Last spring, the Oregon Legislature passed two bills reforming how the state handles cases of sexual assault. One struck down the statute of limitations in cases of sexual assault, allowing victims more time to come forward; the other mandated that Oregon’s huge backlog of rape kits finally be processed. In April, almost 3,000 untested kits—some dating back 10 years—were shipped to a lab in Salt Lake City to be tested. In October, 33 came back with DNA matches to perpetrators in a national criminal database.
Sam’s kit wasn’t one of these. Sam, who uses they/them pronouns and whose real name we aren’t printing, was sexually assaulted a little over a year ago at a house show in Portland. The Mercury reported on their story earlier this year [“His Word Against Mine,” Feature, Sep 28, 2016]. After the assault, Sam says they went to a hospital, where a rape kit was administered. After most of the evidence collection was complete, a police officer questioned them—an experience Sam describes as more like an interrogation than an interview.
“I said, at the time, that I didn’t want to press charges because I was terrified of doing so,” says Sam. But eventually, they changed their mind and contacted the police. “I called the detective I spoke to at the hospital about a week or so after the matter, telling him I actually did want to press charges,” says Sam. “I think he passed my case along to someone else because when I went to the police station to follow up, I spoke to two different male detectives.”
Despite going through the process of reporting the assault, undergoing evidence collection, and repeatedly trying to press charges, says Sam, “No follow-up with my kit ever happened.”
Sam’s story isn’t uncommon: Of Oregon’s backlog of approximately 5,000 unprocessed sexual assault forensic evidence (SAFE) kits, 2,408 of them are from Portland, according to USA Today. The volume of backlogged SAFE kits, which prompted the testing mandate, is a national issue: The sexual assault victims’ advocacy group the Joyful Heart Foundation places a conservative estimate for the national backlog at 140,000. The actual number is likely much higher. As states grapple to process their backlogs, it’s increasingly clear that Sam’s problem is indicative of a systemic one: the criminal justice system’s inadequate handling of sexual assault cases, and its approach to victims like Sam. Processing backlogged kits is one piece of addressing the problem. Advocates throughout the state say there’s much more to be done.
SAFE kits are collected during a sexual assault medical-forensic exam that typically takes three to four hours to complete, says Nicole Broder, a registered nurse who serves on the Oregon Attorney General’s Sexual Assault Task Force. Broder, the Sexual Assault Nurse Examiner (SANE) program coordinator, trains medical professionals who perform these exams. She begins each exam by taking a detailed medical history of the patient, followed by a head-to-toe assessment and a detailed anogenital exam.
“If the patient chooses, we may collect evidence—usually in the form of swabs as we do those examinations—and sometimes additional evidence in the form of clothing, blood, or urine if they suspect drug facilitation,” she says. “All of that is with the patient’s permission, so some patients will choose to have all of these steps done, some will choose to have some steps or none, and we always follow the patient’s direction in that case.”
The exam concludes with dispensing emergency contraception to prevent pregnancy and prophylactic medication to counter the transmission of sexually transmitted infections, and putting referrals in place for follow-up care—“counseling or perhaps shelter, or whatever else they may need.”
While three to four hours is the norm, Broder says the longest medical-forensic exam she’s ever performed lasted seven hours, and she’s heard of them going longer.
“It really comes down to a lot of factors as far as the patient’s medical need, what they would like out of the process, how much injury they may have sustained or not sustained, how many areas we think we might find evidence, complications around referrals—all of that,” she says.
In Oregon, victims also have the option of submitting a non-reporting or anonymous kit. In these cases, which aren’t included in the state’s backlog count, victims are given a number for their kit instead of having to give their name.
“The anonymous or non-reporting option... has given victims the opportunity to come forward and get access to medical care and preserve evidence without having to make a formal complaint to law enforcement,” says Michele Roland-Schwartz, executive director of the Sexual Assault Task Force. If a victim later chooses to report the crime to law enforcement, their stored kit can be activated and processed as part of the investigation into the assault.
When processed as intended, SAFE kits provide critical evidence to solve cases. DNA profiles pulled from the kits are uploaded to a national criminal DNA database, Combined DNA Index System (CODIS), where a match between DNA from a SAFE kit and DNA from a previous arrest or conviction can be used to identify serial sexual offenders, who might otherwise reoffend.
The value of a rape kit isn’t abstract. Still, most of the law enforcement, health care, and advocacy professionals I spoke with agreed that undergoing the evidence collection process can be an invasive experience.
“I mean, we are asking somebody to have hairs plucked from their body, to have vaginal swabs taken, rectal swabs taken, depending on where the evidence may be,” says Detective Carrie Hull of the Ashland Police Department. “It is not an experience that anybody is going to want to go through, for obvious reasons.”
Hull’s something of an oddity in law enforcement: a police officer who’s willing to speak candidly on the record about how her profession has historically failed victims of sexual assault. Hull has worked to reshape her department’s handling of these cases through a program called You Have Options, a trauma-informed approach to working with victims. Hull says the program has better outcomes for both survivors and investigators, and that a handful of police departments throughout the country have successfully implemented it. (The Portland Police Bureau isn’t one of them.)
One of the hallmarks of You Have Options is its respect for victims’ willingness to come forward at all. When a victim agrees to go through the evidence collection process for a SAFE kit, Hull says her hope is that law enforcement officers respect not just the victim but the evidence itself, ensuring that a SAFE kit is “not going to just sit on a shelf and be untested if the survivor went through that process hoping, assuming, and really believing that the evidence would be sent somewhere to be used.”
Too often, that isn’t what happens.
“What we’re seeing in Oregon mirrors what we’re seeing across the United States... we find as a profession in law enforcement that we really did not receive specialized training about this issue.”
Roland-Schwartz of the Sexual Assault Task Force says Detroit’s Sexual Assault Kit Action-Research project, a study of the city’s rape kit backlog funded by the National Institute of Justice, can help us understand why a backlog develops. That project identified five risk factors for backlogged kits. While specific to Detroit, most factors are applicable to law enforcement in any city: a lack of protocol for submitting kits for testing, a lack of adequate staffing for working cases and processing evidence, high rates of turnover within law enforcement leadership, poor communication between medical and legal professionals, and inadequate victim advocacy.
“What we’re seeing in Oregon mirrors what we’re seeing across the United States,” says Hull. “I say that because we find as a profession in law enforcement that we really did not receive specialized training about this issue. And I’m not saying that as an excuse for anything that law enforcement did or did not do. It’s really just reality that within the last couple of years we’re just starting to see significant training that helps law enforcement understand the value of processing these kits. And there really is a significant value.”
Processing the backlog of SAFE kits is key to solving rape cases. But it’s clear more reforms are needed to create an environment where victims feel safe coming forward to report, and where law enforcement have higher success rates with cases. Hull puts it this way: “Our concern with the conversations about rape kit backlogs is when we see people—the criminal justice system, advocacy groups, legislation—forgetting there is still an individual in the middle of this conversation who volunteered to go through an evidence collection process, and their choice needs to be more important than all the other pieces that can come downstream from that kit.”
She would know. Hull launched the You Have Options Program in 2013 after discovering that her department’s poor handling of sexual assault cases left victims dissatisfied and investigations incomplete, with victims reporting and then quickly dropping out of the investigation process. Investigators were rarely able to make arrests, “and then even less able to move towards anything that resulted in a conviction.” Hull says community advocates in her jurisdiction knew more about who sexual offenders were than the police did.
“You know, it was just sort of everything you don’t want to see [in order to] actually be able to affect community safety,” she says. “It became very clear that assaults were occurring and the last people who received information on offenders were the police.” So the department started reframing their procedures, according to Hull, and were “really honest that we weren’t good at it.”
“I give a lot of credit to the police department administration who were willing to receive critical feedback not only from their subordinates within the department but from outside community partners who were very honest with what people were saying about our process,” says Hull. “And then thankfully I was told by a really, really progressive law enforcement administration, ‘Fix it.’ And then they got out of my way and they let me fix it.”
They fixed it by doing something basic yet rare in law enforcement: They asked survivors of sexual assault what they wished had occurred in their experience with law enforcement, then created new policies around those requests.
“It provided investigators with much more valuable information that they could actually go out and then corroborate,” she says. “So not only were people engaging with the system having a more positive experience, investigators were much better able to go out and actually corroborate the crime if one had occurred.”
After the program was implemented, the Ashland Police Department saw the reporting rate for sexual assault cases go up by 106 percent, a significant improvement for a crime that’s notoriously underreported.
Broder and Roland-Schwartz of the Sexual Assault Task Force echo Hull’s emphasis on procedures and policies that allow victims time and space to come forward.
“There are so many barriers to reporting—and a culture where we see a lot of victim-blaming certainly contributes to that—so giving victims the opportunity to come forward whenever they’re ready is really important,” says Roland-Schwartz. “I think it’s one of the biggest arguments for extending the statute of limitations. There are safety reasons, privacy reasons, and more for why victims may not feel comfortable coming forward.... And I don’t necessarily see that changing unless our culture shifts in a way where everyone really does start by believing victims when they hear their story, so that victims aren’t in fear of any backlash or retribution... we just often don’t have the response to victims that makes it safe for them to come forward.”
Hull, Broder, and Roland-Schwartz all advocate for educating law enforcement in the neurobiology of trauma, and in trauma-informed interview techniques such as the Forensic Experiential Trauma Interview (FETI). The FETI, developed by former Army Special Agent Russell Strand, provides law enforcement with actionable information to help solve cases without forcing victims to describe over and over again the trauma they’ve experienced. It can also help avoid situations like Sam’s, where the victim can feel as if they’re being interrogated.
Hull says it’s also important to expand our understanding of sexual assault to include crimes like groping and to understand the trauma those can also cause for victims.
“Sometimes it’s easier to think about just rape kits,” she says. “It can make you feel more distanced from the problem and more safe.”
But victims who report other sexual offenses, she says, need to be taken just as seriously.
“The wrongful sexual touch case is as important as the sexual assault case, because I really do believe as we start discovering more information, we’re going to see the same offender in both of those cases,” she says. “The person who has a wrongful sexual touch has as much right to have that taken seriously as the person who’s had a penetrative sex act. They are both a loss of control and a loss of consent about your own body.”
More than a year later, Sam still doesn’t know what happened to the rape kit taken the night of the assault. Sam says they don’t regret having the evidence collected, but expresses frustration at how the case was handled. “If I had known I wouldn’t be contacted about my kit, I honestly still would have had it done,” says Sam. “It was really frustrating and disheartening to know that, had more steps been taken or more care been put into this, I would’ve been informed of the official results of my kit and get the process of pressing charges started a lot sooner than a year after I was attacked.”
The last time they spoke with the Mercury, Sam hoped to follow up with the Portland Police Bureau about the kit.
The Sexual Assault Task Force’s Roland-Schwartz says she’s familiar with cases like Sam’s.
“That’s one of the reasons Melissa’s Law was passed last year... to make sure that when a victim comes forward and gets a medical-forensic exam that our system’s response honors their willingness to come forward,” she says. “We’ve heard those stories before and it’s one of the reasons we have a backlog.”
From Ashland, Hull says statistics are only one metric of successful reform. Another is less quantitative: how victims feel about their decision to report.
“It’s not just an increase in reporting,” she says. “We really are looking for people to come out of the process not regretting reporting, too.”
The Mercury’s Ciara Dolan contributed reporting.