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Just before Trump’s comments leaked, Obama signed a "bill of rights" for survivors of sexual assault

States can destroy rape kits if victims wait to press charges. This new law may change that. 

Sen. Jeanne Shaheen talks with sexual assault survivor Amanda Nguyen
Office of Sen. Jeanne Shaheen

Hours before audio surfaced that featured Donald Trump essentially boasting about routine sexual assault, President Obama was signing a landmark piece of legislation to help victims of sexual assault seek justice.

For the first time, thanks to the bill President Barack Obama signed on Friday, victims of sexual assault now have a specific set of rights under federal law when it comes to the forensic evidence collected from their own bodies after an assault.

“Beginning today, our nation’s laws stand firmly on the side of survivors of sexual assault,” said Sen. Jeanne Shaheen (D-NH), who sponsored the Sexual Assault Survivors’ Rights Act. The bill passed unanimously in both the House and the Senate last month before heading to Obama’s desk.

The way our criminal justice system handles rape kits — medical forensic examinations performed on victims after a sexual assault — is generally a disaster.

A massive backlog of rape kits languish untested in evidence lockers at police departments across the country, which means rapists who could be convicted based on DNA evidence remain free to attack again. And due to an inconsistent patchwork of state and county laws, victims are sometimes charged for their own rape kit — and they’re often given no information about whether their kits have been tested, what the results were, or even whether the kit has been destroyed.

The new law says that victims have the right:

  • Not to be charged for a sexual assault evidence collection kit.
  • To be informed of testing results.
  • To be notified in writing 60 days beforehand if the kit is going to be destroyed, and to request that the kit be preserved.
  • To have the kit preserved for the entire applicable statute of limitations. (So if the statute of limitations for reporting rape is five years, the state can’t just destroy a rape kit after six months if the victim hasn’t decided to press charges yet.)

Shaheen says the bill was inspired by meeting with Amanda Nguyen, who had a terrible experience with the criminal justice system after being sexually assaulted in Massachusetts in 2013. Nguyen says that although she reported her assault and had a rape kit performed, she was given no information about her legal options.

Nguyen hasn’t pressed charges yet, since she now has a full-time job in Washington, DC, and doesn’t have the time or resources to pursue a lengthy rape trial.

But in Massachusetts, not pressing charges meant that the state could destroy the kit after six months. Since Nguyen still wanted the option to press charges later, she had to physically return to Massachusetts every six months to make sure her rape kit wasn’t destroyed by the state. In some states, that time period is even shorter — 60 days in New Hampshire, 30 days in Florida.

The law has limited impact in the short term, but it’s still important

This is the first time survivors of sexual assault have any specific rights under federal law. At the same time, most problems with rape kits are about inconsistent laws or implementation at the state or county level, not federal. So the “bill of rights” won’t specifically apply to most sexual assault cases in the short term.

But advocates think it will soon, because it’s a federal standard that states can adopt on their own — and several are already working on doing just that.

Advocates expect the Sexual Assault Survivors’ Rights Act to follow a similar path to the 2004 Crime Victims’ Rights Act (to which the new bill is an addendum). After that law created a federal standard for the rights of crime victims, all 50 states ended up passing a version of it.

But until every state actually adopts the standards in the new law, it still has specific benefits for victims in all 50 states.

The big one is that even if a victim’s state doesn’t guarantee her the same rights as the federal law does when it comes to her rape kit, at least she will know that. This may not seem like much, but it’s a big improvement over the status quo, which tends to keep victims in the dark.

If states want to keep getting funds from an existing crime victim notification grant, they will have to give victims written notice (handed out in places like hospitals and police stations) of their specific rights as a survivor. That includes telling victims that they can have an exam and not be charged for it and telling them what the state’s policies are regarding storage and disposal of evidence kits. The state also has to tell victims what’s available to them in terms of sexual assault advocates, victim restitution funds, or protective orders.

The new law also establishes a new government task force on best practices for treatment of victims and preservation of evidence. Crucially, it’s a cooperation between the Department of Justice and the Department of Health and Human Services — an acknowledgement that the scene of the crime in rape is the human body, which has medical implications.

The bill’s passage also highlights how difficult it can be just to make states enforce existing laws, much less new ones.

The federal Violence Against Women Act is already supposed to forbid states from charging women for their own medical exams after a rape. But it sometimes happens anyway, partly because the requirement is hard to enforce from the top down.

A law like the Sexual Assault Survivors’ Rights Act, on the other hand, gives survivors the power to advocate for their own rights from the ground up. If the state is giving them the run-around on their case, they can go to court and do something about it.

This isn’t a perfect solution, of course, since it arguably puts more burden on the victims to enforce their own rights and get justice. But it also gives survivors more power as individuals to get their own cases addressed, and more power as a collective to push states to do better.