July 7, 2010

III. Keeping Track of Sexual Violence in Illinois

One way to measure what the government cares about is what they choose to collect data on. One of the great hurdles of my work on sexual violence is the lack of comprehensive data available for us concerning criminal justice outcomes for felony sexual assault.
—Kaethe Morris Hoffer, legal director, Justice Project Against Sexual Harm of the Chicago Alliance Against Sexual Exploitation[22]

Rape is a crime with serious consequences, and it demands serious attention. The traumatic impact of sexual violence is widely accepted by experts, as documented by years of academic and government studies.[23] As far as Human Rights Watch can tell, no agency in Illinois tracks the status, progress, and outcome of rape cases from the moment the rape is reported until the resolution of the case—making it very hard to get accurate data on the true rate of reported rapes that lead to an investigation, arrest, or other criminal justice outcome. In fact, numerous experts on sexual violence that Human Rights Watch spoke with identified the lack of comprehensive case-tracking systems, including the tracking of forensic evidence like rape kits, as a key barrier to understanding what is happening with rape cases in the Illinois criminal justice system and what effect rape kit collection and testing has on case outcomes.

Incidences of Sexual Violence

At least 4,118 individuals reported being raped in Illinois in 2008, the last year for which Human Rights Watch has data for the entire state—an average of more than 11 rape reports made to the police every day.[24] These reported rape cases include sexual crimes committed against both adults and children. Illinois, like much of the United States, is currently experiencing a historic low in reported rapes, although it is important to note that rape is traditionally an underreported crime. Comprehensive academic studies estimate that reported rapes represent 10 to 20 percent of all rapes, and that one in every six women in the US will be the victim of a rape or an attempted rape in her lifetime.[25] Polly Poskin, executive director of the Illinois Coalition Against Sexual Assault, an association of community-based rape crisis center, said, “We know that most rapes go unreported. It is a very hard crime to report, especially given how many cases languish before being closed without an arrest or charges.”[26]

While reported rapes have decreased in Illinois in the past decade arrest rates—the number of reported rapes leading to an arrest—have also declined. In 1999 the arrest rate for rape in Illinois was 17 percent, meaning a rape victim who reported her rape had about a one in six chance of seeing an arrest in her case. In 2008 the arrest rate for rape in Illinois had declined to 11 percent, meaning a rape victim who reports her rape has about a one in nine chance of seeing an arrest in her case. Illinois’s 2008 arrest rate of 11 percent was well below the national average calculated by the FBI of 22 percent.[27]

While the declining arrest rate for sexual violence in Illinois may involve many factors, studies have shown that testing rape kits has an effect on the arrest rate for rape. For example, when New York City eliminated its rape kit backlog and implemented a policy of testing every future booked rape kit, the city’s arrest rate for rape skyrocketed from 40 percent to 70 percent.[28]

Illinois’s data management failure is symptomatic of its poor response to rape. We compared Illinois data provided to us for exactly the same years and jurisdictions with that contained in the state’s Uniform Crime Reports (UCR). Only four cities provided the same number of reported rapes in data sent to us and to the UCR. Data a jurisdiction provided to Human Rights Watch and the data provided to the UCR differed by as much as 275 percent. This comparison provides evidence of inconsistencies in the reporting of rape statistics and the need for data management systems—and protocols for reporting rape statistics—to be standardized throughout the state’s police and sheriff’s departments. We believe that the poor data management is indicative of a broader failure to respond to rape in the state of Illinois.

Police alone are not to blame for the poor criminal justice response to rape. In various jurisdictions in Illinois,[29] prosecutors (referred to as state’s attorneys) are involved early in an investigation through a process that some jurisdictions refer to as “felony review” (other jurisdictions have similar programs, but do not refer to them as “felony review”). With each practicing jurisdiction creating its own felony review (or felony review-like) procedures, police can charge a person with a felony only after they obtain pre-approval of the charges from a state’s attorney. For this reason, police will often wait to proceed with a rape investigation (including making an arrest) until the state’s attorney’s office has finished the review process and has either accepted or rejected the case for charges. Human Rights Watch spoke with a police official in Illinois who noted, “If the state’s attorney is going to reject the case, we don’t want to put a lot of work into it until we know for sure the case is going to move forward with them. I often wait to proceed too far in a case until I know what the state’s attorney is going to do with it.”[30] This can have an adverse effect on ensuring arrests and prosecutions for any case awaiting felony review, including rape cases. As one rape victim advocate told Human Rights Watch,

When police place a sexual assault investigation on hold until they get word of the felony review outcome … the state’s attorneys are getting cases presented to them without much investigative information, which in turn may make it more likely that the state’s attorney will reject the case because of weak evidence. And once a state’s attorney rejects a case, the police are going to close the case because they know it is not going to go anywhere.[31]

The process of felony review may have a dampening effect on arrest rates. There is no comprehensive, publicly available state data on the charging, prosecution, and conviction rate for the crime of felony sexual assault. However, from interviews, Human Rights Watch heard anecdotal evidence of the difficulty of getting charges of felony sexual assault approved by the prosecutor’s office.

Rape advocates’ frustration with the felony review process in Illinois was summed up in a letter from 10 sexual assault groups in Illinois to the Cook County (Chicago) State’s Attorney’s Office. They note that in Illinois, while case law holds that “credible victim testimony” is sufficient to support a felony sexual assault conviction and that “corroborating evidence” is not necessary, state’s attorneys seem to require additional evidence from rape cases in order to authorize charges.[32] The letter states:

We believe that the Cook County State’s Attorney’s Office is generally not
authorizing felony charges for sexual assault reported by victims of non-strangers unless there is “corroborative evidence” such as bodily injury, a third-party witness, or an offender confession … This practice protects most rapists from the threat of criminal prosecution, devastates most victims who seek criminal justice assistance, and leads to the continued silence of most victims of sexual assault.[33]

These advocates included a list of 22 women raped in Cook county whose cases were not approved for felony charges by the Cook County State’s Attorney’s Office despite the presence of “credible victim testimony.”

The state’s attorney’s review process seems to influence what happens to a victim’s rape kit. Human Rights Watch heard from seven rape victims who were told by police that they were not going to submit the rape kit in their cases for testing until the state’s attorney’s office in their case had authorized felony charges.[34] The Illinois State Police crime lab revealed that they sometimes returned untested rape kit evidence sent to them for testing once they were told (either by the state’s attorney’s office directly, or from the police department that sent the kit for testing) that the case had been rejected by the state’s attorney’s office for felony charges.[35]

In some cases, police departments were unaware that the rape kits they sent to the crime lab had been returned untested because of a failure by the state’s attorney’s office to authorize charges. For example, the Chicago Police Department, which told Human Rights Watch that it sends every booked rape kit to crime lab for testing, recently discovered that some were being returned untested.[36] In February 2010, at the request of Human Rights Watch, the Chicago Police Department conducted a storage facility audit of rape kits collected between 2007 and 2009, and found that 88 rape kits sent to the crime lab were returned untested; an unspecified number of those were returned because the state’s attorney had closed the case.[37]

National studies have shown that cases in which a rape kit was collected and contained DNA evidence of an offender were significantly more likely to move forward in the criminal justice system than cases in which there was no rape kit collected, or in which none was tested.[38] Studies have also found that the existence of forensic or physical evidence, such as the type of evidence stored in a rape kit, is an important predictor of prosecutors’ decisions to bring charges in a case.[39] There is also emerging evidence that juries have come to expect DNA evidence in order to convict a defendant.[40] These findings point to the importance of rape kit collection—and testing—for prosecuting cases of sexual assault.[41]

Data on Illinois’s Rape Kit Backlog

During the course of its research into the rape kit backlog in Illinois, Human Rights Watch 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 for tracking rape kits by police and sheriff’s departments once booked into their evidence storage facilities lack uniformity across jurisdictions. While the 2010 Sexual Assault Evidence Submission Act will enhance how rape kits are tracked in the state,[42] at the time of this report’s printing, there are 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, many police departments had never counted their untested rape kits or set up a system to track such kits.

In total, from rape kit information provided by 127 agencies to Human Rights Watch, at least 7,494 rape kits were entered into law enforcement evidence in Illinois in recent years falling within the requested dates of 1995 to 2009. Law enforcement agencies reported that 3,568 (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. 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.

Human Rights Watch found that in Illinois, most (69 percent) reported rapes do not result in the administration of a rape kit. Police and sheriff’s departments could only confirm that 6 percent of reported rapes resulted in the testing of a kit by a crime lab. Departments confirmed that more kits were known to be untested than tested. Less than 20 percent of rape kits entered into law enforcement evidence could be confirmed as tested, compared with over 25 percent that were confirmed as destroyed.

Human Rights Watch is deeply troubled by the difficulty encountered gaining access to rape kit data in Illinois, and believes it indicates systemic failure to prioritize and process rape kits in the state. Many law enforcement entities do not have electronic data tracking systems, meaning they had to go through their paper files to try to determine the number of rape kits booked into their storage facilities and the testing status of the kit. Our requests for these simple records were often rejected because of the burdensome nature of the paper search. Other jurisdictions simply resorted to photocopying their incident and chain of custody reports, which presented information in many different formulas and formats. Follow-up phone calls would sometimes clarify the information we sought, but not always. For some jurisdictions, we were unable to establish information on rape kits because of a lack of clarity in the records provided to us. The response from a public records official from Park Ridge Police Department to our question about what certain records meant is typical: “We simply don’t know. Your guess is as good as mine.”[43]

The manner in which different law enforcement agencies responded to the identical public records request highlights the chaotic nature of law enforcement data management in Illinois, and the need for the data tracking requirements contained in the 2010 Sexual Assault Evidence Submission Act and other standardized data management protocols. The majority of agencies provided their data electronically; however, at least 35 agencies mailed Human Rights Watch boxes or envelopes of paper documents, and several agencies mailed us nearly 1,000 separate documents. While 51 percent of agencies who provided us with information did so in a single document containing data, the other 49 percent sent multiple types of documents requiring Human Rights Watch to piece together whether reported rapes resulted in rape kits being taken and whether rape arrests occurred.[44] Several agencies simply submitted police narrative reports of all reported rape cases, which required Human Rights Watch to determine through reading the narratives whether rape kits were taken in each case.

There were also 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. In an egregious error, 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.

Illinois is not alone in its struggle to maintain rape kit data. According to a 2009 report prepared for the National Institute of Justice, researchers surveyed over 2,500 police departments across the country and found that “larger police agencies reported significant difficulty answering questions about unsolved rape and property cases because this information was not maintained in a centralized system.”[45] In fact, 60 percent of law enforcement agencies who responded to the national survey did not have computerized tracking systems for their evidence.[46]

Determining what Illinois does with the rape kits collected by the police is important to addressing sexual violence in Illinois, and providing justice to the thousands of victims who report their rape to the police every year.

One Case Raises Questions on Rape Kit Record-Keeping in Chicago

On April 20, 2007, after a night out dancing in Chicago, Stephanie H. (pseudonym) returned to a friend’s house with her friend’s boyfriend. After her friend went to sleep, the boyfriend came into the living room where Stephanie was sleeping, pushed her to the ground and raped her.[47] Within 48 hours of her assault, Stephanie went to the hospital where a rape kit was administered.[48] According to Stephanie’s medical records, which Stephanie shared with Human Rights Watch, a rape kit was taken and the nurse’s examination found evidence of forced penetration,[49] in direct opposition to the perpetrator’s claims that “nothing happened that night.”[50]

For two years Stephanie repeatedly called the Chicago Police Department—at times as frequently as every week—to inquire about her case: “I was going through panic attacks in the middle of the day. I couldn’t breathe. Even in New York I was terrified I would run into him…. I couldn’t sleep or eat. Why is it that I had to work so hard and still nothing got done...? For two years I forgot what it was like to be happy.”[51]

“I thought that if I kept on calling and hounding, they would get things done faster…. I was polite and well-spoken. I begged. I got a second detective to talk [to me about the case] … and relived the experience all over again.”[52] But eventually, Stephanie was informed that no charges would be brought against her rapist.

The Chicago Police Department’s report of Stephanie’s case tells a very different story, and illustrates a fundamental problem with their record keeping.

When Human Rights Watch first inquired on Stephanie’s behalf for her police report, we were told that we could only receive a redacted copy of her report because, “this case is still open.”[53] When we asked why the case was open even though Stephanie was informed of the contrary, the officer responded, “I don’t have the authority to answer…. They could be waiting on more evidence.”[54]

When Human Rights Watch received the police report, its contents were inconsistent with Stephanie’s hospital records. In the police report the responding officer on the case concluded, “Vict[im] went to [redacted] hospital for medical evaluation. Per Dr. [redacted], vict[im] in good condition. Will be treated and released. No rape kit will be administered.”[55]

We asked a representative from the Chicago Police Department to clarify, and were informed that the existence of rape kits are included in the initial police report, and in Stephanie’s case, “it looks like there was no rape kit.”[56] When we inquired why a hospital report indicated a rape kit while the police report did not, the department told us they did not know.[57]

When Stephanie learned that the police report indicated that no rape kit was taken, she told us, “I am astounded. I thought that my experience with the police could not get more demoralizing. To learn that they don’t even have a record of my rape kit, when I can’t stop thinking about the experience of having the kit taken, adds on to my disbelief about this whole process.”[58]

As of this writing, despite more than nine requests to the Chicago Police Department for records on their rape kit data, Stephanie’s case report is the only complete response to our public records request for rape kit information that we have received. In an interview with the Chicago Police Department, representatives told Human Rights Watch that it is official Chicago Police Department policy to send every rape kit to the crime lab for testing.[59] While we do not know if other survivors—like Stephanie—handed over their rape kits to the Chicago Police only to wait for years without justice, we do know that the effect of the experience on Stephanie has been profound:

 

After this experience, I don’t feel safe anymore. I used to think that if something happened to me, the law would protect me. I don’t think it will anymore. I am a tough girl, but it made me feel like if something happened, the law isn’t there for me. It doesn’t really work.[60]

 

[22] Human Rights Watch telephone interview with Kaethe Morris Hoffer, legal director, Justice Project Against Sexual Harm of the Chicago Alliance Against Sexual Exploitation, Chicago, IL, October 2, 2009.

[23] See for example, John Briere and Marsha Runtz, “Post Sexual Abuse Trauma,” Journal of Interpersonal Violence, vol. 2, no. 4, 1987, pp. 367-379; Dean G. Kilpatrick, “The Mental Health Impact of Rape,” National Violence Against Women Prevention Research Center, http://www.musc.edu/vawprevention/research/mentalimpact.shtml (accessed March 10, 2010).

[24]The reporting data include both adults and juveniles. Reporting and arrest data were obtained through public records requests to the Illinois Criminal Justice Information Authority, which is the state’s crime data tracking center, and from the FBI Uniform Crime Reports, 1999-2008, http://www.fbi.gov/ucr/ucr.htm (accessed November 13, 2009).

[25] See for example, Patricia Tjaden and Nancy Thoennes, “Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey,” National Institute of Justice, US Department of Justice Office of Justice Programs, January 2006, http://www.ncjrs.gov/pdffiles1/nij/210346.pdf (accessed February 23, 2009).

[26] Human Rights Watch interview with Polly Poskin, executive director, Illinois Coalition Against Sexual Assault, Springfield, IL, May 12, 2009.

[27] Federal Bureau of Investigation (FBI), US Department of Justice, “Crime in the United States 2008,” September 2009, http://www.fbi.gov/ucr/cius2008/index.html (accessed June 23, 2010).

[28]Human Rights Watch interview with Marie Samples, assistant director, New York Office of the Medical Examiner DNA Unit, New York, NY, March 14, 2008; and Human Rights Watch interview with Lisa Friel, assistant district attorney, Special Victims’ Unit, Manhattan District Attorney’s Office, and Martha Bashford, assistant district attorney, Cold Case Sex Crimes Unit, Manhattan District Attorney’s Office, New York, NY, March 18, 2008.

[29] Human Rights Watch was unable to find any data on how many jurisdictions use the felony review process, although a significant number of jurisdictions we spoke with seemed to employ some form of the process.

[30] Human Rights Watch telephone interview with police official, Illinois, June 17, 2009.

[31] Human Rights Watch telephone interview with rape victim advocate, Chicago, Il, July 2, 2009.

[32]People v. Schott, 145 Ill. 2d 188, 02, 582 N.E.2d 690, 696-97 (1991).

[33] Letter from Chicago Alliance Against Sexual Exploitation to Anita Alvarez, Cook county state’s attorney, November 19, 2009, on file with Human Rights Watch.

[34] Human Rights Watch interview with rape survivors in a group session, Chicago, IL, November 12, 2009.

[35] Human Rights Watch telephone interview with Jan Girten, Illinois State Police, Chicago, IL, January 13, 2009.

[36] Human Rights Watch interview with Tom Byrne, chief of detectives, Chicago Police Department, Chicago, IL, December 10, 2009.

[37] Ibid.

[38] See for example, Dawn Beichner and Cassia Spohn, “Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit,” Criminal Justice Policy Review, vol. 16, no. 4, 2005, pp. 61-98

[39] Ibid.; Cassia Spohn and David Holleran, “Prosecuting Sexual Assault: A comparison of charging decisions in sexual assault cases involving strangers, acquaintances, and intimate partners,” Justice Quarterly, vol. 18, 2004, pp. 651-688; Kristen M. Williams, “Few convictions in rape case: Empirical evidence concerning some alternative explanations,” Journal of Criminal Justice, vol. 9, 1981, pp. 29-39.

[40] Richard Willing, “CSI Effect Has Juries Wanting More Evidence,” USA Today, August 5, 2004, http://www.usatoday.com/news/nation/2004-08-05-csi-effect_x.htm (accessed May 18, 2010), p. 1A.

[41]Ibid.

[42] Illinois General Assembly, 96th General Assembly, Sexual Assault Evidence Submission Act of 2010, SB3269, introduced February 9, 2010, http://www.ilga.gov/legislation/96/SB/PDF/09600SB3269lv.pdf (accessed June 22, 2010).

[43] Human Rights Watch telephone interview with a public records officer, Park Ridge Police Department, Park Ridge, IL, September 18, 2009.

[44] Sixty-eight departments provided a single aggregated report containing some or all of the requested data. Other agencies sent a variety of reports for each reported rape case: 47 departments sent chain of custody reports, 33 sent incident or offense reports, 11 sent lab evidence receipts, 30 sent evidence logs, and others submitted data via phone calls or other methods.

[45] Kevin J. Strom et al., “The 2007 Survey of Law Enforcement Forensic Evidence Processing,” no. 228415, prepared for Katherine Browning, National Institute of Justice, October 2009, http://www.ncjrs.gov/pdffiles1/nij/grants/228415.pdf (accessed May 13, 2010), pp. 4-5.

[46] Ibid.

[47] Human Rights Watch interview with Stephanie H. (pseudonym), New York, NY, January 12, 2010.

[48] Stephanie H. rape kit examination and hospital records, on file with Human Rights Watch.

[49] Ibid.

[50] Human Rights Watch interview with Stephanie H., January 12, 2010.

[51] Ibid.

[52] Ibid.

[53] Letter from Michael Kelly, assistant freedom of information officer, Chicago Police Department, to Human Rights Watch, October 1, 2009, on file with Human Rights Watch.

[54] Human Rights Watch telephone interview with Rory O’Brian, assistant freedom of information officer, Chicago Police Department, Chicago, IL, October 16, 2009.

[55] General Offense Police Report for Stephanie H., Chicago Police Department, April 22, 2007, on file with Human Rights Watch. Bold added.

[56] Human Rights Watch telephone interview with Rory O’Brian, October 16, 2009.

[57] Ibid.

[58] Human Rights Watch interview with Stephanie H., January 12, 2010.

[59] Human Rights Watch interview with Chief of Detectives Tom Byrne, January 21, 2010.

[60] Ibid.