Loophole Allows New York Rape Kits to Go Into Trash After 30 Days

Despite Recent Victory in New York over Rape Kit Backlogs, New York Hospitals Still Allowed to Throw Away Rape Kits After 30 Days

By Jennifer Li

New York has made great progress in the past few years on the sexual assault and rape laws. In 2015, Governor Cuomo signed a the "Enough is Enough" bill, authored by Assemblymember Deborah Glick (D) and Senator Kenneth P. LaValle (R), into law. The "Enough is Enough" law provides for the most aggressive policy in the nation to fight against sexual assault on college campuses. In November 2016, Governor Cuomo signed into law a bill that recognizes and provides much-needed solutions for New York's rape kit backlog problem. The bill, A10067A, introduced by Senator Kemp Hannon (R) and Assemblymember Simotas (D), requires all police agencies across the state to send their untested rape kits to a forensic laboratory for testing, while newly collected kits will be subject to strict deadlines for testing.

But there's an unfortunate loophole that allows rape kits to fall through the cracks. While the 2016 bill mandates that law enforcement agencies be required to send rape kits to a forensic lab within 10 days of collecting evidence, it does not address another primary collector of rape kits: hospitals.

Under current New York Public Health law, a hospital is expected to collect and store sexual offense evidence for at least 30 days. Afterwards, it can be discarded, unless law enforcement requests the rape kit, the survivor requests the rape kit be turned over to law enforcement, or the victim signs a statement telling the hospital not to collect and keep evidence of the sexual assault. After 30 days, the hospital is required to notify the survivor that the evidence will be discarded if the victim chooses not to report to law enforcement.

Recovering and healing from sexual assault can take weeks, months, years, or an entire lifetime. 30 days is an impossibly short time frame for a sexual assault survivor to both process the trauma they have just experienced, and to decide whether to report their assault to law enforcement.

Retention of rape kits should not be contingent on reporting the sexual assault. Not only does this put the rape victim under a pressure cooker of stress (if they are notified about the timeline at all), it also makes it harder for New York State to prosecute sexual offences and rape cases. There are no New York statute of limitations on sexual offenses that is 30 days or shorter. If a victim decides to report their sexual assault after the short 30-day time frame, and the hospital has thrown away the kit, the State has lost important DNA evidence to prosecute the case.

As it currently stands, New York holds the undesirable title of the state with one of the shortest known rape kit retention timelines.

According to a 2007 research report by the New York City Alliance Against Sexual Assault (NYCASA) that surveyed 39 New York City hospitals, four hospitals stored kits less than 30 days, and three did not know how long they were stored. The rest of the hospitals stored the kits at least 30 days, with 37.1% storing them for one to three months. Of the 39 hospitals, only eight of the surveyed hospitals notified the victim prior to discarding the kits, even though New York Public Health law requires hospitals to notify the victim. The NYCASA study shows how unevenly the current rape kit retention law was applied through the cosmopolitan area of New York City. One can only speculate how New York hospitals located in more rural or suburban areas handle rape kit storage.

In addition to the above issues, New York Public Health law also states that "no hospital or treating practitioner shall be liable in civil damages for failing to comply with the requirements." This means that even if a rape survivor follows procedure and decides within the 30-day period to report their assault to law enforcement, if the hospital has failed to appropriately store the rape kit, or threw away the evidence before the minimum 30-day retention period, there are no consequences. There is no way to enforce the flawed law that governs how New York hospitals handle rape kits.

This is why we need the New York Sexual Assault Survivor Bill of Rights in New York. The rape kit backlog has been widely covered, and there has been great progress in this area thanks to the tireless efforts of New York lawmakers like Assemblymember Simotas, Senator Hannon, and Governor Cuomo. But before we can get to the step of rape kit testing, we need to make sure there is still a rape kit to test in the first place. One of the key rights for the New York Sexual Assault Survivor Bill of Rights is rape kit retention. Among other important rights, it also mandates that rape kits are transferred to labs and be kept for the duration of the statute of limitations or 20 years, whichever is longer.

It is already incredibly difficult to cope with the trauma of a sexual assault; rape survivors should not have to navigate a complicated system to fight to keep their rape kits out of garbage bins as well. Let's close this loophole and make sure New York is known for treating sexual assault survivors with dignity and compassion, not the state with that tosses rape kits after 30 days.

 

Washington Rising

By Leah Griffin

Rape is not like any other crime. Rape victims are often blamed for their own victimization. As such, rape is underreported and underinvestigated. Prosecutors can be reticent to charge rapists, and even convicted rapists do not always see justice. In some states, survivors are required to pay for their own evidence collection. Survivors are not informed about the results of their rape kits.

Washington State is leading the nation in rights afforded to survivors of sexual assault. In 2015, Representative Tina Orwall (D) sponsored House Bill 1068 which mandated the testing of 6000 backlogged rape kits in Washington State. The bill also created the Sexual Assault Forensic Examination (SAFE) Task Force to address other issues concerning the investigation of rape, and treatment of survivors. The Task Force is a bipartisan group of legislators, survivors, and other stakeholders who have been diligently examining procedures, and crafting recommendations for legislation. On February 2nd, 2017, bipartisan lawmakers submitted SB 5686, which is Washington’s version the Sexual Assault Survivor’s Bill of Rights. The bill will guarantee survivors the right to a legal advocate, the right to be interviewed by someone of the same gender, the right to be informed about the results of forensic evidence, and the right to be free from intimidation, harassment, and abuse. It is sponsored by Senator Ann Rivers (R ), a SAFE Task Force member who is committed to improving the system that fails so many sexual assault survivors around the country.

We believe that a Survivor’s Bill of Rights can be passed in all fifty states. To be raped in the United States is to be violated, and then re-traumatized, ignored, blamed, and ridiculed by society, and then re-traumatized, ignored, blamed, and ridiculed by the very system meant to provide justice. This is a system that will not improve on its own. Change requires the efforts of committed Members of Congress like Rep Orwall and Sen Rivers, and of individuals, like you, who are willing to speak up and take action. To abolish the systematic mistreatment of rape survivors in this country will require a fierce and determined movement.

Here is how you can help:

If you are a citizen of Washington State, you can contact your representative in support of the bill. You can find your senator here. You can find a script in support of the legislation here.

If you live elsewhere, and would like to help RISE promote similar legislation in your state, you can complete the RISE intake form here. Join the movement, and #riseup.

We Made A Difference For 25 Million Survivors Of Sexual Assault — Here's How You Can, Too

The following blog was originally posted by Refinery29.

By Amanda Nguyen

There can be days when you find yourself completely bewildered or disoriented by our political reality. How does real change happen in a country caught up in the latest scandal? How can our democracy work if elected officials don’t work together?

But a group of determined individuals did make the impossible happen — we got Congress to pass a landmark civil rights bill, the Survivors' Bill of Rights Act, unanimously. In fact, President Obama signed it into law on October 7. This law impacts at least 25 million sexual-assault survivors, and it's about supporting people who have been let down by the criminal-justice system.

To put it in perspective: The last time Congress passed a bill unanimously was six years ago. And since 1989, only 0.016% of bills have passed both chambers of Congress unanimously on the record, according to a Quorum analysis. That’s less than one tenth of a percent. So, yes, this feat was nearly impossible.

I REMEMBER WALKING OUT OF THE HOSPITAL AFTER MY RAPE-KIT EXAMINATION. I HAVE NEVER FELT MORE ALONE IN MY LIFE.

But it wasn't impossible, and that is what I want to share with you. As a result of this bill’s passing, rape survivors in federal territories will no longer live in fear that their untested rape kits may be destroyed before the statute of limitations. They will also now have the right to access their medical results from the kit and will be notified of what rights they have in their state.

And that means a lot to those 25 million people. But it also means a lot to me. This law represents probably the only form of justice I will ever see. I remember walking out of the hospital after my rape-kit examination. I have never felt more alone in my life. I remember asking myself: Where do I go from here? To go from that moment of despair and loneliness to seeing the leaders of the nation in Congress unanimously stand up for this gives me a sense of hope. 

Watching the bill pass Congress and getting it signed into law not only represented personal justice to me, but also hope that our nation can still function. Fifty-six percent of millennials consider themselves social activists. 

AS A RESULT OF THIS BILL’S PASSING, RAPE SURVIVORS IN FEDERAL TERRITORIES WILL NO LONGER LIVE IN FEAR THAT THEIR UNTESTED RAPE KITS MAY BE DESTROYED BEFORE THE STATUTE OF LIMITATIONS.

When we started, we were told a lot of nos: No, you cannot change the country. No, it is not possible. At best, the nos were polite. We got used to hearing: Yes, this is important, but no, we can’t prioritize these civil rights now. At worst, it was condescending: No, you are too young to dream this big. But our generation, and specifically Rise, is reclaiming the youth voice in politics and making sure that the issues that specifically affect young adults aren’t being overlooked. 

Social media has lowered the barrier for young people to enter into advocacy. It gives us the tools to spread our mission in an engaging, authentic way. Along with championing our survivors' bill of rights, Rise wants to be a model for millennial advocacy and inspire collective action and fight for the issues they care about. As millennials push past Baby Boomers as the largest generation, our voice has become more important than ever. Big brands, corporations, and politicians are fighting to win our sponsorship. We can leverage that power to demand the issues we care about are at the top of the agenda.

I WANT PEOPLE TO UNDERSTAND THAT IF WE WERE ABLE TO DO THIS, IT MEANS THAT ANYONE CAN CHANGE THIS COUNTRY.

We can also make a big impact quickly. Rise was founded from one mass email. Within two months of that mass email being sent, the team wrote and filed the bill in Massachusetts. In four months, the bill became a model for change in other states. After five months, we found ourselves in the halls of the United States Congress. In February of 2016, we introduced the bill that has now been signed into law. From introduction to passage, it took a total of seven short months. I want people to understand that if we were able to do this, it means that anyone can change this country. It is within our reach to create a better world.

Our work is not done. Because most rape cases are adjudicated at the state level, it is important to generate momentum to carry out this work in the states. This federal bill is a model for state legislatures to adopt. Your support is necessary to put this important civil rights issue on the map, and make state legislatures across the country take notice.

Our theory of change is simple: Hope is contagious. If people see a way to create change on an issue they care about, they will join the movement. It is with extraordinary hope for this nation that I ask you to join us. It is possible for anyone to make a difference. Rise with us.