Milli Kanani Hansen, currently a second year law student at Columbia Law School is on the editorial board of the Human Rights Law Review, is the Research Chair for Rights Link (is a human rights law student organization at Columbia Law School that provides free legal research services to human rights and public interest law groups both domestically and around the world) and is working on a student note (a student law review article) on the lack of rights that victims of sexual assault crimes have over the DNA evidence collected from their bodies  — hardly any states require law enforcement agencies to inform a victim when his/her rape kit is not tested, a victim does not have a right to possess/take her rape kit from police custody, and most law enforcement officers don’t communicate with victims between the time of the assault and the trial, if there is one.  She read the article in today’s New York Times,  Indicting DNA Profiles Is Vital in Old Rape Cases, by Al Baker and has these reactions:

Every two minutes, someone is raped in the United States. Most of these victims consent to the collection of physical evidence from their bodies, or a “rape kit”. Rape kits can help identify unknown assailants, confirm the presence of a known suspect’s DNA, corroborate a victim’s version of events in a contested assault, and exonerate innocent suspects.

In the last decade, law enforcement officers and prosecutors in New York City have been at the forefront of finding ways to maximize the evidentiary value of these rape kits. After discovering a backlog of over 16,000 untested rape kits in police storage facilities in 1999, the New York Police Department (NYPD) and the Manhattan District Attorney’s office ensured that the back-log was eliminated and implemented a policy to test all rape kits. This testing of backlogged kits resulted in over 2,000 cold hits, and, since 2003, the NYPD has seen its arrest rate for rape increase significantly – from 40 percent to 70 percent of all reported cases.

A New York Times article published in today’s paper highlights the success Manhattan prosecutors have had in using the evidence collected from those rape kits to identify and convict rapists in cases with no known suspects. Aware that the statute of limitations prevented cases from being brought against assailants who were unknown, prosecutors have indicted the rapist’s DNA with the hopes of later being able to connect that DNA to an individual. While the statute of limitations for certain sex crimes was lifted in 2006, these DNA indictments are important for the rape cases prior to 2006 in which there is no named suspect.

While the use of DNA evidence to exonerate wrongfully convicted individuals has gotten quite a bit of attention over the past years, the rights of victims to have DNA evidence used effectively has largely been ignored. A study funded by the National Institute of Justice found that evidence from approximately 169,000 rape cases still sits in law enforcement storage facilities. A Bureau of Justice Statistics bulletin suggests that here may be thousands of more samples that sit in crime lab storage facilities. Because jurisdictions are not required to report or publish the number of untested samples in their possession, it is difficult to get any sort of accurate picture of the magnitude of the problem in the United States. A report published by Human Rights Watch in March of 2009 found that, in Los Angeles County alone, there were over 12,500 untested rape kits in police evidence facilities. Over 1,200 of those kits were from unsolved cases in which the attacker was a stranger to the victim – the type of case in which DNA evidence can be most probative or helpful.

The process of collecting a rape kit can be invasive and uncomfortable, often taking four to six hours to complete. While victims often leave with the expectation that their rape kits will be used by law enforcement officials to further their cases, most victims don’t know that thousands of rape kits sit untested in police storage facilities. Each of those kits represents a lost opportunity for justice for victims of rape.

Federal efforts to address this problem, while perhaps well-intentioned, have been woefully weak. The Debbie Smith DNA Backlog Grant Program (42 U.S.C. § 14135), originally enacted in 2000 and reauthorized just last year, gives money to jurisdictions to address the backlog of DNA testing. Despite being named for a rape victim who, as a result of the testing backlog, waited six years before having her assailant identified, the federal program does not effectively bring relief for most rape victims. Law enforcement agencies are not required to use any of the money obtained through the program for the testing of rape kits, and the vague reporting requirements connected with the grant don’t facilitate congressional oversight. A lack of political will at the local level contributes to the perpetuation of the problem. An October 2008 audit of the Los Angles city crime lab, for instance, revealed that over $2 million dollars of federal funding went unused even as the backlog of rape continued to grow. In my own analysis of the reports submitted by jurisdictions receiving federal funds, the results have been discouraging. Of the 59 cities that actually provided data on the number of DNA cases backlogged in their jurisdiction, over half actually had an increase in the backlog during the grant period.

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. The pay-off is not only justice for victims, but a reduction in the number of assailants allowed to escape punishment. As a Manhattan district attorney in the sex crimes unit noted, “We had the political will to [test all rape kits], and now, the policy is a no-brainer given all the rapes we have been able to solve and prosecute.” Stronger federal incentives for jurisdictions to test rape kits might help. Public pressure on local law enforcement agencies to address the problem is essential. Until then, all rape victims will not have the access to justice they deserve.

After much gossip, hand-ringing, internecine scuffles and turf kick-up, the White House has announced that Luis de Baca will be appointed to head up the State Department’s Trafficking In Persons (TIP) Office.  The TIP Office coordinates policy out of the State Department on the Traffic in Persons and, perhaps most importantly, must issue an annual Report in which it assesses the efforts that foreign governments are making to combat severe forms of trafficking, and in which countries are ranked in tiers based upon the TIP Office’s assessment of their commitment to and success in combating human trafficking.   The Bush Administration had used the TIP Office and the annual TIP Report to advance a highly contested policy of forcing foreign governments and NGOs  to adopt laws criminalizing sex work on the flawed hypothesis that prostitution “causes” sex trafficking.  See previous post discussing this problem.

de Baca’s appointment is very good news.  Mr. de Baca, a lawyer who has worked as legislative counsel for the House Judiciary Committee and in the Justice Department as chief counsel of Civil Rights Division’s Human Trafficking Prosecution Unit is a smart, experienced and effective choice for the job.   He has worked for years on this issue and is very-well respected in criminal justice and advocates’ circles alike for his approach to this difficult problem.  He was one of the lead DOJ attorneys who successfully prosecuted Kil Soo Lee, the former owner of an American Samoa garment factory, who was sentenced to 40 years in prison for his role in illegally confining and using as forced labor over 200 Vietnamese and Chinese garment workers.

de Baca, as evidenced by this presentation available on the web, takes a complex and nuanced view of the injustice of trafficking.  He is not liable to over-determine the work of the TIP office with trafficking that is sexual in nature, recognizing that the trafficking of persons into sex work is a part, albeit an important part, but a part of the vast range of work-sectors into which people are illegally trafficked – including agricultural, domestic (meaning work in homes as nannies, maids and servants), factory, restaurant and other work that is exploitive but not necessarily sexual in nature.  So too, de Baca has acknowledged a need for law enforcement officials to work closely with NGOs to create support and exit for trafficked persons that does not over-rely on raids as the principal means by which people who have been trafficked can be “rescued” by law enforcement officials, or worse, get swept up in raids that result in their datainment and deportation along with other undocumented people.  We’ve blogged about this previously.

Perhaps most importantly, de Baca appreciates the importance of a harm reduction approach to the problem of trafficking that prioritizes the needs, risks, complexities of the trafficked person rather than that of law enforcement or anti-sex evangelists.

- Katherine Franke

I blogged recently about the concerns I had when I read the statements Hilary Clinton made in her Senate confirmation testimony related to the issue of sex trafficking.  I heard little sign in her testimony of a desire to change policy from the crusade undertaken by the Bush Administration that overdetermined the problem of human trafficking in sexual terms (thereby ignoring the enormous problem of other forms of forced labor), driven largely by an evangelistic judgment about sex work more generally.

But the State Department through the policy set by its Secretary is not where we can find the front line of the federal government’s efforts to combat human trafficking.  That job falls to the Department of “Homeland” Security (I hate that term), particularly to ICE (Immigration & Customs Enforcement) which conducts raids of brothels and other workplaces where it suspects undocumented and/or trafficked persons may be working.   Indeed, ICE raids have been the U.S. government’s principal means of identifying victims of trafficking according to a recent GAO report.

So, was Janet Napolitano asked about her views on human trafficking in general, or sex trafficking in particular, when she came before the Senate Committee on Homeland Security and Governmental Affairs for confirmation?  Nope.

Did she volunteer anything about this issue, as did Clinton in her confirmation hearings?  Nope.

Surely Secretary Napolitano has views on this issue, but we don’t know them yet.  When you go to the “Homeland” Security website the 2008-2013 Strategic Plan, developed by the old Secretary Chertoff but still on the website, does not even mention trafficking.  Yet if you go to ICE’s “What We’ve Done Lately On Human Trafficking and Smuggling” Webpage they highlight all manner of good things they’ve been up to, but few of them are trafficking-related.  Lots of smuggling work (and trafficking is legally and socially a different thing from smuggling), and a bunch of arrests of “illegal aliens.” The two most recent trafficking cases involve raids of brothels in Seattle and  South Florida, both last November.

It’s too early to know what kind of policy will be set by Secretary Napolitano with respect to domestic enforcement of the Trafficking Victims Protection Act.  But she and her policy team are without question important players in setting a new agenda when it comes to the problem of relying too heavily on raids to deal with the protection of trafficked persons and the prosecution of traffickers.  (More about this below.)  For the moment however, we have some reason to be concerned.

Timothy Keefer remains as Napolitano’s Chief Counsel for Civil Rights and Civil Liberties at ICE.  Keefer, a graduate of William and Mary Law School worked for Covington and Burling after clerking a couple years.  In late 2000, after three months at the firm, he was sent to Florida to work on George W. Bush’s legal team seeking to secure him a win in the contested presidential election.  He was rewarded for that service by the new administration with an appointment as special assistant to the U.S. Department of Labor’s Acting Solicitor Eugene Scalia (Antonin’s son).  He could be a good guy, but …  So far, none of Napolitano’s senior appointments have much of a track record in dealing with gender issues.

(Keefer’s ongoing employment at ICE may signal a much larger problem for the Obama Administration – the presence of Bush loyalists deep into every crevice of the federal government, as both political and career employees.  It’s not obvious that the new administration has the will or the capacity to clear out the thousands of neo-cons who were given government jobs for ideological reasons.  The scandal of politically motivated appointments at the Justice Department is just the tip of the iceberg.)

As for ICE’s overreliace on raids to protect the victims of trafficking, the Sex Workers Project in New York has just issued a report, Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, in which it documents how in the name of “rescue” these raids often result in the arrest, detention and deportation of trafficked persons because they are undertaken by ICE, together with local law enforcement officers, who are poorly trained or ill-equipped in identifying victims of trafficking, and who are, after all, focused on arresting criminals, people who pose potential terror threats, are dealing drugs and/or are sans papiers, that is, found without necessary paperwork demonstrating legal presence in the U.S.

I urge all who are concerned about this issue to read the Sex Workers Project report and to monitor the new team and policy being developed at Janet Napolitano’s “Homeland” Security and ICE.

- Katherine Franke

The Supreme Court issued several very important opinions this morning, one we have blogged about before – Fitzgerald v. Barnstable – in which the Court was asked to determine whether the remedy provided by the federal statute that prohibits sex discrimination, including sex harassment, in schools (Title IX) precludes enforcement of sex discrimination claims under the Constitution.

To our relief, the Court ruled UNANIMOUSLY that Title IX does not preclude constitutional claims, on the ground (for you lawyers out there):

Title IX has no administrative exhaustion requirement and no notice provisions. Plaintiffs can file directly in court under its implied private right of action and can obtain the full range of remedies. Accordingly, parallel and concurrent §1983 claims will neither circumvent required procedures nor allow access to new remedies … Because Title IX’s protections are narrower in some respects and broader in others than those guaranteed under the Equal Protection Clause, the Court cannot agree with the First Circuit that Congress saw Title IX as the sole means of correcting unconstitutional gender discrimination in schools.

The full opinion is available here.

(On a distressing note for civil rights lawyers, in a separate case issued this morning, the Supreme Court unanimously overruled Saucier v. Katz in Pearson v. Callahan and adopted a discretionary standard that allows courts to resolve the qualified immunity inquiry without first determining whether a constitutional right was violated.  This ruling deals with a very technical part of civil rights law that will make it much more difficult for plaintiffs to win constitutional cases and will deter the evolution of the law in cases where the law had not yet been clarified by and through judicial opinions.  The opinion is here.)

One of the courses I teach at Columbia Law School has to do with litigating cases of excessive force against the police.  See the syllabus here if you’re interested.  A couple months ago I was talking to a lawyer, James Cook, in Tallahassee, Florida about a taser case he is working on (you can see the YouTube video of the officer using a taser against a very distraught man – but beware, it’s very disturbing):

Cook also told me about a case he was handling where a state trooper stopped two young women on the interstate and told them they were going to jail (passenger too) for speeding unless they exposed themselves to him.  He asked me whether I knew of any police department training materials on sexual assault or abusive of authority.   Two of my students, Shelby Schwartz and Brian Ward, volunteered to look into the issue, and their report is available here.

A few things to highlight:

• Police officers recently being trained in Maryland held a competition among the trainees to see how many of them could get pictures of women’s breasts in exchange for not writing them traffic tickets.

• My students were unable to find one police department that included issues of sexual assault or sexual misconduct in their training materials.  And not one of the organizations that do back up to police departments, collecting or helping to develop training materials and personnel policies had a model policy on this issue.

• The Violence Against Women division of the Protecting Citizen’s Civil Rights Project of the International Association of Chiefs of Police have begun to explore the development of training policy on this issue.  Their earlier work centered on training police officers on violence against women crimes, strengthening the commitment of law enforcement officers to respond to these crimes, and enhance the ability of communities to respond to victims.  I was pleased to hear that they are taking the issue of sexual assault by police officers seriously.

•For more information documenting this problem, see Driving While Female: A National Problem in Police Misconduct

In the police misconduct area, much attention has been paid to racial profiling, misuse of tasers and other vitally important issues, but it is shocking – some might say conscience shocking – that despite the common practice of male police officers abusing their authority to extract sexual favors from female citizens, not one police department has implemented either policy or training informing their officers that this conduct violates the Constitution.