The Act focuses on so-called “rape kits,” an unfortunate monicker for something that is intended to help collect and preserve physical evidence of rape for use in prosecuting rapists. (No rapist needs a kit. I advise you not to do an image search on “rape kit” unless you want to find out what kinds of “rape kits” some misogynist violent scary would-be rapists appear to find hilariously funny.)
There have been multiple issues with these evidence collection kits in the past, including jurisdictions refusing to have the medical examinations/evidence collections performed if a victim is not yet sure whether they wish to file a police report, jurisdictions charging victims fees in order to have those examinations/evidence collections performed, and hundreds of thousands of rape kits going untested and/or being discarded, possibly without ever notifying the victim.
The Act states that survivors of rape cannot be charged a fee for an evidence-gathering examination, or prevented from obtaining one. Once an evidence kit has been completed, the kits must be held in storage for the length of the term of limitations on the crime in question, at the expense of the state. Survivors of rape will have the option to request notification before the evidence kit is destroyed, the right to request that they be further preserved, and the right to be notified of any results of testing on the evidence collected.
It is a step in the right direction. And it is a step that has, like “rape kits” themselves, myriad problems.
Most rapes go unreported, for a variety of reasons including fears of being maltreated by police, reprisals from loved ones, being blamed for their own assaults, or simply not being taken seriously or believed. Living as we all do in a culture in which rape is both normalized and routinely silenced, survivors of rape may blame themselves, or otherwise find ways to rationalize the attack as being somehow their fault, and do not attempt to report. Additionally, many victims of rape experience an understandable reluctance to be intimately physically examined by a total stranger immediately after being raped. Or they may erroneously believe that if they have waited until the next day, for instance, or changed their clothes or taken a shower — two utterly normal things that also help to give a victim some psychological distance from an assault — that no physical evidence can be gathered and they may as well not bother.
But there is a larger and deeper issue with “rape kits.” Making the collection of physical bodily evidence central to prosecuting rape, a thing that the Act promotes, raises some questions about whose evidence we are willing to trust in cases of rape and sexual assault. It is not uncommon for survivors’ verbal testimony not to be taken terribly seriously, or to be viewed as merely part of a “he said / she said” that affords a problematic equality of moral authority to both rapists and their victims.
This is not to diminish the potential importance of physical evidence. Physical evidence can provide insight into the extent of physical injury, and it can enable positive identification with biological markers like DNA in ways that verbal testimony simply cannot. But prioritizing the use of physical evidence or considering it “superior” to or “more objective” than verbal evidence presents some logical and some ethical problems.
While we should — and I definitely do — applaud and thank President Obama, bill sponsor Sen. Jeanne Shaheen (D-NH), and Amanda Nguyen of Rise, whose experiences and activism as a survivor of rape led her to propose it, we might also want to ask whether “rape kits” mean that bodies are allowed to give testimony in a way that people are not.
What does it mean if we believe in the physical evidence collected from a sexual assault victim’s body but we do not believe the victim? It matters that we are prepared to believe in the reality and consequence of the injuries and substances that a rapist (usually but not always male) leaves on and in the body of a rape victim (usually but not always female) in a way that we are not prepared to believe in the reality and consequence of what a rape victim actually tells us.
What does it tell us that we have a legal and cultural preference for forensic evidence collected by a doctor or nurse when that evidence is essentially mute and momentary? Forensic evidence cannot tell us about pain, fear, panic, or humiliation. Nor do “rape kits” help us understand or even know about common sequelae of sexual assault like PTSD, sexually transmitted infection, or impregnation.
What does it tell us that we prefer evidence of a particular kind of rape? Kits are created to collect evidence of physical injury, samples of hair, blood, semen, and other bodily substances. Not all rapes leave this kind of evidence behind. The fact that we have a preference, now enshrined in law, for a form of sexual assault evidence that looks for these things as proof that rape occurred at all does two things. First, it establishes by implication that only rapes that provide this kind of evidence are really rapes. Second, the nature of the evidence that is preferred and prioritized serves to establish rape as an offense that exists only in the transient moment of its commission, when bruises (if any) are still fresh and the bodily fluids (if any) still detectable. Is this reasonable? Is it ethical? Is it even logical?
Let us hope that the Sexual Assault Survivors’ Rights Act will be expanded in future. Sexual assault survivors certainly should have the right to have physical evidence collected and handled with all due care and urgency, stored appropriately, and utilized correctly and well on behalf of the survivors. They — and really I should say “we” here — also deserve much, much more.