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Tracking the Backlog and Searching for Justice

How Melissa’s law is working to address Oregon’s rape kit problem

Rachael said “no” repeatedly to the man who came into her Oregon apartment and attacked her on the night of July 6, 2014. 

She cried, knowing that her children were in the next room. She didn’t want them to hear. The man who raped her lived across the street. 

Two days later, Rachael went in for a sexual assault nurse exam (SANE) in which evidence would be collected for a rape kit. She waited weeks more to report the rape to police because she was “terrified” of her attacker.

“I had already showered and everything by then, but I still had my underwear not washed yet, my pants not washed yet, the sheets, blanket, and I submitted that for evidence in the place of … you know, I mean I had the full kit done, but they were saying you showered pretty well,” she says. 

No DNA was found on her body, but it was found on the clothing and bedding. Eugene Weekly is not using Rachael’s full name because she has never told her story outside of court and does not want to be identified.

In Oregon’s 2016 legislative session, Senate Bill 1571 passed unanimously in both chambers and was signed into law on March 29 by Gov. Kate Brown.

It’s dubbed Melissa’s Law, after 14-year-old Melissa Bittler, a Portland girl who was raped and murdered by a serial rapist in 2001. Portland Police detectives found similar attacks on girls in 1997 and sent in their untested rape kits for analysis.

“Had law enforcement tested the kits immediately following the crimes, the suspect may have been identified sooner, and Melissa might still be alive today,” according to Portland attorney Jacqueline Swanson in an article published by End The Backlog. That’s a nonprofit founded by Law & Order SVU actress Mariska Hargitay that tracks the nationwide backlog of rape kits.

Melissa’s Law requires that all non-anonymous rape kits be prioritized and tested.

 

In 2015, before the law passed, 5,626 untested Sexual Assault Forensic Exam kits (SAFE kits) sat on the shelves of police departments throughout Oregon. Backlogged, unprocessed kits had been building up since 1983. No reform that addressed the volumes of shelved, untested and destroyed rape kits came until the new 2016 law. 

Oregon State Police Public Information Officer Bill Fugate says police departments throughout the state reported the number of kits in their possession to OSP in 2015. Kits that were destroyed, due to the statute of limitations running out or a victim’s decision not to move forward with a case, were not reported to the Oregon State Police. 

Rachael is part of a chilling statistic.

More than than one in four women in Oregon “will experience rape, and more than half of women (55.7 percent) and nearly one in five men (18.6 percent) will experience other forms of sexual violence in their lifetime,” according to the state Attorney General’s Sexual Assault Task Force.

Despite clearly defined rape and sexual assault laws, minimum mandatory sentencing guidelines and the passing of the Sexual Assault Survivors Rights Act signed by President Obama — which establishes rights for sexual assault victims pertaining to rape kits — several states are sitting idly by while the backlog of untested kits grows. 

According to End the Backlog, 16 states have made no effort to address the backlog of rape kits and 13 states have proposed reform.

Oregon is one of 16 states that have enacted limited reform. Some states have undergone an audit of rape kits, yet no states have enacted comprehensive statewide reform. 

 

Melissa’s Law and Tracking the Backlog

Under the new law, the Oregon State Police are required to present an annual legislative report detailing the collection and processing of SAFE Kits in Oregon. 

The department’s Report on Sexual Assault Kits was published on Jan. 3. The total number of SAFE Kits received was 1,281; total SAFE Kits completed, 757; total number of pending SAFE requests, 742. The explanation  OSP gave EW for the discrepancy in numbers was that some of the complete kits could have been received before 2016, and the same applies to pending kits.

The law also requires the formation of a Task Force on the Testing of Sexual Assault Forensic Evidence Kits. The 16-member task force designated four members, and the remaining 12 members were appointed by Gov. Brown. The task force is in charge of looking at the state’s testing process, how law enforcement is trained to handle sexual assault investigations, the rights of victims and to “identify and pursue grants and other funding sources in order to eliminate the backlog of untested sexual assault forensic evidence kits, reduce testing wait times, provide victim notification and improve efficiencies in the kit testing process,” according to Melissa’s Law.  

Brenda Tracy, a rape survivor and advocate, is also a member of the task force. 

Tracy’s kit was destroyed three years before the statute of limitations on her assault expired. She says she knows other survivors who have had the same experience. Melissa’s Law now requires that kits be kept no less than 60 years after being collected. 

 A provision within Melissa’s Law requires that law enforcement agencies communicate with a sexual assault victim about the status of their kit, the testing results, and whether a DNA result was obtained. It also requires that the victim be provided with a contact within the agency. 

Another Oregon woman, who doesn’t live in Lane County but who otherwise didn’t want to be identified because her case is still pending, has been calling the prosecutor assigned to her case for several months. 

After having a rape kit collected seven months ago, she says she doesn’t know the status of her kit or her case, and the prosecutor who called her in for an initial interview will not return her phone calls and messages, the woman says. 

After the assault, police asked the woman to contact her attacker several times in an attempt to get him to confess. She says she received some coaching from the detective assigned to her case, but ultimately, all she could do was hope he would slip up and say something incriminating. 

Brenda Tracy. Photo by Todd Cooper

 

“That’s the most fucked up thing you could ever ask anyone to do,” she says.  

The woman also downloaded a phone-recording application that cost $10 to record the calls to the perpetrator. 

“If that happened here, I would be furious,” Lane County District Attorney Patty Perlow says. “We are supposed to be providing services to victims of crime out of that’s the right thing to do, not just because it’s mandated by constitutional rights.”

The law does not set a time limit pertaining to the processing of rape kits.  

Eugene Police Capt. Sherri Meisel says EPD no longer has a backlog of rape kits in its possession, and that all of the rape kits collected are sent directly to the Oregon State Police forensic labs.

 

The SAFE Kit Process

Victims of sexual assault who report attacks face a battery of procedures, which include multiple interviews with police, undergoing an extensive medical exam, and waiting for the results of a Sexual Assault Forensic Examination kit and answers from state agencies. 

EPD’s Meisel says investigating a rape case all depends on the situation. If the survivor calls 911, the police will first speak to the survivor and make sure to offer medical attention. “If they decide they want to have a SAFE kit, the kit is given to the patrol officer who takes it to the evidence patrol unit, and then it gets sent to the lab.” 

If the victim does not know the suspect, the rape kit results can provide DNA evidence that can be used to obtain a warrant. 

“If you have a known suspect that you think is going to continue to commit violent crimes, of course you don’t want to wait for a long amount of time,” Meisel says.

 


Out of every 1,000 rapes

994 perpetrators will walk free

310 rapes are reported to police

57 reports lead to arrest

11 cases get referred to prosecutors

7 cases will get a felony conviction

6 rapists will be incarcerated


 

After the assault, Rachael and her children moved to a shelter. “It was another three weeks before I reported to police because this individual was living across the street from me, and I didn’t feel safe with my children … even going back to the apartment to feed the cat and pack,” she says.

Exactly seven months after the assault, an indictment was issued for the man who raped her. It would be another month before he was arrested. 

Rachael was not informed about the status of her kit. And from the moment she decided to report the rape and have an invasive physical exam, she was reminded that the outcome couldn’t prove that a sexual assault had occurred.  She was told that a rape kit just “proves that sex happened.”

Patti Kenyon is an adult and pediatric Oregon sexual assault nurse examiner in Albany. The registered nurse began training as a SANE in the late ’70s — at the time, she says, it wasn’t common for RNs to obtain that certification. 

“I’ve always been drawn to helping people who are victims of injury, victims of crimes,” she says.

A SANE exam can take anywhere from three to eight hours. Kenyon says the procedure can be completed in about three hours, but people experiencing trauma often have to stop and take breaks. First the victim has to be assessed for injuries such as broken bones or cuts. If X-rays or stitches are needed, those injuries are treated first. 

Next Kenyon begins to get a medical history of the patient and an account of whatever the person can recall from the assault. Based on that information, Kenyon conducts a gynecological exam with a victim’s advocate in the room. 

Forensic evidence is collected from a head-to-toe exam on a case-by-case basis, which can include swabs from the mouth, vagina and sometimes the rectum. A patient has the right to refuse any part of the exam.

“Typically when we swab the mouth, that is looking for the patient’s DNA, and everything else that is swabbed is looking for assailant’s DNA,” Kenyon says.

In some exams, the nurse takes photographs of the victim’s genitalia; it depends on the policies of the facility Kenyon says. Detectives sometimes photograph bruises on arms or legs of a victim.

“I always tell people, ‘This is your exam, not mine. I’m here to do what you would like to see happen,’” Kenyon says. 

The victim’s head, fingernails and skin are also examined, and clothing and underwear are collected if relevant to obtaining DNA. Kenyon says she asks patients to run their fingers through their hair to collect the 24 to 30 head hairs that may be needed. 

“We provide medications for emergency contraception, sexually transmitted infection prophylaxis and, if indicated, HIV prophylaxis,” Kenyon says.

When a victim is discharged, Kenyon says, they are given instructions on how and when to follow up. She wants to ensure that antibiotics have prevented an STI and the emergency contraceptives have prevented a pregnancy. 

“There is a huge number of studies that show that people have lifelong medical needs following a sexual assault that can be emotional and can be physical as well,” Kenyon says. Those can range from abdominal pains and gynecological problems to cancers and heart disease.

Once a SAFE kit is collected, a law enforcement agency has seven days to pick it up from the medical facility and then must send it to the Oregon State Police Forensic Crime lab within 14 days, according to Melissa’s Law. It can then take several months to be processed for DNA. 

 

Before the Bill 

Capt. Meisel says no kits have been destroyed in two years since she’s been with EPD. Before the bill, anonymous kits could be destroyed after six months, in an effort to save space.

“Keep in mind a lot of this practice goes back to when DNA was in its infancy,” the police captain says.

In 2015, the Oregon State Police compiled a list of the SAFE kit backlog in Oregon. 5,626 rape kits were in the possession of 166 police departments, which included city, county and Native American police agencies. 

OSP’s spokesman Fugate says a combination of things contributed to the SAFE kit backlog. A lot of police departments wouldn’t send anonymous kits to labs if they didn’t think the case was prosecutable, he says. Anonymous kits do not name the victims who have evidence collected. “So those would sit on shelves,” Fugate says. 

Even after the passage of Melissa’s Law, OSP has a backlog of rape kits. “We already have all kinds of other cases from chemistry and controlled substances, fingerprints, gun testing, other biology cases, so that surge really put us behind,” Fugate says. 

Brenda Tracy worked with Jackie Swanson, the Portland-based lawyer who represents victims of sexual assault, and identified a need for new legislation to address backlogged rape kits in Oregon. Tracy says they went to Oregon Sen. Sara Gelser, a Democrat representing the Corvallis area, to talk about it. Gelser became the chief sponsor of Melissa’s Law.

“How horrible is that for the survivor who has the courage to go and get a kit done and then finds out it wasn’t tested and it was destroyed without their knowledge — I just think is a huge slap in the face,” Tracy says. 

Fugate gives a list of hypothetical situations that resulted in the piling up of the backlog. “Let’s say you have a victim that recants their desire to prosecute, let’s say a couple days go by and they suddenly decide, you know, that I don’t want to prosecute for this,” he says. “It’s not just a stranger issue, it could be domestic violence sexual assault. So they could change their mind on that. Whatever the reason is, those would not get sent in — or if the DA ever decided that it was not a prosecutable case because of a ‘he said she said’ sort of thing.” 

Lane County DA Perlow says that before the mandatory testing of SAFE kits, the decision would be made whether or not to test the kits based on evidence reports.  

“If they both agree that there was a sexual encounter and the suspect is saying it was consensual and the victim is saying no it wasn’t consensual, but it occurred, everybody agrees it occurred, there’s no evidentiary value from that kit getting tested,” she says. 

 

Burden of Proof and Prosecution 

Melissa’s Law eliminates the guesswork that was once allowed to decide whether rape kits were tested or shelved. 

The decision to prosecute is up to the DA’s office, and the burden is on the state to prove beyond a reasonable doubt that the defendant committed a crime — a burden that seems to weigh more heavily on the testimony of the victim regardless of the physical evidence obtained. 

For a victim, the wait can seem endless to find out whether physical evidence is enough for the district attorney to file charges.

The woman still waiting to find out the status of her case says, the “DA told me the whole burden is on me — to somehow to prove that this happened.”

Perlow admits sexual assault cases are difficult to prosecute. “A person who is charged with a crime has to have some sort of mental state that makes them criminally culpable, whether it’s that they’ve committed a knowing act or an intentional act, and the definition of those are pretty much conduct versus result. I know that I’m committing a sexual crime against this person versus I’m intending the result of committing a sexual crime against this person,” she says.  “We have to prove either one of those things.”

Perlow says the most challenging cases to prove are circumstances in which people know each other or have been in a relationship. “Those are probably the most common cases and as a prosecutor those are the most difficult cases to prove because you don’t have independent witnesses to the act,” she says. 

In 2016, 58 reports of sexual assault were reported to the Lane County District Attorney’s Office. Of those, 17 charges were filed. One case is pending trial set for March.

District Attorney Patty Perlow. Photo by Todd Cooper.

 

“If the survivor is a female and the suspect is a male, which is the most common circumstance we get, if he denies there was sexual contact and then there’s physical evidence contrary to that, those cases are easy to prove,” Perlow says. “If it’s a delayed report and there isn’t any physical evidence, those cases are really difficult to prove.” 

Perlow says her office’s ethical obligation is to prosecute only cases that can be proved beyond a reasonable doubt. 

“We have had a case where a woman was passed out from consuming too much alcohol and somebody comes into the room [and rapes her] and a jury has said that didn’t prove that she didn’t consent. The law says that if you are incapable of consenting that’s rape in the first degree. That person was found not guilty,” Perlow says.

 

The Kit that Led to a Trial

Seven months after her attack, Rachael’s kit came back with a DNA hit matching the man who lived across the street. A search warrant was issued two weeks later. Rachael was still worrying and waiting for her attacker to be arrested. A month passed before the man was caught in Utah.  

“I have a feeling that if this was a drug charge, it wouldn’t take a week or two,” Rachael says. 

It was Rachael who made the call to a police department in Utah notifying law enforcement that a warrant had been issued for the man who used to live across the street from her. Rachael’s friends followed the man’s social media trail and learned of his Utah address. 

After multiple trial date postponements and the death of her father, Rachael waited two years and three months to face the man who had caused her to slip into intense depression.

In the eight months following the attack, Rachael slept in her “living room with a knife, with one eye open looking at the door. Even though I’d relocated, it wasn’t far enough away for me to feel comfortable.”

Rachael was relieved when she knew the assailant was behind bars. “Finally I felt like I could breathe, and I took my daughter out and we had a nice dinner. I could finally enjoy the food.” 

During the trial, the defense asked for Rachael’s mental health history. Although evidence from the rape kit was presented, the trial depended heavily on her testimony. The defense attorney accused her of having consensual sex with her attacker, claiming she didn’t want to tell her partner at the time. Rachael says she and her partner split before the trial.

“You really just have to go in there on good faith hoping to God that the jury believes you,” she says. “You definitely feel like it’s on you.” 

She lost custody of her son during the trial. 

The trial lasted six days. The jury found the man guilty. 

“It is not like TV, it is not like Law & Order SVU, where you get people investigating and the next week they’re in court,” Rachael says. 

A month later the rapist received eight and a half years for sexually assaulting Rachael. Another sentence of 25 years was added to his time after another victim, who testified during the trial, was assaulted by the same man in a mental hospital. 

The convicted rapist is not eligible for parole and can’t be released for good behavior, Rachael says. “He will be in his 60s when he can ever see the light of day again.”

Although Melissa’s Law was passed unanimously and, since it was enacted, DNA from a 10-year-old backlogged kit led to the arrest of a Eugene man, the backlog continues to grow. 

As for the woman waiting to find out about the status of her SAFE kit and her case, she still hasn’t heard from the DA’s office. “I don’t know if he’s still out there or if they are dropping the charges or moving forward with the case,” she says.

Sexual Assault Support Services (SASS) has a 24-hour crisis line and advocates available around the clock. The Eugene-based nonprofit provides help for victims, their families and friends. Reach them at 541-343-7277 or 1-800-788-4727 or online at sass-lane.org. For those who have had a rape kit collected by EPD, call 541-682-5111 to check on its status.

 

Out of every 1,000 rapes

994 perpetrators will walk free

310 rapes are reported to police

57 reports lead to arrest

11 cases get referred to prosecutors

7 cases will get a felony conviction

6 rapists will be incarcerated

 

 

 

Gov. Kate Brown and Rape Kits

Gov. Kate Brown declined to be interviewed about Melissa’s Law and the statewide backlog of rape kits for this story. 

Asked if she was aware of the number of backlogged rape kits, the governor’s spokesman, Brian Hockaday, says the governor is aware of the most recently published numbers by the Oregon State Police.

When asked whether Brown believed that Oregon’s justice system is fully addressing the problem of sexual assault, Hockaday said, “Certainly there’s more work to be done, and the governor is committed to improving the justice system in ensuring that all survivors as well as their families are supported and have the services they need.” 

Hockaday says the issue of sexual violence is appalling. “Are you aware that she spoke to this issue from a very personal perspective during the campaign?” he asked. “She is a survivor herself.”

He adds, “This is an issue that she’s very personally passionate about and has fought to ensure that survivors have services they need and that they have access to justice.”

On Feb. 2, The New Yorker published the article, “Advice for Progressives From America’s Radical Feminist Governor,” which interviewed Gov. Brown about her time in office. According to the article Brown, “… donning a pink pussy hat and delivering the kind of speech that many had dreamed of Hillary Clinton giving: ‘In my Oregon, and under my leadership, women are in charge of their own bodies,’ she said, shaking with her fist.” The article quoted her saying, “I was born a feminist.”

EW asked Hockaday whether Brown thinks women are in control of their bodies after taking into consideration that one in four Oregon women will experience rape. He says the quote about women being in control of their bodies was strictly referring to women’s health care.  — Corinne Boyer

Update: Hockaday would like to clarify that when EW wrote Brown "declined to comment" in fact  "the governor was not available for an interview at the time of your deadline."