TESTING JUSTICE: PROSPECTS FOR CONSTITUTIONAL CLAIMS BY VICTIMS WHOSE RAPE KITS REMAIN UNTESTED

Milli Kanani Hansen*

I. INTRODUCTION

Every two and a half minutes, someone is sexually assaulted in the United States.1 At the hospital, most of these victims consent to the collection of physical evidence from their bodies, or a “rape kit.” 2 Rape kits help identify unknown assailants, confirm the presence of a known suspect’s DNA, corroborate a victim’s version of

* Milli Kanani Hansen is a 2011 J.D. Candidate at Columbia Law School. The author would like to thank Professor Katherine Franke for her thoughtful comments, Sarah Tofte for her inspiration, and Nathan Hansen for his love and support. The title of this Note was taken from a 2009 Human Rights Watch report chronicling the rape kit backlog in Los Angeles County. 1. According to the Bureau of Justice Statistics’ annual National Crime Victimization Survey (N.C.V.S.), there were 203,830 rapes or other sexual assaults in the United States in 2008 and 125,910 in 2009. The N.C.V.S. collects information on non-fatal crimes both reported and not reported to the police. According to the N.C.V.S., victims reported 48.6% of violent crimes to the police in 2009; rape and sexual assault offenses were reported 55.4% of the time to police. Jennifer L. Truman & Michael R. Rand, Bureau of Justice Statistics, National Crime Victimization Survey: Criminal Victimization, 2009 (Oct. 2010). See also Statistics, Rape, Abuse, & Incest National Network (R.A.I.N.N.), http://www.rainn.org/statistics (last visited Feb. 5, 2011) (noting that according to a 2007 statistic, someone in the United States is sexually assaulted every two minutes). 2. The U.S. Department of Justice, Office on Violence Against Women, issued a National Protocol for Sexual Assault Medical Forensic Examinations. The manual describes the various medical and forensic components of the exam process, beginning with the initial contact with the victim and ending with recommendations on how an examiner should prepare for court testimony about exam findings. U.S. Dep’t of Justice, Office on Violence Against Women, NCJ 206554, A National Protocol for Sexual Assault Medical Forensic Examinations (2004), http://samfe.dna.gov/examination_process/.

944 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 events in a contested assault, and exonerate innocent suspects. The process of collecting a rape kit can be invasive and uncomfortable, often taking four to six hours to complete. A victim often assumes that her rape kit, once collected and given to a police officer, will be tested and used by law enforcement officials to investigate her case.3 Yet, as many as 500,000 rape kits from sexual assault crimes sit untested in police storage facilities and forensic laboratories.4 Untested rape kits present a host of problems for victims of sexual assault who hope that their attacker will be prosecuted. Untested kits contain readily available and highly probative evidence of a serious, violent crime. Academics, advocates, and victims have long asserted that officials treat rape investigations and prosecutions qualitatively differently from those of other crimes. 5 Studies evaluating the reactions of police officers to complaints about rape and sexual assault have found that officers often hold the “baseline expectation that approximately three out of five complainants are either untruthful or mistaken.”6 While some recent

3. Human Rights Watch, Testing Justice: The Rape Kit Backlog in Los Angeles City and County 5 (2009), available at http://www.hrw.org/node/81826 (quoting Gail Abarbanel, director of the Rape Treatment Center at Santa Monica- UCLA Medical Center, and an unidentified sexual assault nurse examiner). 4. Press Release, Kim Gandy, President of the National Organization For Women (NOW), NOW Urges Funds for DNA Testing of Rape Evidence (Mar. 13, 2002), http://www.now.org/press/03-02/03-13.html [hereinafter NOW Press Release]. 5. See, e.g., Martha A. Myers & Gary D. LaFree, Sexual Assault and Its Prosecution: a Comparison with Other Crimes, 73 J. Crim. L. & Criminology 1282, 1283 (1982) (citing to feminist-conflict research that assumes “sexual assaults differ qualitatively from other crimes and that official reactions differ accordingly”); Susan Estrich, Rape, 95 Yale L.J. 1087, 1090 (1986) (declaring that the article is “first and foremost, a study of rape law as an illustration of sexism in the criminal law”). See generally Lee Madigan & Nancy C. Gamble, The Second Rape: Society’s Continued Betrayal of the Victim (1991) (surveying the societal and legal treatment of rape survivors, and in particular focusing on how the police, medical personnel, district attorneys, and judges leave victims feeling violated a second time). 6. Shirley Feldman-Summers & Gayle C. Palmer, Rape as Viewed by Judges, Prosecutors, and Police Officers, 7 Crim. Just. & Behav. 19, 36 (1980) (evaluating the reactions of Seattle area police officers to complaints about rape and sexual assault); see also Vicki McNickle Rose & Susan Carol Randall, The Impact of Investigator Perceptions of Victim Legitimacy on the Processing of Rape/Sexual Assault Cases, 5 Symbolic Interaction 23 (1982) (finding that the investigating officer’s perception, based on his assessment of the incident report, of the extent to which a reported rape is “real” correlates highly with whether the case is eventually transferred to the district attorney’s office for prosecution); Jeanne C. Marsh et al., Rape and the Limits of Law Reform 1 (1982) (asserting 2011] TESTING JUSTICE 945 studies point to legal reforms and changing official attitudes as evidence that the performance of the criminal justice system has improved with respect to rape cases, 7 the systematic under- investigation of sexual assault, as evidenced by the large number of untested rape kits, suggests that the U.S. criminal justice system still routinely discriminates against rape complainants. A series of anecdotes collected by Human Rights Watch illustrates the effects of the backlog on rape victims: My clients seem to assume that if they have not heard back from the police, it is not because testing was not done; it was because testing was done but there was no DNA in the kit. Not hearing from the police can contribute to the self-blame and doubt that victims are feeling about the rape.8 The police seemed to focus a lot of their attention on the fact that the girl was drinking, and not as much on the fact of her physical injuries. She had tears inside her vagina, consistent with forced [penetration]. You could just sense that while they were interviewing the girl about the case, they were not going to be taking this case that far. I called them a few months later, at the girl’s request, to see if the kit was tested, and they told me they were going to wait and see whether to test it. I told my client, and she told me she didn’t want to be a part of the investigation anymore. She felt like the police didn’t believe her anyway.9 I worked for months to get the police to test these kits, to see if they could match the cases together.

that “[v]ictims are often discouraged from reporting cases because of humiliating and degrading treatment by hospital staff, police officers, prosecutors, defense attorneys, and judges”). 7. See, e.g., Linda A. Fairstein, Sexual Violence: Our War Against Rape 134–36 (1993) (noting that conviction rates for rape have risen steadily over the last several decades and that juries are substantially more sympathetic to the prosecution); David P. Bryden & Sonja Lengnick, Criminal Law: Rape in the Criminal Justice System, 87 J. Crim. L. & Criminology 1194, 1198–99, 1241 (1997) (reexamining the premise that discrimination against rape victims pervades the criminal justice system and noting that findings of “improper police biases” are “suggestive” but ultimately “inconclusive”). 8. Human Rights Watch, supra note 3, at 5 (quoting a sexual assault nurse examiner). 9. Id. at 6 (quoting a rape treatment provider’s description of a victim’s experience with the criminal justice system). 946 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

The same things that made these women vulnerable—their life on the streets—also made them suspect to the officer, and he was convinced these were simply cases where the sex worker didn’t get paid by her [customer], and they retaliated by reporting a rape. My response was, ‘They retaliated by submitting to the lengthy rape kit collection process?’ I think sometimes the officers just don’t get rape.10 In the last decade, the problem of untested rape kits has taken on a new dimension as an increasing number of rape victims pursue civil suits against their acquaintance-assailants. With no access to physical evidence from their rape kits, these civil litigants face unsympathetic juries reluctant to award damages. Untested kits also allow rapists to remain unprosecuted and at large, thereby endangering public safety. David Lisak, a clinical psychologist who researches the characteristics of “undetected” rapists, found that of the 120 undetected rapists evaluated in one study, sixty-three percent were serial rapists.11 Those seventy-six rapists had, on average, attacked fourteen victims and were responsible for 439 rapes and attempted rapes, forty-nine sexual assaults, 277 acts of sexual abuse against children, and 214 acts of battery against intimate partners.12 The potentially probative nature of the DNA evidence contained within these kits necessitates that they be tested. While legislative efforts have been made to reduce the backlog of untested DNA evidence, the effects of the backlog on victims who have consented to the rape kit collection process have largely been ignored. While rigorous debate and litigation surrounds the rights of the

10. Id. (description of a rape treatment provider’s experience with the criminal justice system after seeing four sex workers, all with similar descriptions of the man who raped them, come to her clinic in the span of nine months). Human Rights Watch gives another account of a woman who consented to the rape kit process after being raped in her own home. The detective investigating the case was told by the laboratory that DNA analysis would take at least eight months to complete. The detective, knowing from the assailant’s modus operandi that he was a repeat offender, personally drove the kit to the state lab. After sitting on a shelf for several months, the kit was finally analyzed and, from a “cold hit” to an offender database, the woman’s assailant was identified. During the time the kit sat unopened in the laboratory, the same rapist had attacked at least two other victims, one of whom was a child. Id. at 2. 11. David Lisak, Rape Fact Sheet (Mar. 2002), http://www2.bingham ton.edu/counseling/documents/RAPE_FACT_SHEET1.pdf. 12. Id. 2011] TESTING JUSTICE 947 accused to access DNA evidence, the rights of victims to have available forensic evidence tested or presented to a jury has gotten little attention in the legal community. This Note seeks to examine the rights that victims of rape have to the evidence contained in untested rape kits held in law enforcement storage facilities. Part II outlines the nature and scope of the backlog of untested rape kits in the United States and legislative efforts to correct this problem. Part III frames the problem of untested rape kits for victims of sexual assault pursuing both criminal and civil remedies. Because victims do not have statutory rights to forensic evidence in their cases, Part IV offers theories of redress that victims could use to hold governmental actors accountable for their failure to process rape kits.

II. THE PROBLEM OF UNTESTED RAPE KITS

A. Scope of the Backlog Whether the practical results to be derived from his research will repay the pains he has bestowed upon them we must take leave to doubt. It will be long before a British jury will consent to convict a man upon the evidence of his finger prints; and however perfect in theory the identification may be, it will not be easy to submit it in a form that will amount to legal evidence.13 Scientists, law enforcement officials, and attorneys are hailing the development of DNA “fingerprints” as “the greatest single breakthrough in the fight against crime since fingerprints themselves were discovered in 1901.”14

Since the late 1980s, DNA fingerprinting15 has been increas- ingly used in U.S. courts to convict the guilty and exonerate the

13. National Research Council, The Evaluation of Forensic DNA Evidence 47 (1996) (quoting an 1892 review in The Athenaeum of Finger Prints by Sir Francis Galton). 14. Sally E. Renskers, Comment, Trial By Certainty: Implications Of Genetic “DNA Fingerprints,” 39 Emory L.J. 309, 309 (1990) (quoting DNA Testing on the Increase, 131 Solic. J. 1596 (July–Dec. 1987)). 15. See generally Laurel Beeler & William R. Wiebe, DNA Identification Tests and the Courts, 63 Wash. L. Rev. 903 (1988) (giving a scientific account of the process of DNA fingerprinting, the forensic applications of DNA evidence, and the admissibility of DNA evidence in courts). 948 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 innocent.16 Now admissible in nearly every federal and state court,17 DNA evidence has been particularly effective in rape and criminal sexual assault cases to identify or confirm the identity of alleged assailants. In cases of rape where there is no known suspect, collected DNA evidence can be entered by crime laboratories into national databases, where a match or “cold hit” may provide investigative leads by linking different crime scenes.18 Yet, despite DNA’s potential probative value and reliability, thousands of collected DNA samples sit untested on the shelves of police storage facilities or in evidence lockers at criminal laboratories. Law enforcement agencies do not track the numbers of open or unsolved sexual assault cases within their jurisdictions, much less the status of the biological evidence associated with those cases, and therefore obtaining accurate figures of the total number of untested sexual assault kits remains inordinately difficult.19 In 1999, former Police Commissioner Howard Safir found 16,000 unanalyzed rape kits in New York City police storage facilities;20 Los Angeles County had an estimated 12,669 untested rape kits as of February

16. Andrews v. State, 533 So. 2d 841, 850 (Fla. Dist. Ct. App. 1988) (announcing that “evidence derived from DNA print identification appears based on proven scientific principles”). The court in Andrews v. State was the first to uphold a conviction based on DNA evidence. See also Renskers, supra note 14, at 310, 314–16 (noting the acceptance of DNA evidence by courts in Georgia, Washington, Colorado, and New York in 1988 and outlining a brief history of judicial applications of DNA fingerprints). 17. James Herbie DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, 41 Hous. L. Rev. 1205, 1220 (2004). 18. See Combined DNA Index System (CODIS), Fed. Bureau of Investigation, http://www.fbi.gov/about-us/lab/codis/codis_crime (last visited Mar. 12, 2011) (describing how the Combined DNA Index System and the National DNA Index System aid law enforcement officials in investigations by generating leads in cases where biological evidence is recovered). 19. See Nicholas P. Lovrich et al., National Forensic DNA Study Report 11 (2003). See also 155 Cong. Rec. S11213 (2009) (statement of Sen. Franken) (introducing the Justice for Survivors of Sexual Assault Act of 2009 and pointing out that the proposed legislation will make law enforcement agencies responsible for reporting their reductions of rape kit backlogs); 156 Cong. Rec. E1555 (2010) (statement of Rep. Maloney) (introducing the Sexual Assault Forensic Evidence Registry (SAFER) Act, noting the “lack of solid data on the extent and nature of the remaining backlog”). The SAFER Act would allow states or local governments to use federal grants to conduct audits of backlogged rape kits. The SAFER Act of 2010, H.R. 6085, 111th Cong., § 2 (2010). It would also require the Attorney General to establish a registry that tracks whether forensic evidence from sexual assault cases has been tested. Id. § 3. 20. Human Rights Watch, supra note 3, at 55. 2011] TESTING JUSTICE 949

2009. 21 The 2005 Census of Publicly Funded Crime Laboratories found that the median number of backlogged DNA cases in a crime laboratory grew from eighty-six cases at the beginning of the year to 152 cases by the end of that year.22 Estimates of the total number of untested DNA samples from sexual assault crimes range from 169,00023 to 500,000.24

B. Reasons Rape Kits Remain Untested Actors within the criminal justice arena rely on different systemic failures in accounting for the growing numbers of untested rape kits. Law enforcement officials point to limited resources and costs when confronted with the growing backlog.25 When law enforcement officers were asked why they elected not to submit rape kits for testing, almost a third of the respondents identified a lack of funding for DNA analysis as a barrier to processing DNA evidence from unsolved homicides and rapes. Approximately half pointed to the backlog as a barrier to the laboratory’s ability to produce timely results.26 In the last decade, crime laboratories have been inundated with DNA samples needing analysis; a government survey found that, in 2000, laboratories received forty-seven percent more cases than they did in 1999.27 Paradoxically, it is the very usefulness of DNA evidence that has led, in part, to its growing ineffectiveness as a law enforcement tool. Inadequate funding also prevents the modernization of laboratories and affects both the number and quality of technicians.28 Since analysts undergo significant training in their first months at a laboratory,29 high turnover rates from relatively low pay result in fewer efficient technicians.30

21. Id. at 37. 22. Bureau of Just. Stat., Bull. NCJ-222181, Census of Publicly Funded Forensic Crime Laboratories, 2005 (2008). 23. Lovrich et al., supra note 19, at 13. 24. NOW Press Release, supra note 4. 25. NOW says that a rape kit can cost anywhere from $1500 to $5000 to process. Id. Another study found the average cost of testing a rape kit to be approximately $1100. Lovrich et al., supra note 19, at 34. 26. Lovrich et al., supra note 19, at 31. 27. 148 Cong. Rec. S4331, 4332 (2002) (statement of Sen. Biden) (introducing the DNA Sexual Assault Justice Act of 2002). 28. Craig M. Cooley, The CSI Effect: Its Impact and Potential Concerns, 41 New Eng. L. Rev. 471, 474–75 (2007). 29. Evidence handling protocols, differentiating between DNA samples that may contain probative evidence and those that do not, and proper use of scientific equipment are some aspects of this training, which is typically done in a one-on- 950 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

These arguments remain unpersuasive in light of recent legislation devoting substantial federal resources to address DNA backlogs. The DNA Analysis Backlog Elimination Act of 2000 authorized a total of $125 million in appropriations for fiscal years 2001–2004 for states to carry out DNA analysis of samples from crime scenes and increase the capacities of their public crime laboratories.31 In 2004 Congress amended that Act, re-titling it the Debbie Smith32 Act of 2004 and authorizing $151 million in appropriations for each fiscal year between 2005 and 2009.33 The most recent reauthorization extended those appropriations through 2014.34 State and local governments, however, have not availed themselves of these resources. More than a third of the jurisdictions awarded funds under this grant reported that they did not have access to those funds in fiscal year 2007: the money was not released because these jurisdictions had unspent Debbie Smith grant awards from previous years.35 For instance, the Department of one setting with a more experienced analyst responsible for training a newly hired analyst. A report published by the National Institute of Justice noted that the “very labor-intensive form of training . . . places substantial demands on the time of experienced analysts.” Nat’l Inst. of Justice, NCJ 199425, Report to the Attorney General on Delays in DNA Forensic Analysis 2 (2003). See also Ryan Slight, Moore Calls for Crime Lab Pay Hikes, Springfield News-Leader, Nov. 30, 2002, at 1A (“Newly hired criminalists take a few months to train before they start handling cases. Experienced ones also lose time on cases while conducting training. ‘We've been in training mode for the last three years. That’s part of the reason for the backlog,’ [the Jefferson City lab’s assistant director] said.”). 30. “[P]ublic crime labs report that they face substantial staff retention problems. Public crime lab salaries are often below the salaries paid by the private sector.” Report to the Attorney General, supra note 29, at 2. 31. DNA Analysis Backlog Elimination Act of 2000, H.R. 4640, 106th Cong. (2000). 32. Debbie Smith was “kidnapped in her Virginia home and raped in a nearby woods by a stranger . . . .” Her “attacker remained unidentified for more than 6 years, until a DNA sample collected from a convicted person serving time in a Virginia State prison revealed his involvement in her rape. Although eventually identified, the 6 years between crime and identification allowed Ms. Smith's attacker to continue engaging in criminal activity.” 110 H.R. Rep. No. 110-757, at 6 (2008). 33. H.R. 5107, 108th Cong. (2004). 34. 42 U.S.C. § 14135j (Supp. II 2008). 35. Based on an analysis of information submitted by jurisdictions to DOJ to fulfill reporting obligations under the Debbie Smith grant. In 57 of the 92 cities that provided data, the number of days between the submission of DNA samples to a laboratory and the delivery of those test results to the requesting agency was virtually unaffected during the funding period; in 36 out of 92 cities, the time it 2011] TESTING JUSTICE 951

Justice reduced the grants awarded to Los Angeles by more than fifty percent in fiscal year 2008 due to the Los Angeles Police Department’s failure to use monies from previous grant years.36 As of September 4, 2008, the city of Los Angeles had a backlog of over 7,000 rape kits.37 In contrast, law enforcement officials in St. Louis, Missouri used Debbie Smith grant funding to analyze an additional 203 backlogged rape kits and enter the evidence into the national DNA index.38 Their efforts resulted in twenty “cold” hits in which the newly entered DNA matched the DNA of an individual previously convicted or arrested for a crime.39 Non-fiscal accounts of the backlog are more compelling. The National Forensic DNA Study Report found that over half of local law enforcement agencies did not consider forensic DNA a tool for criminal investigations, concluding that law enforcement agencies continue to “misunderstand the potential benefits of DNA testing.”40 The predominate perception among police officers that DNA evidence is most useful for the prosecutorial stages of the criminal justice process persists, despite DNA’s documented role in identifying suspects and corroborating a specific version of events to establish

took for test results to be delivered actually increased. In more than three-fourths of reporting cities, the number of samples analyzed each month by a DNA analyst was either unchanged or actually decreased during the funding period. When asked whether the backlog of DNA cases had decreased as a result of this federal funding, 30 of the 59 cities that responded reported that their backlog had increased; only 13 reported a decrease of more than 20% in the number of DNA cases backlogged. The data indicates that most of the jurisdictions receiving funding were not using it effectively, that most jurisdictions were not reporting accurately, or that the questionnaire used by DOJ to collect data was not soliciting the correct information. The data was collected through FOIA requests and is on file with the author. 36. Laura Chick, City of L.A. Office of the Controller, Audit of Forensic DNA Backlog Reduction Grant Program Awards 14 (2008). 37. Id. at 2, 11. 38. Based on an analysis of information submitted by jurisdictions to DOJ to fulfill reporting obligations under the Debbie Smith grant. The data suggested that a few cities were making clear strides toward using DNA evidence to combat crime more successfully. For instance, of the 23 cities that provided numerical data on the number of cold hits (DNA matches that could lead to an immediate arrest and likely conviction) attributable to DNA analysis funded by the Debbie Smith grant, 18 reported they had more cold hits. The data was collected through FOIA requests and is on file with the author. 39. Id. Similarly, in Richmond, Virginia, 38 DNA profiles were entered into the national DNA index, and 12 resulted in cold hits. 40. Lovrich et al., supra note 19, at 3. 952 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 the crime.41 As a result of this misconception, officers may elect not to submit rape kits for testing unless a suspect is already identified and the prosecutor seeks an indictment.42 While most of the scholarly work on prosecutorial resistance to DNA testing has been focused on the context of post-conviction relief,43 prosecutorial resistance to DNA testing also occurs before convictions and trials: prosecutors often control which rape kits are analyzed, a choice at times dependent on their discretionary decision of whether to proceed with criminal charges.

C. Legislative Efforts to Address the Problem A number of legislative proposals, both on the state and federal levels, have sought to address the backlog of untested rape kits.44 The Debbie Smith Act,45 the most relevant current federal legislation, authorizes appropriations for grants to local law enforcement jurisdictions to analyze DNA samples collected from crime scenes and to increase the capacity of public crime

41. For instance, entering DNA evidence collected from a rape kit into a national database may lead to a cold hit. DNA evidence may also serve to confirm a version of events put forward by one of the two parties, which may lead to a decision to prosecute where prosecution would have been otherwise unlikely. 42. In listing reasons for not sending rape kits for analysis, 31.4% of the law enforcement officers responding said that they did not send the kit because a suspect had not been identified. Another 10.2% indicated that, though a suspect had been identified, they did not send the kit for analysis because the suspect had not been charged. See Lovrich et al., supra note 19, at 31. 43. See generally Bruce A. Green, Prosecutorial Discretion and Post- Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467 (2009) (suggesting that prosecutors should investigate any significant new evidence that suggests a convicted defendant is innocent); Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (2008) (arguing that prosecutors should ensure full access to any evidence of innocence at trial, and that restrictions on access to new evidence during post-conviction or appeals proceedings should be lifted); Cynthia Bryant, When One Man’s DNA is Another Man’s Exonerating Evidence, 33 Colum. J.L. & Soc. Probs. 113 (2000) (recommending that, upon a threshold showing, courts compel consensual partners of rape victims to supply DNA samples to post-conviction petitioners for the purpose of exoneration). 44. See also supra Part II.B (describing federal legislation devoting funds to address the DNA backlog). 45. 42 U.S.C. § 14135 (2006 & Supp. II 2008). Previous versions of essentially the same act were known as the DNA Analysis Backlog Elimination Act of 2000, H.R. 4640, 106th Cong. (2000), and the Debbie Smith Act of 2004 as part of the larger Justice for All Act of 2004, H.R. 5107, 108th Cong. (2004). 2011] TESTING JUSTICE 953 laboratories.46 While the Act was named after a rape victim, and much of the legislative history focuses on victims of sexual assault and the problems of untested rape kits,47 the Act does not require states to use grants for the sole purpose of analyzing rape kits.48 A bill introduced in the Senate in November 2009 aims to fulfill the “promise of the Debbie Smith Act” by creating financial incentives for states to use grant money specifically for the reduction of the rape kit backlog. 49 It requires states to implement a policy of testing all collected rape kits and to specify plans to reduce and eliminate the rape kit backlog in their jurisdictions.50 The bill also allows increased

46. 42 U.S.C. § 14135(a)(1)–(5) (2006). See supra notes 33–35 and accompanying text. See also Ben Goldstein, Rape, Sexual Assault, and Evidentiary Matters, 10 Geo. J. Gender & L. 457, 477–78 (2009) (discussing the various requirements and authorizations of the Debbie Smith Act). 47. During the hearings for the Justice for All Act of 2004 (the Debbie Smith Act of 2004 is title II of the Justice for All Act), Senator Biden noted, I don't want anyone to misunderstand why this [Act] is so important. All of you should know so you can tell your constituents. In fact, we set up a provision in the crime bill whereby when there is a rape or a sexual assault, we have put a lot of money—you have put a lot of money over the years into providing for training of police, training forensic nurses and doctors to be able to take DNA samples. There are over 800,000 so-called rape case kits sitting on shelves of the cities where you live and the States you represent. They have never been tested because of the cost of testing them. The bottom line is that an estimated 48 percent of outstanding rapes could be solved by just comparing the database that will come from testing these kits and the existing database in our State prison systems where DNA is already on the record. This will liberate thousands of women from the fear and concern that the man who raped them is out there and will be back again. 150 Cong. Rec. S10917 (daily ed. Oct. 9, 2004) (statement of Sen. Biden). 48. The language of the act refers to sexual assault cases, but in permissive terms—it allows grant funds to be used for “DNA analyses of samples from crime scenes, including samples from rape kits” with no requirement that the funds be used exclusively for rape kits. 42 U.S.C. § 14135(a)(2) (2006). 49. S. 2736, 111th Cong. (2009). Senator Franken, introducing a new bill that would create more incentives for states to address rape kit backlogs specifically, said in his opening remarks, “[b]ecause of this loophole . . . the promise of the Debbie Smith Act remains unfulfilled.” Sen. Franken’s Floor Statement on the Introduction of the Justice for Survivors of Sexual Assault Act (Nov. 5, 2009), http://www.franken.senate.gov/?p=news&id=700. 50. Section 4(a) of the bill would amend § 502 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3752) to require applicants for the Edward Byrne Grant to certify that they have “implemented a 954 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 congressional oversight, as states must report annual progress in eliminating their backlog and specify the portion of grant funds used for testing sexual assault kits, as opposed to other crime scene evidence.51 Some states have taken the initiative of enacting legislation directed at reducing the backlog of DNA samples.52 Illinois, to ensure greater accountability, requires the Department of State Police to annually report to the governor and General Assembly the extent of the backlog of cases awaiting DNA analysis and the measures being taken to reduce that backlog.53 A new Illinois law requires all evidence in sexual assault cases to be submitted for forensic analysis, making Illinois the first state to require that all kits be tested.54 Tennessee added six additional forensic scientists to the Tennessee Bureau of Investigations to perform DNA analysis, directing that they be assigned based on “factors as the director determines will most quickly and efficiently reduce the backlog of DNA

policy requiring all rape kits collected by or on behalf of the applicant to be sent to crime laboratories for forensic analysis.” S. 2736, 111th Cong. (2009). Linking implementation of such a policy to the receipt of Byrne grants is critical, as Byrne grants provide state and local governments with money that can be used for virtually any law enforcement activity or program. 42 U.S.C. § 3751(a)(1) (2006). This desired flexibility makes receipt of a Byrne grant (and therefore compliance with its terms) more valuable than other sources of monies. 51. Section 4(b) of the bill would amend the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135 (2006)) in two critical ways. First, if the jurisdiction has a rape kit backlog, they must include a plan “that includes performance measures” to eliminate that backlog entirely and to assess progress toward a “50 percent reduction in the rape kit backlog over a 2-year period.” Second, jurisdictions must “specify the portion of the amounts made available under the grant . . . that the State or unit of local government shall use for the purpose of DNA analyses of samples from untested rape kits.” S. 2736, 111th Cong. (2009). 52. In addition to the states mentioned in the following paragraph, other states have also addressed rape kit backlogs. North Carolina doubled its analysis capabilities by adding ten forensic analysts. Missouri, blaming the backlog on the non-competitive salaries paid to public laboratory technicians, hopes to raise salaries in order to retain analysts. Virginia has completely eliminated their convicted criminal DNA backlog, which has resulted in approximately 500 cold hits a year in unsolved crimes. Katherine L. Prevost O'Connor, Eliminating the Rape-Kit Backlog: Bringing Necessary Changes to the Criminal Justice System, 72 UMKC L. Rev. 193, 212–13 (2003). 53. 730 Ill. Comp. Stat. Ann. 5/5-4-3a (West 2010). 54. 725 Ill. Comp. Stat. Ann. 202/10 (West 2011) (“Law enforcement agencies that receive sexual assault evidence . . . must submit evidence from the case within 10 business days.”). 2011] TESTING JUSTICE 955 samples awaiting analysis.”55 Should the backlog be eliminated, these six scientists will be placed in positions to prevent any future backlog and expedite analysis of future requests.56 California attempted to impose a duty on local law enforcement agencies to annually report information pertaining to the processing of rape kits.57 Governor Schwarzenegger vetoed the bill, citing the cost burdens of reporting backlog statistics on agencies. 58 While existing California law already requires law enforcement agencies to give a victim written notification if the agency elects not to perform DNA testing on the victim’s rape kit,59 an audit found not only a complete absence of procedures within the Los Angeles Police Department (LAPD) to implement this provision, but also that not a single notification had actually occurred.60 Since the law requires notification if DNA testing has not occurred within two years of the kit’s collection, and given that the audit found 5,694 rape kits older than two years in police storage, it is clear that the LAPD has not been adhering to the law. 61 A writ of mandamus requiring compliance with this notification provision is the sole remedy available to sexual assault victims in California.62

III. UNTESTED RAPE KITS IN THE CRIMINAL AND CIVIL CONTEXT

Federal and state legislative efforts to address the backlog focus on both the lack of financial resources of law enforcement jurisdictions to test kits and the lack of public accountability for the practice of leaving kits unanalyzed.63 The purpose of these legislative measures is to reduce, and ultimately eliminate, the backlog of untested DNA samples. If successful, the legislation may also serve a

55. Tenn. Code Ann. § 38-6-103(h)(1) (2010). 56. Tenn. Code Ann. § 38-6-103(h)(2) (2010). 57. Assemb. B. 1017, 2009–10 Reg. Sess. (Cal. 2009). 58. “[R]equiring law enforcement agencies to provide backlog statistics to the DOJ would place significant cost burdens on these agencies and would divert scarce resources away from processing these kits.” Arnold Schwarzenegger, To The Members of the California State Assembly (Oct. 10, 2009), http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1001-1050/ab_1017_vt_20091012 .html. 59. Cal. Pen. Code § 680(d) (2010). 60. Chick, supra note 36, at 16. 61. Id. at 11. 62. Cal. Pen. Code § 680(j) (2010). 63. See supra Part II.C for a discussion of legislative efforts at both the state and federal level to address the backlog of DNA samples. 956 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 second purpose: to bring justice to victims of crime by ensuring that law enforcement punishes perpetrators and to the accused by protecting the innocent from improper conviction. While rape kits remain untested, however, material evidence continues to be inaccessible to victims. The next section explores the effects of untested rape kits on victims pursuing both civil and criminal remedies.

A. Untested Rape Kits in the Criminal Context [An estimated] 180,000 rape-kits require analysis. That means that 180,000 rapes, potentially, have gone unsolved. It means that potentially 180,000 rapists remain at large, free to strike again. It means that potentially 180,000 women cannot move on, cannot breathe easier, cannot fully recover, because we haven’t provided the police with every available tool to bring their attackers to justice.64 Empirical studies evaluating how law enforcement agencies process complaints and the factors used by officers to determine whether to investigate alleged crimes or charge suspects suggest that rape and sexual assault cases are treated differently than other crimes.65 These studies have primarily focused on metropolitan areas, perhaps given the larger sample sizes and easier access to data in cities.66 One study looking at the Chicago Police Department found the availability of forensic evidence to be a significant predictor of whether or not a particular case moves forward in the criminal justice system.67 In New York City, a recently implemented policy of testing every rape kit has coincided with a dramatic rise in arrest rates for rape, from thirty percent in 1999 to seventy percent in 2007.68 While other factors surely contribute to this dynamic, access to results from rape kit analysis remains significant. As one New York City police officer acknowledged,

64. Prevost O'Connor, supra note 52, at 200 (quoting Senator Charles Schumer). 65. See supra notes 5–7 and accompanying text. 66. See, e.g., Rose & Randall, supra note 6 (assessing how investigators’ perceptions of incident reports in rape and sexual assault cases affect those cases’ final disposition in a large metropolitan area in the southwestern United States). 67. Megan Ann Alderden, Processing of Sexual Assault Cases Through the Criminal Justice System 88 (2008) (unpublished Ph.D dissertation, University of Illinois at Chicago). 68. Human Rights Watch, supra note 3, at 17–18. 2011] TESTING JUSTICE 957

Having the DNA [test results] from every rape kit I book has given me investigative leads I never would have expected. I take second looks at cases I would have dismissed, and I pass along more cases to the prosecutors. I used to think I didn’t need DNA to develop a case, but it has helped me solve more cases.69 Police discretion, in turn, affects a prosecutor’s own exercise of discretion in determining whether to file charges: police may fail to submit rape kits for forensic analysis because no suspect had been charged, and prosecutors may elect to not pursue criminal charges in sexual assault cases where there is little physical evidence.70 Studies examining the factors that influence charging agreements between police and prosecutors in rape cases have consistently found that the presence of physical evidence increases the likelihood of an assailant being charged.71 New York City officers have found that the ability to connect alleged assailants to multiple cases, as well as the fact that victims’ stories became more credible in light of DNA evidence, have led to an increased number of prosecutions for sexual assault.72 For instance, DNA in an acquaintance rape case in which the identity of the assailant is uncontested may match rape kit evidence in another, seemingly unrelated case. Even if a prosecutor does seek an indictment, a trial without rape kit evidence may be less likely to result in a conviction. Recent articles have highlighted the “CSI

69. Id. at 18 (interview conducted by Human Rights Watch with officer who investigates sex crimes, Apr. 24, 2008). 70. Notably, at least one study examining the impact of a specialized prosecution unit for victims of sexual crimes revealed very few differences in final case disposition between jurisdictions that had such a unit and those that did not. In both jurisdictions, over half the cases were not prosecuted (49% for the specialized; 47% for the non-specialized), and an “overtly extralegal victim characteristic” was a significant predictor of a prosecutor’s decision to file charges. Dawn Biechner & Cassia Spohn, Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit, 16 Crim. Just. Pol’y Rev. 461, 490 (2005). 71. See, e.g., David Holleran et al., Examining Charging Agreement Between Police and Prosecutors in Rape Cases, 56 Crime and Delinq. 385, 400 (2010) (finding that the presence of physical evidence is associated with a higher likelihood of charging agreement in two jurisdictions). 72. Human Rights Watch, supra note 3, at 17–18, 55 (reporting that after the New York Police Department implemented a policy of testing all rape kits, rape arrests increased from 30% of reported cases in 1999 to 70% in 2007, and noting reports from prosecutors that scientific evidence assisted them in tying multiple cases together). 958 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 effect” on juries.73 Juries now expect production of DNA evidence and may need additional assurances to hold a defendant guilty if such evidence from a sexual assault allegation is lacking. While the full effect of shows like CSI on jurors remains to be studied, a report by the National Research Council noted that such “popularization of forensic science disciplines” has led to “jurors second-guessing attorneys in the courtroom, citing ‘reasonable doubt’ and refusing to convict because they believed that other evidence was available and not adequately examined.”74 As the police and prosecutors are the “gateway” to the criminal justice system for sexual assault victims, choosing to send kits to crime laboratories would ensure that this avenue of relief is more fully accessible to victims.75 The rape kit backlog has also “negatively affect[ed] women’s perceptions of justice by implying that the system does not care enough about them.”76 Former New York City Police Commissioner

73. See, e.g., Richard Willing, “CSI effect” has Juries Wanting More Evidence, USA Today, Aug. 5, 2004, at 1A (noting that in a survey of 500 people in a Galveston, Texas jury pool, 70% were viewers of the CBS television show CSI or similar crime-solving shows, and discussing how such shows affect juror expectations of evidence at trial); Kit R. Roane, The CSI Effect, U.S. News & World Report, Apr. 25, 2005, at 48 (“Jurors increasingly expect forensic evidence in every case, and they expect it to be conclusive.”). 74. National Research Council, Strengthening Forensic Science in the United States:: A Path Forward 48–49 (2009), available at http://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf. 75. Wayne A. Kerstetter, Gateway to Justice: Police and Prosecutorial Response to Sexual Assaults Against Women, 81 J. Crim. L. & Criminology 267, 268 (1990). The failure to prosecute rape cases may also result in increased public safety concerns. Some current studies indicate that the notion that rapists are more likely than other criminals to be recidivists is exaggerated, see, e.g., Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563, 578 (1997) (stating that, while many “unabashedly and without proof suggest that rapists are more likely than other criminals to repeat their acts. . . . [t]he evidence that we have is to the contrary”); Christina E. Wells & Erin Elliott Motley, Reinforcing the Myth of the Crazed Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U. L. Rev. 127, 158 (2001) (“Statistics . . . support the conclusion that rates of recidivism for rape are no greater than for other crimes. Although a rapist may be more likely to commit another rape, he is, at the very least, no different from other criminals who show an even greater likelihood to commit similar crimes.”). However, research also suggests that rapists are likely to have committed multiple sex crimes before being apprehended. See A. Nicholas Groth et al., Undetected Recidivism Among Rapists and Child Molesters, 28 Crime & Delinq. 450, 453–54 (1982) (finding that incarcerated rapists admitted to having attempted or committed an average of five sex crimes for which they were never apprehended). 76. Prevost O’Connor, supra note 52, at 199. 2011] TESTING JUSTICE 959

Howard Safir observed that, by not testing rape kits, “[w]e’re saying [rape victims are] not worth $500.”77 Relatively few victims report their rapes to law enforcement officials;78 one commonly cited reason for underreporting in sexual assault crimes stems from a victim’s fear of societal or official skepticism about the legitimacy of her complaint.79 Research indicates that the factors that influence charging decisions in sexual assault cases differ from the factors that typically affect such decisionmaking in other crimes—namely, the charging decisions in rape cases often focus on the moral character and behavior of the victim.80 In some jurisdictions, prosecutors seem to heighten the evidentiary requirements necessary for a rape case to move forward in the system. For instance, sexual assault groups in Illinois accused the Cook County State’s Attorney’s Office of improperly refusing to authorize felony charges in acquaintance rape cases unless corroborative evidence was present, even though the law only requires credible victim testimony.81 This practice, they noted, “protects most rapists from the threat of criminal prosecution,

77. The Oprah Winfrey Show: What You Need to Know About Rape (ABC television broadcast Feb. 15, 2002) (transcript on file with the Columbia Human Rights Law Review). One rape treatment provider, upon the victim’s request, called the police several months after the reported incident to check on the status of the rape kit. When she told her client that the police were still waiting to see whether or not to test the kit, her client told her that she no longer wanted to be part of the investigation. “She felt like the police didn’t believe her anyway.” Human Rights Watch, supra note 3, at 6. 78. The 2009 National Crime Victimization Survey found that 55.4% of rape/sexual assault cases were reported to the police, as compared to 58.2% of aggravated assault cases and 68.4% of robbery cases. Truman & Rand, supra note 1, at 8. Another report indicates that, between 1992 and 2000, an average of 31% of rapes were reported. Lauren R. Taylor, Has Rape Reporting Increased Over Time?, 254 Nat’l Inst. Just. J. 28, 34 (July 2006), available at http://www.ojp.usdoj.gov/nij/journals/254/rape_reporting.html. 79. Andrea A. Curcio, The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws, 20 Ga. St. U. L. Rev. 565, 568–69 (2004). For a discussion of a number of studies examining police founding decisions as to whether to file charges, see Bryden & Lengnick, supra note 7, at 1230–40. 80. Bryden & Lengnick, supra note 7, at 1243 (“[M]ost observers agree that founding decisions in acquaintance rape cases are strongly affected by the purported victim’s contributory negligence, and by her perceived immorality.”). 81. Human Rights Watch, “I Used to Think the Law Would Protect Me”: Illinois’ Failure to Test Rape Kits 21 (2010) (citing a November 2009 letter from the Chicago Alliance Against Sexual Exploitation to Anita Alvarez, the state’s attorney for Cook County). 960 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 devastates most victims who seek criminal justice assistance, and leads to the continued silence of most victims of sexual assault.”82 Untested rape kits reinforce perceptions that the criminal justice system is hostile to rape complainants. As Lyn Schollett, General Counsel for the Illinois Coalition Against Sexual Assault, commented, “[w]hen [rape kit] evidence is not delivered—when it is abandoned in evidence lockers or left at a police station—the victim is further traumatized and the public trust is betrayed.” 83 The message that untested rape kits sends to victims about both the seriousness and legitimacy of their complaint increases the ineffectiveness of the criminal justice system in addressing sexual assault. The backlog in testing may also make victims less likely to cooperate in prosecutions. In one case in which DNA analysis occurred over one year after the incident had transpired, the victim refused to participate in the trial despite the rape kit evidence producing a cold hit to a profile on the offender database. 84 The victim’s counselor traced her client’s unwillingness to the length of time between the incident and the rape kit results. The victim felt a trial would force her to revisit her traumatic rape experience, making it more difficult to move forward with her healing.85 Victim non- cooperation has been found to be the single most important reason for dismissals of felonies, excluding homicide.86 Rapists are most likely to go unpunished as a result of a victim’s decision not to report a rape to the police, or not to cooperate as a prosecution witness.87 The rape kit backlog may also have unanticipated effects on the rights of criminal defendants. In response to the backlog, both the federal government and a number of states have extended the statute of limitations for sexual assault cases involving DNA evidence. On the federal level, the statute of limitations for

82. Id. 83. Press Release, Illinois Attorney General’s Office, Madigan Proposes Bill to Require Law Enforcement to Submit Evidence in Sexual Assault Cases (Feb. 9, 2010), http://www.illinoisattorneygeneral.gov/pressroom/2010_02/ 20100209.html. 84. Human Rights Watch, supra note 3, at 7. 85. “She couldn’t go back to the nightmare of her rape . . . if the detective had been able to identify her rapist in the weeks and months after it happened, she would have been able to cooperate. But now she just wants to put it behind her.” Id. 86. Bryden & Lengnick, supra note 7, at 1214. 87. Id. 2011] TESTING JUSTICE 961 prosecution of felonies begins to run only after the implication of the alleged assailant by DNA testing.88 A number of states have passed legislation extending their statutes of limitations for sexual assault crimes where DNA evidence is made available.89 Other states have eliminated the statute of limitations for rape altogether, putting it on par with prosecution for murder.90 Generally, these statutory changes lengthening or entirely eliminating the statute of limitations for sexual assault cases in which forensic evidence is found are premised on the notion that, while “people’s memories may fade over time—DNA does not.”91 Advocates for victims of sexual assault have also based their support for extending the statute of limitations in sexual assault cases on the backlog of untested forensic evidence at laboratories.92 In a hearing conducted by the California Senate Public Committee before the state extended the statute of limitations for sex crimes, proponents of the bill argued that, given the extensive backlog of untested samples, and because federal and state laboratories

88. 18 U.S.C. § 3297 (2006) (“In a case in which DNA testing implicates an identified person in the commission of a felony, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.”). 89. For a listing of statutes of limitations in each state, see Statutes of Limitations for Sexual Assaults, National Conference of State Legislatures (Apr. 2007), http://www.ncsl.org/IssuesResearch/CivilandCriminal Justice/StatutesofLimitationsforSexualAssualts/tabid/12723/Default.aspx. 90. See id. For example, Illinois extended the statute of limitations from five to ten years for sexual assault crimes, Arkansas extended the statute of limitations to fifteen years in certain cases, Florida and California eliminated the statute of limitations for rape under certain circumstances, and Nevada and New Jersey eliminated the statute of limitations for rape completely. Prevost O’Connor, supra note 52, at 203. 91. Press Release, District Attorney of New York County Robert M. Morgenthau (Apr. 28, 2005), http://manhattanda.org/whatsnew/press/2005-04- 28.shtml. Morgenthau called for an abolition of the statute of limitations for cases involving violent sexual assaults, given that DNA evidence is more likely to be found in those crimes. 92. The most common rationale seems to rest on potential public safety benefits accruing from longer prosecutorial windows. One New York State Assembly leader in favor of such an extension commented that “there are a significant number o[f] rapists who could be prosecuted if the statute of limitations was suspended. Those rapists could well be prevented from raping more innocent women as a result of this change.” Suzanne M. Knight, Rights for the Rape Victim: Lifting Statute of Limitations for Prosecution of Violent Crimes, 8 Buff. Women’s L.J. 11, 11 (1999–2000) (quoting John J. Faso (R-Kinderhook)). 962 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 currently lack the resources necessary to analyze all of the samples in their possession, extending the statute of limitations was necessary to ensure that law enforcement agencies were able to take advantage of DNA technology to solve crimes.93 J. Herbie DiFonzo, a criminal justice expert who has written several articles about statutes of limitations in sex offense cases, contends that an appropriate statute of limitations for sexual assault and rape remains essential, even in the age of DNA evidence. “[A]s case after case has shown, forensic testing and testimony are as prone to error as is any human endeavor. The record is larded with instances of contaminated samples, mislabeled vials, rushed and inaccurate analyses, and outright perjury.”94 He urges states to retain reasonable statutes of limitations to assure accuracy in the criminal justice system, and argues that extensions or eliminations of limitations period will increase the risk of wrongful convictions.95 Timely processing of rape kits would remove a powerful justification for extensions of statutes of limitations.96

B. Untested Rape Kits in the Civil Context An increasing number of civil, rather than criminal, lawsuits allege rape or sexual assault.97 The civil context disposes of some

93. Assemb. B. 1742, 1999–2000 Reg. Sess. (Cal. 2000). See also Amy Dunn, Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete?, 23 U. Ark. Little Rock L. Rev. 839, 856–57 (2001) (“Because DNA can identify criminal offenders with unprecedented statistical accuracy, and because such evidence can remain in existence for indefinite periods of time, many find [it] . . . unfair to permit known offenders to escape justice simply because the applicable statute of limitations has expired, particularly in light of processing backlogs.”). 94. J. Herbie DiFonzo, The Crimes of Crime Labs, 34 Hofstra L. Rev. 1, 8 (2005). See also DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, supra note 17, at 1242–49 (describing the suspect practices of a Houston Crime Lab that eventually led to it being closed down). 95. DiFonzo, The Crimes of Crime Labs, supra note 94, at 9. See also DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, supra note 17, at 1241–42 (“Given the ‘understandable prosecutorial orientation’ of many forensic evaluators, the risk of skewed judgment and results is great. . . . At the far end of this bias spectrum, forensic testimony has often involved perjury and fraud committed by investigators seeking illicit convictions.”). 96. See supra note 93 and accompanying text. 97. For a comprehensive study on the rise in tort suits filed by sexual assault victims, see generally Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms and Constituencies, 59 SMU L. Rev. 55 (2006) (discussing the increase in civil 2011] TESTING JUSTICE 963 problems confronting rape victims with untested kits in the criminal system. Victims have more control over their claims, and they may decide to bring a civil suit when prosecutors are unable or unwilling to file criminal charges.98 Civil litigants also enjoy a lower burden of proof, so evidence inadequate for a criminal conviction might suffice for a civil victory.99 Despite the elimination of some hurdles, however, untested rape kits still create challenges for litigants hoping to secure a remedy in tort. Rape victims pursuing civil claims against their assailants face a host of challenges, some of which are directly exacerbated by the backlog of rape kits. First, judges may be biased or have misconceptions about rape victims bringing civil claims as being greedy or vindictive,100 and some judges may disfavor or deem a civil remedy for rape inappropriate. 101 For instance, one judge noted that litigation for sexual assault cases, the reasons for this increase, and legal issues surrounding third-party claims in civil sexual assault cases). Legal scholarship has only begun to address the causes and potential benefits and pitfalls of pursuing a civil remedy. See generally Tom Lininger, Is it Wrong to Sue for Rape?, 57 Duke L.J. 1557 (2008) (addressing the hostility in the criminal justice system towards rape victims who bring civil suits because of the potential for impeachment of victim witnesses at criminal trial, and suggesting that reform is needed to harmonize civil and criminal litigation by evidentiary rules with more stringent relevance requirements for impeachment of accusers based on civil claims); Lois H. Kanter, Invisible Clients: Exploring Our Failure to Provide Civil Legal Services to Rape Victims, 38 Suffolk U. L. Rev. 253 (2005) (discussing the lack of civil legal services for rape victims and why the legal community has failed to address their needs, and examining how the development of civil legal services has operated to restrict serving domestic violence and rape victims, and concluding that the availability of federal sexual assault funding is an opportunity for improving civil legal services to rape victims but that more steps are necessary). 98. See, e.g., Weldon v. Rivera, 754 N.Y.S.2d 698 (3d Dep’t 2003) (plaintiff was able to bring a civil claim against both the alleged assailant and an accomplice in a case involving acquaintances, a college setting, and intoxication, factors that would make a prosecutor unlikely to pursue a criminal charge). Bublick argues that cases like this suggest that tort may be able to accommodate some of the cases that have proved so difficult in the criminal forum, but notes also that tort law as a substitute for criminal law is not emblematic of the civil suits brought for sexual assault. Bublick, supra note 97, at 65. 99. See Lininger, supra note 97, at 1574–75. 100. See id. at 1585 (“A substantial number of judges seem to suspect the motivations of women who allege that they have suffered sexual assault . . . .”). 101. See id. at 1585–86 (noting that “judges generally distrust complainants in rape cases”). See also Deborah M. Golden, It’s Not All in My Head: The Harm of Rape and the Prison Litigation Reform Act, 11 Cardozo Women's L.J. 37, 41 (2004) (“The history of the U.S. legal system is replete with male judges imposing 964 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 in the civil suit for damages, the rape victim was “seeking to vindicate primarily her own interests” as opposed to “a criminal case . . . to vindicate the public’s interest in enforcement of our laws.”102 This suggestion that civil plaintiffs are simply advancing their own selfish interests ignores the obstacles that rape victims face in the criminal system. 103 Additionally, as in criminal cases, juries may expect certain kinds of evidence from sexual assault allegations.104 The combination of potentially inhospitable judges and juries with high expectations about the availability and reliability of DNA evidence in civil suits may diminish a victim’s chances of success if her rape kit remains untested and she is thereby unable to present DNA evidence.105 Even if her rape kit is eventually analyzed, a rape survivor who bear[s] conspicuous signs of injury . . . may wish to try the civil case while [her] injuries are still visible to present a more compelling spectacle to the jury. If civil juries see injuries long after rapes, they might award lower damages for pain and suffering, whereas juries might award more generous damages additional hurdles on women complainants to protect the ‘man's nightmarish fantasy of being charged with simple rape.’”). She goes on to note: Some male judges have tended to identify with a male accused of raping an acquaintance, and go out of their way to protect the alleged rapist with legal barriers. Courts have required a victim of rape to prove that she resisted to the utmost of her ability; that she was previously sexually chaste; that she was behaving and dressing according to social norms; that she had corroboration from physical evidence or witnesses; and that she had promptly reported the rape. Id. Kathryn Carney points to other examples that are illustrative of the perception of rape victims by judges: “[A] Wisconsin judge while presiding over the brutal rape of a mere baby, labeled the five-year old child ‘an unusually promiscuous lady,’ and found her responsible for the assault . . . and a New York Judge after presiding over a rape trial stated that while the defendant ‘did go into [the victim’s] apartment without permission . . . I think [the sexual intercourse] started without consent, but maybe they ended up enjoying themselves.’” Kathryn M. Carney, Rape: The Paradigmatic Hate Crime, 75 St. John's L. Rev. 315, 347 (2001). 102. Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996). 103. For a discussion of the obstacles rape victims face in the criminal system, see supra Part III.A. 104. See supra notes 73–74 and accompanying text. 105. Willing, supra note 73 (discussing agreement among prosecutors and defense about the strong impact that CSI and other crime-solving shows have on jurors, and noting that prosecutors have complained that the shows make it more difficult to win cases in which scientific evidence is irrelevant or absent). 2011] TESTING JUSTICE 965

shortly after rapes because of uncertain timetables for victims’ recovery.106 Moreover, civil actions generally have shorter statutes of limitations, and so prompt testing of a rape kit may be even more critical if it is to be useful at a trial.

IV. POTENTIAL CLAIMS AGAINST GOVERNMENTAL ACTORS FOR VICTIMS WHOSE KITS REMAIN UNTESTED

While a great deal of literature exists on the rights of post- conviction assailants to access DNA evidence untested at trial, scant legal literature addresses this right of access for victims.107 Given the challenges presented by untested rape kits for victims pursuing either criminal or civil claims, this section seeks to address potential remedies for victims whose rape kits remain untested.108

106. Lininger, supra note 97, at 1581. 107. See generally, Steven Becker, Erring on the Side of Justice: A Call for an End to Prosecutorial Arrogance in Opposing DNA Testing for Evidence Untested at Trial, 2 DePaul J. Soc. Just. 191 (2009) (arguing that there is no legitimate justification for the State to challenge requests where an imprisoned defendant claiming actual innocence seeks to have previously untested evidence tested); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008) (an empirical study of how the criminal justice system handles the cases of people who are subsequently found innocent through post-conviction DNA testing); Adele Bernhard, When Justice Fails: Indemnification for Unjust Conviction, 6 U. Chi. L. Sch. Roundtable 73 (1999) (explaining the inadequacy of existing remedies in tort and civil rights law for those who have been wrongfully convicted); Anne- Marie Moyes, Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing, 55 Vand. L. Rev. 953 (2002) (describing a variety of legal theories used by petitioners to compel DNA testing of physical evidence in custody). 108. The remedies discussed in the following sections are primarily federal, as opposed to state, remedies. Akhil Reed Amar points to a number of reasons why women may prefer federal courts to state courts for a civil remedy. “State evidence rules, even in civil cases, continue to tilt against women alleging sexual assault.” Some states’ rules might “make it difficult for wives to sue their husbands generally, or might make allegations of marital rape difficult to assert.” Akhil Reed Amar, The Supreme Court, 1999 Term, Forward: The Document and the Doctrine, 114 Harv. L. Rev. 26, 104 n.253 (2000). 966 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

A. Demise of the Civil Remedy Provision in the Violence Against Women Act In 2000, the Supreme Court struck down a federal civil remedy for victims of gender-motivated violence.109 The Violence Against Women Act (VAWA) declared that “persons within the United States have the right to be free from crimes of violence motivated by gender,”110 and it created a cause of action to enforce that right.111 In United States v. Morrison, the Supreme Court held in a 5–4 decision that Congress had no authority to enact the enforcement provision against the states under the Commerce Clause or the Fourteenth Amendment.112 While the majority conceded that state-sponsored gender discrimination violated principles of equal protection unless it both served important governmental objectives and the discriminatory means were substantially related to those objectives, the opinion focused on the limits of Congress’ ability to create legal remedies where there had been discriminatory conduct.113 The Court determined the remedy embodied in § 13891 was not narrowly tailored to address wrongs as it was not limited to violations committed by state actors and since it applied uniformly throughout the nation, instead of only in areas where discrimination against women is prevalent.114 One can certainly contest the Court’s interpretation of the application of Section 5 of the Fourteenth Amendment. Lawrence Sager, a preeminent constitutional theorist, argues that Section 5 of the Fourteenth Amendment and Section 2 of the Thirteenth Amendment are structurally and formally parallel provisions.115 Congress’ authority to regulate private actions under Section 2 of the Thirteenth Amendment should be understood as an

109. United States v. Morrison, 529 U.S. 598 (2000). 110. Violence Against Women Act, 42 U.S.C. § 40302(b) (1994). This Act, as amended, now appears at 42 U.S.C. § 13981 (2006). 111. 42 U.S.C. §13981(c). 112. Morrison, 529 U.S. at 617–19. 113. Id. at 620–21. The majority noted that these limitations are necessary to ensure balance of power between the states and the federal government, and that the Constitution requires a distinction between what is truly national and what is truly local. This distinction is necessary because states remain supreme in their ability to control criminal conduct through criminal laws. See City of Boerne v. Flores, 521 U.S. 507, 520–24 (1997). 114. Morrison, 529 U.S. at 626–27. 115. Lawrence Sagar, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. Rev. 150 (2000). 2011] TESTING JUSTICE 967 exercise of its remedial authority: Congress must be able to eradicate the “relics” of slavery, including the “entrenched structure of bias and deprivation it has left behind.” 116 Similarly, “for much of our history, women were treated in an exceptional and disabling way by the laws of every state and of our national government.”117 Women were unable to vote until the Nineteenth Amendment in 1920; they were excluded from certain professions and political office, and married women’s rights to engage in independent commercial transactions or hold property were impaired.118 According to Sager, then, the Violence Against Women Act fell well within the scope of Congress’ remedial authority. Constitutional scholar Akhil Reed Amar supports this conclusion, and reasons that, instead of focusing on the Commerce Clause, the dissent ought to have focused on the Citizenship Clause.119 Though race and sex are different in critical ways, Congress can act to dismantle structures perpetuating unequal citizenship. Past involvement of the government may even be unnecessary to uphold congressional action: “[W]hen Congress can honestly be understood as affirming equal citizenship for those who have historically been denied equality on the basis of birth status, judicial review of enumerated power should be no less deferential than in Prigg or McCulloch, on which the Fourteenth Amendment’s supporters justifiably relied.”120 Since the time of Katzenbach v. Morgan, Amar’s

116. Id. at 152. 117. Id. 118. Id. at 152–53. A long line of Supreme Court cases has held that disproportionate impact is insufficient to establish a violation of the 14th amendment. See, e.g., Atkins v. Texas, 325 U.S. 398, 403–04 (1945) (“A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.”); Washington v. Davis, 426 U.S. 229, 239 (1976) (“[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”). 119. Amar, supra note 108, at 107. 120. Id. at 108. [T]he best reading of the Constitution as a whole is probably this: To vindicate the vision of the Fourteenth Amendment (read through the prism of the Nineteenth), Congress may pass expressive laws affirming women’s equal status and citizenship so as to make clear to all that women have rights that men are bound to respect. Congressional power is not plenary—wholly plenary power is hard to reconcile with the basic structure of 968 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 view of broad congressional power under the Fourteenth Amendment remains largely academic,121 as Supreme Court cases have narrowed the power of Congress to prevent or redress violations of the Fourteenth Amendment.122

B. Legal Foundations for Due Process Claims While a statutory remedial provision for female victims of sexual assault remains unavailable after Morrison, a victim of sexual assault could allege violations of the procedural and

enumerated power that the Reconstruction Amendments accept rather than repudiate. Id. 121. Congress could, however, refashion VAWA to direct its enforcement provisions toward state actors. As one scholar observed: Congress could follow the model of the classic Section 5 remedy, Section 1983. Section 1983 provides a federal remedy against state officials that violate the Constitution because the states failed to provide adequate remedies for those constitutional violations. Under this analogy, Congress could adopt a federal remedy against the state officials who provide inadequate remedies for the gender discrimination against women victims of domestic violence. Tracy A. Thomas, Congress' Section 5 Power and Remedial Rights, 34 U.C. Davis L. Rev. 674, 730 (2001). A specific statutory remedy for gender-motivated violence might have only symbolic importance, which “does not make it unimportant or unconstitutional. We live by symbols . . . . VAWA calls certain acts of violence not merely random, private assaults, but parts of a larger historically rooted system of insult and degradation. VAWA labels that system of insult a civil rights issue, an equality issue.” Amar, supra note 108, at 104. 122. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (since Congress’ power is remedial and does not include the power to define the substance of the 14th amendment, the Court held that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end” to ensure that legislation is remedial); The Civil Rights Cases, 109 U.S. 3, 11–12 (1883) (“Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect,” wrote the Court. It continued, “such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.”); United States v. Morrison, 529 U.S. 598, 621 (2000) (“Foremost among these limitations [on Congress’ remedial power] is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action . . . . That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”). 2011] TESTING JUSTICE 969 substantive components of the Due Process Clause found in the Fourteenth Amendment.123 The Fourteenth Amendment provides that state governments shall not “deprive any person of life, liberty, or property without due process of law.”124 Section 1983 provides a remedy for victims whose federal or constitutional rights have been violated by an actor proceeding under state authority.125 The cause of action established by VAWA was intended specifically to address the types of harm most frequently experienced by victims of domestic violence—since women are more likely to encounter aggression from those they know, § 1983, with its state action requirement, has little value.126 However, because sufficient state action may exist in the case of unprocessed rape kits, § 1983 may still be helpful to rape victims whose kits remain untested. A victim pressing any constitutional claim must still contend with immunity doctrines that shield state actors from liability. Immunity only attaches where the official’s “conduct does not violate clearly established statutory or constitutional rights of

123. While the interest might be “framed as a substantive liberty interest . . . protected through a procedural due process right to have evidence made available for testing, or as a substantive due process right to be free of arbitrary government action,” the result sought would be the same—access to rape kit evidence. Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2334 (2009) (Stevens, J., dissenting) (citations and quotations omitted). 124. U.S. Const. amend. XIV. 125. The relevant portion of 42 U.S.C. § 1983 reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . The Court in Monroe v. Pape devoted extensive discussion to the legislative history behind § 1983, concluding: It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. Monroe v. Pape, 365 U.S. 167, 180 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978). 126. W.H. Hallock, The Violence Against Women Act: Civil Rights for Sexual Assault Victims, 68 Ind. L.J. 577, 594–95 (1993). 970 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 which a reasonable person would have known.”127 While the Court has insisted that § 1983 contains no state-of-mind requirement,128 the plaintiff must still prove the underlying right and, “depending on the right, merely negligent conduct may not be enough to state a claim.”129 The Court has clearly excluded mere lack of due care from imposing liability on governmental officials under the Due Process Clause.130 Rather, for a court to find a violation of the Due

127. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that governmental officials performing discretionary functions generally are shielded from liability for civil damages). Immunity typically precludes a court from finding liability under § 1983. See generally Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396 (1987) (providing an overview of the changes in the doctrine of official immunity); William R. Casto, Innovations in the Defense of Official Immunity Under Section 1983, 47 Tenn. L. Rev. 47 (1979) (exploring the applicability and parameters of official qualified and absolute immunity); Gary S. Gildin, Immunizing Intentional Violations of Constitutional Rights Through Judicial Legislation: The Extension of Harlow v. Fitzgerald to Section 1983 Actions, 38 Emory L.J. 369 (1989) (arguing that despite consistent authority to the contrary, the Harlow immunity should not shield state officials sued under § 1983); Wesley Kobylak, Immunity of Public Officials From Personal Liability in Civil Rights Actions Brought by Public Employees Under 42 U.S.C.A. § 1983, 63 A.L.R. Fed. 744 (an annotated collection of federal cases discussing the immunity from personal liability of state and local officials in civil rights actions brought by public employees under § 1983). 128. Parratt v. Taylor, 451 U.S. 527, 534 (1981). 129. Daniels v. Williams, 474 U.S. 327, 330–31 (1986) (overruling Parratt to the extent that it states that mere lack of due care by a state official may be sufficient deprivation of due process under the Fourteenth Amendment) (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause) and Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“deliberate indifference” to prisoner's serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment)). 130. County of Sacramento v. Lewis, 523 U.S. 833, 848–49 (1998) (“We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”); see also Saucier v. Katz, 533 U.S. 194 (2001) (holding that the qualified immunity analysis consists of first establishing whether a federal right would have been violated on the facts alleged, then, assuming such a violation, whether the constitutional right was clearly established in the specific context of the case. Even then, if the officer’s mistake as to what the law required was reasonable, or where the officer could have concluded he had legitimate justification under the law for acting in the manner in which he did, qualified immunity still operates as a complete defense). 2011] TESTING JUSTICE 971

Process Clause, a complainant must allege intentional misconduct.131 Further, the Supreme Court has recognized that prosecutors have absolute immunity from a civil suit for damages under § 1983 in their decision to initiate a prosecution and present the state’s case.132

C. Potentials and Pitfalls of Procedural Due Process Claims One § 1983 claim that a victim might bring would allege a violation of procedural due process. A procedural due process claim asks whether the interest at issue triggers procedural protection and, if so, whether the process provided by the state is sufficient. The first hurdle that victims whose rape kits have not been processed will encounter in alleging a valid due process claim is defining the protected interest as either property or liberty.133 If a court accepts that a protected interest exists, then the plaintiff must show that the government failed to afford her procedural protections prior to depriving her of that interest.134 The required amount of procedural protection varies depending on the competing individual and governmental interests at stake.135

131. In Daniels, the Supreme Court concluded that the “Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” 474 U.S. at 328 (emphasis in original). See also Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 645 (1999) (“[A] state actor’s negligent act that causes unintended injury to a person’s property does not ‘deprive’ that person of property within the meaning of the Due Process Clause.”). 132. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). 133. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.”). 134. See Zinermon v. Burch, 494 U.S. 113, 126 (1990) (“The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.”). 135. The Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), found that three factors must be considered to determine the requirements of due process in any given case: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the relevant interest through the procedures used and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 972 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

1. Property Interests A protected property interest emerges only if there is a legitimate claim of entitlement to it.136 An interest is not a protected entitlement if it is within the discretion of state officials to grant or deny the benefit.137 In Board of Regents v. Roth, the Supreme Court held that protected property interests may be created by “existing rules or understandings” that stem from state laws that operate to “secure certain benefits and that support claims of entitlement to those benefits.”138 In order for the state law to trigger federal due process protection, the law must both protect some substantive end and use mandatory language specifying the outcome upon a certain finding.139 A plaintiff whose rape kit has not been tested may allege that her right to have her crime properly investigated and her assailant brought to justice has been violated.140 A number of state constitutional amendments and statutory provisions grant a variety of rights to victims of crime.141 Unfortunately, these

136. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. The Court further explained: “It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” Id. 137. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756–61 (2005) (noting that a state statute mandating enforcement of a restraining order when certain conditions were met should not be read literally, but rather must leave room for police discretion). 138. Roth, 408 U.S. at 577; see also Town of Castle Rock, 545 U.S. at 756 (noting that property interests are created and defined by existing, independent rules, such as state laws). 139. Dix v. County of Shasta, 963 F.2d 1296, 1299 (9th Cir. 1992) (citing Olim v. Wakinekona, 461 U.S. 238, 250–51 (1983) and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 463 (1989)). 140. One such case addressed whether the rights established by such provisions created a liberty interest protected by the Due Process Clause. See infra, notes 159–167 and accompanying text. 141. See, e.g., Cal. Const. art. I, § 28(a)(4) (The rights of victims also include that felons “will be appropriately and thoroughly investigated, appropriately detained in custody, brought before the courts of California . . . , tried by the courts in a timely manner, sentenced, and sufficiently punished so that the public safety is protected and encouraged.”); Ariz. Const. art. II, § 2.1(A)(6) (“A victim of crime has a right . . . [t]o confer with the prosecution, after the crime against the 2011] TESTING JUSTICE 973 provisions generally do not create a cause of action under which a victim can assert a right to prosecute or confront her attacker.142 The most common rights afforded victims are those of notification and attendance at proceedings; these are procedural and do not create any substantive interest.143 Half of the states give victims a right to be heard at hearings and a right to confer with the prosecutor.144 While these may create substantive liberty interests, they do not mandate a result based on a finding by the victim. While Roth suggested state law could create a property interest sufficient to trigger due process, the Supreme Court has subsequently expressed skepticism that any individual entitlement to police or prosecutorial action could properly constitute a property

victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.”). 142. Jill E. Daly, Gathering Dust on the Evidence Shelves of the United States—Rape Victims and Their Kits: Do Rape Victims Have Recourse Against State and Federal Criminal Justice Systems?, 25 Women's Rts. L. Rep. 17, 32 (2004); see also Jennifer J. Stearman, An Amendment to the Constitution of the United States to Protect the Rights of Crime Victims: Exploring the Effectiveness of State Efforts, 30 U. Balt. L.F. 43, 50 (1999) (finding that one-third of the state constitutional amendments explicitly provide that any violation of these rights will not supply a civil cause of action, and that others contain language limiting a victim’s impact on the disposition of the criminal case). 143. Stearman, supra note 142, at 49. 144. Id. It is important to note that these rights may encounter other procedural hurdles in courts as well. For instance, in Hagen v. Commonwealth, 437 Mass. 374 (2002), a victim of rape requested that the Massachusetts Supreme Court grant her legal standing to assert a criminal claim against her assailant independent of the Commonwealth. She claimed that she had a legally-cognizable interest in the outcome of her criminal proceedings based on the Massachusetts Victim Bill of Rights, which grants victims the right to a “prompt disposition.” Id. at 378. The Massachusetts Supreme Court, affirming the decision of the trial court, found that Hagen did not have a “judicially cognizable interest in the prosecution of another” under the Victim Bill of Rights, and therefore should only be provided with an opportunity to address the court when her right to prompt disposition is jeopardized. Id. at 380. See generally Gretchen N. Monopoli, Hagen v. Commonwealth: Should Crime Victims in Massachusetts Have a Legally Recognized Interest in the Outcome of Criminal Cases?, 37 New Eng. L. Rev. 351 (2003) (discussing Hagen’s case in detail and arguing the court properly refused to grant the victim standing); Sue Anna Moss Cellini, The Proposed Victims’ Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 Ariz. J. Int'l & Comp. L. 839, 856–58 (1997) (arguing that standing doctrine invokes “rigid formalism to avoid the ‘uncomfortable issues’ that might arise if a role for the victim in the criminal law process were to be recognized”). 974 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 interest.145 In Town of Castle Rock v. Gonzalez, mandatory language and legislative history suggesting that Colorado intended to eliminate the discretion of police officers in certain domestic violence situations was insufficient to overcome the “well-established tradition” and “deep-rooted nature of law-enforcement discretion.”146 In light of this interpretive history,147 it would be exceedingly difficult for a plaintiff to establish a protected interest in investigation or prosecution which would trigger procedural due process protection, even in light of state statutes providing additional protections for victims.148 Alternatively, a litigant may claim that by retaining and not testing rape kits collected from victims, the state is unlawfully taking property owned by a victim. A victim must first establish that DNA in a rape kit constitutes the victim’s property. In Venner v. State, a Maryland court observed that a person might theoretically have a property right in materials which were once a part of his body: It is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good reason or for no reason, over such things as excrement, fluid waste, secretions, hair, fingernails, toenails, blood, and organs or other parts of the body, whether their separation from the body is intentional,

145. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766–67 (2005) (“[T]he right to have a restraining order enforced does not ‘have some ascertainable monetary value’ . . . . [but] arises . . . out of a function that government actors have always performed—to wit, arresting people who they have probable cause to believe have committed a criminal offense.”) (citations omitted). 146. Town of Castle Rock, 545 U.S. at 748, 761. 147. In addition to Town of Castle Rock, see Chicago v. Morales, 527 U.S. 41, 62 n.32 (1999) (“It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion . . . [h]owever . . . this argument . . . flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.”). 148. See, e.g., Jackson v. Henderson, 2006 U.S. Dist. LEXIS 63066 (M.D. Tenn. Aug. 31, 2006) (“The existence of the Victims' Bill of Rights does not translate into a due process right under the United States Constitution.”); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) (plaintiff failed to establish that a state statute requiring the prosecutor to inform a victim about court proceedings created an interest protected under the Due Process Clause); Carter v. Crime Victims Reparation Bd., (La. App. 1 Cir. 10/29/04); 897 So. 2d 149, 151–52 (state statute providing reparations for victims in certain circumstances were benefits, not entitlements, therefore no due process is required). 2011] TESTING JUSTICE 975

accidental, or merely the result of normal body functions.149 The Venner reasoning may be sufficient to justify a continuing right of ownership over DNA samples taken from innocent individuals for law enforcement purposes.150 If a DNA sample triggers a recognizable property interest under the Due Process Clause,151 the government may fail the Mathews balancing test to the extent that it provides no procedural protections to victims before depriving them of their DNA samples.152 In McKithen v. Brown, the court found a cognizable § 1983 claim for access to DNA evidence using the Mathews balancing test.153 The court emphasized that the procedures McKithen sought—“only access to, and perhaps testing of, biological evidence already in the state’s possession”—would not significantly increase costs to the

149. Venner v. State, 30 Md. App. 599, 626–27 (Md. Ct. Spec. App. 1976) (footnote omitted). 150. See Leigh M. Harlan, When Privacy Fails: Invoking a Property Paradigm to Mandate the Destruction of DNA Samples, 54 Duke L.J. 179, 203 (2004). Harlan emphasizes that this right of ownership over DNA samples may be particularly viable given the way in which the Venner court distinguished this case from the line of reasoning in Moore v. Regents of University of California, 51 Cal. 3d 120 (Cal. 1990). Moore involved a civil dispute regarding the economic benefits of property, while Venner involved a criminal procedure dispute. Id. at 138 n.28. 151. For arguments that a DNA sample does trigger a recognizable property interest, see Jonathan F. Will, DNA as Property: Implications on the Constitutionality of DNA Dragnets, 65 U. Pitt. L. Rev. 129, 141 (2003) (“Affording individuals property rights in their DNA implicates further protection under the Fourteenth Amendment.”); see also Catherine M. Valerio Barrad, Genetic Information and Property Theory, 87 Nw. U. L. Rev. 1037, 1040 (1993) (“[W]hen faced with the question, [courts] should recognize protectable property interests in genetic information under existing common law and theories of property justification and should vest those property interests in the individual whose cells contain the genetic information at issue.”); Roberto Iraola, DNA Dragnets—A Constitutional Catch?, 54 Drake L. Rev. 15, 45–46 (2005) (noting that, “[w]hile in certain circumstances courts have declined to recognize a property interest in bodily tissues, the same has not held true for ‘renewable body tissues and fluids, such as hair, blood, and sperm’”) (citations omitted). 152. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (“Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.”). 153. McKithen v. Brown, 481 F.3d 89, 106–08 (2d Cir. 2007). Since this case arose in the prison context, the private interest may be given more weight than if a victim claimed a protected interest. 976 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 government.154 Similarly, a rape victim challenging the government’s failure to test DNA contained in her rape kit may be able to show a strong private interest, the clear value of additional procedural safeguards, and insignificant governmental interests. In a series of decisions, the Supreme Court has held that a negligent 155 or even intentional156 deprivation of property may not trigger due process procedural protection. In both of these cases, the court emphasized that the actions of the government that deprived an individual of property were random and unauthorized,157 and in both cases the state provided adequate post-deprivation relief.158 This line of cases finding no procedural violations can be distinguished,

154. Id. at 108. The court contrasts the costs of access to DNA already in the state’s possession to a challenge to the state’s procedures for the collection and storage of biological evidence, which would presumably impose substantial costs. 155. Parratt v. Taylor, 451 U.S. 527, 541 (1981) (prisoner had clear property interest, but due to negligence of official and since deprivation did not occur as a result of an authorized state procedure, no additional process due). It is important here that any pre-deprivation process was impractical—since the deprivation was unauthorized, there was no way for the state to know when deprivation was going to occur in order to provide pre-deprivation process. Moreover, state remedies were available to address the loss. 156. Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“If negligent deprivations of property do not violate the Due Process Clause because pre-deprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state post-deprivation remedies are available.”). 157. The Parratt Court explained: The justifications which we have found sufficient to uphold takings of property without any pre-deprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner's property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. 451 U.S. at 541. 158. Id. (explaining that, despite the fact that it is not always possible to provide a pre-deprivation hearing, the state nonetheless cannot “take property without providing a meaningful post-deprivation hearing. The prior cases which have excused the prior-hearing requirement have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities”); Hudson v. Palmer, 468 U.S. at 533 (“[W]e hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.”). 2011] TESTING JUSTICE 977 however, from the circumstances surrounding the failure to test rape kits. The government’s decision to leave unused DNA samples taken from victims of rape cannot be characterized as a “random” action given the extent of the problem of untested kits: thousands of kits still sit untested in police storage facilities. Further, in many cases the decision not to test a kit is deliberate—the kit is collected, brought to the police station, and an officer decides that the kit should not be sent to a laboratory for testing. Notice, with an opportunity for the victim to respond, before an officer decides that a rape kit will remain untested, would offer a victim both important information about her case and greater agency in the criminal process.

2. Liberty Interest Unlike property interests, the Supreme Court has been reluctant to articulate a narrow definition of liberty interests protected under the Due Process Clause: “In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.”159 Liberty interests may be based on constitutional rights, on the significance of the interest at stake, or on expectations based in state law. While the former two are discussed in the substantive due process section below, the latter may create a procedural due process claim for a victim whose rape kit is untested. A number of states have enacted both constitutional and statutory protections for victims of crime.160 Victims bringing § 1983

159. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). The Court prefaced this statement by explaining: While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. Id. at 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). 160. According to a non-profit organization promoting the adoption of a federal amendment protecting the rights of crime victims, 33 states have amended their constitutions to include some protection for victims of crime. National Victims’ Constitutional Amendment Passage, State VRAs, 978 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 suits claiming a denial of liberty interests under such provisions have found courts unsympathetic to such arguments.161 For instance, in Dix v. County of Shasta, the plaintiff contended that his liberty interest under the Due Process Clause had been improperly infringed. 162 He claimed that the California Victims’ Bill of Rights, incorporated in the penal code,163 grants victims an interest in receiving notice of and appearing at sentencing proceedings “palpable enough to be enforced by the federal courts as a matter of due process.”164 The court dismissed this as insufficient to create a liberty interest, as the provision only gives victims procedural rights, rather than protecting some substantive interest.165 The victim also

http://www.nvcap.org/ (last visited Mar. 28, 2011). The National Organization for Victim Assistance (NOVA) outlines seven principles that should be embodied as legal rights for victims: (1) right to protection from intimidation and harm; (2) right to be informed concerning the criminal justice process; (3) right to reparations; (4) right to preservation of property and employment; (5) right to due process in criminal court proceedings; (6) right to be treated with dignity and compassion; and (7) right to counsel. NOVA, Crime Victim & Witness Rights, http://www.trynova.org/about/victimrights.html (last visited Mar. 28, 2011). States that have adopted protections for crime victims seem to largely have followed these principles. For examples of some state constitutions protecting the rights of victims, see generally Cal Const. art. I, § 28; Idaho Const. art. I, § 22; Ill. Const. art. I, § 8.1; S.C. Const. art. I, § 24. 161. See supra note 148 for examples of court responses to plaintiffs’ claims based on statutory and constitutional provisions protecting the rights of victims. 162. Dix v. County of Shasta, 963 F.2d 1296, 1298–99 (9th Cir. 1992). Dix also held that victims do not have a liberty interest based directly in the Due Process Clause (and not through state law) in the incarceration of criminals. The court rejected any notion “that states are constitutionally required to give crime victims the right to become involved in the prosecution and sentencing of a criminal defendant. This is an unsupportable claim. There is no history, tradition or precedent suggesting that the liberty component of the Due Process Clause encompasses such a right.” Id. 163. Dix, 963 F.2d at 1298; see also Cal. Pen. Code § 679.02 (2009) (establishing the statutory rights of victims of crimes); Cal. Pen. Code § 1191.1 (2009) (“The victim of any crime . . . ha[s] the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime.”); Cal Const. art. I, § 28 (state constitutional declaration of the rights of crime victims). 164. Dix, 963 F.2d at 1299. 165. The Court held that the Due Process Clause is intended “to protect a substantive interest to which the individual has a legitimate claim of entitlement,” and that, therefore, “an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause. No liberty interest is created here because the state law provides only that victims have a 2011] TESTING JUSTICE 979 pointed to another portion of the Penal Code that states that a judge “shall consider the statements of victims” in imposing sentences.166 Since this language dictates no particular result, the court held that it also failed to create a liberty interest.167 The Supreme Court has found that state law may create a liberty interest that entitles a convicted individual to demonstrate his innocence with new evidence. Even more, the Court has noted that the state-created interest may in turn establish other rights to “procedures essential to the realization of the parent right.” 168 A victim’s corresponding right to ensure proper conviction of assailants, and therefore to have untested rape kit evidence analyzed, however, cannot be based in the same notion of liberty.169 Rather, the victim’s liberty interest must be rooted in a state law that requires the state to take a certain action for the express benefit of the victim. The Court in Town of Castle Rock noted that even state laws that mandate that government employees take certain actions might not create liberty interests, as the law may not be intended to confer benefits on a specific class of people; for laws governing criminal investigation, enforcement, and prosecution, “[t]he serving of public rather than private ends is the normal course of the criminal

right to be present, it does not specify how that presence must affect the sentencing proceedings.” Id. at 1300 (citations omitted). 166. Cal. Pen. Code § 1191.1 (2009) (“The court in imposing sentence shall consider the statements of victims.”). 167. In its reasoning, the court posed a hypothetical statute that would give a victim a liberty interest: “‘If the judge finds that the effect on the victim has been severe or that the victim favors the maximum possible sentence, the judge must enhance the defendant's sentence by at least one year.’ This hypothetical statute would give victims a liberty interest because it would mandate a result based on a finding about the victim.” Dix, 963 F.2d at 1300 (citations omitted). 168. DA's Office v. Osborne, 129 S. Ct. 2308, 2319 (2009) (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981) and Wolff v. McDonnell, 418 U.S. 539, 556–58 (1974)). 169. Even a criminal defendant who has been convicted has fewer liberty interests than a defendant before conviction. Osborne, 129 S. Ct at 2320. The court went on to state, “the question is whether consideration of Osborne’s claim within the framework of the State’s procedures for postconviction relief ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or ‘transgresses any recognized principle of fundamental fairness in operation.’” Id. (citing Medina v. California, 505 U.S. 437, 446, 448 (1992)). 980 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 law because criminal acts, ‘besides the injury [they do] to individuals . . . strike at the very being of society . . . .’”170

D. Fundamental Rights, Substantive Due Process, and Equal Protection Analysis Both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment have been used to protect certain rights.171 The way in which the right is framed may determine the court’s analysis and eventual disposition under these clauses.172 Recently, the Supreme Court rejected a substantive due process claim of a petitioner seeking post-conviction access to potentially exonerating DNA evidence.173 The court refused to expand the concept of substantive due process to include a right to DNA evidence, noting that “guideposts for responsible decision-making in this unchartered area are scarce and open-ended . . . . There is no

170. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 764–65 (2005) (citing W. Blackstone, Commentaries on the Laws of England 5 (1769)). 171. Many cases have held rights to be protected under both the Due Process and Equal Protection Clauses. For instance, the Supreme Court has found laws restricting access to contraceptives as violating both clauses of the Fourteenth Amendment in Eisenstadt v. Baird, 405 U.S. 438, 454 (1972) (finding that a law prohibiting distribution of contraceptives to unmarried individuals violates equal protection), and in Carey v. Population Services International, 431 U.S. 678, 681 (1977) (declaring unconstitutional a law that provided contraceptives to only those over 16 and only by a licensed pharmacist). In some cases, the Justices themselves disagree about whether a particular right should be protected under the Due Process Clause or the Equal Protection Clause. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 382, 392, (1978) (majority finding the right protected under the Due Process Clause, but concurrence locating the right in the Equal Protection Clause). 172. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (holding a right very specifically described (the right to physician-assisted suicide) was not a historically protected liberty interest under the Due Process Clause). However, Souter’s concurrence argued that, although in the case at issue the interests of the State were sufficiently compelling, the right at issue here is the “[c]onstitutional recognition of the right to bodily integrity . . . good against the State,” underlying privacy such other recognized rights like the right to “require physicians to terminate artificial life support” as well as the “affirmative right to obtain medical intervention to cause abortion.” Id. at 778 (emphasis added). See also Bowers v. Hardwick, 478 U.S. 186, 192 (1986) (examining the history of anti- sodomy laws before declaring that a fundamental right to engage in homosexual sodomy did not exist). Blackman’s dissent framed the right as one of privacy. Id. at 199–200. 173. Osborne, 129 S. Ct. at 2312. 2011] TESTING JUSTICE 981 long history of such a right, and the mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.”174 A plaintiff framing the right more broadly may be more successful. The right at stake where rape kits remain unprocessed might be analogized to the right to bodily integrity or privacy. In a series of cases, the Supreme Court recognized that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”175 In Whalen v. Roe, the Court did not reject the possibility that the right to privacy may include the right to control personal information: “We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.”176 While any case implicating such a right, according to the Whalen court, would likely arise in the context of intentional or even negligent disclosure by the government of private information, the right to control information could be extended to the right to control one’s genetic information, including the right to access a rape kit or challenge its indefinite storage.177 The state, by systematically failing to take affirmative actions to either ensure rape kits are tested or that victims have access to untested kits, implicitly supports a deprivation of the right to privacy.178

174. Id. at 2322 (internal quotation marks omitted) (citing Collins v. Harker Heights, 503 U.S. 115, 125 (1992) and Reno v. Flores, 507 U.S. 292, 303 (1993)). 175. Roe v. Wade, 410 U.S. 113, 152 (1973); see also Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965) (finding the right to privacy in the “penumbral” privacy rights guaranteed by the Bill of Rights); Skinner v. Oklahoma, 316 U.S. 535, 541–42 (1942) (finding that procreation is a “basic liberty,” the deprivation of which is subject to strict scrutiny under equal protection analysis); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) (holding that the right to rear one’s child as one wishes is a protected liberty interest); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (finding rights “to . . . generally . . . enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” to be protected liberty interests under the Fourteenth Amendment). 176. Whalen v. Roe, 429 U.S. 589, 605 (1977) (citations omitted). 177. See Dean Krishna, DNA Testing for Eddy Curry? Creating a New Constitutional Protection, 9 U. Pa. J. Const. L. 1105, 1120–22 (2007) (arguing that the right to one’s own genetic information should be analyzed as a fundamental right under the liberty component of the Due Process Clause). 178. Daly, supra note 142, at 33 (“Although there is no statute or regulation to challenge, the systematic failure to process [rape kit] evidence required to prosecute constitutes official action that must meet constitutional standards of scrutiny.”). 982 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

Another analogy might be drawn to the constitutional right of access to courts.179 Cases delineating this right have focused on the impediments to equal access to courts faced by defendants. 180 In Christopher v. Harbury, the Supreme Court identified two categories of claims for denial of access to courts: (1) claims where an “official action is presently denying an opportunity to litigate for a class of potential plaintiffs” and (2) claims of “specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future.”181 A victim might argue that, as a result of the state’s failure to process her rape kit, critical evidence remains unavailable to her. Her claim could fall into either category, depending on whether an underlying claim would be made possible if the kit was tested or whether the failure to test the kit in a timely manner had created a permanent bar to suit.182 Even if a litigant could frame the right in a way analogous to other protected rights, she must still overcome the hurdle of

179. See Bounds v. Smith, 430 U.S. 817, 821 (1977) (proclaiming that “[i]t is now established beyond doubt that prisoners have a constitutional right of access to the courts”). The Supreme Court later limited the holding of Bounds in Lewis v. Casey, 518 U.S. 343, 349 (1996), but the majority did not repudiate that, insofar as the right is concerned, “meaningful access to the courts is the touchstone.” Id. at 351 (citing Bounds, 430 U.S. at 823). 180. See Griffin v. Illinois, 351 U.S. 12, 17 (1956) (“Surely no one would contend that either a State or the Federal Government could constitutionally provide that defendants unable to pay court costs in advance should be denied the right to plead not guilty . . . . Such a law would make the constitutional promise of a fair trial a worthless thing.”). 181. Christopher v. Harbury, 536 U.S. 403, 413–14 (2002). The Court goes on to note: “Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. at 415. 182. The Harbury court pointed to a variety of cases as falling into either category. For the first category, the court pointed to cases in which official action was presently denying the litigant an opportunity to litigate, and the object of the suit was to pursue a claim for relief once the “frustrating condition” was removed. Harbury, 536 U.S. at 413. Examples of cases falling into this category include: Bounds v. Smith, 430 U.S. 817, 828 (1977) (inadequate inmate access to a law library) and Smith v. Bennett, 365 U.S. 708, 713–14 (1961) (habeas petition filing fees that are too costly for indigent petitioners). Examples from the second category include: Bell v. Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005) (cover-up and resistance by the investigating police officers “rendered hollow [the plaintiff's] right to seek redress”) and Swekel v. River Rouge, 119 F.3d 1259, 1261 (6th Cir. 1997) (loss of opportunity to sue due to a police cover-up that extended throughout “time to file suit . . . under . . . [the] statute of limitations”). Harbury, 536 U.S. at 414. 2011] TESTING JUSTICE 983 establishing sufficient state action. An argument that untested rape kits violate the principle of equal protection would allege that practices and customs of state criminal justice systems clearly discriminate against female victims. The decision of whether or not to submit rape kits for analysis belongs to government officials alone,183 and repeated choices not to test rape kits disproportionately impact women.184 Where official action singles out women as a group, a court applying a heightened standard of scrutiny might declare the choice not to process kits unconstitutional.185

183. Justice Douglas, in his concurrence in Heart of Atlanta Motel, found that Congress had authority to institute protective measures where state law enforcement and judicial practices operated to enforce the discrimination: These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and non- enforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 282–83 (1964) (quoting Shelley v. Kraemer, 334 U.S. 1, 19 (1948)). 184. Daly, supra note 142, at 32–33. In arguing that rape victims, who statistically are far more likely to be female, are treated differently than victims of other crimes, she notes that the motives of rape victims are often questioned, and only recently has Congress, through enacting federal rape shield legislation, declared that a victim’s sexual predisposition is irrelevant to prosecution. See also Kim Lane Sheppele, Just the Facts, Ma’am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, 37 N.Y.L. Sch. L. Rev. 123, 125 (1992) (arguing that the law is “still sexist, but now in the name of fact rather than doctrine,” because courts use habits unfriendly to women to evaluate what counts as legal evidence). 185. For accounts of rape being treated differently than other crimes by state officials, see supra notes 5–10, 79–82 and accompanying text. See also Alice Sebold, Lucky 3 (1999), who describes her experience of being raped and her subsequent interactions with the criminal justice system as follows: “In the tunnel where I was raped, a tunnel that was once an underground entry to an amphitheater, a place where actors burst forth from underneath the seats of a crowd, a girl has been murdered and dismembered. I was told the story by the police. In comparison, they said, I was lucky.” Sebold’s case was subsequently put in an inactive file, apparently because the police did not believe her story and did 984 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

In the unlikely event that a litigant could establish state inaction pervasive enough to state a claim, a court would then balance that discrimination with the governmental objective pursued. While the Supreme Court has refused to classify women as a suspect class deserving strict scrutiny, it has established a level of intermediate scrutiny for gender classifications.186 The majority in Morrison recognized that “state-sponsored gender discrimination violates equal protection unless it serves important governmental objectives and . . . the discriminatory means employed are substantially related to the achievement of those objectives.”187 Since the actions at issue are not based on facially discriminatory laws, the plaintiff must show not simply discriminatory impact, but rather discriminatory purpose.188 Many states have amended their laws so

not think she would return to that college town after the summer. Martha Chamallas uses Sebold’s story to argue that the United States is currently experiencing a backlash with respect to the issue of rape and its victims. The Kobe Bryant case dramatically demonstrates that skepticism towards rape victims has resurfaced with a vengeance. Before the criminal charges were dismissed in that case, the defense challenged Colorado’s rape shield law as unconstitutional and numerous media reports suggested that the pendulum of the law has swung too far toward victim’s rights and now unduly prejudices defendants. Martha Chamallas, Lucky: The Sequel, 80 Ind. L.J. 441, 442–43 (2005). A recent article in the Huffington Post discusses the casual use of the word “rape” in the United States (“it is not uncommon to hear the word invoked to describe a particularly grueling exam or an especially hard day at work”) and argues that, “if we want to ensure that rape kits get tested and that popular culture depicts rape and sexual assault in a just and accurate way—then we first need to change the way we talk about rape.” Chloe Angyal, More Than Words: The Rape Metaphor, The Huffington Post (Jan. 11, 2010, 11:55 AM), http://www.huffingtonpost.com/chloe-angyal/ more-than-words-the-rape_b_418570.html. 186. Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to those objectives.”). 187. United States v. Morrison, 529 U.S. 598, 620 (2000) (internal quotation marks omitted) (citing United States v. Virginia, 518 U.S. 515, 513 (1996); Craig, 429 U.S. at 198–99)). 188. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). 2011] TESTING JUSTICE 985 that they are not gender-specific, but rather gender-neutral.189 So long as the categories police use in administering the law are facially gender neutral, litigants must show intent or purpose to discriminate against women, even if the enforcement (or lack thereof) of the policy primarily affects only women.190 The equal protection doctrine might therefore make it even more difficult for litigants to challenge law enforcement polices offering lesser degrees of protection to victims of gender-motivated violence.191 Proving discriminatory purpose—through establishing an impact of the law that is unexplainable on any other ground, by focusing on the history surrounding the government’s action, or through the legislative or administrative history of the law 192 —may be insurmountable given the variety of justifications given for the failure to process rape kits.193

E. The Fifth Amendment’s Takings Clause and Rape Kit as Property One largely unexplored avenue for relief is a property claim under the Takings Clause. By retaining and not testing rape kits collected from victims, the state is unlawfully taking property owned by a victim. The Fifth and Fourteenth Amendments ensure that private property is not taken by the federal or state governments

189. Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative, 105 Yale L.J. 2117, 2190 (1996). 190. “To survive summary judgment, the plaintiff must go beyond her pleadings and show that she has evidence of specific facts that demonstrate that it is the policy or custom of the defendants to provide less police protection to victims of domestic assault than to other assault victims. She must also provide evidence that discrimination was a motivating factor for the defendants and that she was injured by operation of the policy or custom.” Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir. 1988); see also Hynson v. City of Chester Legal Dep’t, 864 F.2d 1026, 1031 (3rd Cir. 1988) (citing Watson for proposition that proof was needed that discrimination was a factor in police behavior); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977) (“When there is proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.”). 191. Siegel, supra note 189, at 2189–93. 192. See Arlington Heights, 429 U.S. at 266–68 (explaining a variety of ways in which a litigant can prove discriminatory purpose). 193. See supra Part II.B (discussing the variety of reasons given for the failure to test rape kits). 986 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

“for public use, without just compensation.”194 Protection under the Takings Clause vests only if the court concludes that “property”195 has been “taken”196 by the government. Just as in the procedural due process cases, a litigant must establish that DNA in a rape kit constitutes the victim’s property.197 The California Supreme Court has rejected a conversion claim where a patient’s cells were used without his permission for scientific research, reasoning that a “plaintiff must establish an actual interference with his ownership or right of possession” for a successful conversion claim.198 As noted earlier, at least one court has observed that a person might theoretically have a property right in materials that were once a part of his body.199 The Venner decision, and the Moore court’s decision to distinguish its line of reasoning, may be sufficient to justify a continuing right of ownership over DNA samples taken from innocent individuals for law enforcement purposes.200 Further, since

194. U.S. Const. amend. V; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897) (“States cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner.”). 195. See United States v. General Motors Corp., 323 U.S. 373, 378 (1945) (noting that property in the Takings Clause is employed to “denote the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it . . . . The constitutional provision is addressed to every sort of interest the citizen may possess.”). 196. Implicit in the question of whether a taking has occurred is whether the taking is regulatory or a physical occupation. “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (citations omitted). If a taking is deemed regulatory, then the court balances the government’s interests, the extent of the restriction, and the resulting change in the property’s economic value. Id. A permanent physical occupation, in contrast, is a per se taking in which the character of the government action is determinative. Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419, 426 (1982). 197. For an argument that DNA taken from innocent individuals for the purposes of law enforcement should be considered property within the meaning of the takings clause, see generally Harlan, supra note 150. See also supra Part IV.C.1 for an argument that DNA may constitute property under the U.S. Constitution. 198. Moore v. Regents of University of California, 51 Cal. 3d 120, 136 (1990). 199. Venner v. State, 30 Md. App. 599, 626–27 (Md. Ct. Spec. App. 1976). The Moore court declined to adopt the reasoning in Venner, as that case involved a criminal procedure dispute as opposed to a civil dispute regarding the economic benefits of property. Moore, 51 Cal. 3d at 138 n.28. 200. See Harlan, supra note 150, at 203. 2011] TESTING JUSTICE 987 law enforcement officials retain the DNA samples contained in rape kit evidence, the action may fall within the definition of per se, as opposed to regulatory, takings.201 A per se taking may nonetheless be constitutional if the government effectuates the taking for a public use and provides just compensation.202 States with sexual assault evidence collection programs or policies maintain that the purpose of collecting such evidence is to facilitate the investigation and prosecution of an individual accused of sexual assault.203 While courts have recognized a broad range of uses as rationally related to a public purpose,204 a court might conclude that taking DNA evidence and leaving it untested is not rationally related to the statutory purposes of collecting such evidence—if untested, the kits do not provide evidence of a sexual offense, aid in the investigation of a crime, or facilitate prosecution of individuals accused of sexual assault.

201. See id. at 216 (arguing that law enforcement retention of DNA is a physical deprivation of property and therefore falls within the per se rule for takings). 202. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241 (1984) (“But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.”). 203. See, e.g., 35 Pa. Cons. Stat. Ann. § 10172.3 (West 2007) (Pennsylvania statute establishing a statewide sexual assault evidence collection program to “facilitate the prosecution of persons accused of sexual assault”); 410 Ill. Comp. Stat. Ann. 70/6.4 (West 2010) (Illinois statewide sexual assault evidence collection program “to facilitate the prosecution of persons accused of sexual assault”); Kan. Stat. Ann. § 65-448 (West 2008) (requiring Kansas hospitals to use official state sexual assault evidence collection kits for “the purposes of gathering evidence” of sexual offenses); Miss. Code Ann. § 99-37-25 (authorizing bills for medical forensic examinations to be sent to the Attorney General when examination “conducted for the procurement of evidence to aid in the investigation and prosecution of the alleged offense”). 204. See, e.g., Midkiff, 467 U.S. at 241 (declaring that the court “will not substitute its judgment for a legislature's judgment as to what constitutes a ‘public use’ unless the use be palpably without reasonable foundation”). An action may not constitute a taking if it is designed to promote the common good, even if some individuals are harmed more than others. Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (finding that, for an ordinance to be unconstitutional the provisions must be “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare”). But see Dennis v. Wiley, 2009-0236 (La. App. 1 Cir. 9/11/09); 22 So. 3d 189, 197 (looking at the statutory duties of the sheriff’s office and the Louisiana Rights of Crime Victims and Witnesses Act to conclude that “there is a legal duty to preserve evidence obtained during the investigation of a particular crime, not only for the benefit of the general public, but also the victim of the crime”) (Pettigrew, J. concurring). 988 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943

F. Other Potential Legal Claims Rape victims with untested kits have sought remedies against law enforcement officials under state tort law. In Dennis v. Wiley, for instance, a rape victim brought a suit for negligent infliction of mental anguish and emotional distress when a sheriff’s office disposed of the rape kit evidence.205 While the trial court awarded the victim $50,000 in damages, the judgment was reversed on appeal. Finding that “when the government acts negligently for reasons unrelated to public policy considerations, it is liable to those it causes injury,” the court first rejected an official immunity defense.206 Nevertheless, the majority held that the police owed no duty to crime victims to preserve evidence obtained from investigations.207 The concurrence urged that a statutory duty to the victim did, in fact, exist, and therefore the sheriff had a duty to preserve the evidence.208 The court in Dennis specifically distinguished the situation from one in which a victim alleged a negligent impairment of a civil action.209 For that negligence claim, a victim would simply have to show that evidence that may have benefited her potential or pending civil suit was destroyed or lost.210 That claim would be premised on an individual’s right to be free from interference in pursuing her own civil suit, as opposed to a right to have evidence available for a criminal prosecution. While immunity obstacles would still be difficult to surmount, such an approach may avoid the concerns expressed in both Dennis and Town of Little Rock about recognizing a right to investigation, enforcement, or prosecution. Litigants seeking post-conviction relief have relied on other creative legal strategies to compel a state to allow DNA testing of

205. Dennis, 22 So. 3d at 191–92. 206. Id. at 193–94. 207. Id. at 194–95. 208. Though concurring in the result because he believed the plaintiff failed to carry her burden of proof to prove serious distress, Judge Pettigrew stressed that the statutorily granted general duties of the Sheriff’s Office, combined with the Rights of Crime Victims and Witnesses’ Act, created a legal duty to “preserve evidence obtained during the investigation of a particular crime, not only for the benefit of the general public, but also the victim of the crime.” Id. at 197. 209. Id. at 195. 210. See, e.g., Robertson v. Frank’s Super Value Foods, Inc., 08-592 (La. App. 5 Cir. 1/13/09); 7 So. 3d 669 (applying theory of negligent spoliation in civil actions to destruction of video tape showing woman’s fall in grocery store). 2011] TESTING JUSTICE 989 physical evidence in custody. 211 Petitioners have sought access to DNA evidence under local statutes allowing judges to donate evidence to charity organizations at the end of a trial.212 In one Virginia case, a newspaper argued that the First Amendment and state freedom of information laws mandated public access to DNA evidence.213 In that case, the court refused to expand the right of access to include new evidence,214 since the open records doctrine does not generally offer third-party plaintiffs any meaningful access to physical evidence in a state’s custody.215 However, a judge may be more likely to use his discretion to grant such access to a victim.

V. EXTRALEGAL METHODS OF ADVOCACY

Media-driven public pressure may be one promising tool to urge law enforcement officers to implement local policies of testing all rape kits. 216 In part due to increasing public pressure from

211. See Anne-Marie Moyers, Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing, 55 Vand. L. Rev. 953, 958–59 (2002) (listing creative approaches adopted by litigants seeking access to DNA evidence). 212. See id. at 959 n.45 (citing In re Petition of Centurion Ministries, Inc. for Donation of Exhibits Pursuant to Va. Code 19.2-270.4D (Va. Cir. Ct. Virginia Beach 2000) (No. 212-00)). 213. See generally The Globe Newspaper Co. v. Commonwealth, 264 Va. 622 (2002) (holding that newspaper had no First Amendment right to access DNA samples and samples were not a public record under VFOIA). 214. The Globe Newspaper court observed, Historically, the constitutional right of the public and the press to have access to criminal proceedings has applied to hearings and trials and inspection of documents and records that have been introduced at such proceedings. Here, the newspapers seek ‘access’ to something that does not exist, namely, new evidence in the form of new test results. The Globe Newspaper Co., 264 Va. at 629. 215. Moyers, supra note 211, at 961–62. 216. Increasing media attention has been devoted to the backlog of rape kits in the last two years. See, e.g., Lost Opportunities Without DNA (CNN broadcast, Dec. 15, 2009), available at http://edition.cnn.com/TRANSCRIPTS/0912/ 15/cnr.06.html (“Tens of thousands of DNA samples are missing from state databanks all over the country . . . . And far too many of the samples that do exist are just sitting in labs, waiting months, maybe even waiting years to be tested. And then the crimes go unsolved, criminals go unchecked and unpunished.”); Editorial, Consider the Evidence, Phil. Inquirer, Dec. 21, 2009, at A14 (“But too often, these rape kits sit forgotten on shelves in police evidence lockers, untested by crime labs. The answers contained within them remain locked away.”); Nicholas D. Kristoff, Is Rape Serious?, N.Y. Times, Apr. 29, 2009, at A27 (“It’s a 990 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 advocacy groups, in 2008 the Los Angeles Police Department acknowledged that nearly 7,500 rape kits sat untested in police storage facilities.217 The mayor and police chief “vowed to address the issue, setting aside funds to help the department outsource the evidence to private laboratories at a faster pace and to bolster the department’s own understaffed laboratory.”218 Increasing pressure from media 219 in Illinois led to a new law mandating that law enforcement agencies send all rape kits to laboratories for analysis.220 Illinois Attorney General Lisa Madigan indicated the legislation stemmed from “mounting concerns that law enforcement agencies aren’t automatically submitting physical evidence for inclusion in sexual assault investigations.”221 In fact, a recent Human Rights Watch report found that out of every five rape kits collected in Illinois, four are left untested.222 As a result of a media campaign, advocacy by survivors of rape, and commitment by local politicians, Illinois is now the first state to require that every rape kit be tested.223 After a CBS news story drawing attention to the thousands grueling and invasive process that can last four to six hours and produces a ‘rape kit’—which, it turns out, often sits around for months or years, unopened and untested. Stunningly often, the rape kit isn’t tested at all because it’s not deemed a priority.”). 217. Joel Rubin, DNA Backlog Halved in a Year; LAPD has Accelerated Testing of Evidence Kits in Rapes, Sex Assaults, L.A. Times, Oct. 6, 2009, at A4. 218. Id. Unfortunately, Human Rights Watch reported in January 2010 that Los Angeles had abandoned these commitments. See Sarah Tofte, Human Rights Watch Press Release, City Breaks its Promise to Rape Victims (Jan. 21, 2010), http://www.hrw.org/en/news/2010/01/21/city-breaks-its-promise-rape-victims. 219. Megan Twohey, Sex Crime Reform “Close”: Illinois to Give New Priority to Evidence from Rape Kits, Chi. Trib., Feb. 9, 2010, at 1 (Mike Hood, deputy attorney general for criminal justice, remarked: “After the Tribune story, it became clear that we needed a state protocol for the handling of rape kits”). See generally Megan Twohey, Police Put Rape Kits on Hold; Suburban Cops Don’t Submit 40% of Exams, Chi. Trib., June 14, 2009, at 1 (finding that most of the law enforcement agencies surveyed do not require that kits be tested and that 40% of kits remain untested in police or crime laboratory storage). 220. 725 Ill. Comp. Stat. Ann. 202/10 (West 2011). 221. Press Release, Illinois Attorney General’s Office, Madigan Proposes Bill to Require Law Enforcement to Submit Evidence in Sexual Assault Cases (Feb. 9, 2010), http://www.illinoisattorneygeneral.gov/pressroom/2010_02/ 20100209.html. 222. Human Rights Watch, “I Used to Think the Law Would Protect Me,” supra note 81, at 5 (finding that, of the 7,494 rape kits entered into law enforcement evidence over the past fifteen years, only 1,474 could be confirmed as tested). 223. Megan Twohey, Illinois to Test Every Rape Kit, Chi. Trib., Jul. 6, 2010, at 1 (describing Illinois as the first state to require the testing of all DNA 2011] TESTING JUSTICE 991 of rape kits across the country that remain untested,224 the San Antonio Police Department changed its policy to ensure that all kits in stranger rape cases were tested.225 The Rape, Abuse, & Incest National Network disclosed that, in response to the CBS story, sessions with their National Sexual Assault Online Hotline increased by fifty-three percent.226 Aside from public pressure, increased training for law enforcement officials and prosecutors involved in sexual assault investigations may also lead to prompt testing of all rape kits. Though additional training would not affect the backlogs due to capacity, sufficient federal funding already exists to ensure that laboratories are capable of efficiently processing forensic evidence. Once officials are aware of the importance of testing and elect to send all rape kits to laboratories for analysis, this federal funding should ensure that laboratories are able to accommodate the increased load.

VI. CONCLUSION

Successful legal action to encourage testing or mandate access to untested rape kits is unlikely. Victims face high hurdles in establishing constitutional claims, must overcome official immunity barriers, and do not enjoy the same rights of access to courts and evidence as criminal defendants. Public pressure on jurisdictions to test all kits and increased training for law enforcement officers on the importance of obtaining DNA evidence may be more fruitful. It is clear that testing every rape kit and effectively using the evidence collected to secure the rights of sexual assault victims will require both financial commitment and initiative by law enforcement agencies. As a Manhattan district attorney in the sex crimes unit noted, “[w]e had the political will to [test all rape kits], and now, the evidence gathered from reported sex crimes). See generally Sexual Assault Evidence Submission Act, 2010 Ill. Legis. Serv. 96-1011 (West). The new law states: “Law enforcement agencies that receive sexual assault evidence in connection with the investigation of a criminal case on or after the effective date of this Act must submit evidence from the case within 10 business days of receipt to a Department of State Police forensic laboratory or a laboratory approved and designated by the Director of State Police.” Id. § 10. 224. Many Rape Kits Go Untested (CBS television broadcast Nov. 10, 2009), available at http://www.cbsnews.com/video/watch/?id=5606228n&tag=related; photovideo. 225. Senators Press Holder on Rape Kits (CBS television broadcast Nov. 18, 2009). 226. Id. 992 COLUMBIA HUMAN RIGHTS LAW REVIEW [42:943 policy is a no-brainer given all the rapes we have been able to solve and prosecute.”227 The payoff is justice for victims, greater security for the general public, and a criminal justice system that operates in a more equal way.

227. Human Rights Watch, supra note 3, at 55 (interview with district attorney in sex crimes unit in New York City).