The Case for Testing All Sexual Assault Kits

Sidebar to the article Solving Sexual Assaults: Finding Answers Through Research by Nancy Ritter

There is significant support — particularly among victim advocates, policymakers, prosecutors and sexual assault survivors — for testing all sexual assault kits (SAKs). This includes the thousands of SAKs maintained in police property rooms as well as kits in every new sexual assault that occurs. Proponents of mandatory testing argue that testing SAKS even in non-stranger cases (48–75 percent of sexual assaults[3-7]) can potentially lead to the identification of a serial rapist, affirm the victim's version of events, discredit the assailant or exonerate an innocent suspect.

Advancements in DNA technology now allow smaller and more degraded pieces of biological evidence to be analyzed. Therefore, current DNA technologies can be used to solve cold cases and exonerate wrongly convicted people.

It is also possible to use DNA-testing results from cases that are not going to be adjudicated — if the statute of limitations has run, for example — in other ways. Testing results from an unadjudicated case may be deemed relevant in the parole hearing of a convicted offender, for example. It is also possible for a judge to allow evidence of past criminal behavior — even criminal behavior that was unadjudicated, if the court deems that it is directly relevant to the case at hand — under Federal Rule of Evidence 404(b).

Often referred to simply as "404(b)," this rule allows evidence regarding a defendant's character or prior criminal conduct into a trial under certain circumstances. Some proponents of analyzing all older SAKs argue that even if the statute of limitations has run, it could be important to have 404(b) evidence of a past sexual assault if the person is on trial in the future for another sexual assault. Especially in cases when the victim and the suspect know each other, the ability to present 404(b) evidence can effectively turn a "he-said, she-said" case into a case of "he-said, she-said, she-said."

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[3] Jänisch, Stefanie, Hildrun Meyer, Tanja Germerott, Urs-Vito Albrecht, Yvonne Schuz, and Anette Debertin Solveig, "Analysis of Clinical Forensic Examination Reports on Sexual Assault," International Journal of Legal Medicine, 124, 2010: 227–235.

[4] Ingemann-Hansen, Ole, Ole Brink, Svend Sabroe, Villy Sørensen, and Annie Vesterbye Charles, "Legal Aspects of Sexual Violence — Does Forensic Evidence Make a Difference?" Forensic Science International, 180, 2008: 98–104.

[5] Campbell, Rebecca, Debra Patterson, Deborah Bybee, and Emily R. Dworkin, "Predicting Sexual Assault Prosecution Outcomes: The Role of Medical Forensic Evidence Collected by Sexual Assault Nurse Examiners," Criminal Justice and Behavior, 36, 2009: 712–727.

[6] McLean, Iain, Stephen A. Roberts, Cath White, and Sheila Paul, "Female Genital Injuries Resulting From Consensual and Non-Consensual Vaginal Intercourse," Forensic Science International, 240, 2011: 27–33.

[7] Spohn, Cassia, Dawn Beichner, and Erika Davis-Frenzel, "Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the 'Gateway to Justice,'" Social Problems, 48, 2001: 206–235.

Date Created: June 15, 2012