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Rape Survivor Petitions Supreme Court Over How Police Handled Her Case

Heather Marlowe, now an activist, says neglected kits are a reflection of who and what police prioritize.

Photo of Heather Marlowe
Heather Marlowe

When Heather Marlowe reported a rape to the San Francisco Police Department in 2010, she said she was told the evidence from the rape kit collected at the hospital would be tested at a lab and the results would be sent to her within 60 days. Two years later, she was informed that parts of her kit’s contents had been tested, but Marlowe said she never received the results or any documentation. A 2014 audit by the San Francisco Police Department, conducted after media pressure, found that the department had a backlog of over 700 untested rape kits.

In 2016, Marlowe sued San Francisco, the police department, and Chief Greg Suhr, arguing that the backlog and inadequate investigation into her case violated the equal protection clause of the Constitution. In response to Marlowe’s initial lawsuit, the city attorney argued that the police did eventually test Marlowe’s rape kit and that since there was no allegation that the department treated male rape kits differently, Marlowe did not have a claim under the equal protection clause. 

The U.S. District Court for the Northern District of California dismissed Marlowe’s lawsuit, arguing that it was filed after the statute of limitations expired. Marlowe brought the case to the United States Court of Appeals for the Ninth Circuit, which upheld the district court’s decision.

On July 31, Marlowe and her lawyer petitioned the U.S. Supreme Court to consider the lawsuit. In the petition, Marlowe’s attorney cites past case law to argue that the statute of limitations should begin at the time the plaintiff learned of the discrimination, not at the time of injury. The petition also argues that since the overwhelming majority of victims in rape cases are women, deprioritizing rapes for other crimes violates the equal protection clause. 

“With all the recent attention that has been focused on sexual assault, it is difficult to conceive that our own law enforcement would contribute to the problem by systematically refusing to test ‘rape kits’ and actively discouraging female victims from pursuing a claim of drug-facilitated rape by a stranger,” the petition states. “Yet, that is precisely what happened in this case, and what has happened in many cases throughout the country.” 

The city attorney did not return calls before publication time, but told reporters the petition was “meritless.” The Supreme Court will decide whether to take the lawsuit on October 1.

Although multiple organizations have called for and supported an increase in funding to get more rape kits tested, Marlowe, who co-founded People for the Enforcement of Rape Laws, warns that more funding alone won’t solve the problem.

“There is a huge sweeping movement across this nation to ‘solve’ this issue of police failure to investigate rape by giving police more money and more funding,” Marlowe told The Appeal. “When in fact, it’s not a matter of police getting more money and funding, it’s a matter of how they spend their funding.”

Some advocates see police departments’ poor record on rape clearance nationwide as a matter of misplaced priorities. Across the country, they say, a significant amount of police resources are spent on broken windows policing—the policing of low-level crimes—at the expense of more serious crimes, like sexual violence, which are harder to solve.

According to federal data compiled by the Rape, Abuse & Incest National Network (RAINN), only 232 out of 1,000 rapes are reported, and only 46 reports lead to arrest. In San Francisco, a recent investigation using SF Open Data found that out of 757 reports of adult sexual assault in 2016, 39 percent were investigated, 12 percent referred to the district attorney, and 2 percent went to trial, leading to just nine guilty verdicts—1 percent of the total. Not only are those totals low, wrote Bianca Rosen, a former rape crisis counselor who conducted the study in San Francisco and is now advising San Francisco DA candidate Leif Dautch; they also reflect a disregard for rape victims. 

“Today, in the San Francisco criminal justice system and in the rest of the country, supporting survivors—acknowledging their trauma and simply respecting their time—is at odds with holding perpetrators accountable,” Rosen wrote, suggesting changes like new hospital procedures and expedited investigations to improve the process.

In response to questions, the San Francisco Police Department said it has not had a rape kit backlog in several years. The department said it currently processes kits within 38 days, which is well within the 120 days mandated by law as of this year.

Suzy Loftus, who is running for San Francisco district attorney, was president of San Francisco’s Police Commission when Marlowe first filed her suit and is named in both the original suit and current petition. In a statement emailed to The Appeal, she defended her track record. “My approach has always been to work collaboratively with victims, community advocates, and women leaders to remove the barriers that keep sexual assault survivors from getting the justice they deserve,” she wrote. If elected DA, she vowed to “re-examine every eligible rape that was discharged for lack of evidence.”

But Marlowe doesn’t trust Loftus’s promise. “The single barrier to this crisis, as my activism has always stressed, is SFPD’s chronic failure to investigate rape complaints,” she wrote in an email to The Appeal. “Loftus can crow all the ‘survivor-centric’ platitudes she likes, but in platforming for DA on increased ‘broken windows’ policing, a failed system of policies that have not made our streets any safer, she has made it crystal clear where her actual allegiance to rape victims lies.”

San Francisco isn’t the only city accused of failing to completely investigate rape cases and allowing a large backlog of untested rape kits. Similar lawsuits have been filed in at least six other cities. In 2014, several women sued the city of Memphis after the police department announced a year earlier that it had a backlog of over 12,000 rape kit tests. In Austin, a lawsuit filed last year alleges that the police department does not thoroughly investigate rape cases well enough, leading to low prosecution rates. In Houston, a lawsuit was filed in 2017 accusing the city of violating victims’ equal protection rights under the law and their right to due process. (The Houston lawsuit was dismissed in 2018 for exceeding the statute of limitations.) 

RAINN, the Joyful Heart Foundation, and other organizations have called for more funding to police departments across the country so departments can test their backlogs of rape kits. The federal Bureau of Justice Assistance created the Sexual Assault Kit Initiative, a competitive grant process where departments can apply for funding that will go toward testing old rape kits. Grants have been awarded to more than 50 cities, police departments, and prosecutors including in Memphis, Detroit, and New Orleans to test their backlogs, and another program provides grants from the Manhattan DA’s office. 

But Marlowe and other advocates say throwing money at the issue is misguided and offensive because it ignores the bigger problem: lack of motivation on the part of police departments to solve rape cases.

Marlowe said she remembers going to police after she was drugged and raped during a Bay to Breakers race. She assumed the police would properly investigate, but instead an officer asked her to visit a possible crime scene and arrange a date with a potential suspect, which left Marlowe feeling exposed and unsafe. Increased funding to police departments to test rape kits “is such a slap in the face,” Marlowe said.

“To give more for them to do a job that they have failed at, it shows law enforcement just how little they actually need to do their job at all.”

Update: This story has been updated to note that Bianca Rosen is working as an advisor to Leif Dautch, a candidate for San Francisco district attorney.