Over the past year, I’ve talked to everyone involved in the collection, processing, and use in court of an adult sexual assault kit in my home state of South Dakota. These are all the people, seen and unseen by the survivor, involved with all aspects of a sexual assault kit (SAK) – from payment, to transport, to analysis, to prosecution. From this research I’ve discovered two important universal truths. The first: That everyone really does want what is best for the survivor. The second: That lack of clarity, misunderstanding, and general ignorance of the legislation around SAKs frequently results in mistakes or choices that result in a violation of the first truth. And while some of these mistakes or choices may not directly affect survivors, others can be a ticking time bomb – waiting to explode given the case or circumstance.
When sexual assault survivors have a SAK taken, they are usually within a week of the assault. This means they are coming from a highly traumatic event to another event which can also be traumatic. If they choose to report the assault, they are then entering into a system whereby they will interact with the criminal justice system – a system designed around perpetrators, not victims. There are many opportunities for secondary victimization to occur. This is when interactions with criminal justice responders, medical practices, advocates, or others is experienced as distressing, traumatic, or blaming by the survivor. This blog post will follow the route of a SAK through collection to case dispensation and discuss the different ways victimization may occur. The focus will be on South Dakota, though – as you will see – lessons can be applied across jurisdiction.
Survivors of sexual assault enter systems in a variety of ways. They may approach law enforcement or advocates first. Sometimes, they just show up at the ER. Here is what you may not know – which ER they enter matters greatly for their experience. In South Dakota, how to perform a SAK is not part of regular nurse (the role normally assigned to perform most of the SAK collection) training. Some hospitals may have Sexual Assault Nurse Examiner (SANE)-certified nurses on call – or at least have their nurses SANE trained (the difference is between full didactic training and clinical hours and just some training received). However, in many smaller hospitals, the nurse assigned to a sexual assault may have never even looked at a kit before. The evidentiary collection component of an exam is not a simple check box processes. The nurse needs to interview the patient to find out what happened during the assault. There is room for many mistakes here. Where a nurse swabs is based on the interview – if it is not done well, evidence will be missed. In South Dakota, the nurse also writes down answers about what the patient says happened and the patient’s demeanor. Mistakes here can color investigations or effect prosecutorial outcomes.
A big area for confusion in South Dakota is the payment for the SAK. By law, a SAK is paid for by the county in which the assault occurred. This is the evidence collection and all medication (e.g. Plan B or STI med) given in the room. Now not only does it matter what ER you walk into, it also matters what county you were assaulted in! We are in the second year after this legislation was passed, and some hospitals are still sending bills to patients. There is also a lot of ignorance surrounding payment, resulting in nurses, advocates, and even law enforcement misinforming survivors about their responsibility for the bill. While Plan B is supposed to be covered, some counties are refusing to pay for it because of the politics surrounding that issue. Some counties have deals with their hospitals or a local pharmacy to aid in payment for HIV medication (patients have to take it for several weeks and it costs thousands of dollars). Other counties just do not provide this medication at all. Individuals assaulted on some reservations can go to the Indian Health Services hospital and see a SANE who will provide them with all treatment for no cost. But, again, this is only some reservations – others will not do kits. Each problem creates the potential for revictimization – getting a bill when none was expected, not being able to obtain medication that is indicated, and other issues based on locale. While payment systems differ based on state, it is necessary to educate first responders on payment in relation to the kit and medication. Information about forensic rape examination and medication payments in Pennsylvania can be found here.
About four years ago, major headlines were made about backlogged kits. These were kits sitting on shelves at the lab not being processed. South Dakota, like many states, responded to this new by passing legislation requiring the processing of kits within 90 days of receipt at the lab. And, truthfully, our lab is usually much faster than that! But this does not mean there isn’t a backlog. Instead of sitting on the shelf at the lab, I’ve heard stories about kits left in evidence lockers or in hospitals. This failure to transport is usually justified in terms of helping the lab out. Knowing that the crime lab has a lot of work to do, law enforcement or prosecutors may decide to save the lab the work of a particular kit. This judgement is based on a belief that a particular kit doesn’t need to be processed (e.g. the victim isn’t cooperating or they are believed to have lied). While most people interested in sexual assault are aware of how law enforcement attitudes can result in revictimization through treatment of the victim, here it becomes clear that it can interfere with the collection of physical evidence as well. With all of the public attention focused on labs, it is important to make sure there aren’t other places where kits get waylaid.
While our lab is doing a great job with the processing, another error could occur. Some labs check kits only for semen and, if they don’t find any, send back a report that there was nothing found in the kit. However, sexual assault does not require the presence of semen (e.g. use of condom or assault with an object or hand). Not looking for other types of DNA transfers, such as through saliva, may complicate cases or result in choices not to prosecute.
The importance of the kit to prosecution itself is its own form of revictimization. In reality, the majority of sexual assault cases are between a victim and a known perpetrator. When the perpetrator is confronted they frequently claim consensual sex – explaining away any DNA evidence found in the kit. Yet, in the age of CSI, juries demand DNA evidence. They frequently expect the kit to provide some “smoking gun.” Most sexual assaults do not involve any sort of injury. And when injury does occur, it frequently heals quickly. What a kit can provide – corroboration of testimony – is frequently undervalued. At the same time, a lack of a kit makes prosecutions very difficult because how expected it is. If a survivor doesn’t get a kit, they wonder why… What are they hiding?
Sexual assault kits are at the nexus of several systems – hospital, advocacy, law enforcement, and courts are just a few. Requiring nurses to do the work of evidentiary systems and requiring the criminal justice system to deal with traumatized patients, can result in many areas for mistakes and thus revictimization to occur. The solution to these errors is simply to make sure that everyone understands what the law is and to discuss the process of ensuring the law is followed. Otherwise, even when everyone wants to do what is best, the survivor will get caught in-between different systems and may choose to withdraw from the process altogether.
RAINN: What is a Sexual Assault Forensic Exam
Sexual Assault and Medical Attention
Sexual Assault Nurse Examiners
Find out more about efforts to end the backlog and how this has been handled across the United States
Importance of DNA in Sexual Assault Cases
Pennsylvania Coalition Against Rape (PCAR)
South Dakota Coalition Ending Domestic & Sexual Violence
Crime Victim Center of Erie County