Law Enforcement and Sexual Assault: Time for New Solutions
By: Kate Chisholm, Mph
Tags: Metoo, Sexual Assault, Rape, Criminal Justice Reform, Police Reform

DNA Databases Aren’t Enough: What About Non-Police Offender Databases?

The time has come to transform the options available for survivors of sexual assault to hold their perpetrators accountable. Sexual assault is notoriously underreported. In the United States, services for survivors are continually funneled and dispensed through the criminal system to the 23% of survivors who report. There are a multitude of reasons why this is problematic, the first being that the vast majority of survivors do not report. The reasons for not reporting are extensive, complex, and well-documented. No one should wish the process of reporting rape, one of structural violence, on anyone who has already endured a deeply traumatic event. It is not a re-victimization, it is an entirely separate victimization. Being raped is one trauma. Being emotionally abused for years by law enforcement is another.

What if there was another way to report sexual assault without being met with the hostility and indifference so frequently demonstrated by law enforcement? What if we could provide a way for survivors to simplify the immense complexity of the decision-making process of reporting or not reporting?

This moment in time of reimagining policing on a universal scale is unique, although BIPOC have been advocating this change, and mainly ignored, for far longer. Regarding sexual assault, advocates for change in the available options of reporting and healing from sexual assault have long attempted to bring restorative justice, transformative justice, and other forms of justice into the mainstream dialogue around sexual assault.

Restorative justice can be an excellent option when the survivor feels that it makes sense, whether it be for reasons related to family sexual violence or an assault that occurred among a group of friends where the survivor feels that restoration is possible and appropriate. The key to this process: the survivor determines its likelihood for success, and success is marked by healing and closure for the survivor. It has the potential- and in some countries already functions- as an excellent alternative response to sexual violence.

Even still, many restorative justice programs exist only when linked to the criminal system. Unfortunately, even when a survivor is on board with participation in restorative justice processes, the criminal system continues to prevail. This link specifically occurs in the United States, where victims are nearly guaranteed to never see “criminal justice”, a mythical term still somehow perpetuated in a criminal system where 99% of rapists walk free.

There are still 23% of survivors in the U.S. who continue to report, possibly even in spite of knowing the detriment to their well-being by doing so. According to RAINN, an additional 15% of survivors did not report because they did not believe the police could or would do anything to help. An additional 20% did not report because they feared retaliation. While it remains speculative what type of retaliation is feared, it is clear that these survivors did not want their names in the hands of law enforcement, and may elude to a fear of the assailant.

What we do not know is what percentage of survivors would report if they felt that it was safe to do so. What percentage of survivors would report a perpetrator if they knew they could do it through an agency that would not upend their lives? What key factors would make reporting feel safe?

One simple answer to this problem is that the sole entity responsible for collecting information on entitled repeat offenders cannot be law enforcement.

While violence often begets violence, and second chances without the involvement of the criminal system seem plausible in various situations, there are some situations where it is undeniably unsuitable. Many repeat offenders are those who commit drug-facilitated sexual assault (DFSA), and routinely come from a background of whiteness and privilege. How do we protect society from suffering repeat rape offenders while still protecting rape victims from the painful consequences and abuse of reporting when they are only trying to protect others?

Time and time again, we have seen that victims are only taken seriously, their cases given any clout, when multiple victims come forward. This concept is absurd, but it is a devastating current reality. The difficulty of coming forward cannot be overstated. Retaliation in the workplace has been particularly noted through #MeToo. One simple answer to this problem is that the sole entity responsible for collecting information on entitled repeat offenders cannot be law enforcement.

Currently, repeat offenders are found primarily by DNA matches in the national database CODIS. But for DNA to go in a database, of course, a victim must submit to a sexual assault examination kit. This kit takes hours to complete, must be done within a short time frame (which can be particularly difficult for DFSA victims), and can often be inaccessible to those worried about cost, transportation, and time, among other issues. These kits may or may not yield DNA results, even if done under the best of reporting conditions. The cost can far outweigh the benefits, and may even be inaccessible entirely to many victims. So why do we rely primarily and overwhelmingly on DNA to solve our sexual assault crimes?

Additionally, one of the biggest hurdles is a victim’s willingness to submit to a sexual assault examination kit, which also can differ for a multitude of reasons. After being sexually violated, it is not uncommon to not want to be poked and prodded in intimate areas of the body. Many victims also do not know that submitting to a kit does not mean that they must give the perpetrator’s name or spur a criminal investigation. Under the Violence Against Women Act (VAWA), women can receive a sexual assault examination kit and report later or not at all, and still have their kit stored for an amount of time determined by local law enforcement. In this situation, victims do not need to speak directly with law enforcement at all, but due to our country’s reliance on police, this fact can often be unknown or misunderstood. While this problem persists, alternatives must be explored, and they must be explored broadly. It is horrendously unfair to ask that all victims report- there are valid reasons for any victim not to report to police or submit to a “rape kit”.

While it can be overwhelming to consider how to solve this problem, creativity and innovative solutions can prevail. One small solution could be, given the occurrence of repeat offenders, to report names, not DNA, in a database that is not handled by law enforcement. Coalitions or advocacy centers could keep a database of offender names and match victims through accredited advocates or counselors. The coalitions, given that they exist in every state, could keep a collective database of names and connect victims anonymously when matches are made among perpetrators. Confidentiality agreements could make this a reality.

Not only would this process be more effective and efficient than waiting on DNA results from kits that may never even be tested, it could also be a helpful tool for survivors in their decision-making process to report. What if fear of retaliation could be lessened because offenders have multiple victims? What if survivors believed that in these situations, police may actually do something because there are other victims in the queue? An alternative database is essential for many reasons, primarily that it gives informed options back to survivors. Even if they do not report, they may ultimately at least have a support network of others who they had not previously been able to connect with.

When I was drugged and raped, I initially did not want to report because I feared retaliation by a wealthy and seemingly respected member of society in my university social circle. I also (rightfully) believed the police would find any reason to do nothing about it. I remember feeling that I would be completely willing to report had I known for sure I was not the first victim. Even without knowing anything about reporting rape, I still knew that one victim was not considered “enough”. One woman’s trauma, pain, dramatic life alteration, is not enough to the U.S. criminal system.

Had I known that there were other victims, as I have now been made aware, I can say with certainty that I would not have hesitated to report, and I do not personally believe any previous victim of his would have hesitated either. And for me, as obnoxious as I find the involvement of police to be after the torment they incur, I do not believe that without significant consequences and the involvement of conventional justice that the perpetrator in my case will ever be stopped. If another option was available, I would have taken it from the start.

While this partial solution is not for everyone victimized by sexual assault, it provides a new avenue to aid in making decisions which are critical to all survivors, and ultimately, to the community as a whole. This avenue still may lead survivors back to the criminal system, but the premise would be that they are not alone when they get there, which has proven to be an important factor in prosecuting cases. It would also allow the seemingly few detectives who truly care about sexual assault cases to focus on cases with substantial evidence and witnesses who are already willing to come forward, given that coalitions can connect willing participants.

Give survivors telling someone for the first time the option of finding out if their offender is a recidivist. Let them take their own valid, educated decisions on how to proceed with that important information in hand.

This is not to say that single-victim cases do not provide enough evidence- that is simply often untrue and a harmful narrative to survivors. It is also not to say that only survivors with recidivist perpetrators will want to report. It is also not to say that even with the knowledge of a recurring perpetrator, that the survivor will report, whether it is for their own best interest or the community’s (another issue we need to collectively stop judging). However, this avenue could potentially connect with the 15% of survivors who believe the police will do nothing, and the 20% of survivors who fear retaliation by reporting perpetrators. In turn, before our society is willing to believe the first victim, this could also spare future victims by being able to connect past victims with the first, present-day victim to report.

Avenues to report and receive help and services detached from the criminal system are demonstrably imperative simply by the statistics of those who report and those who are convicted alone. Apart from statistics, human lives are at stake. Each survivor who experiences sexual assault is harmed and deserving of any opportunity available to help regardless of how they cope with the aftermath of the assault. Survivors of sexual violence deserve better than we are currently offering. We are at a point in time when we can provide new solutions. Will you advocate for them?