The balancing Act

A new federal mandate compensates for the mutually exclusive needs of sex crime investigations and sexual assault victims


     "I hold his semen inside me, waiting. Not speaking. The police arrive and interrogate me, and I answer, using as few words as possible." Shira Lipkin, 20 years old in 1994, sat in the hospital's waiting room fighting the pressure to go to the bathroom, knowing it could hinder the quality of evidence law enforcement could collect and later use against the man that, hours earlier, had kidnapped and raped her. Her mouth chafed from the sock gag and wrists raw and bleeding from being bound, she writes her state of mind was indescribable. But she tolerated the pressure to urinate and the physical pain in the interest of preserving the rapist's DNA inside her, she wrote in her account of the rape years later.

     What was on Lipkin's mind as she waited to be examined is what was on Congress's mind in 2005: DNA. Investigators and prosecutors need victims to be examined as soon as possible after a rape in order to collect semen, hair, skin or saliva that the attacker may have forcefully transmitted in order to connect DNA evidence with the perpetrator. Sexual assault experts say victims need time to heal from the attack, emotionally and physically, before they can make choices about whether or not they want to pursue legal action. These contradictory needs prompted Congress to add a stipulation to the 2005 reauthorization of the Violence Against Women Act (VAWA) which would require that states provide free sexual assault exams and collection of rape kit evidence to survivors, even if the victim does not report the crime to police or does not wish to cooperate with law enforcement. Next year marks the first year that all states will be obligated to provide the services. It is hoped the Act will create balance between the conflicting needs of law enforcement's need to collect physical evidence in a timely manner, and victims' needs for more time to recover and subsequently, make decisions.

Pinpointing the problem

     Cindy Dyer, director of the U.S. Department of Justice Office on Violence Against Women (OVW) and a 14-year veteran of domestic violence and sexual assault prosecution, explains that in the past, two things commonly occurred: First, a victim would present at the hospital after a rape and relate that he or she did not want to press charges, or at least not at that time. It was not uncommon, Dyer says, for the hospital and police to reject the victim for a sexual assault examination since the victim was unsure if he or she would prosecute the case. Or second, the victim may have had an exam, but the hospital and police made the victim responsible for charges unless he or she agreed to prosecute. It is these legacy practices that the VAWA addition was implemented to combat.

     "This act was developed to balance the need to obtain evidence quickly, but recognize that a victim may not be able to make the decision whether or not she wants to prosecute so quickly," Dyer explains. "It is imperative that we chain the evidence right after it occurs because it begins to disappear afterward."

     Gina Scaramella, who has been the executive director of the Boston Area Rape Crisis Center (BARCC) for five years, says that rape victims can feel overwhelmed or frightened and many do not want to interact with police. She says that the VAWA free exam stipulation is in the best interest of victims, adding, "Not having a mandatory report invites people to come to the hospital whether or not they're sure that they want to report to police," Scaramella says.

     Dyer and Deputy Chief Steve Bellshaw of the City of Salem Police Department agree that the provision within the act removes the quid pro quo relationship between victims and law enforcement that had been common — if not standard — when it came to providing financial assistance for the forensic medical exam. Bellshaw, a 19-year veteran of police work, had been a sex crime investigator in the early '90s, back when Oregon did not voluntarily provide exams to survivors. He says if a victim was not willing to report, the approach leaned toward saving public resources.

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