Only 1 in 4 rape kits is analysed
In the United States, the shock revelation that thousands of rape kits never get forensically analysed has spurred an ‘‘end the backlog’’ campaign. Nikki Macdonald investigates New Zealand’s statistics, and the important questions of who decides, and how
Imagine a traumatised rape victim being plucked and combed, prodded, swabbed and questioned for more than two hours, only to later discover that that evidence stayed in its sealed cardboard box, never to be analysed.
The scenario has provoked outrage in the United States, with some states passing laws to require the analysis of thousands of untested rape kits. Commentators argue there’s a moral responsibility to test every kit, and DNA extracted from untested kits has identified hundreds of serial rapists.
In New Zealand, in the last financial year, only one in four evidence kits extracted from sexual assault victims was sent for forensic analysis. The previous year it was one in three; the year before that, more like 40 per cent.
The statistics raise important questions about who decides whether or not a sexual assault evidence kit gets tested, and how that decision is made. But the numbers are less straightforward than they appear. Some kits go untested because the victim – despite putting themselves through the forensic examination – later decides not to make a police complaint.
The abandoned evidence is a window on the complex problems of sketchy data, the barriers to reporting sexual assault, and the high proportion of allegations where the key question is not whether or not sex happened, but whether or not it was consensual.
WHAT IS A MEDICAL EXAMINATION KIT (MEK)?
It looks like an unassuming cardboard box. Inside are eight envelopes: toxicology; oral swab and saliva; hand and fingernail samples; blood samples; head and pubic hairs; trace evidence and clothing; spare swabs; genital swabs and slides. There are urine bottles; nail clippers and tweezers; a booklet to record observations; and two pairs of gloves.
Forensic medical examinations are done by doctors from Medical Sexual Assault Clinicians Aotearoa (MEDSAC). Victims are usually referred by police or support services.
MEDSAC deputy chairperson Cathy Stephenson, a doctor who works at Wellington’s sexual assault assessment and treatment service, says all sexual assault victims are encouraged to get a medical assessment, for emergency contraception and to check for injuries, sexually transmitted infections and for referrals to advocates and counsellors.
But the forensic examination is optional, and victims can choose what they want done. There are no national figures, but of the 93 cases Wellington doctors saw from January-June, 59 opted to be forensically examined.
The aim is to take samples of physical evidence that could support the victim’s explanation of what happened. Saliva swabs are taken where she says she was bitten or licked. Genital swabs could show sex took place, and DNA could identify the owner of the semen. Urine or blood samples could confirm drink-spiking.
WHY ARE SO FEW SEXUAL ASSAULT KITS SENT FOR ANALYSIS?
Here’s where the story gets complicated. Police don’t keep data on how many medical examinations are done, how many kits are sent to Environmental Science and Research for forensic analysis, or how that decision is made.
ACC – which pays for the doctor’s visits – reported 1054 examinations in the 2017 financial year. That was similar to 2016, but a significant increase on 2014 and 2015.
ESR records show only 258 kits were tested in 2017, a big drop from the 340 to 380 range of the previous five years.
Sexual assault support advocates are universally surprised only one in four rape kits is being analysed.
Rape Prevention Education executive director Debbi Tohill is astounded. ‘‘People are traumatised enough without going through something for it then not to be used.’’
Help Auckland crisis services manager Sylvia Yandall says the number is ‘‘not a fair representation, at all, of what’s coming through. So what are they basing their decisions on?
. . . Who makes the choice? And on what criteria?’’
Mostly, police decide whether to send a kit for analysis. The call is made by a supervisor, but there are no national guidelines for how that decision is made.
Detective Inspector David Kirby, manager of adult sexual assault and child protection, doesn’t know why more forensic examinations have been undertaken in the past two years, or why fewer kits are being tested. However, there has been no policy change.
Kirby says kits are not tested if the evidence they contain won’t help the investigation. If police decide a kit has no evidential value, it’s destroyed when the case is closed.
The forensic samples are usually used to link the victim to the suspect or scene; to prove sexual activity, or to identify a stranger rapist. If the culprit is unknown, the MEK will always be analysed, and any DNA goes into the national database, in case it matches DNA from past or future crimes.
But many sexual assaults are not committed by strangers. If the suspect admits having sex with the victim and the only dispute is whether or not it was consensual, then finding his DNA doesn’t tell police anything they don’t already know.
However, the medical examination kits are not just about identifying DNA. ESR forensic research and development programme manager Dion Sheppard says toxicology analysis can reveal if someone has been unwittingly drugged and can estimate how drunk a person was at the time – which could show whether they would have been clear-headed enough to be able to consent.
Finding semen, saliva or blood at particular swab sites could help support a victim’s account of what happened, and fibres, skin cells or debris under fingernails could link a victim to a crime scene or corroborate a victim’s story of struggling and scratching an offender.
And identifying tissue type could help, even where DNA would not. For example, if a woman said she was penetrated with a bottle, her DNA could be present from her drinking from the bottle, or because of a sexual assault. ‘‘Are they salivary cells,
are they vaginal cells, or something else? So having an answer in that situation is valuable and would help progress the case, but it’s not simply about ‘Is the person’s DNA on it?’ ’’
Cost is inevitably a factor. Police won’t reveal how much they pay to analyse a kit, but Kirby says there is no fixed annual testing budget.
Rape Crisis spokeswoman Andrea Black says she has always encouraged victims to undergo an examination even if it doesn’t get used, so the evidence is there if needed. But the process is potentially traumatic, and society has a moral responsibility to do everything it can with that material.
‘‘You don’t know what is there until it is tested . . . It should not be decided because of the money issue, but that is the world we live in. That is so undermining of what we are trying to do.’’
In the United States, the analysis of previously untested kits has identified hundreds of repeat rapists, prompting Stanford Graduate School of Business professor Lawrence Wein to say there’s both a moral and economic imperative to test all kits, because every testing dollar would save $81 in sex crime prevention.
In Detroit, 11,000 untested rape kits revealed 817 serial offenders. Without knowing why each of those kits went untested, it’s difficult to extrapolate to the New Zealand situation. But Wein’s analysis suggests some rapists assault both strangers and people they know, meaning DNA in kits involving known offenders could hold the key to other unsolved crimes.
Police argue even if MEKs go untested, they can take DNA on arrest. But only about a third of reported sexual abuse crimes make it to court.
Victoria University criminology associate professor Jan Jordan says New Zealand’s historical serial stranger rapists have committed physical rather than sexual violence against their partners. However, that could reflect the fact women are more likely to report physical violence over sexual abuse.
She doesn’t see huge cause for alarm in the low testing numbers, but thinks the issue is worth exploring further. ‘‘There could be some overall gain at times from doing more testing.’’
Generally, Jordan says police attitudes to rape are unrecognisable compared with her 1997 police file analysis, when police notes were ‘‘incredibly damning and personally insulting’’. But there’s still potential for inconsistency, so national MEK testing guidelines could help.
‘‘When you don’t have a national protocol governing it, you leave more room for slippage.’’
The problem with police deciding which kits should be tested, says lawyer Michael Bott, is ‘‘the police officer becomes the analyst’’.
‘‘They say, well, look, there’s nothing useful here. And it means they cut corners.’’ C
athy Stephenson thinks police make good decisions about which kits should be tested. In cases where the accused admits sex took place, forensic evidence can’t show whether or not there was consent. Even injuries are no proof, as genital injuries are uncommon in sexual assault cases, and can also result from consensual sex.
But it’s still worth doing an examination, because you don’t know where the police investigation will go, Stephenson says. If the victim says she was raped but the accused says he just kissed her, then a vaginal swab could still be useful to contradict his story.
One possible explanation for the fall in the proportion of kits being tested is the introduction of ‘‘just in case’’ examinations. Whereas previously victims had to decide immediately whether to involve police, they can now do an MEK while the evidence is fresh, but take 3 to 6 months to decide whether to release it to police.
That’s a ‘‘fantastic’’ development, as people are often too distressed, shocked or tired to make a good decision at the time, Stephenson says. But many decide not to proceed. In Wellington, about 1 in 5 MEKs are ‘‘just in case’’ examinations, and of the 32 completed in the past 12 months, only nine eventually released their kit to police.
WHY DO VICTIMS PULL OUT OF THE POLICE PROCESS?
Brodie Joyce was 21 when she realised her relationship with her mother’s partner was sexual abuse. He’d abused her since she was 10.
Going to police just seemed logical. The investigation took about nine months. She has no regrets and always felt believed, but the process still takes a toll.
‘‘It’s long and arduous. At some points it felt like things were moving really quickly, but also really slow at the same time. The investigation stage was definitely the slowest, because you’re just waiting for an update. Also where you don’t know if they’re actually going to be charged or not, if there is enough evidence. Waiting to hear if it’s actually going to happen or not is quite nerve-racking.’’
In the end, he pleaded guilty on the Friday before the trial. Joyce ‘‘blacked out a bit’’ when she heard.
Now 23, she has set up a website, fightsexualabuse.co.nz, and a buddy system to link sexual abuse survivors with people with similar experiences.
She thinks sexual assault victims are scared off complaining to police because they fear not being believed, and don’t want to endure a prolonged investigation and court crossexamination. ‘‘That’s a second victimisation. You don’t want it to be suggested that you were drunk, or what you were wearing or victim-blaming and all that kind of stuff.
‘‘You don’t want to go through that when you’ve experienced something really crappy.’’
She thinks speedier court processes and a victim advocate who could provide weekly updates during the investigation could help.
Stephenson agrees court timeframes are critical. ‘‘If you’re 15 or 16, two years is a lifetime away. And they’re going to be going ‘Oh my God, by then I’m going to be going to university, I’ll have moved on from this, I’ll have got a new boyfriend, do I really want to revisit this then? No, maybe I don’t, so I’m going to stop.’ ’’
However, delays have reduced – she’s now going to court in 6 to 9 months for cases that previously took two years.
She also thinks victims need more options than court prosecution. ‘‘A lot of victims want a restorative process. They want the person, the offender, to understand how traumatic and awful and wrong what they did was, but they don’t want to destroy their lives . . . That’s the longer-term aspiration for me – that we have another pathway as well, sitting alongside.’’
Jordan agrees one of the greatest barriers to reporting sexual crimes is the adversarial court system, which puts victims ‘‘through the mincer’’.
She’d like alternative options, and improvements to the existing system, such as more intervention by judges. ‘‘I don’t think we can just look at alternatives and leave the current system languishing as it is. I think we need to be doing both.’’