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Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Across the country, police departments have chronically failed to investigate rape cases, leaving rape kits — the physical evidence collected from a rape victim’s body — untested. Unfortunately, a false narrative has taken hold around the concept of a rape kit backlog.

Promoted by advocacy groups like the Joyful Heart Foundation (founded by actress Mariska Hargitay, who plays Detective Olivia Benson on Law & Order: SVU), this narrative presents law enforcement as victims of an overall lack of resources (faulty technology, overburdened labs, understaffed units) rather than perpetrators of a failure to investigate violent crimes.

Beyond dominating national and local headlines, the rape kit “backlog” has even become an element of pop culture, with former Vice President Joe Biden appearing as himself on Law & Order: SVU to commend Detective Benson on her work to “end the backlog.” Hargitay, a fictional sex crimes detective on a show that glorifies law enforcement, is a perfect spokesperson for a narrative that glosses over police failings.

The backlog narrative doesn’t only ignore law enforcement’s unwillingness to take responsibility — it enables it. That’s because it obscures the actual criminal justice policies and practices, like broken-windows policing and other “tough-on-crime” measures, that led law enforcement to de-prioritize violent crime.

The term “backlog”

Moving beyond the word “backlog” is the first step in understanding how law enforcement disregarded so many rape kits. While there are actual backlogs at some crime labs, “backlog” is an inappropriate word for the thousands of rape kits that police departments never submitted to a lab for testing in the first place.

Backlog “implies that the untested rape kits were in a queue awaiting testing by overburdened labs,” University of Kansas law professor Corey Rayburn Yung has argued. “That does not reflect the reality across the United States. In fact, untested rape kits were often simply discarded in warehouses, trash depositories, or storage closets with no intention to ever test the contents of the kits.”

The National Institute of Justice (NIJ) defines a rape kit as “backlogged” if it has been sent to a lab and has not been tested for at least 30 days after a request for testing was made. There is no justification for conflating this scenario with cases in which police never submitted rape kits to a lab in the first place.

The word “backlog” also re-frames law enforcement’s belated attention to neglected rape cases as heroic and redemptive. Never mind that in cases with unsubmitted rape kits, police also failed to do other investigative work.

While it’s easy to understand why law enforcement would embrace a narrative that denies its own role in creating the problem, it’s shameful that victim advocacy and news media continue to peddle this fiction.

A lack of resources caused rapes kits to remain untested.

In response to public criticism, law enforcement and victim advocates have blamed untested rape kits on a lack of funding, and media outlets have often reported their claims uncritically.

Wayne County Prosecutor Kym Worthy has publicly sought donations to test Detroit’s rape kits and prosecute the neglected cases. In Texas, State Representative Victoria Neave spearheaded new legislation allowing drivers license applicants to donate money to test rape kits. In California, lawmakers passed a measure creating a voluntary contribution checkbox on the state income tax form for those wishing to donate to rape kit testing.

But the funding to test rape kits already exists. In 2004, Congress passed the Debbie Smith Act, named after a Williamsburg, Virginia woman who was raped in 1989. The act was intended to address untested rape kits through grants to states and local agencies to conduct DNA analysis of untested samples collected from victims of crime and criminal offenders. Since 2004, the federal government has granted over a billion dollars to states and local agencies under this program.

Yet, it’s hard to know how that money is being spent. The NIJ, for instance, which oversees the Debbie Smith grant program, cannot provide basic statistics regarding the number of rape kits awaiting analysis or whether the funding was even used to test rape kits. Nor can it explain its criteria for awarding DNA testing-related grants or show proof that grant recipients satisfied the requirements outlined in their grant applications.

Given this lack of transparency, it is troubling that additional law enforcement funding continues to be advanced as a solution to untested rape kits. For instance, an additional $79 million is available under a partnership between Manhattan District Attorney Cy Vance and the Bureau of Justice Assistance’s Sexual Assault Kit Initiative. While these funds also require grantees to do certain things, like form “multidisciplinary working groups,” it’s unclear how the program will be monitored to avoid waste, dysfunction, and abuse.

It’s also been argued that labs lack capacity and staff. Yet, federal funding, including grants disbursed under the Debbie Smith Act, has been used to expand labs’ capacity and staff, increasing their ability to process DNA.

Because a lack of money is not the reason police failed to investigate rape cases, increased funding alone won’t solve the problem.

It’s a problem of “rape culture.”

High-profile advocates often attribute law enforcement’s poor record on rape investigations to attitudes toward rape in society at large.

“The rape kit backlog is just a perfect microcosm for how women and these crimes are regarded, and so through excavating and digging, you really see those victim-blaming attitudes,” Hargitay noted at a recent screening of her documentary I Am Evidence, which she produced and stars in. Discussing Detroit’s untested rape kits, Kym Worthy, who co-stars in the film, offered, “We have a problem in this country with rape culture.”

But that broad framing shifts the focus away from police culture, and the specific policies and practices that led to the problem.

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases.

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed. And in 2015, news media exposed that the department, again, had “vastly underreported” rape numbers to the FBI.

Meanwhile, the war on drugs still incentivizes law enforcement to focus resources on drug enforcement at the expense of solving violent crimes. Police departments have pushed ineffective stop-and-frisks while making complaints of real crimes disappear for the purpose of creating annual crime reductions.

Despite the myriad legislative efforts to test rape kits, police across the country are solving fewer rapes than they did in the past. Nationwide, the clearance for rape has declined sharply in the past decade, from 51% in 1995 to approximately 40%, where it has remained stable since 2005. In some cities, the clearance rate for rape is in the single digits.

A lack of training or technology led to the problem

Another popular notion advanced by the media is that inadequate technology prevented police from processing rape kits. “It started really in the late ’90s and early 2000s,” Rebecca O’Connor of the Rape Abuse and Incest National Network told NPR, “as we saw advancements in the science itself around DNA technology and as people started to literally open up the evidence rooms and warehouses across the country and discover these troves of kits in different jurisdictions.”

O’Connor echoed the talking points of former Memphis Mayor A C Wharton, who said in 2014 of his city’s 12,000+ untested rape kits, “Unfortunately, there were no processes in place to systematically test the older kits as DNA technology evolved to do so.”

But advances in technology did not unearth this discarded evidence, and law enforcement continued to disregard rape evidence after the advent of modern DNA technology.

Ohio Public Defender Tim Young, whose office is appealing convictions based on Cleveland’s neglected rape kit evidence (including the Demetrius Jones case), has criticized the narrative that DNA technology didn’t exist to solve rapes until recently, and is now miraculously solving cases.

“We’ve had DNA testing since the mid-1990s. They [law enforcement] were dilatory in not using it. It’s a continuation of broken police culture that places the police first, not the victims, the defendants — or justice.”

This excuse is even more flimsy considering that law enforcement has long used DNA to investigate and prosecute homicide cases.

Testing rape kits will solve the problem

While DNA testing is one step in investigating a case, it does not, in itself, represent a solution to unsolved sex crimes. After suffering the bad publicity of having large numbers of untested rape kits, police departments in cities like Memphis and Detroit have been eager to ship rape kits off for testing and report to the public on how many kits have been tested so far. But that doesn’t always mean they’ve made policy changes. In Detroit, the police department developed a “second backlog” of rape kits, never revealed to the public, that accumulated after the 2009 disclosures and promises of reforms.

Further, rape kit testing alone does not solve cases. The DNA results have to be put into CODIS, the national database run by the FBI which holds DNA samples. These cases still must be investigated and prosecuted. In some cases, the police and DA are unwilling or unable to do that work. In others, victims of decades-old crimes no longer want to pursue charges, have moved, or have died.

And even in cities that have tested old rape kits, convictions are rare. A Michigan State University study of Detroit’s rape kit testing efforts concluded that few of Detroit’s neglected cases were properly handled — even after rape kits were tested.

Meaghan Ybos and Heather Marlowe are the co-founders of People for the Enforcement of Rape Laws. The views and opinions expressed in this article are theirs and do not necessarily reflect the views of the Fair Punishment Project.

San Antonio DA Nico LaHood, an Anti-Islam, Pro-Death Penalty Democrat, Faces Former Pal in Primary

Nicholas “Nico” Lahood

San Antonio DA Nico LaHood, an Anti-Islam, Pro-Death Penalty Democrat, Faces Former Pal in Primary

He’s a death-penalty championing, Islam-bashing vaccine skeptic who believes the U.S. is “rooted in Christian principles.” And he’s currently campaigning for re-election in Texas as the district attorney of Bexar County, a populous county of nearly two million residents, close to 60 percent of whom are Hispanic — as a Democrat.

But Nico LaHood isn’t just a conservative Democrat. He is more ideologically aligned with Texas Republican Governor Greg Abbott and President Trump than he is with members of his own party. His opponent in the March 6 Democratic primary next month is local San Antonio defense attorney Joe Gonzales, who has called LaHood a “wolf in sheep’s clothing.”

Gonzales used to be LaHood’s friend and business partner. But now he says that rank-and-file Democrats “would be shocked” if they heard some of the things LaHood has said and done.

In the summer of 2016, for instance, LaHood appeared on the conservative Joe Pags’s nationally syndicated radio show, based in San Antonio, and called Islam a “horrifically violent” religion, claiming Muslims “tried to set up a Sharia court” near Dallas. LaHood was simply repeating a debunked news item published by Breitbart, which the Houston Chronicle dubbed the “Texas Hoax of the Year” in 2015.

Meanwhile, in a 2016 appearance on the Doc Owen Show, a Trump-supporting conservative radio program out of Texas, LaHood warned of the “dangers” of Sharia law, saying it mandated the death of gay people, that women were treated like property and could be beaten for insubordination, and that it sanctioned genital mutilation. “Let’s talk about Islam,” he added, shifting gears to immigration. “I am not supportive of bringing in a bunch of refugees without any type of background check. And we cannot background check them,” he said. “There’s no way.”

He’s been equally outspoken on vaccines. To coincide with the April 2016 release of the documentary Vaxxed, directed by disgraced former British doctor Andrew Wakefield about his (later found to be fraudulent) research paper on the supposed link between the MMR vaccine and autism, LaHood positioned himself as a spokesperson for the anti-vaccination movement. From behind an office desk, Lahood appeared in a video posted to Wakefield’s Autism Media Channel Facebook page, saying: “I’m the criminal district attorney in San Antonio, Texas. I’m here to tell you that vaccines can and do cause autism.” LaHood then talked about his own son, whose autism, he believes, was caused by vaccines.

“His position on vaccines actually could harm public safety and health,” wrote Brian Chasnoff, a columnist for the San Antonio Express-News in August 2016. Chasnoff quoted the president of the San Antonio Pediatric Society, Dr. Sharvari Parghi, who reportedly addressed LaHood’s comments without naming the DA. Vaccines are “the ONLY way to prevent threatening diseases such as measles, mumps, polio and rubella amongst many other diseases,” Parghi said. A year later, after other critical articles, LaHood barred the Express-News from press briefings.

But it’s not just LaHood’s controversial statements that have critics riled up. Last year, allegations of misconduct were leveled against him when he prosecuted a murder case. LaHood’s former friend Gonzales, who was representing the defendant in the case, claimed that a prosecutor from LaHood’s office withheld exculpatory evidence about a previous sexual encounter between a witness and a fellow prosecutor. He also claimed LaHood threatened to destroy the legal practice of Gonzales and co-counsel Christian Henricksen if they pursued the claim in court.

The presiding judge in the case said she’d heard LaHood threaten the defense attorneys, calling it an unprofessional rant that could be subject to sanction in another tribunal. The Express-News weighed in, saying the state bar should step up after a complaint is filed. In its January 2018 issue, Texas Monthlymagazine bestowed on LaHood the dubious distinction of “bum steer” — its annual effort to poke fun at Texas politicians and policies — specifically citing his threat to “shut down” Gonzales’s legal practice.

Since then, the bad blood between LaHood and Gonzales seems only to have worsened. At the beginning of February, LaHood accused Gonzales of specializing in defending clients accused of child abuse. Afterward, a political action committee backing Gonzales and funded by the billionaire George Soros sent a direct mailer to voters with a cut-out picture of LaHood’s head on a shrugging body that accused him of being prejudiced and intolerant.

LaHood asked members of the public in a campaign ad what people like Harvey Weinstein, Larry Nassar, and Soros all had in common. The answer? “They all want Joe Gonzales to be the DA of Bexar County.”

When LaHood isn’t gunning for his opponent, he is running a seemingly regressive DA’s office. Last summer, a report by local TV station Spectrum News showed that Bexar County’s jail population was bursting at the seams, at 98 percent capacity. There was also a surprising uptick in female prisoners facing minor drug charges or accused of prostitution, theft, or DWI.

Last fall, LaHood announced a new pilot program to deal with low-level misdemeanor offenses, such as driving without a license, theft of amounts under $750, or possession of less than four ounces of marijuana. But by the beginning of this year, the so-called cite-and-release program still hadn’t been launched. Five months after the announcement was made, LaHood’s office announced that the program would finally be implemented — albeit solely within the Bexar County sheriff’s office — and that it would expand in the future, but that it was not mandatory for law enforcement agencies.

On the death penalty, he has said the justice system should “be swift,” adding that in Texas, “we have something called capital punishment. It doesn’t get any swifter than that.” But the opposite is true. An investigation by the Houston Chronicle last year found that 13 percent of Texas death row prisoners wait 25 years or more for execution, nearly a decade above the national average. LaHood has also said he favors Texas’s controversial law of parties, which allows juries to sentence a co-defendant involved in a crime that results in murder to death even if that person didn’t know the crime was going to happen.

And his stance on sanctuary cities and immigration is murky at best. While he urged Texas Governor Greg Abbott to veto SB 4, legislation that would outlaw sanctuary cities, he said he understood “the spirit of what the governor was trying to do, and I appreciate it.”

Despite criticism, LaHood is still the frontrunner, according to David Crockett, chair of the department of political science at Trinity University in San Antonio. He said LaHood’s biggest challenge is the primary against Gonzales, but if he wins that, he’ll have the upper hand against his Republican opponent in the midterms. “Barring something really strange happening, the incumbent has the edge,” Crockett said, “even in his fight for the nomination with the other Democrat.” When it comes to the general election, Crockett added, LaHood’s party affiliation is a boost. “With a Trump presidency, Democrats will gain ground and a bunch of them will be elected in Bexar county … expect Republicans to be on the defensive.”

Ironically, when LaHood unseated Republican incumbent Susan Reed after her 16-year reign as DA in 2014, it was a year in which Obama was still in the White House. “It should not have been a Democratic year because Obama lost ground in the midterm elections,” Crockett said, “but LaHood had some high-profile endorsements.” These included San Antonio Spurs basketball team members Tim Duncan and Tony Parker.

He also had at least one donor with very deep pockets. According to the Express-News, LaHood raised about $1.2 million for his 2014 race from Texas-based personal injury lawyer Thomas J. Henry. This time, the newspaper reports, he received $100,000 from Martin Phipps PLLC, whose law firm is representing the county in a suit against opioid manufacturers. Gonzales, meanwhile, has accepted nearly $1 million in donations from a political action committee funded by Soros.

Regardless of whether LaHood’s opponents see him as a DINO — a Democrat In Name Only — Crockett said candidates for DA have to give people a compelling reason to vote contrary to how they voted four years earlier. “LaHood is a personality,” he said. “And people don’t necessarily dislike personalities.”

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As Bail Reform Moves Forward in California, Defendant Who Advanced It Remains Incarcerated

Organizers with Resilience OC outside the Orange County Courthouse in Santa Ana
Credit: Max Rivlin-Nadler

As Bail Reform Moves Forward in California, Defendant Who Advanced It Remains Incarcerated

In California, as elsewhere in the nation, there’s a growing consensus that cash bail unfairly penalizes poor defendants, forcing them to sit in jail for months or even years pre-trial, while wealthier defendants walk free.

Last year, California nearly ended cash bail after a bill, SB 10, passed the State Senate and then stalled out in the Assembly over cost concerns this past summer. As the state’s legislative season began anew in January, legislators were determined to enact SB 10, buoyed by the state’s Chief Justice Tani Cantil-Sakauye recommending that cash bail be eliminated as soon as possible in a report released last fall.

In late January, meanwhile, a state appeals court ruled that defendants are entitled to hearings to determine their ability to pay their bail; if they cannot afford it, they must be offered alternative forms of bail, such as electronic monitoring and community supervision.

The decision centered on a San Francisco retiree, Kenneth Humphrey, who allegedly stole $5 and a bottle of cologne and was held on $350,000 bail. It became judicial precedent statewide on February 20, when California’s Attorney General Xavier Becerra declined to appeal to the state’s supreme court, announcing, “It’s time for bail reform now.”

On the day of Becerra’s announcement, Dulce Saavedra, a 24-year-old organizer with the youth organizing group Resilience OC, stood in front of the Orange County courthouse in Santa Ana, handing out flyers informing potential defendants and defense attorneys of their rights following the Humphrey decision. It was part of a day of action by reform groups across the state, who held simultaneous rallies and handed out flyers outside nine county courthouses.

“There’s no standardization when it comes to bail here,” Saavedra, told The Appeal. “You can get no bail set, or you can have your house, your mortgage, your whole life taken from you.” She stressed the need to not only eliminate cash bail, but to make sure it isn’t replaced with tools that may discriminate against people of color, like risk assessments, which attempt to predict how likely a defendant is to commit a new crime or fail to return to court. “Risk assessments are based on really racist criteria,” Saavedra said, “like … how much money do you make? do you have a home? do you own a home?”

As the end of cash bail in California draws nearer, Raj Jayadev, founder of Silicon Valley De-Bug, a community organizing and advocacy group based out of San José, which helped organize the statewide rallies last Tuesday, stressed that it’s up to community groups and advocates like Saavedra to push for the changes they want.

“We finally got to a place where this might happen,” Jayadev said, “and if we blow it now, if we get stuck with a bill that doesn’t reflect what we’ve been pushing for this entire time, then what was it all for? It’s going to be people in the courthouses holding prosecutors and judges accountable that make change happen, making sure they follow through, because they’re not just going to do it themselves.”

So advocates who had been flyering outside the Orange County courthouse sat in on the afternoon’s criminal arraignments, using surveys that had been distributed statewide to write down bail amounts that were being offered and to see if defense attorneys were requesting bail hearings (both criminal cases that afternoon were dismissed).

In places like Orange County, where the prosecutor’s office has a long history of misconduct, court-watching and community accountability are all the more important.

Credit: Max Rivlin-Nadler

“In Orange County, the DAs tend to feel like they can get away with anything,” said Ramon Campos, another organizer with Resilience OC. “From things like having snitches inside facilities to re-writing risk assessments where they can change what’s on that report and push for higher punishment for that person.”

In a state where over 60 percent of those detained in jail are being held pre-trial, ending cash bail would mean a seismic change in the criminal justice system, one that community groups and advocates feel they need to keep a close eye on.

“The community education part is really important,” says Campos. “If the attorney fails to ask for a hearing, the community can push them to do it. That knowledge just builds more and more power.”

Public defenders and advocates are already hitting resistance. Last Thursday, Kenneth Humphrey appeared in court to move forward with his own bail hearing. His San Francisco public defenders had arranged for a bed in senior housing and transportation, on the assumption that after the appeals court decision, he would receive another bail hearing and possibly be released.

But San Francisco District Attorney George Gascón’s office argued that the case had not yet been sent back down from the higher court, and the judge could not yet hold a bail hearing, even though other defendants in San Francisco had already been granted theirs. Humphrey, whose case sets a precedent that is already freeing people across the state, currently remains in jail.

“Everybody else in the state of California can now get a new bail hearing because of the Humphrey decision, and Mr. Humphrey himself cannot,” said Chesa Boudin, a deputy public defender in San Francisco who worked on Humphrey’s case with Civil Rights Corps, a nonprofit group that challenges systemic injustice in the American legal system. “The court of appeal and the state of California agree that Mr. Humphrey has been held in violation of his constitutional rights for over 275 days. And now the district attorney says no based on a technicality? They want him to wait another month before he gets the bail hearing that complies with minimum constitutional standards? It’s an outrage.”

The Humphrey decision may set the precedent for bail hearings, but it also shows how district attorneys, even supposed “reformer” DAs like Gascón, will throw up roadblocks between people who have not been convicted of crimes and their freedom. Gascón’s office has a history of setting bail for defendants even after risk assessment tools have recommended their release.

No date has been set for a bail hearing, according to Humphrey’s defense attorneys. In an email to The Appeal, Gascón’s office said the decision to delay Humphrey’s bail hearing was made by the court, and not at the urging of the DA’s office.

If passed this session, Senate Bill 10 would still not go into effect until 2020 at the earliest, meaning that for thousands of arrested individuals, the Humphrey decision could, for now, mean the difference between keeping their jobs and their homes, or languishing in jail simply because they don’t have the money to pay their bail. Groups like Resilience OC and others that rallied across the state see it as their duty to hold all of the actors in the criminal justice system, including Gascón, accountable for a radical change to the state’s bail policy.

“We need to be an everyday presence in the courtrooms,” says Jayadev. “We need judges spending the days before the bail hearings considering just what they’re doing to defendants when they set bail, and the impact it has on the communities they serve.”

Correction: This story has been corrected to note that Humphrey allegedly stole $5 and a bottle of cologne. He has not been convicted of stealing those items.

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