Here in the United States, which came first: A victim-blaming rape culture, or a police force that doesn’t take sexual assault cases seriously? It’s a classic chicken-and-egg situation. There’s no right answer.
But it is obvious that law enforcement officials’ approach to sexual crimes plays a big role in furthering our cultural approach to rape. In the most recent example, for instance, the Florida State Attorney’s office decided not to bring sexual assault charges against Florida State University quarterback Jameis Winston, a star football player and Heisman Trophy front-runner. Whether or not Winston actually committed the crime, that high-profile case illustrated many of the issues at play in rape investigations across the country — police were slow to respond, investigators seemed skeptical the case would actually go anywhere, and it was easier to decide the victim was lying than it was to prove she wasn’t. As Deadspin pointed out, the Florida State Attorney made it clear that “he felt that he couldn’t get a conviction, not that a crime had not taken place.”
Those are exactly the dynamics that the Joyful Heart Foundation, a national organization seeking to eliminate violence against women and girls, wants to change.
Joyful Heart was founded by Mariska Hargitay, the actress who plays Detective Olivia Benson on Law & Order: SVU. Hargitay decided to start the organization nearly a decade ago, after she realized the fictional character she played on TV was having a huge impact on women across the country: All of a sudden, she was receiving thousands of letters from rape survivors who wanted to tell her their stories. Many of them had never talked to anyone about their sexual assault before. And most of them had stories about how the justice system had let them down.
Despite the prevalence of sexual crimes — an estimated one in three women experiences sexual violence at some point in her life — it has a shockingly low conviction rate. The Rape, Abuse, and Incest National Network (RAINN) estimates that only three out of every 100 rapists will ever spend a day in prison. That’s partly because of low reporting rates, of course, but that’s not the whole story. Of the rapes that are reported to the police, only about one out of four leads to an arrest — and of those arrests, only about one out of four leads to a conviction.
“Our poor criminal justice response to sexual assault is a really basic failure — a tangible symbol of how society and law enforcement fails rape victims,” Sarah Tofte, the director of policy and advocacy for Joyful Heart, told ThinkProgress. “It’s a symbol of lost justice, and a lack of healing and closure for survivors.”
Tofte believes there are concrete steps that law enforcement can take to shift that narrative. She’s heading up a new project at Joyful Heart called End the Backlog — an effort to pressure states and cities to address the estimated 400,000 rape kits that are left untested, a dynamic that prevents sexual assault cases from moving forward. There are two places where rape kits get stalled in the system: in police storage facilities, where a detective or prosecutor may not have the resources to request testing; and in crime labs, where rape kits are waiting to be tested but aren’t prioritized ahead of other DNA evidence.
“The first piece is figuring out the extent of the problem. Very few states require tracking of the rape kits that they’ve received, so it’s hard for them to acknowledge that they even have a backlog in the first place,” Tofte noted. “What we currently know about the rape kit backlog is because of the dedicated human rights advocates and journalists who have tracked down that information. But there’s much more we don’t know.”
This past August, the Cleveland Plain Dealer conducted one of those journalistic investigations into Ohio’s own rape kit backlog. The special four-part series resulted in some bleak headlines: “Rape survivor speaks out, says police failure let her rapists go free while she lived in fear,” “Serial rapists terrorized Cleveland’s women and children in 1990s, while police set cases aside,” and “Defendants fight charges stemming from 20-year-old DNA evidence, argue police shelved cases for too long,” for instance. And this is in one of the few states that’s actually making progress in clearing its backlog. Many others aren’t working on the issue at all.
In the areas that have chosen to tackle rape kit backlogs, the results are staggering. After New York City worked through a backlog of about 17,000 untested rape kits in 2003, the arrest rate for rape jumped from 40 to 70 percent. Detroit started testing over 11,000 rape kits in 2008, and has identified 46 serial rapists so far. This November, Ohio officials announced that they’ve worked through over 2,000 previously untested rape kits and found nearly 200 matches with DNA in a criminal database. Meanwhile, although the Obama administration has pushed for additional funds to help tackle to backlog, federal reforms haven’t advanced very far.
How did it get to this point? Why is there such a huge backlog that’s allowing decades-old evidence to collect dust across the country? Tofte has a couple different theories.
Law enforcement officials typically cite a lack of resources, pointing out they’re simply stretched too thin. There’s a lot of truth to that. Crime labs are inundated with cases, and testing rape kits is pretty expensive. When you swab for evidence following a sexual assault, you’re always going to get a mix of the victim’s and the offender’s DNA, so testing the rape kit requires separating out that different DNA. It’s a lengthy process. Particularly since we don’t have accurate national data on how many sexual assaults are actually occurring, police departments likely aren’t being allocated the resources they need to effectively tackle these crimes.
But Tofte believes there’s actually a bigger factor at play — one that police officers aren’t so quick to admit.
“Law enforcement don’t always want to invest the resources to test,” she explained. “They have a very conservative approach about which cases they think should move forward. They’re making subjective judgments about whether they’re likely to get a conviction, what this rape looks like, whether the victim is credible, and what the victim’s worth to society is. In other words, they’re trying to figure out: If I don’t do anything about this case, will anyone notice? Does the victim have a network of family and friends? Will there be an outcry? Will anyone care?”
Tofte pointed out that many of the same cultural factors at play surrounding sexual assault — focusing on the victim, rather than the perpetrator, to analyze her decisions before the alleged assault and ultimately discredit her story — also contribute to the rape kit backlog. When law enforcement decides whether or not to move a case forward, they’re thinking about how this victim would be received in the media, and whether she’s a person whose claims are worth believing. “Ultimately, it’s about, does this victim deserve justice?” Tofte noted.
If law enforcement focused on the crime that the perpetrator committed, rather than whether the victim seems like a sympathetic character with a convincing story, Tofte believes more rape cases would move forward.
The advocates at End the Backlog have three goals to start reforming the system. First, they’re advocating for state laws requiring police to track, count, and test this evidence. (Right now, just three states — Illinois, Texas, and Colorado — have this type of system in place.) Then, they want to put the pressure on authorities to actually follow up on the evidence collected from rape kits, and go back and review the cases. And finally, they hope to move toward a victim-centered approach to sexual assault cases, one that doesn’t focus so much on the victim’s credibility and instead takes his or her case seriously from the beginning.
That brings us back to the chicken-and-egg situation. In order for the legal system to get better, society needs to start dismantling rape culture. But it’s difficult to combat rape culture when the latest headlines are about police failing to do anything about sexual assault cases.
“It will have to happen both ways. Law enforcement are definitely a reflection of society. In that sense, all of us on some level contribute to sexual violence, and a culture of suspicion around victims, assuming that women must be lying and rape must not happen as often as people say it does,” Tofte acknowledged. “Communities need to believe victims, and believe that rape is a crime worth convicting. If we want to change the fact that it’s so hard to prosecute these kind of cases, we have to change this.”