July 7, 2010

Summary

I learned a lesson when I found out that the police had closed my case without even interviewing [the rapist], or testing the rape kit. I learned that you cannot trust that the justice system will bring hope to you or bring your rapist to jail. You cannot hope that what went wrong will be righted.
—Justine, Springfield, IL, June 23, 2007
When a victim has a rape kit collected, she is doing everything that is asked of her in the immediate aftermath of a traumatic crime. How can we, on the one hand, encourage every rape victim to get a kit done regardless of whether she knows the suspect or not, while on the other accept that police discretion means many of these kits will never get tested? If we are going to go to the considerable and worthwhile effort to collect rape kits, the least we can do is test them to see what is there.
—Polly Poskin, executive director, Illinois Coalition Against Sexual Assault, December 8, 2009

Carrie was a high school student in 2008 when she was raped in an alleyway by her home in northern Illinois.[1] The man was a family friend of her father’s, but someone she barely knew. Immediately after the rape, Carrie went to the local hospital to have her body examined for a rape kit.

When police came to the hospital to interview Carrie, they indicated that they previously picked up the individual in question—for sexually assaulting the teenage daughter of a family friend. The police took Carrie’s rape kit with them when they left the hospital, and Carrie assumed it was tested.

After that night in the hospital, Carrie did not hear back from the police. She called once a day, then once a month. Six months after her rape Carrie finally received a call back from the prosecutor who reviewed her case. The prosecutor told her she was keeping the case open, but “didn’t have any evidence to move it forward.” Carrie inquired about the results of her rape kit, and was informed that it had not been tested because her case “would not be a strong candidate for prosecution.” When she asked the prosecutor’s office why, she was told that “it is too hard to prove that what happened to you was rape. You may think its rape, but it’s your word against his.”

When a person is sexually assaulted and reports the crime, she will be asked by the hospital staff or the police to consent to the collection of a rape kit. A rape kit is the DNA evidence gathered from an examination of the victim’s body, a process which can last between four and six hours. In Illinois, the police collect the rape kit evidence from the hospital, and are responsible for sending the rape kit to the crime lab for testing at the request of either the police or a state’s attorney’s office (“prosecutor’s office”). Testing a rape kit can identify the assailant, confirm a suspect’s contact with a victim, corroborate the victim’s account of the sexual assault, and exonerate innocent defendants.

Carrie mentioned that the police had told her they had arrested the suspect before on suspicion of rape, but the prosecutor told her that there was not enough evidence in either case to move them forward. In fact, the prosecutor told Carrie, “Maybe if we get this guy coming in again for rape, we can move forward. In acquaintance rapes, it helps to establish a pattern.” Carrie asked whether the prosecutor’s office would test her kit to see if it could link her rapist to any other cases, but the prosecutor declined the suggestion.

Carrie requested the police file in her case and was provided with a redacted version which indicated that the police had not interviewed the suspect, not interviewed other potential witnesses, nor considered the hospital examiner’s report, which indicated “vaginal swelling and tearing consistent with forced penetration.” As far as Carrie knows, her rape kit continues to sit in police storage, untested.

Carrie is not alone. In Illinois, of the 7,494 rape kits entered into law enforcement evidence over the past fifteen years by the 127 agencies that provided Human Rights Watch with rape kit data, only 1,474, or 19.7 percent, of rape kits booked into local law enforcement agencies could be confirmed as tested. This means that only one in five rape kits collected by law enforcement were definitely tested.[2] In Human Rights Watch interviews, the Illinois State Police indicated that a majority of sexual assault cases sent to the crime laboratory are eventually tested, although we were not able to confirm that using data received from local law enforcement.

Untested rape kits in Illinois represent lost justice for the victims who reported their rape to the police; many have lost faith in the criminal justice system. As one rape survivor told Human Rights Watch, “When I learned my kit would not be tested, and my case closed, I thought, why did I even report my rape? What was the point?”[3]

This report is the second installment in our national investigation of unprocessed rape kit evidence, and the failure to investigate and prosecute sexual assault in the US.[4]Illinois, according to the most recent Federal Bureau of Investigation (FBI) data, makes arrests in only 11 percent of the reported cases of rape (the national average is 22 percent), and the rape kit backlog both contributes to and results from this failure of justice.

In 2004 after news reports revealed thousands of untested rape kits in Illinois, then-Governor Rod Blagojevich announced that the state would attempt to address this backlog, and helped promote the passage of a law requiring the testing of all rape kit evidence by the state crime lab.[5]

In May 2010, during the course of Human Rights Watch’s research into the continuing rape kit backlog in Illinois, the state legislature, under the leadership of the Illinois Attorney General Lisa Madigan, passed a second law—the most comprehensive rape kit testing reform law in the US—to become the first state to definitively require that every booked rape kit be tracked and sent to the crime lab for testing. The governor is expected to sign the legislation but has not at the time of this writing. While the bill is a significant step forward and provides a potential reform model for other states to follow, the legislation’s success will require a commitment of resources, oversight, and enforcement from the legislature, the governor, and other major enforcement bodies.

The first law, the Sexual Assault Survivors Emergency Treatment Act of 2004, mandated that rape kits collected by Illinois state and local police on or after January 1, 2005, and sent to the Illinois State Police for testing were required to be tested by the ISP crime laboratory within one year. It also required the testing of every kit sent to the crime laboratory before January 1, 2005, within two years of the law’s enactment.[6]

The 2004 law’s provisions were vague and confusing as to whether they required every rape kit collected by law enforcement be sent to the crime lab for testing. Human Rights Watch found only six law enforcement agencies that thought they were obligated under the 2004 law to send every kit to the crime lab. As a result, the law seems to have had a limited effect on rape kit testing policies of police departments in Illinois. It is also not clear whether the law helped the ISP reduce the rape kit backlog in their crime laboratory, possibly because of a significant loophole in the 2004 law, that testing of every kit within the timeframes specified would only occur “if sufficient staffing and resources are available.” While the Illinois State Police may have needed more funds to eliminate the rape kit backlog, the auditor general, in a report issued in 2009, found that the ISP misused some of the state funds they were given to test rape kits and other DNA evidence.

Capacity constraints and limited resources may explain the number of untested rape kits at the crime laboratory, but cannot explain the large numbers of untested or unaccounted-for rape kits in police custody. Most individual police department policies that Human Rights Watch reviewed allow detective or department discretion in deciding which rape kits to send to the crime lab. Kit processing may be stymied on the level of investigating officers, who exercise their discretion not to send the kits to laboratories for any number of reasons; for example, if they presume that in cases of acquaintance rape the collected evidence is unnecessary, or that, even without interviewing a suspect, the case is too weak to move forward.

Some jurisdictions in Illinois empower their local prosecutors (state’s attorneys) to conduct what is known as a “felony review” of each potential criminal case in order to approve charges (other jurisdictions conduct similar reviews but may not officially refer to it as “felony review”). The state does not collect information on the ultimate disposition of each case of sexual assault. But while Illinois courts have ruled that felony sexual assault prosecutions may proceed where there is “credible victim testimony,” state’s attorneys reject many of these cases even in the presence of such testimony. This failure to lodge charges then indicates to police that processing collected rape kits would be futile. State’s attorneys also seem to stop the processing of kits by intervening directly with state crime labs, according to testimony collected by Human Rights Watch. Overall, the failure to process rape kits reflects an inadequate law enforcement response to the crime of sexual assault, one which violates the human rights of victims.

In response to the continuing backlog of cases since the 2004 law and news of significant numbers of untested rape kits in police storage facilities, and to address inadequacies of clarity and enforcement in the prior legislation, in May 2010 the Illinois legislature passed the Sexual Assault Evidence Submission Act, a landmark rape kit reform which was championed by Illinois Attorney General Lisa Madigan. The bill significantly expands upon the 2004 law—it mandates that every rape kit be sent to the crime lab within 10 days of its entrance into local law enforcement evidence and be tested within six months of its receipt by the crime lab; adds rape kit data reporting requirements; and requires the Illinois State Police to produce a plan to test every new rape kit it receives and to eliminate the current backlog. The law does contain the same testing requirement loophole that may have contributed to the mixed results of the 2004 Sexual Assault Survivors Emergency Treatment in reducing the crime lab backlog: the timeframe for crime lab analysis is contingent upon the availability of “sufficient staffing and resources.” The Illinois State Legislature has not yet appropriated any funds for the police and crime labs to implement this law.

According to the law’s provisions, the legislature may authorize funding for the law once the Illinois State Police submits a plan for analysis which will include resource needs. This plan is due to the legislature no later than February 15, 2011. Given that police departments across the state currently do not submit to the crime lab all of the rape kits they enter into evidence, successful implementation of the law will require, among other things, an increased fiscal commitment from the legislature to make this good law a practical reality. If the necessary resources are not made available to law enforcement and the crime laboratories to test every rape kit, Illinois must adopt a uniform decision-making process to determine which rape kits are tested. Objective criteria that are relevant to the probative value of the evidence to the case must guide this process.

During the course of our research into the rape kit backlog in Illinois, we encountered numerous obstacles which made it difficult to get an accurate account of the status of rape kits collected in the state, obstacles that also affect treatment of sexual assault in the state’s criminal justice system. There is a distinct lack of uniformity among jurisdictions in how rape kits are tracked by police and sheriff’s departments once booked into their evidence storage facilities. While the new 2010 law addresses some of these issues, at the time of our research, there were no state guidelines regarding how jurisdictions should track rape kits, record the status of rape kits, or format chain of custody and incident reports. Until Human Rights Watch requested the rape kit data from jurisdictions, many had never counted their untested rape kits or set up a system to track such kits.

Furthermore, some of the largest jurisdictions in Illinois did not respond to our data requests by the time this report went to press. Chicago, the state’s largest urban area by far with over 2.7 million people and at least 21 percent of the state’s population, provided limited data to Human Rights Watch; they agreed to audit the rape kits collected over the past two years but did not respond to our request for more comprehensive data. And although the Illinois Office of the Attorney General public records response training program given to over 500 law enforcement officers and 12,000 public agencies in the state, jurisdictions failed to respond appropriately to our public records requests.

There were also egregious instances of agencies providing, or failing to properly redact, sensitive identifying information in their public records responses. More than 25 agencies supplied victims’ names and 22 agencies also gave suspects’ names. In total, more than 1,000 victims’ names—nearly 100 of them child victims—were handed over to Human Rights Watch from public records requests. Victim and suspect addresses, telephone numbers, and social security numbers were also given by a number of law enforcement agencies. Several agencies submitted the private information of juvenile victims. DNA test results were also mailed to Human Rights Watch in response to the public records request, which did not—and could not legally—have sought such information. These errors in public record data management occurred despite the fact that the Illinois Office of the Attorney General offers comprehensive data training to law enforcement offices in Illinois. It is troubling that, despite receiving adequate public records training, law enforcement departments continue to make these serious mistakes.

Despite these obstacles, we have been able to capture a significant portion of the number of untested rape kits in Illinois. In total, from rape kit information provided by 127 law enforcement agencies to Human Rights Watch, at least 7,458 rape kits were entered into law enforcement storage in Illinois in the past 10 years, of 16,738 rapes reported in recent years. Only 31 percent of reported rapes resulted in the administration of a rape kit. Law enforcement agencies reported that 3,547 (47.6 percent) of these kits were sent to crime labs, and knew that only 1,474 (19.7 percent) of the kits were tested although the Illinois State Police told Human Rights Watch a majority of rape cases sent to them are eventually tested. Police and sheriff’s departments also reported that a total of 4,173 kits were presently stored in local facilities, 38 rape kits were stored with the Illinois State Police, and 1,890 kits were known to be destroyed.

Figure 1—Status of Rape Kits Entered into Evidence by Police and Sheriff’s Departments in Illinois

Source: Data received in response to Human Rights Watch public records requests.

Note: One hundred twenty-seven police and sheriff’s departments provided sufficient data for analysis on both reported rapes and rape kits (N=7,458).

 

Figure 2—Portion of Total Rapes Reported to Police Departments in Illinois Resulting in Tested Rape Kits

Source: Data received in response to Human Rights Watch public records requests.

Note: Eighty-four police departments provided sufficient data for analysis on both reported rapes and rape kits.

 

Figure 3—Location of Collected and Confirmed Untested Rape Kits in Illinois

Source: Data received in response to Human Rights Watch public records requests.

Note: One hundred twenty-seven police and sheriff’s departments provided sufficient data for analysis on both reported rapes and rape kits (N=7,458).

In addition to untested rape kits in police storage facilities, Human Rights Watch also found other failures reflective of the inadequate law enforcement response to reported sexual assaults: a shortage of sexual assault nurse examiners (SANEs) to perform rape kit collections; insufficient hospital treatment facilities for rape victims; and testing delays at the state crime laboratory.

This report focuses primarily on the number of untested rape kits Human Rights Watch found in police storage facilities, using data from Human Rights Watch public records requests. It also points to larger concerns with the state crime lab’s current capacity to handle the influx of untested rape kits it will receive from police departments when the 2010 Sexual Assault Evidence Submission Act goes into effect, assuming it is signed by the governor. The 2010 law will require the Illinois State Police to come up with a plan to test this influx of rape kits, and we urge the legislature, when presented with the plan, to appropriate the necessary funds required to implement the ISP plan.

If Illinois public officials wish to implement good public safety policy standards and conform to human rights law they should move decisively to comply with the 2010 law and eliminate untested rape kits in Illinois, and more vigorously investigate and prosecute reported cases of rape. Rape victims deserve justice and the people of Illinois expect law enforcement to do all they can to prevent future crime. International human rights law requires police to investigate reports of sexual violence and take steps to protect individuals from sexual assault. The United States is party to a number of treaties that acknowledge rape as a human rights abuse and require the US to ensure the protection of its citizens from sexual assault and rape. These treaties also entitle victims of violations to an effective remedy, placing obligations on the US to ensure there is effective access to justice when such crimes are committed.

For example, the United States is party to the International Covenant on Civil and Political Rights (ICCPR), and to the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (“Convention against Torture”), both of which set out important standards for victims of rape.[7] The ICCPR guarantees the right to security of the person under Article 9, which includes a right to protection of bodily integrity against third parties.[8] Both the Convention against Torture and the ICCPR (under Article 7) guarantee the right to be free from torture and cruel, inhuman, or degrading treatment.[9] International tribunals and other bodies have established that rape is covered by these prohibitions on torture.[10]

The United Nations Human Rights Committee (HRC) has made it clear to states party to the ICCPR that they must “take appropriate measures or … exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.” [11] The Committee against Torture requires states party to prevent and protect victims from gender-based violence and rape by exercising due diligence in investigating, prosecuting, and punishing perpetrators—even private actors—of rape and sexual assault. [12]

Specifically, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obligates states party to combat discrimination against women.[13] The Committee on the Elimination of Discrimination against Women, the treaty body that interprets and monitors compliance with CEDAW, has affirmed that violence against women is a form of discrimination against women, and that states party to it should have effective legal, preventive, and protective measures in place to provide justice for victims, hold offenders accountable, and protect society from future acts of sexual violence.[14] While the US has not ratified CEDAW and is therefore not a full party to the treaty, it did sign the treaty in 1980 and therefore still bears a number of legal obligations including, at a minimum, not to act in a way that would undermine the intent and purpose of the treaty.[15]

The Inter-American system, of which the US is a member, pays special attention to violence committed against women and children.[16] The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“the Convention”) prohibits violence against women and affirms a woman’s right to physical integrity and security. It further requires state parties to act with “due diligence to prevent, investigate and impose penalties for violence against women.”[17] Since rape is a crime that is primarily committed against women, states party to the Convention have a special obligation to respond to and prevent rape and sexual assault. The United States is one of three members of the Organization of American States that has not ratified the Convention.[18]

Bearing in mind these standards, governments should take the necessary measures to avoid the significant consequences of delayed or denied justice for victims of rape. Illinois is grappling with those consequences, and the 2010 Sexual Assault Evidence Submission Act provides unprecedented potential for rape reform. Given the large number of untested kits in Illinois local law enforcement storage and the significant resources necessary to complete the task, resolving the way Illinois deals with its untested rape kits and ensuring the success of the 2010 law will require the continued leadership of many of Illinois’s elected officials. In order for laws like the Sexual Assault Evidence Submission Act to have concrete results for rape victims, Illinois will need to demonstrate greater commitment, in both oversight and resources, to enforcing its laws on rape kits. The value a state places on its rape kits is one measure of how seriously it takes the crime of rape and the victims who report sexual violence. Testing rape kits has a practical effect on criminal justice outcomes, but it also sends an important message to rape victims—that their cases matter.

[1] Human Rights Watch telephone interview with Carrie (last name withheld), northern Illinois, August 3, 2009.

[2] The Illinois State Police crime laboratory also provided Human Rights Watch with data on the aggregate annual total of cases of sexual assault evidence submitted to the crime laboratory and aggregate cases of sexual assault evidence moved forward through the testing process. This data was not used in our calculations because it was not specific enough to track each rape kit from its collection from the victim to its current status; extraction beyond the aggregate was not possible.

[3] Human Rights Watch telephone interview with rape victim, Illinois, October 26, 2009.

[4] Human Rights Watch, Testing Justice: The Rape Kit Backlog in Los Angeles City and County, March 2009, http://www.hrw.org/en/reports/2009/03/31/testing-justice-0.

[5] Ray Long, “State to target DNA cases; Budget will aim at backlog, take cops out of office,” The Chicago Tribune, February 13, 2004.

[6] Sexual Assault Survivors Emergency Treatment Act, 410 ILCS 70/6.4, ch. 111 1/2, par. 87‑6.4, “Sec. 6.4. Sexual assault evidence collection program,” http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1531&ChapAct=410%A0ILCS%A070/&ChapterID=35&ChapterName=PUBLIC%20HEALTH&ActName=Sexual%20Assault%20Survivors%20Emergency%20Treatment%20Act (accessed May 13, 2010), a‑5. Emphasis added.

[7] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976,, ratified by the United States on June 8, 1992; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the United States on October 21, 1994.

[8]ICCPR , art. 9. The UN Human Rights Committee (HRC), which oversees the implementation of the ICCPR, has confirmed that the right to security of person in Article 9 means that persons have a right to protection from interference with their personal integrity by private persons, see, for example, Delgado Paez v Colombia, No. 195/1985, Decision of July 12, 1990.

[9] ICCPR, art. 7; and Convention against Torture.

[10] See, for example, Aydin v. Turkey, Eur. Ct. of H.R., Judgment of 25 September 1997, paras. 62-88; Prosecutor v. Furundija, ICTY, Case No. IT-95-17/1-T, Judgment of 10 December 1998, paras. 163-86.

[11]UN HRC, ICCPR, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument (accessed June 23, 2010).

[12] UN Committee Against Torture (CAT), General Comment No. 2, Implementation of article 2 by States parties, CAT/C/GC/2 (2008), http://www.unhcr.org/refworld/publisher,CAT,GENERAL,,47ac78ce2,0.html (accessed June 23, 2010).

[13] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, signed by the United States on July 17, 1980.

 

 

 

 

[14]Committee on the Elimination of Discrimination against Women, General Recommendation No. 19, Violence against women, UN Doc. A/47/38, para. 24 (t), (1992), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19 (accessed June 23, 2010). The Committee on the Elimination of Discrimination against Women authoritatively interprets and monitors state compliance with CEDAW.

[15]Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force January 27, 1980, article 18.

[16]The Organization of American States (OAS) is a regional organization which hosts a number of institutions known as the Inter-American system. Its founding document is the 1948Charter of the OAS and it has 35 independent states of the Americas, including the US which was one of the original members in 1948.

[17] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, adopted June 9, 1994, OAS/ser.L/II.2.27, CIM/doc.33/94, entered into force March 5, 1995, http://www.oas.org/cim/english/convention%20violence%20against%20women.htm (accessed June 23, 2010), art. 7 (b).

[18] Canada, Cuba, and the United States have not ratified the Convention. However, from 1962 until June 3, 2009, Cuba was suspended from participating in the Inter-American system, a suspension that was lifted by OAS Resolution AG/RES. 2438 (XXXIX-O/09), http://www.oas.org/dil/general_assembly_resolutions_39_regular_session_honduras_june_2009.htm (accessed June 23, 2010).