Sexual assault shouldn't be so hard to prosecute. Untested rape kits show we just don’t care

Sexual assault shouldn’t be so hard to prosecute but untested rape kits show we just don’t care enough

rape kits
Last week, the state government of Georgia released the findings of a project to uncover and analyse any untested rape kits collected in that state. The results were damning.

The inquiry found that more than 3000 rape kits had gone untested; abandoned in police evidence rooms for years without being examined or even noticed. These kits are sets of DNA evidence collected from victims of rape in the immediate aftermath of an assault, designed to identify the perpetrator and prove non-consent. But for so many of these victims, the rape kits were used for neither purpose. They were not used at all.

What the Georgia police department found when they decided to test all of these cast-aside kits shows us just how crucial they are in sexual assault cases. In 321 instances, the DNA testing of the rape kit decisively connected the assault in question to another crime committed by the same perpetrator. This means that law enforcement were successful in convicting the assailant of other crimes, but not of rape. This speaks volumes.

The untested data also led police to two serial rapists, whose DNA appeared again and again in the rape kits. In the 15 years that these rape kits went untested, these serial rapists were free to commit more crimes.

Other states in the US have followed suit, and now law enforcement has identified 1300 repeat offenders and laid 500 indictments as a result of the testing of previously-abandoned rape kits.

All of these perpetrators went undiscovered for decades. Which isn’t surprising when you consider that no-one was looking for them.

A recent investigation by the New Daily has found that a similar problem exists across Australia. There are at least 6741 untested rape kits sitting in crime labs and police offices in NSW, Victoria and Queensland alone.

In Victoria, almost 5000 rape kits have been submitted as evidence since 2011. Less than half of those kits have been tested. The other half of these DNA samples have not been looked at since they were collected from the victim immediately after the assault, if at all.

The New South Wales Police reported that they had at least 1053 untested rape kits in their possession in 2018.

In Queensland, just over half of the 5647 rape kits that have been collected since 2007 have been tested.

All too often we hear that sexual assault allegations are too hard to prove.

It’s complicated, they say.

A case of ‘he said, she said’, they say.

But they’re wrong. If you have a rape kit full of DNA evidence that can often directly identify perpetrators – and we know from the US data that many of them can – then the allegations are not hard to prove at all. DNA evidence is some of the strongest direct evidence used in modern courtrooms – it secures a conviction 83% of the time in rape trials. So how can we, with a straight face, put sexual assault in the legal ‘too hard’ basket while whole rooms full of DNA evidence leading straight to assailants are sitting around untested?

Every crime would be a ‘he said, she said’ situation if we refused to test any of the evidence. So this new data about untested rape kits betrays a terrifying truth: we have always been told that there is something unique about sexual assault that makes it hard to prosecute, but there isn’t – the only thing that is unique about rape is the way we treat it.

When most other violent crimes are committed, all the direct evidence gets poured over by police and courts until justice is delivered to the victim. But it is not so with sexual assault – instead it seems the majority of rape kits that are collected are never tested, making the idea that rape is hard to prove a self-fulfilling prophecy. The truth is that sexual assault is not only treated differently to other crimes; we barely treat it like a crime at all.

Crimes listed on the statute books with conviction rates as low as sexual assault are referred to within the legal profession as crimes that are formally illegal but socially accepted. These abandoned DNA kits is disturbingly clear proof of that attitude.

The failure of police to take rape allegations seriously and test for DNA evidence is made more heartbreaking when placed in context. These thousands of untested rape kits are among the few cases in which victims feel able to report their assault to police and medical professionals. Less than one in five victims of sexual assault in Australia report the assault to the police. They face significant structural and cultural barriers – they fear being disbelieved, they fear retribution from the perpetrator, and they fear the shame that is associated with being a rape victim.

For the majority of women, no evidence of the assault is ever collected. It is all destroyed by the shame that our society teaches women to associate with rape. It flows down shower drains and is flushed down toilet bowls by women who know that if they speak up, it will cost them dearly.

So these rape kits across Australia represent only a fraction of sexual assaults that have occurred in recent decades. After facing so many barriers, these women reported their assaults to police and allowed the police to collect DNA evidence. This means they got much further through the legal process than most. But it comes to nothing, because even when victims get this far on their own, they are thwarted by the system at the first opportunity.

In the decades that this wealth of forensic evidence has gone untested, the owners of the DNA found in them were likely free to continue committing sexual or violent crimes.

In these decades, the victims whose DNA is represented in those kits don’t get a shred of justice. They don’t even get anywhere near a courtroom. It’s too hard to prove, they are told, again and again and again.

But the jig is up. Now we know that low conviction rates for sexual assault has very little to do with a lack of evidence or an inherent difficulty in proving allegations of this nature and everything to do with our lenient attitudes towards the offence itself. That excuse isn’t going to fly anymore, so it’s time that lawmakers and police officers confront the countless ways in which the system fails sexual assault victims. And it’s time for them to do something about it.

Sexual assault isn’t hard to prosecute – we just don’t care.

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