The balancing Act

A new federal mandate compensates for the mutually exclusive needs of sex crime investigations and sexual assault victims


     "The problem that you had back then was that not every agency was really excited about footing the bill for the cost of the exam, because they could be costly and time consuming," Bellshaw explains.

     This is not to imply that police had dangled services in front of victims, but that the mindset of the time and lack of understanding about sexual assault victimology influenced police to pursue actionable leads. Instead, the new requirement reorganizes the post-trauma focus from the criminal investigation to victims, which is what rape crisis workers say victims need most. Further, Dyer says that the requirement is the solution to correcting former flaws with the procedure when responding to sexual assault victims nationwide.

     "I certainly do not think that there was any malicious thought process," Dyer says. "I think that the police and the hospitals thought, well, if we're not going to prosecute this case, then we don't need to spend the time and the money to collect the evidence."

     Law enforcement and heath care professionals are able to fulfill victims' needs and collect physical evidence in the event the victim wishes to pursue the offender. Bellshaw, who currently supervises the Criminal Investigations Division at Salem PD, and is the vice chair of the criminal justice committee for the Oregon Attorney General's Sexual Assault Task Force (SATF), says that if victims decide not to prosecute, investigators are OK with that.

     "I'd rather they make that decision after we have the physical evidence," Bellshaw says. "Leave your options open, so if you decide you want to report, that option is available to you."

     Bryanna Houston was 20 years old when she was raped by a non-stranger who offered to give her a ride home from a coffee shop. At the urging of her friends, she went to the hospital in Boston to be examined, not because she wanted to report the crime, she says, but to check on her physical health. Houston, now 29 and a volunteer with BARCC, never prosecuted the man who she says attacked her. She explains that though Massachusetts did provide free exams at the time, the city only held the rape kit evidence for three months.

     "I was so out of my normal realm of how to do things that it just stopped me from being able to process anything, and three months just wasn't enough time for me to be able to go for the prosecution part of it," Houston says. "I just couldn't do it."

     Bellshaw believes that in order for investigations to be successful, the focus should be on the victim first, then the bad guy. "The No. 1 concern is that the victims do what makes them safe and what they're comfortable with," Bellshaw says. "I want us to be able to give them the best investigation that we possibly could, and the best complete investigation would include a physical exam with the chance to find physical evidence."

Storage and anonymity

     The Act directs states to provide free exams and rape kit storage, but it does not specify that the evidence be stored anonymously nor does it address a length of time states must hold the kits.

     This means that a state might still be considered in compliance if a victim is provided an exam, rape kit evidence is collected, and the next day the evidence is destroyed.

     "Certainly, I don't think that's what VAWA 2005 intended to happen," Dyer says. "I think realistically, once a state has paid a doctor or nurse to provide this exam, the time to provide it, the medication for the STDs to give the victim, filling out the forms using the rape kit — it wouldn't make financial sense … to turn around and destroy it after a day. It certainly would violate the spirit of the law."

     Some jurisdictions are also going above and beyond the requirements of the mandate to hold rape kit evidence. In Salem, Bellshaw says rape kits are held as long as possible because they don't take up much room in storage, and it increases the chance that they'd be of use. This practice maintains balance between law enforcement's needs for evidence; the use of state resources such as time and money; and victims' needs for unspecified time to recover.

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