The balancing Act

     "I hold his semen inside me, waiting. Not speaking. The police arrive and interrogate me, and I answer, using as few words as possible." Shira Lipkin, 20 years old in 1994, sat in the hospital's waiting room fighting the pressure to go to the bathroom, knowing it could hinder the quality of evidence law enforcement could collect and later use against the man that, hours earlier, had kidnapped and raped her. Her mouth chafed from the sock gag and wrists raw and bleeding from being bound, she writes her state of mind was indescribable. But she tolerated the pressure to urinate and the physical pain in the interest of preserving the rapist's DNA inside her, she wrote in her account of the rape years later.

     What was on Lipkin's mind as she waited to be examined is what was on Congress's mind in 2005: DNA. Investigators and prosecutors need victims to be examined as soon as possible after a rape in order to collect semen, hair, skin or saliva that the attacker may have forcefully transmitted in order to connect DNA evidence with the perpetrator. Sexual assault experts say victims need time to heal from the attack, emotionally and physically, before they can make choices about whether or not they want to pursue legal action. These contradictory needs prompted Congress to add a stipulation to the 2005 reauthorization of the Violence Against Women Act (VAWA) which would require that states provide free sexual assault exams and collection of rape kit evidence to survivors, even if the victim does not report the crime to police or does not wish to cooperate with law enforcement. Next year marks the first year that all states will be obligated to provide the services. It is hoped the Act will create balance between the conflicting needs of law enforcement's need to collect physical evidence in a timely manner, and victims' needs for more time to recover and subsequently, make decisions.

Pinpointing the problem

     Cindy Dyer, director of the U.S. Department of Justice Office on Violence Against Women (OVW) and a 14-year veteran of domestic violence and sexual assault prosecution, explains that in the past, two things commonly occurred: First, a victim would present at the hospital after a rape and relate that he or she did not want to press charges, or at least not at that time. It was not uncommon, Dyer says, for the hospital and police to reject the victim for a sexual assault examination since the victim was unsure if he or she would prosecute the case. Or second, the victim may have had an exam, but the hospital and police made the victim responsible for charges unless he or she agreed to prosecute. It is these legacy practices that the VAWA addition was implemented to combat.

     "This act was developed to balance the need to obtain evidence quickly, but recognize that a victim may not be able to make the decision whether or not she wants to prosecute so quickly," Dyer explains. "It is imperative that we chain the evidence right after it occurs because it begins to disappear afterward."

     Gina Scaramella, who has been the executive director of the Boston Area Rape Crisis Center (BARCC) for five years, says that rape victims can feel overwhelmed or frightened and many do not want to interact with police. She says that the VAWA free exam stipulation is in the best interest of victims, adding, "Not having a mandatory report invites people to come to the hospital whether or not they're sure that they want to report to police," Scaramella says.

     Dyer and Deputy Chief Steve Bellshaw of the City of Salem Police Department agree that the provision within the act removes the quid pro quo relationship between victims and law enforcement that had been common — if not standard — when it came to providing financial assistance for the forensic medical exam. Bellshaw, a 19-year veteran of police work, had been a sex crime investigator in the early '90s, back when Oregon did not voluntarily provide exams to survivors. He says if a victim was not willing to report, the approach leaned toward saving public resources.

     "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.

     "Our policy and our decision is we're going to hold [the rape kits] as long as the … case is prosecutable," Bellshaw says. "If a victim comes in to see us five years from now, we're still going to have that evidence."

     It was falsely reported in May by a variety of news organizations that the federal mandate required states to practice anonymous — or Jane Doe — reporting. OVW confirms that to be untrue. However, some states, such as Massachusetts and Oregon, are providing anonymity anyway. In Oregon, sexual assault forensic exam (SAFE) kits are assigned a case number and the evidence is kept sealed, to be opened if the victim presses charges. State law in Massachusetts requires medical providers to report rapes and sexual assaults regardless if the victim wishes to pursue a case. To comply with the federal and state law, providers do not include victim information, only information regarding the assault and where it took place, according to the Maryland Coalition Against Sexual Assault, which is helping states develop systems to comply by the 2009 deadline.

Blank check

     OVW, the office in charge of enforcing the Act, warns that failure to comply will result in the loss of STOP Violence Against Women Formula Grant Program (STOP Program) funds. According to OVW, all 50 states currently receive STOP funding. Dyer says the contingency funding stipulation was written in to the mandate to give states a compelling reason to meet VAWA 2005's terms. That means states will need to coordinate or finalize efforts to provide free access to forensic examinations for sexual assault victims in the next five months or face federal funding losses.

     Diane DeAngelis, VAWA grant administrator in the Massachusetts Executive Office of Public Safety & Security (MEOPSS), orders and coordinates the distribution of rape kit materials to hospitals in the state. DeAngelis has been working with the office for five years, and explains that the state had already been offering free exams to victims during that time. However, prior to January 2008, hospitals had been asked to waive fees for the exams. DeAngelis stated that MEOPSS had to develop a better process to pay for the exams to remove responsibility from hospitals. The solution Massachusetts came up with was to partner with its Victim Compensation Program.

     "Because we had a good system in place already in Massachusetts, it made things easier to bridge and partner with that agency, and to enable the coverage of such expenses," DeAngelis says.

     Victims who receive an exam in that state fill out an application for the state to cover the fees. A similar process exists in Oregon. Executive Director for Oregon Attorney General's Sexual Assault Task Force, and a former sex crimes prosecutor for Seattle, Washington, Christine Herrman explains that Oregon pays for exams through a fund similar to a victim compensation fund.

     DeAngelis explains that Massachusetts appropriates $120,000 annually for the ordering of kits. Each kit costs $26.40, but that figure does not include service or the implementation of the kit in a hospital setting. And with the exams estimated at $800 each, a spike in victims presenting at hospitals could become costly.

     In essence, the VAWA mandate requires states agree to pay an unspecified amount in order to continue receiving a predetermined amount of federal grants, which is based on a population formula. Last year, $114 million in STOP Program funds were distributed between all states. This could mean that some of the money states receive in grants may be canceled out by exam costs.

     "There would be no way of knowing how many victims would appear for an exam," Dyer says. "I suppose they could look at their sexual assault numbers, but … we don't know if maybe this new requirement will cause new victims to come and get that exam, so even if you had prior numbers, they may not be indicative of what your numbers now will be."

     The requirement does not address from where states should take money to support the exams. OVW confirms that states could directly funnel STOP funds to pay for exams, however, this could mean other training and programs previously utilizing STOP money may suffer. Should the mandate fulfill its goal — to encourage victims to seek medical help and collect DNA evidence immediately — it is possible the number of reporting victims could climb, as would rape kit costs. Dyer states there are too many unknowns to predict a financial outcome at this time.

'Unlocking the silence'

     Now 34, Lipkin works as a freelance writer and volunteers with the Boston Area Rape Crisis Center in Massachusetts as a survivor speaker; telling the story of the rape, how she survived and, in her words, "unlocking the silence" about rape.

     But for hours and days, she says she was not able to talk about the attack. Yet she was strong enough to sit in a hospital holding a rapist's DNA inside her, where he savagely put it. Twelve years later, she was able to revisit the area where she was kidnapped and raped and it no longer haunted her, she wrote. "He had me then," she says. "But he doesn't have me now."

     With the SAFE kit mandate in place to balance the mutually exclusive needs of victims and the justice system, victims can recover and keep the avenue to justice open, should they choose to pursue it. In that case, the silence after rape should become a frightening sound to sex crime offenders, instead of the thud of the door to justice slamming shut.

A thumbnail of sexual violence

     Shira Lipkin was seen in the hospital within hours of the attack, was interviewed by Las Vegas police and underwent a long, invasive forensic exam to collect the physical evidence of the rape. According to the Department of Justice (DOJ), Lipkin represents the minority of victims when it comes to reporting. DOJ statistics estimate that two out of every five victims of sexual assault or rape ever report the incident to police. Other authorities studying and documenting sexual assaults and rapes find:

  • 1.2 of every 1,000 people in urban areas were the survivors of a rape or sexual assault in 2006, a reduction from 1.4 reported for 2005. For suburban areas, the rate of victimization was one person per 1,000, an increase from .7 per 1,000 in 2005. (Department of Justice Statistics Bureau)
  • Of 9,684 adults: 10.6 percent of women reported experiencing forced sex at some time in their lives, while 2.1 percent of men reported experiencing the same. Two-and-a-half percent of the population surveyed of women and 0.9 percent of men said they had experienced unwanted sexual activity in the previous 12 months. (Centers for Disease Control and Prevention, 2008)
  • Forcible rape reports in 2007 fell by 4.3 percent. This number was two times the previous decrease between 2005 and 2006, which was called "tremendous progress." (Rape, Abuse & Incest National Network, June 2008)
  • A total of 191,670 sexual assaults or rapes were committed against victims 12 or older in 2005. (The National Center for Victims of Crime)
  • Shira Lipkin was assaulted by a stranger, which currently represents 26 percent of sexual assaults and rapes; the majority of these crimes — 73 percent — are perpetrated by someone the victim knew; (28 percent were intimate partners, and 38 percent were friends or acquaintances).
  • NCVC states that in 2005, the overwhelming majority of rape or sexual assault victims were women, with 8 percent of these crimes victimizing men.

     If the DOJ's frequency of reporting estimate is applied, the numbers from Statistics Bureau, NCVC and RAINN can be more than doubled to better reflect the contemporary rate and pervasive presence of rape and sexual assault in the nation.

VAWA and STOP Program details

     In 1994, Las Vegas was already offering rape and sexual assault survivors a free forensic exam, where Lipkin was raped and had a sexual assault forensic examination (SAFE) kit. However, not all cities or states were so mindful of sexual violence and victims' needs at the time, prompting Congress to establish a national act — the 1994 Violence Against Women Act (VAWA) — with the mission of reducing violence against women and has established remedial federal mandates that are meant to combat legacy laws, social norms and practices that have worked against the VAWA agenda. The Act came up for reauthorization in 2005, and Congress saw fit to incorporate a mandate that would federally require all states to provide free access to forensic examinations and rape kit evidence collection to victims, leveraging federal funds for states that choose not to conform.

     According to Department of Justice (DOJ) documents, STOP funds are granted to support professional training regarding violent crimes against women, development or expansion of units within the justice and enforcement system that target violence against women, development or expansion of policies and services that prevent or respond to violence against women, for example. Applications for STOP funding are reviewed individually and approved by DOJ. Documents for the 2007 grant program report the base award amount per state at $600,000, but may be greater based on availability of monies. Additional awards are distributed based on population.

     States seeking support to organize a structure which complies with the VAWA mandate are coordinating with the Maryland Coalition Against Sexual Assault (MCASA), a non-profit organization which OVW has appropriated funds for this purpose. Its Web site, www.mcasa.org, has multiple informational resources, as well as a list of best practices for states to follow and contact information.

     The Boston Area Rape Crisis Center's executive director, Gina Scaramella, described the case of a woman who was raped by two men. She told Scaramella she hadn't wanted to go to the hospital, but her friends pushed her, so she agreed. "She didn't want to have anything to do with reporting, but felt very supported during the exam and later said, 'You know, I didn't even want to do this, but you're making me think maybe I can do more.' " At least to have that option to do more could be hope enough.

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