Rape Survivors' Waiting Game

In the spring of 2010, 27-year-old writer and performer Heather Marlowe moved to San Francisco from Olympia, Wash. with big dreams. She’d landed a role singing in a feminist performance of The Little Mermaid and joined a bhangra dance troupe when she decided to take part in one of the city’s quintessential “performance art” experiences: Bay to Breakers.

During a party on race day — “Hetero Pride,” she would later call it — a man she didn’t know handed her a red plastic cup of beer. She drank it down, soon noticing it left her more drunk than she would have expected. That and a cab ride were her last memories before she blacked out. She woke up several hours later in a strange house in the Richmond District, in a bed with black sheets, bruised and suffering pelvic pain. Through the fog, she believed she’d been drugged and raped.

After vomiting repeatedly and gathering her wits, Marlowe did what fewer than 30 percent of sexual assault survivors do: She went to the nearest emergency room and called the police. They took her from a hospital on the west side of the city to San Francisco General, where nurses trained to collect sexual assault evidence swabbed her vagina, anus, and mouth during a four-hour examination, collecting any DNA that might identify her attacker. On her way home — still wearing an open-backed hospital gown, after the muu-muu she wore during the race was confiscated for “evidence” — police and hospital staff assured her that the DNA would be analyzed and she would get the results within 14 to 60 days.

While waiting, Marlowe Googled the name she thought her rapist had given her when they'd met. She found a picture that looked like him, but when she reported the find to the police, she says the inspector assigned to her case made an odd suggestion: Make contact with the possible suspect and flirt with him to get him to confess.

She also received some dating advice. Marlowe says the officer instructed her to go on a date with the man she believed to be her rapist, suggesting that if she didn't, SFPD would drop the case. She tried to follow that advice, but the man bailed on two scheduled meet-ups.

Marlowe began to suspect police weren't putting much effort into the investigation. Throughout 2010, she continued to call police for the results of her rape kit. Each time, she was repeatedly told to check back in a few months. Months stretched into years.

“The 14 days that it was supposed to take for my kit to be processed turned into 868 days,” Marlowe told a meeting of the San Francisco Police Commission in 2013. “I got to a point where following up [and] trying to attain any information was becoming very frustrating and re-traumatizing, because I was continually being told that my kit was not a priority.”

A slight woman with large brown eyes and straight, dark hair that falls past her shoulders, Marlowe studied art history and world arts and cultures at the University of California at Los Angeles. She later came to San Francisco to pursue writing and performance with local stage luminary Lisa Anne Porter and at comedian W. Kamau Bell's performance workshop.

She developed a stage play, The Haze, about being drugged and raped at Bay to Breakers and her ensuing experiences with SFPD, including a story about police taking her to the wrong hospital at one point. (Only SFGH is qualified to collect rape kits.)

“I'm like, wow, these guys really have no idea where to go or what to do,” she says in the play, turning sarcastic. “And that makes a lot of sense. Because rape is so rare in our society that it's actually been years since it's happened to anyone. There isn't really any need to train our law enforcement about rape, because it never happens.”

Marlowe's efforts through The Haze and her remarks at the police commission shamed San Francisco police into action. In 2014, police Chief Greg Suhr vowed all untested kits would be analyzed. He credited Marlowe for creating the pressure that allowed the SFPD to expand its crime lab staff from four people to 14.

But almost six years later, nobody has been arrested in Marlowe's rape, nor has a suspect been identified. These are both common outcomes in rape cases, as only 2 percent of rapists will serve time in prison, but San Francisco has long lagged far, far behind other jurisdictions in handling rape.

The city's rape arrest rate hovered around the 10 to 12 percent range for several years — before plummeting to 6 percent in 2014. Nationwide, the arrest rate in rapes is 21 percent, according to the FBI's Uniform Crime Report; in California, it's 26 percent, according to state Department of Justice records.

Marlowe eventually resorted to filing a public records request to see if her kit was even tested. Now, she believes police haven't even done that.

In January, Marlowe filed a federal lawsuit against Suhr, SFPD brass, and the police commission, alleging that her due process rights were violated and claiming her rape kit was never tested. (Because her civil case is pending, Marlowe's attorneys won't let her speak to reporters and only allowed her to provide her personal history by email.)

Marlowe was assaulted about six months before the Board of Supervisors passed legislation requiring the SFPD to comply with California's Sexual Assault Victims' DNA Bill of Rights. That law mandates that police must test any DNA evidence from a sexual assault, develop a suspect profile, and upload the information to the Federal Bureau of Investigation's Combined DNA Index System — or CODIS, a national database of offender DNA — all within 14 days.

It also requires the department to make sure it preserves funding to ensure rape kits are tested in a timely fashion — before sexual assault offenders can re-offend, and before it's too late to prosecute them.

But when Marlowe spoke at a police commission meeting about her rape kit three years later, she said she suspected police were ignoring the law.

“Why would my one kit just happen to slip through the cracks?” she asked at the meeting.

It wasn't just hers. An ABC7 News investigation in 2013 revealed that the SFPD had thousands of untested kits, each containing evidence collected before the 2010 legislation passed, sitting untouched on shelves.

Even now, months after police twice claimed the older rape kits had been tested, the department is now admitting hundreds have not been fully tested — some dating as far back as 1982 — according to police department spokesman Sgt. Michael Andraychak.

It's well known that the vast majority of sexual assaults are never prosecuted. But on top of the abysmal chances of seeing their rapists arrested and prosecuted, sexual assault survivors in San Francisco have never enjoyed the speedy attempt at justice promised to them in the victims' “bill of rights.”

A visit to a San Francisco rape crisis center inspired former Police Commissioner Jim Hammer, an attorney who used to work as a prosecutor in the District Attorney's office, to craft the rape kit mandate city legislators approved in 2010.

He came away appalled by what he heard from survivors and counselors.

Counselors “had come to tell victims, 'Don't expect a fast result. We can't even give them a date when the kit would come back,' ” Hammer says. “I was floored. I was speechless. One of the victims said, 'I don't even want to do the test.' “

“That was just an absolutely horrible outcome,” he says. “It's unacceptable that some victims are refusing to do the test because they couldn't be reassured it would be done in a speedy way.”


But even now, six years after the “mandate” became law, tracking San Francisco's unprocessed rape kits can feel like a shell game.

Processing a rape kit includes checking for the presence of any biological material, extracting any usable DNA, and compiling a report that's sent back to police to be matched against the CODIS database.

In late 2014, police announced that “all of the 753 identified cases needing to be tested have been sent to the vendor for testing, thus clearing the backlog of sexual assault kits at the SFPD.”

As it turned out, things are more complicated.

Police ultimately processed 677 rape kits collected between 2003 and 2013 after discovering that 76 had already undergone DNA testing and didn't need to be tested again.

Then, in 2015, Suhr said SFPD had discovered 437 more kits, all from before 2003. These kits, which could still contain viable DNA evidence, had been put in storage because they were outside the 10-year statute of limitations for sexual assault and therefore unlikely to result in any punishment for the offenders (or justice for the rape survivors), police said.

Nonetheless, Suhr vowed they'd be tested by the end of last year.

The number sent for testing ballooned from 437 to 513. Many went to outside labs because San Francisco's crime lab lacked the capacity to process them all, Andraychak says. As of late April, most of those earlier kits — about 405 of them — still aren't entirely tested. Another 50 have not even begun testing.

But because they were no longer in the SFPD's property room, they were considered “cleared,” even though they were in various stages of testing, he says.

San Francisco isn't alone in failing to test all of its rape kits. Roughly 400,000 remain unprocessed nationwide, according to the federal Department of Justice.

Los Angeles had more than 10,000 kits waiting on shelves, while Detroit belatedly tested 11,000, according to Ilse Knecht, senior advisor for policy and advocacy for the Joyful Heart Foundation, a watchdog group that tracks rape kit problems nationwide. The issue recently attracted the attention of Full Frontal host Samantha Bee, who accused Texas — which had 20,000 untested kits — of auditioning for Hoarders: Rape Kit Edition.

Survivors and advocates say testing rape kits is a no-brainer that will help police catch rapists. For many cities, that's been true.

Cleveland issued 448 new indictments based on DNA evidence from rape kit testing and saw a 91 percent conviction rate on cases it took to court, showing just how effective DNA can be at putting rapists behind bars.

After New York City processed 17,000 untested rape kits, it found 2,000 matches in CODIS and made 200 arrests based on that evidence — a miniscule success rate but one that nonetheless led to some justice for rape survivors. The city also adopted a policy of testing every rape kit as it's booked into evidence, which boosted NYPD's arrest rate in sexual assault cases from 40 percent to 70 percent, according to Joyful Heart's End the Backlog campaign.

“So many other communities are seeing success with testing their old rape kits,” Knecht says.

Puzzlingly, this hasn't happened in San Francisco. Of the 753 kits from 2003 to 2013, 732 yielded some amount of DNA, but only 231 contained enough to be entered into CODIS.

Although 119 matched other suspects in the database, none of those hits led to new arrests or cases presented to the San Francisco District Attorney's Office for prosecution, Andraychak says.

“A CODIS hit constitutes an investigative lead to be used in working the case,” Andraychak says. “A hit does not equate to 'probable cause to arrest,' and the investigators must still take other investigative steps.”

Once sent to investigators, CODIS hits can identify suspects to be brought in for questioning. In San Francisco's case, most of the rape-kit CODIS hits led police to suspects already known to investigators. Some were already being prosecuted or sitting in prison.

In other cases, victims had decided they didn't want to pursue their cases, Andraychak says.

The lengthy delays can lead victims to change their minds. A lot can happen between the moment a rape kit is collected and when it is tested. This doesn't appear to be because of any deterioration of evidence; Andraychak says San Francisco kept its older rape kits frozen, and DNA evidence collected decades ago has been enough to convict suspects in homicide cases.

In one case, the San Francisco police contacted a rape survivor to let her know her rape kit had yielded a suspect. But the survivor said in the time since she'd filed her report, she had put her life back together and started a family, and didn't want to relive the assault by pressing charges, according to Andraychak.

“Each survivor has their own reason whether to pursue or not pursue an investigation,” he says. “The department respects the survivors' decisions.”

Joyful Heart's Knecht says many police departments say that, but it's a lame excuse.

“Research has shown that more often than any other crime, law enforcement frequently does not believe survivors or blames them, and that survivors withdraw from the criminal justice process because of how they are treated,” she says.

Even when survivors don't want to prosecute a long-delayed case, giving them the DNA information can provide a sense of closure, Knecht says. For some, the hit validates their story in the face of family or friends who didn't believe them. For others, it's a relief to know that the person who assaulted them is in prison for another crime — or dead.

But even when a kit is tested, the results can be worthless. Of the 513 rape kits SFPD collected before 2003, none has led to a CODIS hit.

Andraychak says that's because “the collection methods in previous decades was not as sensitive as it is today. Therefore, there were a significant number of cases in which no useful biological evidence was obtained.”


Kits that yield some level of genetic information still need further analysis by the lab and investigators to determine whether the DNA they contain is enough to meet the FBI's eligibility standards, he says.

Bicka Barlow, a former DNA expert for the San Francisco Public Defender's Office, says the explanation of the bum kits didn't make much sense to her.

“I've had [homicide] cases that were substantially older where they've recovered DNA material,” says Barlow, who now consults on cases involving DNA evidence.

Although today's testing methods are much more sensitive, “I don't think the collection method for rape kits has changed at all,” Barlow says. “San Francisco has always been very slow to get up to speed — they've always been behind in terms of the [testing] methodologies they've been using. And I don't quite understand why. The current methods are much more sensitive … if there's any [DNA] there, they should be picking it up.”

Failure to test rape kits causes problems for people other than survivors and prosecutors. It's also problematic for alleged rapists. Defense attorneys say testing delays can make it harder for them to prove their clients are innocent.

Sandy Feinland, who works in the San Francisco Public Defender's office, says one of his clients was sentenced to life in prison in a felony rape case. A rape kit was collected, but the evidence wasn't used in his trial.

Feinland attempted to get the DNA results to bolster his client's appeal, but the kit was destroyed, which police departments can legally do when kits have sat on evidence shelves too long.

He has also had trouble getting judges to order rape kits to be processed more quickly.

“They just take the DA's word that these things take time,” he says.

Repeat offender Donzell Francis was released from prison in 2007 after serving a five-year sentence for slashing a woman's face with a razor. Soon after the then-38-year-old was paroled, transgender sex worker Ruby Ordenana was found raped and strangled to death near Interstate 280 in Potrero Hill. Biological material was collected from her body, but the SFPD's crime lab didn't process that evidence for more than two years.

In fall 2007, another transgender woman named Lena told police that Francis had approached her in his truck near the corner of Geary and Leavenworth streets, asking if she needed a ride. She got in the vehicle and tried to give him directions, but he ignored her and locked the doors. He drove to an alley near Ninth and Market streets, where he began punching her and removing her clothes. He forced her to perform oral sex and choked her until she passed out. When she came to, he tried to force her into more oral sex, choking her again when she refused.

Lena eventually escaped Francis' truck. She was able to get his license plate number and went to the police. Officers met her at SFGH, where nursing staff collected semen from her mouth and hands. The DNA confirmed it was Francis who had assaulted her — and also linked him to three other attacks on transgender women.

A jury convicted Francis in Lena's assault. In early 2010, a judge sentenced him to almost 18 years in prison. In the meantime, Ordenana's rape kit was tested; the DNA evidence matched Francis'.

Hammer, the former prosecutor, told the Bay Area Reporter in 2011 that if Ordenana's rape kit had been processed quickly, Francis could have been captured before he attacked or killed anyone else.

This year, Hammer says he can't remember the details anymore, but maintained the kit should have been tested quickly.

“Timely testing of rape kits can prevent other rapes, period,” he says. “That's not every case. But if you catch someone soon enough, you might keep someone else from being raped.”

The police department and District Attorney's office declined to discuss the case, saying that because the Ordenana case is active — after almost nine years — they didn't want to say anything that could compromise it.

Lena, like Marlowe, made the rare decision to go to the police and allow SFGH nurses to collect potential evidence from her body. And for Lena, it actually paid off. But the process of reporting a rape is not a gentle one.

Police officers require a survivor to explain in detail what happened, a process that can re-traumatize. Officers may ask, for example, how many times a perpetrator penetrated the survivor, because each act can be a separate charge, says Janelle White, executive director of San Francisco Women Against Rape.

According to the Rape, Abuse, and Incest National Network, 68 percent of rapes aren't reported (and 82 percent of all rapes were committed by someone the survivor knew). In San Francisco, an average of 168 rape survivors go to the police each year, including a 10-year high of 355 in 2014.

But San Francisco police only made an average of 30 arrests in sexual assault cases each year, which does not encourage survivors to come forward.

Survivors may also balk at the idea of a rape kit collection process because of what's involved. Their bodies become “living, breathing crime scenes,” says Knecht, which means preserving evidence. Therefore, they can't use the bathroom, drink a glass of water, or take a shower until their bodies are probed.

Some may have to drive hours just to get to the nearest hospital qualified to collect the evidence. Only nurses who are trained to work with rape survivors, conduct forensic examinations and potentially provide expert testimony may perform these exams.

The extensive, invasive examination can take up to four hours. Trained nurses use a colposcope, a magnifying device for examining the genitals, to look for and document injuries such as bruises or vaginal or anal tears that would indicate an assault. They also swab for material that could contain a suspect's DNA, and discuss options for addressing potential pregnancies or sexually transmitted diseases, says SFWAR's White.


The process can make survivors unwilling to come forward, Knecht says.

“We hear a lot from survivors that the responses from people around them, whether it's family, friends, police — it's very crucial to their agreeing to go forward and share the information,” she says. “That kind of permeates our society; there's a real reluctance to put yourself through that. And I think there's some lack of trust in the system. People read the papers and think, 'Why am I going to go through this if my kit's going to be on a shelf?' “

There are about a dozen different models of rape kit. Each kit can contain up to a dozen swabs. Each swab potentially has biological material from the survivor, the suspect, and anyone else the survivor has been intimate with in the five days before the rape kit collection.

Analyzing what's on the swabs and preparing that material for DNA analysis takes at least two days. Each part of the analysis — extracting DNA, amplifying it, separating it and other steps — takes a minimum of one day. Interpreting the results takes another two to three days, while compiling the information into a laboratory report and reviewing it adds another one to two days.

That's in an ideal world, where there's no other DNA evidence also in the pipeline.

Processing everything contained in a rape kit — not just biological material, but other evidence collected from a crime scene or a survivor — can take several weeks. Greg Goldman, a deputy public defender, says he once handled a case that weighed on multiple rape kits; while many were processed quickly, the results from one that was sent to an out-of-state lab took 10 months to obtain.

It's not 100 percent clear why some of San Francisco's rape kits have been tested quickly while others sat waiting. SFPD spokesman Andraychak offers a partial explanation: Before 2001, the department didn't generally test kits in sexual assaults where a suspect was already known to police or the suspect had confessed to the assault.

After the Board of Supervisors mandated quicker testing in 2010, police priorities didn't change. Kits associated with assaults committed by strangers were the ones “tested within the mandated time frame,” Andraychak says.

Picking which kits to test often comes down to a judgment call, San Francisco Police Commission President Suzy Loftus says.

When the commission performed an audit of the city's unprocessed rape kits four years ago, it learned that “it's not uncommon that a decision is made [by inspectors] about whether a kit should be tested, and it goes to the property room instead of the crime lab,” she says. “There were a bunch of kits that someone decided didn't need to be tested.”

Even with more staff to process rape kits, SFPD frequently sends them to outside labs, including Bode Cellmark Forensics, based in Lorton, Va., when the city's crime lab is backed up.

The crime lab tries to keep up with rape kits, but because of the state Victims' DNA Rights Bill, which SFPD must follow thanks to the 2010 city legislation, “the lab is mandated to meet timelines for specific work to be completed which are sometimes difficult to achieve,” Andraychak says. When the lab can't meet those timelines in house, it will send some or all of a rape kit to an outside lab.

Theoretically, testing and analyzing the DNA in a rape kit can take about 15 days, but kits must often wait to be tested because crime lab analysts are working on other cases.

San Francisco's crime lab takes an average of 160 days to process everything in a rape kit, including clothing and personal items. However, Andraychak says the crime lab is currently testing the DNA piece of newly submitted kits within the mandated time frame.

The cost to test a rape kit also varies, depending on the level of analysis required. Simply testing for the presence of biological material costs $300 to $500, Andraychak says. But the police department says it has enough money to keep up with its rape kits.

Last year, the District Attorney's office offered to seek $2 million from a pair of grants specifically to leverage rape-kit testing. It couldn't do so without the police department's participation — and the SFPD said no to both grants because Suhr had already committed city funds to test the kits, Andraychak says.

Processing rape kits quickly is “a duty we owe them,” says Max Szabo, a spokesman for the DA. “These are people who went ahead and subjected themselves to an incredibly invasive procedure. They've done everything we've asked. We need to live up to our end of the bargain.”

If not for law enforcement, momentum is gathering around the issue of timely rape kit testing for lawmakers.

Last fall, Vice President Joe Biden and Attorney General Loretta E. Lynch announced $80 million in grants would be available to expedite the processing of untested rape kits nationwide. (None of that money went to San Francisco, according to the U.S. Department of Justice.)

This year, state legislators have floated a number of new bills aimed at tackling the problem. Assemblyman David Chiu, D-San Francisco, a former president of the Board of Supervisors who voted in favor of the 2010 rape kit mandate, recently introduced a state bill that would require California's law enforcement agencies to use the state Department of Justice tracking system, SAFE-T, for all rape kits collected in California.

If the bill passes, it would make it easier to monitor how many kits have been analyzed or remain waiting.

Chiu's legislation, co-sponsored by Attorney General Kamala Harris, the frontrunner to succeed Barbara Boxer in the U.S. Senate, is the fifth attempt to get such a law on the books. Previous bills have stalled, been vetoed, or been watered down.

Incredibly, “there's not unanimous support around this topic,” Chiu says.


San Francisco police said they didn't initially test rape kits collected before 2003 because they were outside the statute of limitations for prosecuting sexual assault. Szabo, the DA's spokesman, says that doesn't make sense, given that there's no time limit for admitting DNA evidence. However old, DNA can help bolster a case against a defendant accused in one or more recent assaults.

“It can go a long way toward helping a jury convict,” he says.

State Sen. Connie Leyva, D-Chino, wants to make the issue of time moot by doing away with the state's time limits on sexual assault cases. Several states, including Alabama, Idaho, Maryland, and Kentucky, have no statutes of limitations on rape; Leyva says she was surprised to learn that California does.

“Nobody should be denied justice just because 10 years has passed,” she says.

Not every survivor is ready to come forward right away, or even within the 10-year time limit.

“They come forward when they can, and sometimes that's many years later, when they feel more confident,” she says. “We shouldn't deny them that.”

At the local level, the police commission is now requiring the police department to provide twice-yearly updates on its progress testing rape kits, including timelines that show when evidence was collected and whether it led to a CODIS hit, an arrest or a conviction.

This was proposed after an anonymous San Francisco resident reported to the independent Office of Citizen Complaints that her rape kit had gone untested for years and her communication with the department had been poor. Although Marlowe complained to the OCC, nobody would go on record to say if this complaint was hers.

Loftus says that the SFPD has been good about updating the Board of Supervisors, but the commission wants to track things, too.

“Since the [police] chief reports to us and we have the policy oversight, it's crucial that we know where it's at,” she says.

But though police have been held to account for testing timelines, nothing is being done about the core issue: SFPD's peculiarly poor ability at handling rape, with an arrest rate a fraction of the state's.

Last year, a San Francisco police officer accused of rape was warned he was under investigation by his superior. The superior officer, ex-lieutenant Curtis Liu, was recently charged by District Attorney George Gascón for impeding an investigation; the now-former cop, Jason Lai, was eventually charged with misdemeanors — for improperly using police databases, not rape.

Meanwhile, Marlowe's rapist is at large, as are the rapists in hundreds of other reported assaults in San Francisco dating back to well before the promises to more quickly test kits.

After she was told her kit had been tested, she filed a public records request last year to find out whether it was tested or to obtain the results. She was told that the information was not considered a public record under the Freedom of Information Act, according to her lawsuit against the police department and the city.

A hearing in her case scheduled for April was postponed until June, in part because the City Attorney's office thinks Marlowe's case, and her belief that her rape kit may remain untested, is based on a misunderstanding.

It was tested, says Matt Dorsey, a spokesman for City Attorney Dennis Herrera.

“We hope clearing up that misunderstanding will clear up the litigation,” Dorsey says.

As it is, the suspect she had initially identified to the police department — the one she unsuccessfully tried to convince to go out with her — was ruled out as the rapist by the DNA evidence in her rape kit, Dorsey says.

Why Marlowe could not come by this information herself is unclear. Marlowe's attorneys, Irwin and Alexander Zalkin, didn't respond to several requests for comment on the suit.

It would be easy to look at how few rape kits lead to arrests or convictions — in San Francisco or elsewhere — and conclude that they're not worth collecting or testing. But the problem is more systemic.

Many survivors, who know the possibility their rapist will be arrested is miniscule even if their kits are tested, won't come forward unless they can trust that their reports will be taken seriously and their rape kits will be tested quickly.

If you were going to design a sexual assault reporting process to discourage survivors from seeking justice, it would resemble the one we have.

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