Illinois Passes Law Requiring That All Rape Kits Be Tested

by Cara on July 8, 2010

in law enforcement, legislation, misogyny, patriarchy, rape and sexual assault, violence against women and girls

As reports of untested rape kits across the U.S. just keep on rolling in, Illinois has passed a law mandating that every rape kit be tested.

Facing criticism that physical evidence from sexual assault cases in Illinois often went unanalyzed, Gov. Patrick J. Quinn this week signed a law requiring the police to test all rape kits. State officials and victims’ advocates said it is the first such law in the nation.

Over the past year, critics had exposed a backlog of thousands of untested rape kits in Illinois, and officials said the law would send an important message.

“As a direct result of this law, we will increase the number of arrests and prosecutions of sex offenders and get them out of our communities and into prison,” said Lisa Madigan, the state’s attorney general.

On Wednesday, Human Rights Watch released a report showing that since 1995, only about 20 percent of rape kits, which contain physical evidence obtained from victims, could be confirmed as having been tested in Illinois. More than 4,000 kits had gone untested, the report found.

Under the Illinois law, local authorities must submit evidence collected from a sexual assault criminal investigation to the state crime laboratory within 10 business days. The evidence must be tested within six months “if sufficient staffing and resources are available,” according to the law.

As the article goes on to note, that’s quite the mighty loophole. It’s going to require that advocates stay on top of the issue and force the government to make sure that resources are indeed available. The Chicago Tribune provides more details on the funding situation.

But with the admittedly optimistic hope that things might go according to plan, the passage of this law is an important moment. It takes some degree of responsibility for the rape kit backlog, and acknowledges it as a legitimate problem. It also sets a new minimum standard regarding response for other states dealing with the exact same issue. It’s sad that this is the first law of its kind, when it requires nothing more than basic responsibility to crime victims. But it’s positive that type of law that was well overdue for its first finally has one.

Of course, there are good reasons to ensure that rape kits don’t come to be seen as the be all and end all of sexual violence investigations. Rape kits are primarily useful in cases where the perpetrator is unknown, or a particular suspect denies any sexual contact with the accuser. In cases where a victim knows hir rapist and the accused claims that all sexual contact was consensual — a majority of cases — the rape kit doesn’t do a whole lot. Unless there are major physical injuries, which there usually aren’t, a rape kit can’t really tell anyone whether the contact was consensual or non-consensual.

But I say that anyone who subjects themselves to what is usually the indignity and invasion of a rape kit examination damn well deserves to have hir law enforcement agency take that effort and sacrifice seriously. Sexual assault victims don’t go for rape kit examinations because they think it will be fun — they usually go because they want justice, and want and expect to be taken seriously by investigators. They go because they rightly think that the violation of their bodies matter. And everyone else needs to start acting like those violations matter, too.

Further, while rape kits are frequently not integral to the rape case for which they were taken — again, where the accused admits sexual contact — with only about 20% of rape kits being tested, it seems that we sure as hell can’t trust police to pick and choose which kits are processed. Additionally, such kits can help to link known suspects to other crimes where a suspect’s DNA is unidentified. The failure to test rape kits is one way that a lot of serial rapists go undetected for years. And while the number of such cases may be low compared to the overall number of rape kits that are tested, I’d say that in a climate where rape accusers are so rarely taken seriously by police, overkill is both a nice change of pace and a potential show of good faith to do right by sexual assault survivors in the future.

If the law is implemented properly, I think Illinois will see an increase in identifying unknown perpetrators, and linking perpetrators whose identities are known to other sex crimes where there was no DNA match. And that is a good thing, an important thing, even though it’s not the only thing.

Rape myths will persist. Rape apologism will continue largely unchecked. Undoubtedly, police will still fail to follow up on cases even when all rape kits are tested. And even serial rapists will walk free. But if the law is actually enforced, victims won’t be traumatized by what they frequently refer to as “the second rape,” only to find out that they went through the process just to have their kit sit untested on a dusty shelf years later. That alone, in my view, may not be enough, but is well worth the passage of this law and every single dollar spent to put it into effect.

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{ 10 comments }

1 RD July 8, 2010 at 3:16 pm

Ugh, I am kind of hating the coverage of this case. NYC you know has a similar law, but it didn’t do anything for me the one time I decided I would go through a rape kit and report the crime. They have another loophole, they can refuse to investigate the case in the first place and leave the kit with the hospital…in my case seemingly because of anti-sex worker bias. I tried to leave the sex work thing out of it for obvious reasons but they figured that out questioning me and then they decided I had been dishonest with them somehow. One of the things they actually said to me after that was “so what makes it ok Monday Tuesday or Wednesday but not Thursday?” At least they didn’t arrest me.

SWP at the UJC took my case…I was already getting social services there and my therapist offered to talk to one of the lawyers about this specific thing…I wound up letting it go but I did learn, don’t report anything to the police (I really already knew this), or you’ll get treated how I was treated, go straight to the DA.

2 RD July 8, 2010 at 3:21 pm

That shift from being taken seriously to being yelled at and humiliated was not very pleasant. I was physically injured too, although not very seriously.

3 RD July 8, 2010 at 3:22 pm

I mean from the guy who did it, not the cops to be clear.

4 SunlessNick July 8, 2010 at 8:10 pm

RD, I am so sorry.

5 Barbara July 8, 2010 at 11:41 pm

RD, I am so sorry to hear of your bad experience with the cops…makes me sick what they said to you. Do they have Sexual Assault Victim Advocates in your state? We have one here (I used to be one). Its a volunteer that is trained and will go with you to the hospital and sit with you and talk to the cop for you if you don’t want to. They also go to court with you or just offer support. Many of the women I met were sex workers and it added insult to injury for them to have to be treated like it was OKAY for them to be raped. No means no. I am sorry.

Yeah for Illinois for doing this!

6 RD July 9, 2010 at 1:02 am

I moved from NY back to CO. SWP was advocating for me but they can’t keep doing that after I left the state.

7 Katrina July 14, 2010 at 12:28 pm

I wonder if so may rape kits are not tested because very few cases are taken seriously enough to make it to court. That’s not an excuse, but it does seem like a possibility. The DNA should definately be in the system since most rapist attack multiple women before they are caught. Especially since lack of evidence is a common reason for a case to fall through the cracks. I think the rape kits not only have to be tested, but then used in court trials before a decent increase in convictions is seen.

However, one part of this post was actually a trigger for me that Cara may not realize. I doubt I’m the only one so I feel like putting in my two cents. The paragraph is below:

“Of course, there are good reasons to ensure that rape kits don’t come to be seen as the be all and end all of sexual violence investigations. Rape kits are primarily useful in cases where the perpetrator is unknown, or a particular suspect denies any sexual contact with the accuser. In cases where a victim knows hir rapist and the accused claims that all sexual contact was consensual — a majority of cases — the rape kit doesn’t do a whole lot. Unless there are major physical injuries, which there usually aren’t, a rape kit can’t really tell anyone whether the contact was consensual or non-consensual.”

This isn’t the case. A lot of boyfriends will refuse to wear a condom and rape the woman even if the woman would have consented to safe sex. In this case, the rape kit would be very important to prove that he had no consent and refused to have consexual sex and chose to rape. Safe sex with birth control was the main arguement I had with my boyfriend who raped me. He only wanted to use a condom and was very angry when he found out I was using spermicide myself. He wanted full control over wheather I became pregant/had an orgasm/stayed thin, ect. So, I find it very annoying when people jump to the conclusion that consentual sex invovles seman on the woman. I seriously doubt I’m the only woman on earth who only consents to safe sex and would want seman found on/in me from my boyfriend taken as seriously as seman from a stranger.

I know Cara is not shrugging off date rape or the need to report date rape and be seen by a doctor afterwards. I also apologize if I misunderstood the paragraph due to my own experiences. But that perticular misconception that rape kits have more weight when the rapist is unknown really hits close to home.

8 Cara July 14, 2010 at 8:51 pm

Hi Katrina,

I apologize that my wording was unclear, and very sorry that I triggered you as a result. I made the faulty assumption that we were all starting from the same place regarding how rape allegations and defenses usually work, and didn’t explain my thoughts as well as I should have. I wasn’t making an argument regarding what consensual or non-consensual sex looks like. A lot of rapists use condoms, a lot of rapists don’t. A lot of consensual sex involves a condom, and a lot of consensual sex does not.

What I was saying was this: in a case where a victim knows hir rapist, what is in dispute in the eyes of the law is whether or not the sexual contact was consensual. Almost always in these cases, the alleged rapist does not deny sexual contact, but claims it was consensual. Therefore, DNA evidence from the alleged rapist does not take the case further — the alleged rapist is already acknowledging that such DNA should be present. This is in contrast to most rapes where a victim does not know hir assailant, in which case the rapist usually claims that sie was not the attacker, and someone else was. In this case, DNA is useful, as it can identify whether or not the accused is really the party at fault.

In a case where a woman agrees to sex with a condom, and a man refuses to wear one and then rapes her, as consent for unsafe sex was not present, I’m afraid that in the eyes of the court system the presence of semen would not do much. It is of course what the actual rape is based upon, but it is not what the rape case in court would be based upon. If a victim’s case is based on the notion that she did not consent to sex without a condom, the rapist won’t claim that he actually wore a condom — he’ll just claim that consent was not dependent on a condom, and he didn’t need to wear it.

In other words, there are basically three defenses when one is accused of rape: 1) the sex was consensual, 2) the sex didn’t happen, and 3) the rapist was someone else. In cases where the rapist knows that DNA evidence proves that sex did happen and that he was the one who did it, he will virtually always either plead guilty or use the first defense. It’s not that a rape kit contains no evidence when a victim knows hir rapist — it’s that with regards to a rapist’s defense, that evidence isn’t useful.

Does that make sense? If I’ve misunderstood your argument or missed one of your points, please do let me know. I’m more than happy to talk about this further!

9 Katrina July 19, 2010 at 10:00 am

In the end, I’m annoyed by the fact that a rape victim has to be beated and/or killed before anyone will believe her/him/hir and then the victim may still be slut-shamed, discredited, ect. even with the injuries. It’s not so much the use of the term in this post, so much as the existance of the term that rubs me the wrong way. Now I realize you were seeing the rape kit as evidence for trial while I was seeing it as part of the victim’s proof the rape happened. It is also true that accidents happen. I would not get a rape kit after a condom breaks by accident during consentual sex, so my example is in a gray area. Hell, I wouldn’t be surprised if a rapist actually used that as a lie/cover story at one point. It’s just a gray area that happens far too often in abusive relationships.

In short I just wanted to state that rape kits should be taken seriously even if the rapist will defend himself by lying. Hell, some times rapist will claim that bruises happened because the woman wanted rough sex. So even physical evidence can become weaker in court. I’m not a member of the SM or BD community so i can’t comment on that stigma very well. But it is annoying that evidence loses weight just because rapist lie and are believed, while rape victim’s have little credibility because society assumes all victim lies.

I also have to make an edit to my post. I had that arguement with my EX-boyfriend. It took me nearly a year and a half, but I got away from him. It still affects me on and off 3 years later, but he can’t cause any new damage. :)

10 Cara July 20, 2010 at 10:15 pm

Katrina, I think your observation that I’m treating rape kits as legal evidence probably explains any disconnect we were experiencing. I definitely do think of rape kits as primarily legal tools and believe that this is how they’re primarily used and intended — but you’re absolutely right that not all victims who undergo rape kit testing ultimately choose to report, and some undergo testing for wholly personal, non-legal reasons, and it’s important to remember that. Thanks for the reminder.

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