Forensic evidence is collected
from a head-to-toe exam on a case-
OUT OF EVERY
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 pa-
tient’s DNA, and everything else
that is swabbed is looking for as-
PERPETRATORS WILL
sailant’s DNA,” Kenyon says.
WALK FREE
In some exams, the nurse takes
photographs of the victim’s geni-
talia; it depends on the policies of
the facility Kenyon says. Detec-
RAPES ARE REPORTED
tives sometimes photograph bruis-
TO POLICE
es 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
REPORTS LEAD
happen,’” Kenyon says.
TO ARREST
The victim’s head, fingernails
and skin are also examined,
and clothing and underwear are
collected if relevant to obtaining
CASES GET REFERRED
DNA. Kenyon says she asks
TO PROSECUTORS
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, sexu-
CASES WILL GET A
ally transmitted infection prophy-
FELONY CONVICTION
laxis and, if indicated, HIV pro-
phylaxis,” Kenyon says.
When a victim is discharged,
Kenyon says, they are given
RAPISTS WILL BE
instructions on how and when to
INCARCERATED
follow up. She wants to ensure that
antibiotics have prevented an STI
RAPE, ABUSE & INCEST
and the emergency contraceptives
NATIONAL NETWORK
(RAINN)
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.
1,000
RAPES
994
310
57
11
7
6
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 hypotheti-
cal 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 cou-
ple 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.
“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.
Gov. Kate Brown and Rape Kits
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
14
February 16, 2017 • eugeneweekly.com
G
ov. 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