After a University of Kansas student was charged this year with falsely reporting a rape, the Douglas County District Attorney’s Office declined to have her rape kit tested, according to her attorney.
The defense attorney, Cheryl Pilate, has sought to have the kit tested by the Kansas Bureau of Investigation, but the state agency will not do it without a request from law enforcement.
Meanwhile, Pilate says the woman is innocent and after suffering rape now faces nearly two years in prison for each charge if she is convicted on three felony counts of making a false report.
District Attorney Charles Branson has said the rape kit is unnecessary in his view, since both the defense and prosecutor agree sexual contact occurred. Consent is at question in the case, and cannot be proven by the rape kit. So, it has no bearing on the false report charge, he said.
Pilate and co-counsel Branden Bell said that may not be true.
“The testing of a sexual assault kit can provide highly relevant information, including whether a sexual act continued to completion for the male. We do not presently know what the kit in this case would show as it has not been tested,” they said in a statement Friday
Additionally, the KBI says it supports testing all rape kits. DNA entered into a national database can link suspects to other sexual assaults, years in the past or future.
The KBI is part of a national initiative to reduce the numbers of untested rape kits in the country.
And advocates for sexual assault survivors argue that testing kits is important because it sends a message that seeking justice for them matters.
Sara Rust-Martin, legal and policy director for the Kansas Coalition Against Sexual and Domestic Violence, said the district attorney’s position shows a disregard for evidence that could back up the woman’s story.
“By not testing the kit, what we’re saying is ‘We don’t care about any of that,’” Rust-Martin said. “’We don’t care about the exam. We don’t care about the kit. We don’t care about anything that could be collecting evidence to show the rapist. We believe that she made it all up.’”
The Star generally does not name sex crime victims without their permission. The newspaper also generally does not name suspects unless they have been charged.
The student went to police in September 2018 to report she had been raped the night before while she was so drunk she couldn’t remember parts of the evening.
Text messages she sent the day after the alleged assault made light of the incident, according to court documents. Lawrence police detectives interpreted those texts to mean the sexual encounter may have been consensual, despite the woman’s insistence that it was not.
In January of this year, Branson’s office charged the woman with three counts of falsely reporting a felony crime.
She could face 7 to 23 months in prison for each count.
Branson said last week that, based on the evidence presented in a preliminary hearing, he believed the woman lied out of embarrassment and an attempt to punish her ex-boyfriend.
Because the woman was initially not interested in pursuing a criminal investigation, she had asked Lawrence Memorial Hospital not to turn her rape kit over to police. As a result, the Lawrence Police Department did not have the kit to send for testing.
When prosecutors charged the woman with making a false report, her attorneys obtained the kit from the hospital and submitted it to the KBI for testing.
The KBI received the kit but said it couldn’t proceed with testing.
In a letter obtained by The Star, the KBI said the request must come from law enforcement.
“In order for the kit to proceed for analysis, we would need to receive a request for services from the local law enforcement agency working with the person from whom it was collected,” the letter said.
After receiving the letter, the woman’s attorneys said, they reached out to the district attorney’s office to ask prosecutors to submit the request.
“Despite our efforts, the Douglas County District Attorney’s Office expressly refused to seek testing of the sexual assault kit,” Bell and Pilate said in a statement.
‘We don’t care’
Branson said his office did not refuse to have the kit tested.
But he didn’t believe the state should have to pay for it.
The KBI is a state-funded agency, meaning law enforcement pays for testing of rape kits generally. A portion of the cost is covered by federal grant dollars provided to clear rape kit backlogs.
“Nobody’s saying they can’t have it tested,” Branson said. “They’re just demanding that the state pay for the testing, and I don’t believe the state is required to pay for the testing.”
Branson said that, because the main question in the case is consent, the test is irrelevant. If the defense wants it tested, he said, it’s their responsibility to have it done.
“We don’t care if the thing is tested,” Branson said. “SANE kits in cases of consensual sexual encounters usually do nothing for prosecution or defense.
“Any type of bruising or hemorrhage or anything like that in a sexual assault exam, those artifacts, bruising and hemorrhaging, can be there with normal consensual intercourse,” Branson said.
“So the fact that there’s that evidence there doesn’t do anything to determine the manner in which the intercourse occurred whether it is consensual or non-consensual.”
Furthermore, Branson said, law enforcement doesn’t have DNA from the accused man to compare against the rape kit.
“After realizing there is no known standard to test the kit against, I do not see a reason to contact KBI,” Branson said.
Branson said law enforcement can’t get a DNA sample from the man through a search warrant because they don’t have probable cause to believe that a sexual assault occurred.
If the accused man agreed, he could voluntarily submit his DNA for testing.
Even without the man’s DNA, the KBI could enter DNA from the rape kit into a national database that would compare it with any past or future offenders.
According to FBI, the database does not contain names or other personally identifiable information about the individuals connected to the DNA samples.
Rape kit testing
Pilate said it would be difficult for her law firm to have the kit tested by an agency other than the KBI.
“DNA testing typically costs thousands of dollars and we did not have the means to undertake that,” she said.
According to Kim Gorman, DNA technical leader for PTC Laboratories based in Columbia, Missouri, prices of rape kit testing vary depending on how much evidence is available and what the client wants to have tested.
Individual kits, she said, are more expensive to test than the sets the lab receives from law enforcement. Prices for those tests, she said, tend to start at about $1,000.
According to the KBI, rape kit examinations will show whether semen is present in the sample. If it is present, the sample is sent for a DNA analysis.
The scientists who conduct those examinations, however, cannot determine whether sexual contact occurred, when it occurred and whether it was consensual, according to Underwood, the KBI spokesperson.
In cases where consent is the question, Underwood said, DNA testing cannot “affirm or refute the claims of either party.”
However, she said, the KBI values testing all kits.
“While biological evidence may not contribute to resolving the immediate case, testing all kits ensures law enforcement can link cases and hold serial offenders accountable,” Underwood said.
Advocates say testing the kit also is important for the victim.
Victoria Pickering, director of advocacy at the Metro Organization to Counter Sexual Assault, said testing a kit is the “bare minimum” law enforcement should do.
“It validates the vulnerability and exposure a victim has gone through when submitting to the exam,” she said.
Rust-Martin said the act of testing a kit is also an important indication to victims that they may eventually find justice.
“Charging her is one thing, but then closing off all of these doors that show her that there is any way that she could ever get some level of justice from our system — that’s the stuff that just solidifies the problems with this case,” Rust-Martin said.
BEHIND OUR REPORTING
How we did this story
The Star obtained a letter from the Kansas Bureau of Investigation explaining why the rape kit in this case was not tested. A reporter interviewed the woman’s defense attorney and Douglas County District Attorney Charles Branson. The reporter also spoke with a KBI official, experts in rape kit testing and advocates for sexual assault survivors.
If you’ve had an experience similar to that described in this story, we want to hear from you. Call reporter Katie Bernard at 816-234-4167 or send email to firstname.lastname@example.org.