Investigations Violence

Rape Kits: A Decade and A Billion Dollars Later, Why Can’t We Fix the Backlog?

Sofia Resnick

A three-month investigation by Rewire has revealed that the agency charged with overseeing this effort has been unable to answer these rudimentary questions, leaving advocates at a loss to explain why so little progress has been made on the backlog even while the Obama administration has identified it as a top priority for sexual justice.

A Senate Judiciary Committee hearing to be held tomorrow, May 20, will provide rape survivors and advocates a chance to question why, throughout the country, rape kits are still not being processed in a timely fashion, despite more than a billion dollars in public funding since 2004, and the passage of two federal laws aimed at solving this problem.

The hearing, titled, “Taking Sexual Assault Seriously: The Rape Kit Backlog and Human Rights,” will address fundamental questions such as how public funds have been spent. A three-month investigation by Rewire has revealed that the agency charged with overseeing this effort, the National Institute of Justice (NIJ) has been unable to answer these rudimentary questions, leaving advocates at a loss to explain why so little progress has been made on the backlog even while the Obama administration has identified it as a top priority for sexual justice.

Rebecca O’Connor, the vice president for public policy at the Rape, Abuse & Incest National Network (RAINN), told Rewire that the enduring backlog of rape kits is a source of frustration for rape survivors.

“It is frustrating from the advocate side, especially when you’re hearing it from survivors, the personal experience of undergoing these [rape kit] exams and what it means to them to submit to it,” she said.

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As the situation currently stands, there are no reliable numbers on things as basic as how many rape kits are awaiting testing, whether the funds have even been used to test rape kits, or whether the money has been used for other purposes, such as testing DNA samples from crimes like homicide or, even, in relation to the detention of unauthorized immigrants.

The situation has frustrated members of Congress who have spent years lobbying to reduce the backlog and to ensure that rapists are prosecuted. They are also concerned that victims are being put through the additional trauma of submitting to the collection of DNA for no reason.

Carolyn Maloney, D-NY, co-sponsored one of the key laws in 2013, known as the Sexual Assault Forensic Evidence Reporting Act, or the SAFER Act.

“I introduced the SAFER Act with Congressman Ted Poe of Texas because even though we represent very different parts of the country we both heard stories of storage closets of untested DNA kits being discovered years later and wanted to target funding to the DNA programs and provide an incentive for law enforcement to audit and track their backlog,” Maloney told Rewire in a written statement.

“I am concerned that the programs for backlog auditing have not been properly established as required, and I am hopeful that issue will soon be resolved,” Maloney said.

One of the remaining questions that advocates and lawmakers want answered, is how many untested rape kits are currently stored throughout the nation’s thousands of police departments, private storage facilities, and crime labs.

Estimates vary widely, as do definitions of what should be included in the “backlog.” The NIJ uses a narrow definition that only counts kits that have been sent to a laboratory, and have not been tested for at least 30 days after a request for testing was made.

Despite definitional disagreements, a commonly used number is 400,000, but advocates told Rewire that, in truth, no one knows the answer.

Longtime sexual assault researcher Rebecca Campbell, who is a professor of ecological-community psychology at Michigan State University, told Rewire that social science studies suggest there are at least 200,000 untested kits.

But to get actual numbers would require obtaining records from each city—and potentially, each precinct—in the nation, because rape kits, along with other DNA evidence, are usually gathered and tested at the local level, with no centralized state or federal record keeping. Indeed, there is no single rape kit “backlog,” but rather, thousands of individual backlogs scattered throughout jurisdictions with varying laws, funding, and priorities.

Demonstrating the difficulty of obtaining this information, the New-York based Joyful Heart Foundation—whose managing director, Sarah Haacke Byrd, will be testifying at Wednesday’s hearing—has been working independently to track cities’ rape kit backlogs through news reports and public records requests. It has found data for individual cities that shows thousands of untested rape kits, but its findings still fall far short of a comprehensive national picture of the extent of the problem.

O’Connor says resolving this basic question is key to achieving any progress in reducing the rape kit backlog.

“We get the question every single day, from members of Congress, from lawmakers at the state level, from victim advocates, etc., ‘How many kits are there? How many?’” she said. “We don’t know. And that’s a problem. We worked SAFER out to be something where law-enforcement agencies were saying, ‘Look, we want to get a grasp on this.’ It’s not fun; nobody wants to air dirty laundry, so to speak, but we need to know.”

The SAFER Act is in fact an amendment to the marquee law intended to address the problem of untested rape kits—the Debbie Smith Act. Passed in 2004, that act, an authorizing bill, was named after Debbie Smith, a woman from Williamsburg, Virginia, who was raped by a stranger in the woods behind her house in 1989. Smith’s rape kit was tested, and a DNA sample from her rapist was entered into the statewide criminal database. But the offender went on to rape more women, and because their kits were not tested soon after, Smith’s case went unsolved for six years.

The Debbie Smith Act is itself part of a larger law, the Justice for All Act, which is a George W. Bush-era victims’ bill of rights.

Maloney, who introduced the Debbie Smith Act, says it was intended to deal with what had been recognized as a phenomenon of police departments letting their sexual assault forensic samples pile up. In press statements she has referred to the Debbie Smith Act as “the most important anti-rape legislation ever signed into law.”

But the reality is that funding under the Debbie Smith Act was not targeted only for the DNA testing of rape kits and so funds appropriated under it were not necessarily applied to reducing the backlog.

The reason is that DNA testing includes a range of processes, only some of which relate to sexual assault.

The vernacular term “rape kit” refers to a collection of blood, semen, hair, saliva, clothes, and other evidence gathered from victims’ bodies and the crime scene. Evidence can be gathered from a corpse, or from a survivor during a forensic exam. The exam usually occurs at a hospital and takes several hours.

The hospital then gives the rape kit to the police department, which is supposed to process the kit if the victim chooses to report the crime. However, many victims decide not to make a report. In some jurisdictions, even kits collected from those survivors are counted as part of the backlog, while other jurisdictions exclude those kits from their backlog count.

Research and news investigations have shown that, for a variety of reasons, many of the kits have remained untested, on police shelves or in storage units for years.

For the kit to have any influence on the survivor’s case, it would need to be taken to a public or private crime lab and tested. The process is expensive; testing and analyzing the DNA can cost up to $1,500. A 2007 report prepared for the Justice Department found that between 2002 and 2007, forensic evidence had been collected but not submitted to a crime lab for analysis in 18 percent of sexual assault cases. (This was reportedly the case for 14 percent of all unsolved homicides.)

A significant problem with the way the Debbie Smith Act was drafted was that it did not specify that only rape kits could be tested using funds appropriated under this act. Rather, grants could be used to test backlogged DNA samples from a variety of offenders and crime scenes, including crimes unrelated to sexual assault, such as homicide and property crimes.

The law was later expanded to include DNA testing of arrestees and detained immigrants suspected of entering the U.S. illegally. In addition to testing DNA samples, Debbie Smith grants could be used to expand crime labs’ laboratory capacities and staff in order to increase their abilities to process more DNA more efficiently. The intention was then to upload these samples to the FBI’s Combined DNA Index System (CODIS), a network of federal, state, and local criminal databases.

Had the NIJ properly tracked where each of its grants was going, it would be possible to determine how much of the more than $1 billion in Debbie Smith funds over a decade has actually gone toward rape kits, as opposed to addressing non-sexual assault related purposes.

However, the NIJ has been unable to answer these basic questions.

In 2013, the Government Accountability Office (GAO) reviewed how NIJ was administering its DNA-related grant programs and determined there was little oversight and transparency. The GAO found that the NIJ could not adequately explain its DNA-related grant-funding decisions and could not adequately determine if award recipients met their funding goals outlined in their grant applications.

In addition to this poor oversight, the confusion about where Debbie Smith funds are going results partly from the way its funding was structured. In a configuration not unusual for congressional funding bills, the Debbie Smith program was never given its own separate funding stream.

The NIJ has not received appropriations specific to the Debbie Smith Act. Instead Congress has appropriated more than $100 million each year to the NIJ that may be used to reduce DNA backlogs and enhance crime laboratory capacity. The NIJ has applied this money to existing grant programs whose purposes are “consistent” with those specified in the Debbie Smith Act.

A big portion of Debbie Smith funding has been used for the DNA Backlog Reduction Program, whose stated program goals are similar to the Debbie Smith Act but are not specific to sexual assault.

This leads to unclear figures from the NIJ on how much Debbie Smith Act funding is actually dedicated to reducing the rape kit backlog, or instead, to other purposes that are interpreted as being “consistent” with the Act. For example, an NIJ report into Debbie Smith funding spending in fiscal year 2013 reported that the NIJ appropriated $97 million toward DNA analysis and forensic grant funding, with about 77 percent allocated to the DNA Backlog Reduction Program, with no specific indication of whether this means rape kits.

In response to a question from Rewire, the NIJ said that between 2008 to 2013, Congress appropriated $808 million “to provide grant and other awards for state and local governments to reduce the DNA backlog and increase DNA lab capacity, as well as for other forensic science purposes.” The NIJ spokesperson said that the agency had spent $525 million of that amount on DNA backlog initiatives.

But when we asked how much had been spent specifically to reduce backlogs of sexual assault evidence kits, the NIJ spokesperson wrote that the “NIJ does not currently track sexual assault kits in laboratories.”

To be sure, some of these funds go toward building capacity within the entities responsible for general DNA-testing within their jurisdiction. Many police crime labs don’t have the manpower or equipment to process a lot of rape kits, or the funds to send them to a private lab. So funding for general capacity can indirectly assist in reducing the rape kit backlog, even if those funds aren’t hypothecated for that use.

Perhaps the biggest frustration for sexual assault survivor advocates is that the SAFER Act has not yet been implemented, two years after it passed into law.

SAFER amended the Debbie Smith Act to require that a portion of the grant funding be used by law enforcement agencies to conduct audits of rape kits that are awaiting testing. The purpose was to help jurisdictions better understand the size of their backlogs and also to help local police departments figure out the best way to prevent backlogs from accruing in the future. Under SAFER, a portion of Debbie Smith funding must also be used to ensure that sexual assault forensic evidence is processed “in an appropriate and timely manner and in accordance with specified protocols and practices.” And 75 percent of the funding must be used to analyze DNA samples from crime scenes and include them in CODIS, and to increase crime lab capacities. The law was also meant to begin tracking how Debbie Smith funding was being used to reduce local law enforcement agencies’ rape kit backlogs.

The sponsors of SAFER—Sen. John Cornyn (R-TX) and Rep. Ted Poe (R-TX)—have been urging the DOJ to implement the law. Last year they co-wrote a sharply worded letter to then-Attorney General Eric Holder asking the DOJ to “take immediate action” and to fully implement the SAFER Act. This year, Cornyn, who did not return multiple requests for comment, plans to address this issue at the hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, which he chairs.

The NIJ did not respond to our questions about why the SAFER Act has not been implemented, but advocates say the failure to implement this law is a clear problem, and want to see it resolved immediately.

“We didn’t pass a law with the intent of it being window dressing,” said O’Connor, whose organization, RAINN, helped lobby for its passage. “It’s incredibly frustrating and frankly, demoralizing for those of us that are really trying to fight tooth and nail to make sure that we’re all working in a coordinated and efficient way with both federal and state resources.”

News Politics

Georgia Republican Stops Effort to Tackle Rape Kit Backlog

Nicole Knight

The bill's sponsor said the measure institutes a process to tackle a backlog of hundreds of rape kits discovered in recent investigations.

A Georgia Republican state senator is blocking a measure intended to speed up the handling of sexual crime evidence, accusing the bill’s Democratic sponsor of playing politics.

The bill, HB 827, requires hospitals and clinics to turn over physical evidence of a sexual crime—commonly called a rape kit—within 96 hours and for law enforcement agencies to deliver the evidence to the Georgia Bureau of Investigation within 30 days.

The bill’s sponsor, state Rep. Scott Holcomb (D-Atlanta), said the measure institutes a process to tackle a backlog of hundreds of rape kits discovered in recent investigations.

The Atlanta Journal-Constitution reported last year about how the state’s largest hospital withheld more than 130 rape kits from police and failed to tell authorities about as many as 1,500 alleged sex crimes. CBS46 reported that the Athens-Clarke County and Cobb County police departments had stockpiled more than 500 rape kits, some dating back to the 1970s.

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But state Sen. Renee Unterman (R-Buford), chair of the state’s Senate Health and Human Services Committee, told the Atlanta Journal-Constitution that she won’t allow the legislation, which won unanimous approval in the state’s GOP-controlled house, to advance to the state senate floor for a vote.

Unterman contends the problem of untested rape kits is limited to just a few counties.

“If there was a problem, I would be Johnny on the spot and I would have written the legislation,” Unterman told WSB-TV. “I think [Holcomb] really overly politicized it in an election year and I’ve got a problem with that.”

Representatives from the Georgia Association of Chiefs of Police, two hospital groups, the Prosecuting Attorneys Council, and victim advocates have spoken in support of the bill.

Georgia, according to reports, lacks an official statewide inventory of untested or backlogged rape kits. The Manhattan District Attorney’s Office in 2015 awarded nearly $2 million to the Georgia State Criminal Justice Coordinating Council to test more than 3,100 rape kits.

Nationwide, the advocacy group Rape Kit Action Project has put the number of untested rape kits at 100,000. Recent investigations suggest the problem is more mammoth.

Last year, a nationwide investigation of more than 1,000 law enforcement agencies uncovered about 70,000 untested kits, but noted the numbers likely represent a fraction of the total number of untested rape kits. The true number of untested kits is thought to reach as high as the hundreds of thousands.

Some states, like Georgia, are pushing through legislative reforms, but the pace of change is uneven. About 20 states are now testing unexamined rape kits and have changed the rules for how the evidence should be handled, according to the Pew Charitable Trusts.

Lawmakers in Texas, Colorado, Ohio, and Illinois have passed laws to require testing of old kits. A 2015 Maryland law requires authorities to conduct a complete inventory of the backlog and make a report to the state this month.

The federal government in 2015 awarded $79 million in grants to 43 jurisdictions in 27 states to address the massive backlog. The Obama administration has yet to implement the Sexual Assault Forensic Evidence Reporting (SAFER) Act three years after its passage. The intent of the 2013 law is to help law enforcement agencies determine the number of untested rape kits in storage.

Investigations Violence

Why Do D.C. Prosecutors Decline Cases So Frequently? Rape Survivors Seek Answers

Sofia Resnick

Frustration with the lack of transparency in U.S. Attorney’s Office prosecutors’ decision making turns out to be a frequent sentiment among people who have reported a rape or sexual assault in D.C.

This article contains graphic descriptions of sexual assault.

As she drove the nearly 500 miles from Plymouth, Massachusetts, to Washington, D.C., in July 2015, George Washington University student Emily Richard hoped prosecutors would change their minds once she got there.

Just a few days before, through her victims’ rights attorney, Richard learned that federal prosecutors were dropping all charges against her former close friend, a man she had accused of raping her multiple times.

The now-22-year-old reported first to her university’s police and later to D.C.’s Metropolitan Police Department that this man, then her classmate, had verbally and occasionally physically abused her for a period of nine months in 2014. “Not sure bruises are the best way to show I care. But I suppose they last longer than kisses,” was among the many disturbing Facebook and text messages she said she received from this man and provided as evidence to police. Prosecutors charged Richard’s alleged assaulter with misdemeanor sexual abuse, according to public court records.

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But shortly before Richard was due to testify in court, the United States Attorney’s Office for the District of Columbia (hereafter referred to as “the Office”), a federal agency that prosecutes felony and violent crimes committed in D.C., dropped the charges against Richard’s alleged offender. After prosecutors agreed to a meeting, Richard decided to come to D.C. anyway. She told Rewire in an interview that she was led to believe prosecutors would consider re-filing different charges. When she arrived in D.C., however, she learned there would be no further considerations—and, in her mind, no justice.

Richard’s frustration with the way the Office handled her case has most to do with what she characterized as a general lack of communication from when prosecutors opened her case in March 2015 to when they dismissed it four months later. She said prosecutors told her there were inconsistencies in the reports she made to university and D.C. police, but would not give her any specifics, nor any opportunities to explain or clarify them.

This frustration with the lack of transparency in Office prosecutors’ decision making turns out to be a frequent sentiment among people who have reported a rape or sexual assault in D.C.

Prosecution Statistics “Not Worth the Severe Pain”

Richard testified alongside 13 other sexual assault survivors at a recent hearing convened by the D.C. Council’s Judiciary Committee. The committee called the hearing just a few months after independent consultant Elisabeth Olds published her initial report of how D.C. officials have implemented the Sexual Assault Victims Rights Amendment Act, a two-year-old law intended to improve how sexual assaults are investigated and prosecuted in the District. Olds is part of a task force of community leaders working to evaluate and improve the law—which stipulated certain rights to victims, such as the right to a community-based victim advocate when meeting with medical forensic examiners, police, and prosecutors, as well as the right to a free sexual assault forensic exam, or rape kit.

In her review, Olds found that D.C. police have been mostly complying with the new law’s requirements. Where she found bigger problems were in survivors’ descriptions of how their cases were handled by federal prosecutors.

Overwhelmingly, the witnesses at the hearing reported negative experiences with the Office. A few even said they would likely not report again if they were raped in the future, a prospect that concerns local advocates and lawmakers.

Of those who testified, Richard was the only one to see her alleged assailant formally charged, if only briefly. The chief complaint among the group was that prosecutors failed to communicate adequately with them about the statuses of their cases and the reasons why they ultimately declined to prosecute. A few survivors said assistant U.S. attorneys seemed to disbelieve their stories or blame them for the alleged assault.

“My experience left me afraid that this was my fault,” Richard told the committee, explaining that she initially held herself responsible for why her case did not go to trial. “After nine months of abuse, I was confused. I had a hard time telling people what happened in chronological order.”

“I worry that if I had had a more rational grasp of the traumas, the case would have gone forward, saving other girls from [Richard’s alleged assailant’s] abuse,” she continued.

The women’s testimony mirrored many of Olds’ findings, published last November, in which she documented sexual assault survivors’ continuing frustrations with how rape and sexual assault cases are—and frequently are not—prosecuted in D.C.

Based on interviews with 26 sexual assault survivors, police detectives, and community advocates, in addition to her review of hundreds of police case files, Olds found an overall lack of transparency in the prosecution process. Given the power prosecutors hold over which sexual assault cases to charge, Olds said the lack of accountability is concerning.

“I think the problem ultimately is we don’t know what the reasoning is” behind prosecutors’ decision making, Olds told Rewire in an interview.

Olds reported that she was unable to assess fully how often the Office prosecutes sexual assaults, and what happens to these cases after they are reported to police and then presented to prosecutors. Using sexual assault case records from the D.C. police and forensic science departments, she cobbled together some figures—but only for cases wherein the victim had received a forensic exam. In her research reviewing statistics, Olds learned that of all the sexual assault cases the police department files annually, only about a third of them involve rape kits.

The Office eventually corrected and updated the figures Olds presented the agency based on her own findings, but did not provide her with aggregate data—charges filed, cases that resulted in plea deals, cases dismissed, convictions, and the like—on all of the sexual assault cases the office had reviewed during the relevant time frame, Olds said.

In this attenuated sample, Olds found that in 2014, the Office prosecuted a small fraction of rapes and sexual assaults reported to D.C. police.

Out of 331 adult sexual assault cases filed in D.C. in 2014 that Olds reviewed, the Office charged only 39 cases as crimes, nine of which were dismissed for various reasons, Olds explained in an addendum to the original report. Of the 30 the Office pursued, 21 resulted in plea bargains, and seven other cases are pending. Out of two cases in Olds’ data set that went to trial, one resulted in a guilty verdict.

During the hearing, Maryland resident Edurné López told committee members that she would have not reported her rape if she had known the low prosecution rate. “These statistics are not worth the severe pain and trauma caused by reporting,” which do not subside while cases are in limbo, she said. “Nor will I report any rape in the future.” 

For this story, in addition to reviewing Olds’ findings, Rewire interviewed ten women—a few of whom also testified at the hearing—who say they were raped in D.C. in the last five years and whose cases were reviewed by the Office and were either dismissed or are pending. These survivors were referred to Rewire by sexual assault advocacy groups and by other survivors in the District. For this report, Rewire also interviewed national sexual assault advocates and experts, as well as members of law enforcement outside the District, for a comparative perspective.

Total Discretion, Little Local Accountability

The issues Olds highlighted are representative of broader ones regarding sexual assault prosecutions that exist all over the United States.

Across the country, prosecutors rarely keep data on how often sexual assault cases are prosecuted and how they move through the criminal justice system, said Joanne Archambault, the executive director of End Violence Against Women International, which offers training to law enforcement and prosecutors on best practices for investigating and prosecuting sexual assault cases.

“They don’t even keep those records, and it’s not by accident,” Archambault said. “Prosecutors don’t want people to know what’s being sent to them. And that’s across the country, which is interesting because prosecutors’ offices will publish [domestic violence] stats. But you won’t see prosecutors publishing sexual assault stats.”

And certainly, available statistics indicate that the national prosecution rate of sexual assault crimes is low. Researchers at the University of Kentucky’s Center for Research on Violence Against Women estimate that 14 to 18 percent of reported sexual assaults are prosecuted nationwide.

But in other ways, D.C. is an outlier.

In the District, prosecutors are appointed rather than elected, which is true for many jurisdictions across the country. But unlike other jurisdictions, the local government has no power to regulate or direct the U.S. Attorney’s Office for D.C., because it is a federal agency.

“To the extent that there’s concern about how [sexual assault] prosecutions are handled, that’s important,” D.C. Council Chair Phil Mendelson told Rewire by phone, in response to questions about Olds’ report. “Unfortunately, prosecutions in the District for felonies are with the U.S. Attorney. They’re not under local government and therefore are somewhat immune to local oversight.”

During the hearing, Patricia Riley, an assistant U.S. attorney for D.C., underscored the point that the D.C. government has no authority over her office.

“The decision to prosecute or not prosecute is entrusted to our sole discretion,” Riley said. “And neither the court nor any other agency or any other individual can second-guess that.”

“We are always willing to reconsider a decision that we have made, and it is done,” she added. “But if there is insufficient evidence, we cannot go forward.”

Riley served as the first chief of what is now the U.S. Attorney’s Office’s Sex Offense and Domestic Violence Section, from 1990 to 1998. Today she is no longer with that section, and she is an adjunct law professor at Georgetown University.

Regarding data collection, Riley said during the hearing that her office had not provided the statistics Olds requested because it is logistically impractical. The office does not store the information in a single database, she said. She explained that it would take individual attorneys “weeks” of time to pull individually all of their cases to figure out what happened to them.

“Our data systems do not easily yield information,” Riley said. “For some reason data eludes us more than I would like it to.”

Last year, when Rewire asked the office for similar statistics, Office spokesperson William Miller said the office does not keep those statistics. The office eventually rejected a Freedom of Information Act (FOIA) request for this data, stating the information we were seeking was too broad. 

Insufficient Evidence, Case Closed

After hearing 14 women testify to bad experiences with the Office, Riley opened her testimony by reading anonymous letters she said were from sexual assault victims to assistant U.S. attorneys, thanking them for prosecuting their cases.

“Given the level of effort that we’ve put into these cases and the deep commitment we have to victims of sexual crimes, today has been disheartening,” she said. 

Riley noted that all of the women testifying were upset because their cases were not prosecuted. And that, she said, is part of the unfortunate nature of sexual assault cases: They’re difficult to prosecute. Because prosecutors are tasked with proving the suspect is guilty “beyond a reasonable doubt,” meeting this metric is enormously difficult for many sexual assault cases.

“The fact that this high legal standard can lead to our inability to prosecute a case should not be confused with victim-blaming,” Riley said. “It is the reality of a criminal justice system that has set a high bar.”

And Riley, of course, is not alone in this line of thinking.

While the system can be very frustrating for sexual assault survivors, prosecutors are also bound by ethical duties to prosecute only if they believe they can prove the offense beyond a reasonable doubt, said Dana Nelson, an assistant district attorney in Travis County, Texas, who serves as a sex crimes liaison for the Travis County District Attorney’s Office.

Nelson told Rewire that what she looks for when deciding whether or not to present cases to a grand jury is a victim’s account of the offense “that is credible and that is corroborated.”

“The ‘and’ is important,” she said.

But several sexual survivors have told Rewire they question to what degree the available evidence in their cases was carefully scrutinized.

In August 2013, about a year after LW (who asked to be identified by her initials) said she woke up in her D.C. apartment to intense vaginal pain and bedsheets covered in vomit and blood, there was a break in her case.

After sending off DNA from her rape kit for testing, police informed LW that semen was found in her rape kit. Months later, she would learn that the DNA matched that of the man she reported drugged and raped her one night.

“They got him,” LW recalled thinking when she learned semen was found. “This is going to have to go to trial now.”

“I felt great,” she added.

But five months later, LW said an assistant U.S. attorney met with her and her victims’ rights attorney and explained that her case was not strong enough to go to trial, because they could not find a witness to corroborate that she was not in a state of mind to consent to sex, she said.

LW told Rewire she was baffled by this explanation. She had been so intoxicated that night that she could barely walk out of a crowded concert venue and had lost a shoe in the process, she said she told investigators. Police informed her, she added, that her alleged offender told them she had vomited on him.

Later, through a FOIA request, LW said she learned about a key inconsistency in her alleged rapist’s account to police. At first he told police he had taken LW home from a concert and that there was no sexual contact between them, LW said. But when police told the accused that his semen was found in her rape kit, he suddenly changed the narrative: Yes, they had sex, but it was consensual. LW said prosecutors did not mention this detail to her. LW seriously contemplated filing a civil suit against her alleged attacker, as Rewire previously reported in a story, but decided against it.

Miller told Rewire he cannot comment on individual cases.  

“The U.S. Attorney’s Office is committed to the prosecution of those who commit sexual assaults in the District of Columbia,” he said in an emailed statement. “Charging decisions are made on a case-by-case basis. Generally, we assess each case based on its circumstances, thoroughly considering factors such as the applicable laws, the nature and seriousness of the offense, the evidence in the case, whether the victim wishes to prosecute the case, and the defendant’s criminal history.”

LW’s victims’ rights attorney, Bridgette Stumpf, corroborated LW’s version of events with Rewire and reviewed the details from the documents they received through the FOIA request. 

Stumpf is the co-founder and co-executive director of the four-year-old Network for Victim Recovery of DC, which offers free legal and advocacy services to all crime victims in the District. She told Rewire in an interview that very few of the sexual assault cases her office assists with are prosecuted.

Stumpf said a common reason that assistant U.S. attorneys give her clients when they decline to prosecute cases is that it is unlikely a jury would convict the accused rapist, based on the case’s set of circumstances. But, she said, she believes the notion of whether a case is reasonably likely to lead to a conviction is often influenced by cultural bias about rape and rape victims. She said juries can and should be educated about what much research shows about the realities of many sexual assault cases, such as how trauma affects victims’ memory and behavior.

In the case files she analyzed, Olds found evidence that in some cases, prosecutors appeared to decline the cases because of factors that might make a jury doubt the victim’s story, thanks to societal myths about rape. She also noted, however, that in 2014, assistant U.S. attorneys did prosecute cases with particularly difficult sets of circumstances, such as those involving prostitution and domestic violence.

Riley dismissed the notion that assistant U.S. attorneys would base their decisions to decline cases based on juries’ anticipated reactions. Particularly difficult cases to prove, she said, are cases where victims have provided inconsistent accounts or have little memory of the alleged crime, often because the victim was intoxicated by drugs or alcohol. (Both LW and López reported that their alleged assailants had drugged them prior to raping them.)

“Where we simply do not have the evidence to prove it, we can work as hard as we can to overcome shortcomings,” Riley said. “But in some cases, the victim’s account does not establish force or threats.”

Nelson, however, said that her district attorney’s office does consider jury bias when determining whether to prosecute.

“A lot of the cultural attitudes about sexual assault come into play in a jury trial and are part of the consideration about whether or not we would be able to prove it beyond a reasonable doubt,” she said.

Stumpf said that prosecutors should try to articulate to survivors why specifically their case does not have a reasonable likelihood of conviction.

“Having a more bright line of that reasonable likelihood of conviction for survivors, so that they understand how this decision is being made, would go a long way,” Stumpf said. “Because right now it’s very fuzzy. It’s a case-by-case basis. Each individual assistant U.S. attorney makes their own decision about what a reasonable likelihood of conviction means, and what survivors often come away with is the idea that prosecutors just don’t want to take hard cases. They’re all hard. That’s the reality. They’re all hard cases.”

This idea resonates with survivors like Richard, who to this day said she tries to puzzle out what prosecutors meant when they told her there were inconsistencies in her reports. What if she had phrased one of her accounts differently? Would the case have gone to trial then?

Often, Olds told Rewire, “A victim of sexual assault is already feeling like this is their fault. And if they hear from the prosecutor’s office something that sounds more like a defense attorney, or hear silence when things are not going the way that they think it should go, they’re going to fill in the blanks and assume—rightly or wrongly—that it’s because at the end of the day no one believed them.”

Miller said prosecutors inform victims about their decisions of whether or not to prosecute at the conclusion of their review. The office is always open to conducting further reviews if more evidence develops in these cases, he said.  

Riley’s response to calls for transparency in prosecutorial decision making suggests that little is likely to change in this regard. She testified that it would be ill-advised for prosecutors to disclose all of the evidence in their cases to victims, lest the case go to trial in the future. She said prosecutors cannot disclose information that is not already public.

Still, both Olds and Stumpf told Rewire that they are hopeful this year will mark the beginning of a new era of better communication with the Office. Already, Olds said the office has started working with her to give her more data. And Stumpf said she is confident Channing Phillips, the new U.S. Attorney for D.C., is committed to transparency and to serving victims.

Deterring Victims From Reporting

In the meantime, advocates and lawmakers in D.C. worry that bad experiences communicating with police and prosecutors could deter victims from reporting future rapes. And that fear was underscored by survivors who testified they would not report in the future.

But there are widely differing perspectives on what leads to deterrence.

When it was brought to her attention that the victims whose cases did not result in formal charges cannot currently file formal complaints with the Office, Riley told the council committee, “I think that we’re going to have to do better.” And yet, she warned that complaining should not be encouraged, because it might dissuade other victims from reporting sexual assaults in the future.

Stumpf said, however, that concern is not a reason to make it difficult for victims to address their complaints with the Office. Rather, she said, it’s a reason to improve and increase sexual assault prosecutions: If a victim has a bad experience and then is re-victimized, they may not report future crimes.

“The impact [not reporting] has on public safety, particularly when we understand the repetitive nature of sexual assault, is huge,” she said.

D.C. Council Chair Phil Mendelson, too, said the treatment survivors get from authorities after reporting is of paramount importance.

“Sexual assault is one of those crimes where historically across the country there’s underreporting, and there’s underreporting for a variety of reasons, but the survivors typically are embarrassed,” he said. “And if the government is not as comforting and receptive in trying to get information necessary to go forward with an investigation and prosecution, then it’s going to discourage other survivors from coming forward.”

CORRECTION: This article has been updated to clarify the name of the D.C. Council.


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