A rape occurs. The victim goes to the hospital to complete a rape kit and upon leaving may feel a sense of relief that her attacker could be arrested and convicted.
But there is a problem: instead of being used to pursue prosecution, the kit sits on a shelf for years without ever being tested.
While the kit waits, untested, most of those cases go unresolved. It’s a nightmare that is unfortunately all too real for millions of rape victims, including here in Birmingham.
The rape kit backlog adds to the difficulties faced by victims in the aftermath of a sexual assault. There are local agencies working to help victims with the trauma and the legal morass that has resulted in cases stretching on sometimes for years.
What Is The Backlog?
A rape kit is an evidence collection tool that contains swabs, photographs and other evidence collected after a sexual assault. When a victim of sexual assault is taken to a hospital or crisis center, a nurse or doctor will perform a rape kit on the victim and hand it over to the police for the evidence to be tested. This is one of the key factors in making an arrest in a sexual assault case. Cold cases, some as old as 25 years, can be closed with DNA testing and, depending on the statute of limitations for each state, place a convicted rapist in prison.
DNA testing is still fairly new in the justice system, only becoming standard in solving criminal cases for the past ten years. So, according to an article in The New York Times, for the past 30 years, most of the rape kits collected in sexually violent crime cases have been sitting in storage units all over the country and may or may not have been put through the CODIS (Combined DNA Index System) to find a perpetrator.
In 2014, The Times reported that the state of New York had spent four years clearing out their backlog of 17,000 untested rape kits, resulting in 49 indictments in unresolved rape cases in Manhattan alone. Last year, the White House issued a press release announcing the Sexual Assault Kit Initiative. The release, “Investments to Reduce the National Rape Kit Backlog and Combat Violence Against Women” indicated that in 2009, 11,000 rape kits were found in an abandoned police storage unit in Detroit; the testing of those kits led to 760 DNA matches, the identification of 188 serial offenders and 15 convictions.
New York and Michigan are not the only states pushing to end backlogs. In the past 10 years, 24 states have proposed reforms to test all stored rape kits and 18 states have followed through.
Several jurisdictions in the United States blame their backlog on the lack of funding, technology and trained employees to keep track of all of their rape kits. According to EndTheBacklog.org, officers with the Mobile Police Department in November 2013 indicated that they did not have the personnel to handle all of the rape kits generated in their area.
Where Does Birmingham Stand?
According to the FBI Uniform Crime Report, 178 rapes are reported to Birmingham police on average per year, placing it at number 21 in the top 24 most sexually violent cities in the U.S.
Jan Wynn, Sexual Assault Nurse Examiner (SANE) coordinator at the Crisis Center’s Rape Response division in downtown Birmingham, said that the Crisis Center alone receives a monthly average of approximately 30 reports from individuals who say they have been sexually assaulted. “In the United States someone is assaulted every 107 seconds, which is less than two minutes,” Wynn explains. “And for every person that comes forward to receive medical attention, 10 do not. So the numbers are very overwhelming. Just because someone does not come forward does not mean a rape didn’t occur.”
Alabama is one of 35 states where information regarding stored rape kits ranges from limited to completely unknown. The website for the organization End the Backlog indicates that in 2009 the Birmingham Police Department reported that it had at least 2,100 rape kits in its storage facility. There was no record kept on whether those kits had been tested or not. According to Wynn, Alabama is one of five other states including Mississippi and Arizona that are not required to keep a record of how many rape kits they actually have. This makes it difficult to know how many kits Alabama has waiting to be tested.
A representative from the Birmingham Police Department who could comment on the city’s rape kit backlog could not be reached for comment.
Fighting the Good Fight
The fight to end the kit backlog has escalated in the past two years. On September 10, the District Attorney’s Office of Manhattan announced that Vice President Joe Biden and New York D.A. Cyrus R. Vance Jr., in collaboration with the U.S. Justice Department’s Bureau of Justice Assistance would award approximately $79 million in grants to pay for crime-lab processing in 43 jurisdictions in 27 states. According to EndtheBackLog.org, the average cost of testing DNA evidence ranges from $1,000 to $1,100, meaning that the grants are expected to be a huge help to diminish the backlog.
“Rape kits are an essential tool in modern crime fighting, not only for the victim, but for the entire community,” Biden said in a press conference to announce the recipients of the initiative. “Studies show we solve up to 50 percent of previously unsolved rapes when these kits are tested. When we solve these cases we get rapists off the streets.”
In Alabama, the Bureau of Justice Assistance awarded the Mobile Police Department $828,203 to assist in clearing out their backlog.
“Grant applicants were asked to submit information about the size and scope of their backlogs, their current testing policies and their willingness to follow best practices determined by the Manhattan District Attorney’s Office and its partners,” according to a press release. “States, territories, local governments, law enforcement agencies, and public forensic labs were all encouraged to apply for funding…Every jurisdiction that applied for funding is receiving it through either the Manhattan District Attorney’s Office or BJA (Bureau of Justice Assistance); no city or state that reported a backlog was turned away.”
Jefferson County Deputy District Attorney Laura Poston said that the city of Birmingham is in the process of applying for a grant to help clear out the rape kit backlog.
In the meantime, there are organizations working to ease the difficulties faced by those who have experienced sexual assault. The Crisis Center, a nonprofit organization, provides rape kits free of charge to patients and makes sure people aren’t alone after being assaulted.
“We take their statements, provide them with the forensic exam, then we give them a shower and a set of clean clothes to wear,” said Aryn Gieger-Sedgwick, the Crisis Center’s Rape Response coordinator. “We also give them STD preventative medications and a folder filled with information about how to move forward after this experience. We’re there every step of the way to make sure they know someone is on their side. We even go to court with the victim whenever they’re ready to pursue a court case.”
Crisis Center Executive Director Meg McGlamery said the ultimate goal is to help victims as much as possible. Funding is a huge part of making necessary changes. “We have been fortunate enough to be the recipients of a grant that is the combination of five universities in our area,” McGlamery said. “It’s filtered through Samford University, but it includes Montevallo, UAB, Miles and Birmingham-Southern. It’s a three-year grant and it focuses on stopping sexual violence on college campuses. And the changes I’m starting to see are huge changes with policies and procedures with training for campus police and administrators. Because of funding we are able to have more conversations about what can be done to diminish rape around the country.”
Katherine Bowman, a rape response advocate for the Crisis Center, believes that it’s imperative that people know the center exists. “I fully and wholeheartedly believe in the work we do here at Rape Response. I have no place to tell people what to do or how to live their life, but if you’re attacked I highly encourage you to go to Rape Response because we do everything we can to help. But I understand that everyone is different and everyone heals in their own way, and one of the things we believe in at Rape Response is to never push any client to do something they don’t want to do.”
The right to an exam
Many women don’t pursue a physical exam after being attacked because they aren’t sure they can afford the exam. Since the implementation of the Violence Against Women Act (VAWA), several states have made changes in how forensic exams are paid for. According to vawnet.org, 18 states have made it illegal to bill victims for rape kits performed in the emergency room.
In a few other states, a patient is entitled to a reimbursement for their rape kit, but must first pay out-of-pocket. This often leads to the victim being harassed by the hospital’s billing department and, according to vawa.net, “could affect the victim’s credit history if they are unable to pay.” According to the Alabama Crime Victim Compensation Commission website, the organization is supposed to reimburse victims for any charges associated with a rape kit, but to find out if a victim is eligible for reimbursement, an individual must fill out an application from the district attorney’s office.
Other states allow insurance coverage as the primary payment for forensic exams. According to a representative for Blue Cross-Blue Shield of Alabama who would not give her name, insurance coverage of rape kits performed in the emergency room depends on the victim’s insurance plan. The insurance provider will communicate with the attending physician on whether the kit was deemed “medically necessary,” and on how the hospital should label the kit on the hospital bill. The BCBS representative went on to say that coverage is not guaranteed and people should ask whether or not their plan covers a sexual assault kit.
Although insurance coverage is helpful, some people see it as a gray area surrounding the victim’s privacy rights. “If a rape kit is reported to the victim’s insurance provider, it is a violation of the HIPAA (Health Insurance Portability and Accountability Act) Privacy Rule and the victim’s privacy because the nurse is sharing the victim’s personal information with someone out of the hospital staff,” Wynn said. “Really hospitals and insurance aren’t supposed to charge you for your forensic exam at all. Different states have different laws but it’s a part of VAWA that it is encouraged to not charge victims at all.”
All individuals have the right to a sexual assault kit whether they wish to file a police report or not. “As long as a victim comes in within 72 hours of their attack, we will perform a rape kit and apply absolutely no pressure to the victim to file a police report,” Wynn said.
Most facilities will hold all rape kits until the patient makes the decision to pursue a police report, Wynn says. “There’s no statute of limitations on sexual assault in the state of Alabama so we at the Crisis Center have chosen not to destroy any kits.”
Most SANE organizations, McGlamery says, have made the decision never to destroy their collected kits. “We don’t want to destroy any kits because you never know how long it will take for a victim to decide they are ready to continue with this ordeal,” she said. “All victims are different. And it’s a personal choice whether they want to pursue the matter or not.”
McGlamery explained that, while it’s important for a patient to complete a rape kit, the patient has the right to refuse an examination. “We want to give patients options. After going through such a traumatic event the last thing we want to do is pressure them to do anything. That’s why we give them the option to file a police report or not. If they say no, that’s totally fine. It’s their decision. But having the rape kit done will at least give them some resolve that they have that evidence in the event they decide to move forward with a police report.”
Many who come forward about their assault experience a trend of victim-blaming. Even though many hospitals have SANE programs in their emergency rooms, there are some that don’t supply victims with a comforting environment.
Bowman has heard several horror stories about how some hospitals handle people who experience sexual assault. “When you go to the hospital it’s a completely different atmosphere than going to the Crisis Center,” she said. “Since the emergency room is such a fast-paced place, what often ends up happening is the nurses give off a strictly business attitude that can be really off-putting for victims. It can seem really unsupportive and intrusive to someone who has just gone through a very traumatic experience. That’s not to say it happens at all hospitals, but it does happen.”
The stigma of rape victims is not just toward women; male victims also face judgment after an assault. “About two years ago we saw maybe one male client every other month. Now we have maybe two a month, so the numbers are definitely going up. And I accredit that to the conversations against victim blaming,” Gieger-Sedgwick said. “It’s rare to get men in here only because men that are assaulted feel like they’ll be judged for being attacked. When a man goes through a sexual assault they have very conflicting feelings. They think because they’re a man they should be able to fight back, or they’re afraid if they’re aroused during the assault that means they’re gay and they’re afraid of being judged. But male rape does happen and more and more people are starting to accept that it does happen.”
“I think that most people’s view towards rape is that it’s a stranger in a bush that jumps out at you in the Walmart parking lot at 3 am. So people don’t want to believe that it’s happening,” Wynn said. “You don’t really hear about it on the news and while we don’t want a victim’s experience to be out in the public, not hearing about these events makes people feel like they aren’t at risk. People feel ‘I don’t live that crazy lifestyle. I don’t put myself at risk’ so they feel better thinking that it can’t happen to them and it’s easier for them to blame the victim.”
Bowman says that the social disapproval surrounding sexual assault is what keeps many people from researching crisis centers in their area. “When you think about the culture surrounding sexual assault, it’s something that is kept pretty silent. It’s something that people are very hush-hush about, and it really shouldn’t be that way. People don’t see it as a serious problem, which I see as a problem in and of itself. Rape should be taken as an epidemic. It should be [taken] seriously. It should be taken as something that needs immediate attention.”
Law and Order
According to the Alabama Criminal Code, rape in the first degree is defined as three possible acts: “The first when an individual engages in sexual intercourse with a member of the opposite sex by forcible compulsion; An individual engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated; or an individual, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old.” If a sexual assault meets any of the aforementioned criteria, it is declared rape in the first degree and is classified as a Class A Felony.
The specific wording of the code’s definition of rape raises a question concerning what happens during an assault involving two people of the same sex. “If a man sexually assaults another man by penetration or by oral sex it is classified as sodomy,” Poston explained.
The decades-old code defines sodomy in the first degree when an individual “engages in deviate sexual intercourse with another person by forcible compulsion; engages in deviate sexual intercourse with a person who is incapable of giving consent by reason of physical or mental handicap; or if the person being assaulted is under the age of twelve years old.”
“If a woman forces another woman to have oral sex it is classified as sodomy, but if an inanimate object is used during the assault then it is classified as sexual torture,” Poston continued. “Sexual torture and sodomy are both defined as Class A Felonies.”
The Criminal Code also states that punishments and sentences for sexual assault crimes depend on the classification of the crime, whether it is considered a felony or a misdemeanor. In the case of a Class A Felony, a perpetrator may receive a sentence between 10 years and life in prison. However, if a firearm or other deadly weapon was used during the crime, the perpetrator is supposed to be sentenced to no less than twenty years in prison.
Poston said the District Attorney’s Office receives 50 first-degree rape cases a year. “Now just because we get 50 cases a year, that number does not mean under any circumstances that there are only 50 rapes per year, period,” she said. “That number is only in reference to the number of people who come to our offices and wish to pursue a case against their attacker.”
Poston said that rape kits are a tremendous help in finding a victim’s attacker, but that there are no gray areas when it comes to the trial process. “If a victim knows their attacker, the most common things to happen are the perpetrator will deny the event took place. Now, if there’s a DNA match, we’re able to prove that intercourse occurred but then the [defense] attorney can claim that it was consensual, which causes a he said-she said case.
“If the attacker is a stranger and we get a DNA match through CODIS, then we’re able to make an arrest. But if there is no sign of a struggle (such as bruises or any other defensive marks) then we have to fight harder to prove that it was sexual intercourse by forcible compulsion.”
The district attorney’s office works with the Rape Response Crisis Center, and Poston said the prosecutor’s office takes sexual violence seriously. An advocate sits in on the consultation between victim and attorney to give the victim support and to help the prosecuting attorney presiding over the case form a relationship.
“I tell the advocate before they come in that I plan on asking hard questions,” Poston said. “I need to know everything about the attack so that I can build a proper case, and sometimes going through every step of their trauma can be too much for the victim. I communicate with the advocate to let me know if the victim needs a break or if I’m pushing too hard.”
People convicted of sexual assault are put on the state’s registered sex offender list, where they remain for the rest of their lives, Poston said. The list is available on the Internet, allowing anyone to see where registered sex offenders live, what they were convicted of and when, and what they look like. According to the Jefferson County Sherriff’s Department, there are currently 547 registered sex offenders in the city of Birmingham and between 1,500 and 2,000 in Jefferson county as a whole.
Poston, who has been with the district attorney’s office for 25 years, said that in the past 20 years the judicial system has become more understanding of sexual assault victims. “We as a D.A.’s office have received lots of training on how trauma affects victims and how it affects their recall of events,” she said. “We try to meet with the victims numerous times to try and make them feel more comfortable with us and with the court proceedings. We show them the court room before the trial and it wasn’t always like that, so I believe we’ve progressed in that way.”
After experiencing sexual assault, the idea of going through a trial can be a distressing thought for a victim. “The average length of a trial is around 18 months,” Poston said. “Television makes it look like it goes by quickly, but the truth is it can be a very drawn out process. We try to warn victims of that when they say they want to pursue a trial, not to scare them, but to prepare them for the road ahead.”
Wanda Miller, victim service officer for the Jefferson County Sherriff’s Department, agreed that while some victims may feel anxious about taking their case to court, many young women have expressed relief after the trial is done. “I’ve had several women say, ‘I can’t do this. I can’t go through with this. It will never get better.’ And I can honestly tell them that it does get better. This feeling is not going to last. You can move forward and become stronger from this experience. And after they testify and their attacker is put in jail, they’re happy they did it. And they realize it wasn’t as scary as they thought it would be.”
Poston said one reason most victims are nervous to go to trial is because they’re afraid of being attacked on the stand. “For a lot of victims, the process of taking the stand is too much for them. It’s intimidating and since they just went through such a traumatic ordeal the idea of being interrogated on the stand is too much for them,” she said.
There are laws that serve the purpose of protecting victims from some tactics once used by defense attorneys. Since 1973, the Rape Shield Law has been enacted in all 50 states, prohibiting the defense counsel from bringing aspects of a victim’s past relating to sexual conduct, past relationships or manner of dress, for instance, into a sexual assault trial.
If a victim is too uncomfortable to take the stand, the assigned prosecutor will attempt to get the perpetrator to plead guilty to either the charge or one of the lesser included offenses, Poston said. “If we can get the accused party to make a deal, we can save the victim the further trauma of taking the stand and we can still ensure the attacker is sentenced to jail time.”
Poston said that the judicial system gives appropriate sentencing on a case-by-case basis. “There are certain circumstances that could warrant a life sentence,” she said. “If a perpetrator has any priors on their record, then they are given a life sentence. Or if the rape is especially violent then the judge is more likely to give a lengthy sentence. And whenever a perpetrator’s parole hearing comes up, the victim and the attorney are both allowed to protest the parole.”
Where Do We Go From Here?
Many celebrities are using their influence to spread the word about what Bowman called the epidemic of sexual violence in the United States. Recently, singer Lady Gaga released a music video for her single “Till It Happens To You,” a song she wrote as the theme to the upcoming documentary The Hunting Ground that will focus on sexual violence on college campuses. Law and Order SVU star and humanitarian Mariska Hargitay is a supporter and coordinator for the No More campaign, which spreads awareness against victim blaming and works to end all domestic violence. Hargitay is also a prominent advocate of ending the backlog of untested rape kits all over the country.
At a press conference for the Sexual Assault Kit Initiative, Hargitay thanked the New York District Attorney and the vice president for their collaborative efforts to end the backlog. “Today marks a historic moment in the work to end that backlog. It’s historic for jurisdictions who want to do the right thing, who now have the resources they need to test sexual assault kits; to investigate, arrest and prosecute dangerous criminals. To get them off our streets. It’s historic for police departments who want to engage survivors with care, expertise and compassion. And, perhaps most importantly, it’s historic for sexual assault survivors across this country,” she said.
“To me, the backlog is one of the clearest and most shocking demonstrations of how we regard these crimes in our society,” said Hargitay. “Testing rape kits sends a fundamental and crucial message to victims of sexual violence: You matter. What happened to you matters. Your case matters.”
The conversation about rape kit backlogs is reaching people all across the U. S. Wynn is currently working on getting a law passed that would require law enforcement agencies in Alabama to keep an up-to-date record of all rape kits in storage. “There’s becoming a huge political influence on untested kits,” Wynn says. “More and more states are coming forward and asking for funding so that we can test new kits and retest old kits. Now that we have such a huge improvement with technology we are able to test some kits as old as 30 years and that is such a great thing.”
McGlamery says that she believes times are changing how people talk about rape. “There was a No More commercial during the Super Bowl this year!” she says. “More and more people are willing to talk about violence against women and men and I think that it’s really making a difference. And because of funding we’re able to have more and more conversations on how to diminish rape in our country. It’s a wonderful thing.”
Gieger-Sedgwick said that a future without rape is a wonderful idea but it’s going to take several years of hard work to get to that point. “I wish I could wake up one morning and there be no more rape but unfortunately that’s not going to happen anytime soon,” she said. “But what we can do in the meantime is educate people about what’s happening around them. We can educate people on why they shouldn’t make a rape joke or why they shouldn’t blame the victim. Every conversation we have, our goal is to educate people. Rape is not just a Birmingham issue. It is a global issue.”
For more information on how to make a difference in Birmingham’s backlog, visit endthebacklog.org or call the district attorney’s office at (205) 325-5252. For more information on the Rape Crisis Center or to volunteer call (205) 323-7273.