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How Rape Kits Have Failed Women  by Andrea Quinlan
How Rape Kits Have Failed Women

Ever since it was first dubbed “Ontario’s most successful rapist trap” in a Toronto Star article in 1984, the sexual assault evidence kit has been heralded as a tool to improve survivors’ access to care and justice. However, there is growing evidence that sexual assault kits rarely works in survivors’ interests.

At a recent Canadian sexual assault conference, an advocate for sexual assault survivors recalled how anti-rape activists had worked hard in the 1970s to implement the first standardized sexual assault kit in Ontario and how the kit has failed to live up to its promises.

With frustration and anger, she said, “They turned it against us!”

Her pointed words raise a call for feminists’ renewed attention and action on sexual assault forensics. How has the kit been turned against survivors? And why does this story matter for contemporary feminist activism?

Answering these questions calls for a look into the kit’s forgotten history and its concealed contemporary life in Ontario hospitals, police stations, and courtrooms. In my recent book, The Technoscientific Witness of Rape, I take up this challenge using interviews with 62 medical and legal professionals and sexual assault survivor advocates, as well as archival records from across the province.

In 1970, approximately seven percent of reported rapes in Toronto resulted in criminal convictions. Canadian feminist writers Lorenne Clark and Debra Lewis described this as “a monument to injustice” in their 1977 groundbreaking book Rape: The Price of Coercive Sexuality.

Their words reflected a growing dissatisfaction, among anti-rape scholars and activists, with the criminal justice system’s handling of rape.From its beginnings in feminist-consciousness raising groups of the 1960s, the anti-rape movement that emerged in the 1970s challenged the ways in which sexual assault survivors were so often blamed, doubted and dismissed by the physicians and the police they had turned to for help.

Determined to establish specialized services for sexual assault survivors, activists organized rape crisis centres, trained survivor advocates and fought for institutional reforms they hoped would improve the ways in which lawyers, police and hospital staff treated survivors. This work involved what Rose Corrigan, author of the 2013 book Up Against a Wall: Rape Reform and the Failure of Success, called “a prickly political alliance” between feminist activists and the criminal justice system.

Ever since Sir Mathew Hale, a 17th-century judge, penned the widely cited phrase that rape is an accusation that is “easily made and hard to defend,” sexual assault survivors have had little credibility in the courtroom. In the 1970s, as it was in years past, a rape victim’s testimony was not enough to convict an accused in court. A independent evidence, such as forensic evidence confirming that sexual activity with the accused had taken place and that physical force was used.

In response, some anti-rape activists began advocating for standardized protocols for forensic exams of rape survivors. If physicians could be mandated to properly collect corroborating evidence from a sexual assault survivor, it was hoped that sexual assault survivors would be more likely to be believed in court, and that conviction rates would rise. Evidence collected with standardized procedures, they hoped, would lend credibility to the survivors who seemed to have none in the courtroom.

Then, in 1981, the Ontario government announced its first standardized sexual assault evidence kit. The provincial secretariat for justice touted the new kits as “a significant breakthrough in helping women prove sexual assault,” and a Toronto Star article described the kit as a “rapist trap” that had “revolutionized the way evidence was collected.”

This enthusiasm for the kit has seemingly not wavered in the last three decades, despite the fact that the kit rarely lives up to its billing.

The kit’s design reflects a suspicion towards sexual assault survivors—one that was, and continues to be, pervasive among law enforcement staff. The kit contains tools and protocols for evidence collecting that are intended to test the accuracy of a survivor’s report, and to demonstrate that the sexual activity she alleges did take place. In the exam room, the survivor’s body becomes a crime scene that is scanned and mined for evidence.

The exam involves multiple steps of swabbing for bodily fluids, plucking and combing hairs and measuring injuries—a process that can take up to six hours. Far from being a breakthrough in helping to prove sexual assault, the kit can be more aptly described as a tool that reflects a system in which rape victims have little credibility, and one that can be used against survivors.

The kit is also not universally available. Recent Canadian news stories have reported that survivors in rural areas often face difficulties accessing forensic exams. In the news coverage, these challenges are often framed as hurdles to justice that hospitals could remove if they devoted more resources and staff to forensic exams. Missing from the stories, however, is a discussion of the ways in which the kit, as well as many procedures employed by networks of professionals, can exclude sexual assault survivors.

Ontario is one of the few Canadian provinces with hospital-based sexual assault treatment centres.

When these centres began opening in 1984, they were celebrated as a monumental step forward in sexual assault services. However, these centres have had the unintended effect of limiting survivors’ access to forensic exams.

Sexual assault treatment centres are staffed by sexual assault nurses with specialized training in forensic exams. Before the centres opened, general physicians conducted forensic exams in emergency wards across Ontario. Today, Ontario hospitals that do not have sexual assault treatment centres have sometimes refused to provide care to survivors.

In 2011, three survivors were turned away from the Ottawa Hospital and told to drive to a sexual assault treatment centre that was more than an hour away. One woman was unable to afford the cab fare and relinquished the possibility of having the exam. Her case went to trial and was dismissed due to a lack of evidence.

In northern regions of Ontario, survivors are often forced to travel several hours to one of the few urban treatment centres in the North. In some cases, survivors must finance this travel themselves.

Getting to a treatment centre is not the end of the challenges involved in accessing the forensic exam. The kit itself can also create barriers. Part of the kit’s protocol involves taking, and often not returning, pieces of a survivor’s clothing for laboratory analysis. Sacrificing one’s clothing can be difficult for survivors, particularly those living in poverty. The kit, therefore, tends to be reserved for those with access to safe transportation,  an ability to travel after a sexually violent attack, and the financial means to sacrifice clothing and personal effects in the name of forensic science.

Survivors who are able to access the kit also face significant pressure to comply with its requirements. Although the kit is promoted as a non-compulsory component of sexual assault investigations, in practice it can be the opposite.

Some police officers I interviewed described how they often told survivors that the kit would help provide them with justice, ensure a more thorough investigation, and prevent the perpetrator from further victimizing them or anybody else. Describing the kit in this way can make it difficult for survivors to refuse to have the exam.

The pressures on survivors to consent to the forensic exam are not, however, equally applied.

Sexual assault survivor advocates I interviewed reported that police are far less likely to pressure women of colour, Indigenous women, disabled women and women in the sex trade to have forensic exams. According to these advocates, police tend to be less likely to believe sexual assault reports from women in marginalized communities, and are more likely to dismiss their reports as unlikely to result in conviction and as unnecessary grounds for a forensic exam.

Survivor advocates described the effects of the pressures that are placed on rape victims while deciding whether to have a forensic exam. They reported that many survivors worry that not consenting to the exam might mean they are “bad survivors” or “bad citizens” who failed in their responsibility to help get a rapist off the street.

When the forensic exam is defined as a moral act necessary for the public good, it can be used to coerce survivors into criminal justice procedures in which they may have been wary of becoming involved.

Despite claims that the kit can provide justice to survivors, most studies suggest that evidence from the kit has, at best, a negligible effect on the outcome of sexual assault trials. Data from my book suggests that the kit is more often used a tool for testing, interrogating and undermining the credibility of survivors’ reports of sexual assault.

According to the vast majority of the prosecutors I interviewed, it is rare that DNA evidence from a kit becomes relevant in a sexual assault trial. In cases where an accused person admits to having had a sexual encounter with a complainant, but argues that it was consensual, DNA evidence has little relevance. In these cases, other evidence in the kit can become the subject of scrutiny in the courtroom.

Defence lawyers described how they often rely on nurses’ forensic reports to challenge survivors’ testimony and credibility in court. They examine the kit evidence with a sharp eye for any inconsistencies between the kit reports, survivors’ police statements and their court testimonies. Finding an inconsistency, no matter how slight, can throw the survivor’s credibility into question in court and, alongside it, her account of the assault.

One prosecutor expressed frustration with how the kit’s evidence often “backfires” in court.

“It’s always been fodder for cross-examination, and rarely would I ever tender it for my benefit,” she said.

Most Crown and defence lawyers I interviewed said the kit is more often useful to lawyers defending accused sexual offenders than to the lawyers prosecuting them. Far from being a rapist trap, the kit often proves in court to be a trap for sexual assault survivors.

The rape kit’s history and its contemporary use shine a light on pressing questions about justice and the politics of sexual assault forensics. While news about inaccessible kits in Canada, and hundreds of thousands of untested kits in the U.S., has prompted public discussion about rape kits, it has done so in narrow ways.

So far, questions about sexual assault forensics have been limited to procedural issues, such as how to increase the number of victims who have access to the kit, and how to ensure that more kits are analyzed.

Little space has been given to questions about how the rape kit actually works in practice, or to questions about whose interests it serves. As conversations about rape kits are reigniting among sexual assault advocates and feminist lawyers across Canada and the U.S., it is crucial to consider how the kit’s reputation as a rapist trap has narrowed public discussions about sexual assault, justice and the politics of sexual assault forensics

The kit was turned against survivors because it reflects a criminal justice system that disbelieves women and their reports of rape. The hope that anti-rape activists had for the kit in the 1970s was not naive—they knew that changing criminal justice responses to rape would require far more than a new technology. The kit’s history shows that it has done little to improve sexual assault survivors’ standing in the criminal justice system. It is clear that we cannot depend on technological solutions to ending violence and injustice. Instead, we must focus on interrogating and dismantling the systemic biases against survivors within the criminal justice system, and the technologies they inspire. 