Jen Herman and Kathleen Murphy teamed up on an article for the Poughkeepsie Journal entitled "Combating Sexual Assault Starts With Not Blaming The Victim." The article starts off pretty well, but makes this point:
"A call to test all the kits is counterintuitive to trauma-informed, victim-centered care. Our goal is to empower victims, not revictimize them. Testing rape kits without a victim’s consent is not only disempowering, it is unethical. Emphasis on DNA testing gives false hope in cases where DNA will not prove sexual violence was committed. DNA will not convince a jury if the defendant claims there was consensual sexual activity.
What, then, do we do? The Sexual Assault Response Team is working on the systems level to create a unified, county-wide protocol that serves to support and empower victims while creating a safer community for us all. And every one of us plays a role in ending sexual violence. If you’re not sure where to start, “Start by believing.” Stop blaming victims."
Some news reports and victim advocates have attempted to use a backlog of testing rape kits to show how law enforcement does not care about people who are sexual assault victims. Herman and Murphy are correct in their assertion that DNA analysis is not evidence of consent. So, when an accused makes a statement to the police, such as, "Sure we had sexual intercourse, but it was consensual," then penetration has been proven, unless it is a false confession.
DNA evidence from semen taken from a vaginal swab in the complaining witness's rape kit can prove two things: Sexual Activity and Identity of the person who left semen. So, testing the complaining witness's rape kit for DNA is usually superfluous in a consent case because the accused has admitted penetration and the identity of the accused is known.
However, in a case of mistaken identity, DNA evidence is vital to catching a rapist. It also has been vital in exonerating those who falsely confessed to rape. And, Herman and Murphy's statement that "[t]esting rape kits without a victim’s consent is not only disempowering, it is unethical" is simply wrong under those circumstances.
For instance, take a case where a female comes home from a bar and is texting a guy she met a week ago. He says he wants to come over, but she texts back, "I'm really drunk, my rooms a mess, and I got into it with some bitches tonight." He texts, "I can be over at your house in ten minutes. I'm going to leave unless you say No right now." When she doesn't respond, five minutes later he texts, "I was waiting for your response." She doesn't respond. He calls her, and when she does not answer, he goes to bed at his house in Phenix City, Alabama.
That night, somebody knocks on this female's door at her house in Columbus, Georgia, and she lets him in. He ties her up and rapes her. She makes a fresh complaint and identifies the man from Phenix City who was texting her as her rapist. Even though this individual has cell phone evidence that shows he is across the river in a different state, he denies going to her house or ever having sex with her, and his attorney attempts shows the cops his neighbor's video of his street between the time he was texting and the time she says she was being raped where no cars were entering or leaving from the neighborhood, he gets arrested.
He is held without bond and spends ten weeks in jail until semen from the rape kit excludes him as the donor. His attorney immediately gets a recognizance bond from a judge, he is released from jail, and the District Attorney gets the charges no billed in front of the grand jury. The victim continues to insist that the Phenix City man who the cops arrested raped her, even though she was really drunk the night she was tied up and raped and DNA evidence taken from the semen of the unknown person who raped her excluded him.
You would think that the cops would no longer pursue the Phenix City man as the suspect, right? And, you would think that cops would submit the unknown subject's DNA profile to the FBI to run it through their DNA database to see if it matches someone who was recently convicted of a felony, right? There is a rapist walking the streets of Columbus, Georgia who has a ten-week head start on the cops, and they should extend every effort to find the man who brutally raped this drunk girl, right?
Wrong. They do what Herman and Murphy suggest: They started by believing the victim, and they continue believing her even after irrefutable DNA evidence excludes him as the rapist. They don't want to further victimize the victim by telling her that she is mistaken, or question her further to see if there is anyone else who could have raped her. That would be victim blaming, so they keep their focus on this innocent man as a suspect.
So, what happens? Four months later on the 4th of July, the rape victim disappears in what appears to be a kidnapping based on the condition of her home. Her family and friends immediately blame the innocent man who was released from jail four months ago. They go to his house across the river and tell his neighbors that he is a rapist, that she is missing, and that he took her. But, this man is a Soldier with a rock solid alibi who was on 24 hour duty training Ranger Candidates on the 4th of July. He cooperates fully with the Columbus Police Department (CPD), so that if somebody did kidnap her and she was alive, then they could exclude him as a suspect and hopefully find her. Thankfully, the crew at the sex crimes division of CPD are not involved in this missing person investigation, so he gets cleared and he goes home.
Three days later, the cops find the body of a woman floating in a creek in Valley, Alabama. It's the missing rape victim. After a thorough investigation, it is reported that her mother's boyfriend matches the DNA profile obtained from her rape kit taken seven months ago. He allegedly has a key to the house where the victim lived with her mother. He was released on parole in 2003 after serving 9 years in prison for shooting two cops. His DNA should have been in the FBI database since 2003.
The Alabama authorities report that they found evidence linking the mother's boyfriend to her murder and arrest him. He is awaiting trial on capital murder charges.
If the Columbus Police Department sex crimes detectives had been less concerned with "victimizing" the victim and had stopped believing her when DNA evidence excluded the man she said raped her, Renee Eldridge might still be alive and would be testifying at the rape trial of State v. Stacey Gray. Instead, the Chamber County District Attorney will argue that Stacey Gray, the man charged with her murder, should be put to death, so that the State of Alabama can provide her the justice that the State of Georgia could not.