the legal system. These misperceptions increase barriers to reporting for manyLGBT people and increase the likelihood of re-traumatizing survivors when they do report. 

One first step is to increase training for law enforcement, including courts, and other first responders to understand how to work respectfully with LGBT people, how LGBT people experience sexual violence and the barriers or obstacles they may face in seeking support. But training is not enough. We must also include LGBT communities in national and local discussions about response and prevention initiatives and incorporate lesbians, bisexual men and women, gay men and transgender people in these conversations. As importantly, we must ensure that LGBT people have protections from discrimination locally and nationally to begin to create an equal and safe environment for LGBT people to report sexual violence. Once LGBTpeople are seen and heard as survivors of sexual violence, we will stop judging the legitimacy of that violence because there are “no male suspects,” and instead begin to respond to the needs of survivors.

David Ward is Legal & Legislative Counsel at Legal Voice, which “pursues justice for all women and girls in the Northwest, through ground-breaking litigation, legislative advocacy, and educational tools to help individuals understand their rights and the legal system.” David writes: 

When I heard about this department’s policy, two thoughts came immediately to mind.

First, it shows the persistence of the myth that “real” rape is committed by a man against a woman. Failing to test the rape kit when a woman is sexually assaulted by another woman sends a clear message that law enforcement doesn’t take the crime seriously and is treatingLGBT survivors of sexual violence differently. It’s blatant discrimination, and the policy needs to be changed immediately—and, as Sharon points out, it reflects the broader and urgent need for law enforcement to become knowledgeable and culturally competent in working with LGBT survivors.

Second, this policy creates another barrier for LGBT survivors in reporting sexual assault – and there are already so many. LGBT survivors face the same obstacles to reporting as other survivors, but also face unique barriers. For example, LGBT survivors generally have to “out” themselves when they report, something they may not be ready to do and which leads to fear of discrimination by law enforcement, health care providers and the courts. Survivors may also be reluctant to report because of concerns that it would somehow reflect badly on the LGBTcommunity by revealing that sexual violence occurs among us too. And because many LGBTcommunities are small, even in big cities, the survivor may fear that reporting will result in everyone knowing.

These kinds of barriers already make it very difficult for LGBT survivors to report sexual assault. Refusing to test rape kits in cases when the perpetrator and survivor are the same gender adds yet another barrier to reporting the crime. Why would a survivor go through an invasive exam if the rape kit will not be tested?

- By Liz Swavola, October 30, 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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