Balancing the scales for sexual assault survivors

28 February 2017
Michaela Flonard, News Editor

Oklahoman legislators proposed several bills meant to give sexual assault survivors more opportunities to mount cases against their attackers. The bills each focus on different aspects of the recovery process: everything from the duties of healthcare professionals in treating victims to the necessity of testing rape kits. Passing these bills requires action on the part of constituents.

Seven bills in both House and Senate have been proposed that deal with the definition of rape, rape kits and victim’s rights.

Oklahoma’s rates of rape and attempted rape have been 35 to 45 percent higher than the national average over the past decade, according to the state’s Health Department. Further, the number of reported rapes has increased each year since 2011. This term, lawmakers hope that a few bills can make a remarkable difference.

This term, seven bills in both the state House and Senate aim to change laws regarding rape and sexual assaults. These bills are HB 1005, HB 1502, SB 654, HB 1468, SB 192 and SB 208.

HB 1005, authored by Representative Scott Biggs, would categorize all rape by instrumentation as rape in the first degree. Currently, rape by instrumentation is either a first or second degree charge with different penalties. Greyson Chance, president of TU Young Democrats, believes this bill will be the most impactful. “While Democrats commonly disagree with Rep. Biggs on other matters, we believe his initiative on the issue of sexual assault is respectable and much needed in our state.”

According to the RAINN (Rape, Abuse & Incest National Network), having DNA from sexual assault cases, usually obtained through a rape kit, increases the likelihood of identifying and holding perpetrators accountable, which can prevent future sexual assaults from occurring. Yet The Accountability Project, through a 2014 opens records request, found a backlog of 3,783 untested kits in Tulsa alone as reported in 2011. State laws do not require police to add the rape kit to a database of other evidence or report how many untested kits exist.

In Oklahoma, untested kits are called “unprocessed.” Police have made the decision to not test every kit, resulting in that only about a quarter have been tested. SB 654, proposed by Senator Kay Floyd, hopes to change that by creating a two-year Joint Legislative Task Force on Sexual Assault Forensic Evidence. This force would study the number of untested rape kits in the state, identify any possible improvements for testing, law enforcement training and victim access to evidence. The force would also and pursue funding to eliminate the backlog of rape kits.

While the University of Tulsa’s College Republicans have yet to discuss these type of reforms, President Sheridan Nolen acknowledges the need. But while SB 654 establishes a bipartisan task force with specialists, she believes immediate reform is necessary. “We have already identified there is a problem,” she said, “so we can surely come up with some quick solutions until the task force comes up with some more ideas.”

Representative Monroe Nichols’ HB 1502 picks up from there. Besides codifying duties of healthcare professionals when treating victims of suspected sexual assault, the bill outlines new expectations for law enforcement when dealing with rape kits. The bill gives a specific timeline for when the evidence must be collected and tested.

In an ambitious step, the bill also would require 75 percent of the backlog of kits cleared by November 1, 2018, with the hope all would be tested by June 30, 2019. Agencies would be expected to submit reports on sexual assault to the Oklahoma State Bureau of Investigation, which would then be available to the public.

In 2010, the Connecticut General Assembly conducted a nationwide voluntary survey of crime labs and turnaround times. For sex crime kits only and sex crime kits with evidence (there was no differentiation between the two), the average time to complete testing was 99 days. This time represented the combined results of all five regional state laboratories. Turnaround times ranged from one week to six months for sex kits only and 20 days to 12 months for sex kits with evidence among states who replied to the survey. However, differences in collection and reporting of the data affect interpretation of these ranges.

Nichols said his focus on rape kits arose from his sense of justice. “What I know about that, it’s that something that when it happens to you, you’re dealing with it for a really really long time. And that backlog means that there’s a lot of folks who don’t really get justice for what happened to them, there’s a lot of folks walking free who shouldn’t be.” It’s unlike any crime, Nichols said, because “we usually investigate crimes to the full extent of the law. But the fact that we have so many untested kits means we’re not really doing that.”

Testing the backlog will incur a significant cost for the state, which could be solved by appropriating money — which wouldn’t work with Oklahoma’s current budget crisis — federal grants or public-private partnerships, Nichols suggested. “We do have to be conscious of those kinds of things, but I don’t think the cost of doing the right thing, particularly with something like this, needs to be the highest consideration,” he said.

“Frankly it’s our responsibility as elected officials and law enforcement community that we do all we can to protect people who live here and seek justice for people who break the law. It’s a great issue for us to lean into for Oklahoma,” said Nichols. “We have to do all we can to make sure Oklahoma is a great place for students to come and study and people to build their careers and part of that challenge is to make sure we’re working on legislation that’s gonna protect folks from the most egregious crimes that are out there.”

The timeline on testing kits will prevent future backlogs, Nichols hopes. “What I’ve been able to gather is that this isn’t because law enforcement doesn’t care about rape kit testing, it’s just it hasn’t been a focus. And we’re not alone in that, but it’s a good way for us to be a leader across the States.”

Whitney Cipolla, president of Student Alliance for Violence Education (SAVE), said “Testing all of the kits collected is of the utmost importance because testing them can identify repeat offenders and serial rapists, and most importantly, show survivors that the state of Oklahoma takes cases of sexual assault seriously.” She noted that “many people don’t get rape kits because it can be a long and arduous process that puts people in very vulnerable positions right after major trauma. If people don’t think the kits will get tested, they could be less likely to come forward for a medical examination and allow for evidence to be collected. Guaranteeing that all kits are properly tested in a timely manner would be a loud statement to the people of Oklahoma that survivors of sexual assault are a priority, and that each person deserves justice.”

Complementing these bills is HB 1468, proposed by Representative Carol Bush. HB 1468 changes the statute of limitations for the prosecution of rape, indecent acts against children, child abuse or child trafficking. Instead of having twelve years to prosecute the crime, prosecutions would be able to occur until the forty-fifth birthday of the victim. The age cutoff was a specific choice, according to Bush.

She said “there’s been some studies out there that for survivors of sex crimes, child sex crimes, the repressed memories are very real and if a survivor is going to heal and deal with what happened and find the courage and address the attack, it will usually be done by their early forties. The current law is 31 [years old] and it’s sometimes too soon.”

Bush’s bill did include a punishment for false reporting based on psychotherapy, but that was removed, as she said “the false claims don’t really happen. That makes it really bad for those who are truly been victims … So we had that felony and fine, but we went ahead and took those out because with the criminal reform we were getting some pushback on that. If we’re trying to empty our prisons, why arrest someone?”

“The lawyers and the District Attorney … they’re coming around,” Bush said. “They see that there’s a need. They just want to make sure it’s the right way and order. They don’t want to spend a lot of money on court fees if there’s no evidence to prosecute. This is so far after the fact, you can’t do any DNA analysis.” She acknowledged “it will take the burden of proof on survivors to come up with the probable cause since there is no DNA involved. That is where the attorneys are like, ‘it’s going to be really hard to prosecute.’ It’s not that they’re not for it. They worry it’s going to be very difficult to make a case.”

But, Bush said, “the whole point is we have to change the law so these people can feel here is a safe place for them if they choose to pursue the legal route.”

SB 192, also proposed by Floyd, eliminates the statute of limitations. Extending the statute of limitations could cause some outcry about the possibility of false rape imprisonment. While children who are victims of sexual assault may not remember everything, Nolen argued that with “improved DNA testing and services provided to post-rape victims, this issue could be illuminated.” “If anything, these bills would increase the validity of rape case charges and protect the wrongfully accused,” she concluded. Bush said that the two bills dealing with the statute of limitations may eventually be merged.

Cipolla said, “All of the bills seem to be positive steps forward for the state of Oklahoma, but the two that really stand out to me personally would be SB 192 and HB 1468, along with SB 654.” She emphasized that dealing with the statute of limitations is important because “many survivors of sexual assault don’t tell anyone about it, and that holds especially true for children who are sexually assaulted. They might not understand what has happened to them, or fear that they could get in trouble. The new legislation would allow survivors to process what happened to them as children, and give them the time to pursue charges as adults.”

Several of the bills add on to the rights of victims of sexual assault, allowing them to keep up with the status of the investigation and prevent evidence from being used against them for the prosecution of minor crimes. One of these bills, SB 208, also grants female victims the right to receive post-coital contraception at no cost. Nolen acknowledged that this particular section of the bill may cause controversy in the “most ‘Red State’ in the Union,” but hoped people would “look at the big picture and realize this agreement is a big step for Oklahoma.”

Bush said there’s so many bills this year dealing with sexual assault because “what’s happened is they’ve seen more and more coming [sexual assault cases] through their courts and seeing there’s holes in the laws. Our victims and survivors can be protected a little better.”

Chance said, “We are hopeful that these bills will pass through their respective houses and become cornerstone principles for how our criminal justice system deals with sexual assault,” and “that these most recent bills will help to not only charge those who are guilty of such crimes but to also spread awareness on an issue that is unacceptable in our society and deserves more attention.”

Both representatives emphasized the importance of public involvement in their bills’ success. While Bush wasn’t as worried about her bill on the House floor, she said public support is “always very helpful on the Senate side. We’ll need a big outpouring of support for it. You can see who’s on that Senate committee and calling those who are on that Senate committee is very important. A lot of those legislators listen to those calls.”

“It’s more so in [the public’s] hands than my hands or any of my colleagues in OKC, the success or failure of any one of these pieces of legislature. I encourage people to call, to have real conversations about tough issues,” Nichols said. He referenced the recent nationwide town hall talks with Congress members. For students in particular, there’s “not a better place in the whole country to talk about this than a college campus. I hope the folks who read your paper and people you talk to feel very empowered because until these ideas go to the House and pass and go to the Senate and pass, they’re just ideas on a paper. What changes ideas from a piece of paper to the law of the land is people calling their legislators.”

As for college students in particular, Nolen said education is of utmost importance. “No matter the crime,” Nolan argued, “change in crime all starts with education within communities.” She emphasized that education about the consequences of sexual assault and the law would be vital to TU students. “I believe that TU has the potential to be a beacon of light for campuses around the state and the nation with future endeavors in promoting anti-sexual violence campaigns,” she said.

SAVE’s focus hasn’t been on legislation, Cipolla said. “Our primary goal has been to educate members of the campus community … provide ways for students to express concerns about the way sexual assault is handled on campus. However, I think moving forward with the support of the new Violence Prevention Program Coordinator, Kelsey Hancock, we will be able to expand the scope of our organization and incorporate more activism along with our mission of education.”

Nichols acknowledged that, “unfortunately, sexual assault is far too prevalent in our society, and that’s a whole other deal we have to deal with. And hopefully as we start down this path, we can have a broader conversation, as a state, as a community, particularly on college camps, not just to make sure when bad things happen we’re seeking justice, but that we’re doing preventative things so it doesn’t happen at all.”