The Sexual Assault Survivors’ Rights Act Is Not Enough

Once again, prompted by the conviction of a former Stanford swimmer for penetrating an unconscious victim, campus sexual assault has been catapulted to the forefront of an ongoing national conversation. Yet unlike most campus rapes, this one was treated as a crime.

Police fully investigated the case and made an arrest. Prosecutors pursued charges. Jurors deliberated and were convinced of guilt beyond a reasonable doubt. At the end of the process, notwithstanding the judge’s remarkably lenient sentence, the victim was able to say that “the truth won” and “justice was served.” This validation is a criminal-justice system success that, amidst outrage over the defendant’s sentence, should not be overlooked.

Unfortunately, however, few survivors of sexual violence are vindicated by the criminal-justice system. Most allegations never even result in an arrest. With this problem in mind, the Senate unanimously passed the Sexual Assault Survivors’ Rights Act last month. The survivors’ bill of rights, as it is being called, would require the preservation of “rape kits” at no cost to the victim until the lapse of the statute of limitations. The bill would also establish a working group “to develop, coordinate, and disseminate best practices regarding the care and treatment of sexual assault survivors and the preservation of forensic evidence.”

The proposed law has rightly been heralded as movement in the right direction (although to address the enormous backlog of untested kits, state laws requiring actual testing and federal funding to do so are also critical).

Even so, as a survivors’ “bill of rights,” the legislation is woefully inadequate. Destroyed and shelved rape kits are a significant issue. But untested kits are symptoms of a much bigger problem—police failures to enforce rape law. The preservation of rape kits will not change the realities of gender bias in policing sexual assault. Rather, as I argue in a forthcoming paper, the discriminatory policing of sexual assault demands federal redress.

According to recent FBI statistics, police make arrests in only seven of every 100 rapes. The mishandling of rape cases by police has been documented across the country, including in Los Angeles, Baltimore, St. Louis, New Orleans, New York, Salt Lake County and Missoula, Mont. Police bias is particularly acute in cases involving women of color, immigrants, LGBTQ individuals, women in poverty and sex workers. Overall, as compared to incidents involving strangers, law enforcement officers tend to view non-stranger rape with far greater skepticism.

A 2015 study of the policing of sexual assault in Detroit shows notably deficient investigative practices. In the most thorough examination of untested rape kits to date, researchers discovered that cases where suspect identity was not an issue—that is, cases involving acquaintances—were typically not considered worthy of investigation. In hundreds of interviews, police officers indicated that, contrary to conventional wisdom, the failure to submit a rape kit for testing reflected a decision not to pursue the case, rather than a decision to pursue it without additional corroboration. In other words, the kits were shelved because the allegations had already been disregarded, not because the cases were perceived as sufficiently strong that the cost of testing was deemed unjustified.

As the Detroit study shows, shelved and discarded rape kits are signs of a massive policing failure. Sexual assault survivors confront a law enforcement regime predisposed to dismiss, rather than pursue, their complaints. Until this systemic bias is eliminated, preserving rape kits will not come close to doing enough for survivors whose rights are violated when the state withholds its protective resources.

One positive step is the Justice Department’s recent guidance for identifying and preventing gender bias in law enforcement’s response to sexual and domestic violence. While these interventions alone cannot close the enforcement gap, they nonetheless represent meaningful progress toward guaranteeing the right to equal protection of the laws.

According to Sen. Jeanne Sheehan, who authored the Sexual Assault Survivors’ Rights Act now awaiting a vote in the House of Representatives, the goal “is to change the culture around how sexual assault survivors are treated as they pursue justice.” This is a most worthy imperative, one that ought to catalyze a desperately needed set of reforms. As the survivors’ “bill of rights” moves forward, lawmakers would do well to recognize that preserving rape kits is only a start. Sexual assault survivors have the right to bias-free policing and, beyond, to a measure of justice.