Seeking Justice in a System that Doesn't Guarantee It

"This is another situation that highlights just how our legal system is not built for positive rights," explains legal expert and investigator Sarah Tofte, curled up in the papasan chair in her office at Human Rights Watch, drinking coffee. The "situation" she is referring to is the backlog of untested rape kits -- nearly 13,000 of them -- in police storage facilities and crime labs in Los Angeles County, the subject of a report she authored last month.

When I'd first heard that all of these rape kits were piled high, even though each one only costs between $500 and $1,000 to test, I'd grown livid. Studies confirm that kits, which often contain crucial DNA evidence, lead to much higher rates of prosecution and conviction. "What do you mean by ‘positive rights?' Are you saying that there's virtually nothing we can do about this as regular citizens?" I ask.

"Positive rights mean that you have a legal guarantee to something, rather than the right to be protected from something, otherwise known as negative rights," Tofte explains. "In this case, the victim's rape kits are now the state's evidence, but the LAPD has no legal obligation to test those kits. So they just sit there."

I'm sure the limits of negative rights are common knowledge for legal wonks, but to my ears, it's outrageous. As elegant as our legal system may be in certain ways, in others, it stands resolutely in the way of people -- like the rape victims waiting in vain -- who seek justice.

One would assume that, having been subjected to an invasive rape-kit process after already being violated, a victim could reasonably expect her tax-funded police force to thoroughly and promptly investigate the crime she endured. It's the sort of collectively accepted expectation that goes along with the public bus showing up, the fire truck blaring down the street, and the 911 operator answering the phone. But rape victims in Los Angeles and L.A. County -- and in other jurisdictions all over the nation -- are essentially watching the window for justice (there is a 10-year statute of limitations on rape in California) slowly slide to a close. The heroes pretend they are coming (otherwise, why collect the rape kit in the first place?) but just never show up.

It's up to the rest of us, average outraged citizens, to try to put some fire under the so-called heroes' asses.

In 2005, the most recent year for which federal crime-lab data is available, the DNA backlog doubled, indicating that public crime labs nationwide would need to increase their staff of DNA analysts by 73 percent to process all the evidence coming in. If the problem is funding, you might logically assume you could donate money. Tried that. In fact, a whole lot of people tried that. Tofte reports that $2 million in donations came into the Los Angeles Police Foundation following the release of the report. Thus far, not a dime of it has been spent on chipping away at the backlog because -- surprise, surprise -- the foundation has no legal obligation to make it happen. (There's something disconcerting about using donations to pay for something that should have already been covered by tax money.)

Alternatively, you can donate money to Human Rights Watch and ask that it fund more reports like Tofte's; she plans on doing a nationwide investigation over the next year. Information is power, of course, but it doesn't solve the problem of what to do with that information once we have it. Or you could donate to one of the great organizations that advocate on behalf of rape victims, but that won't solve the core problem. The advocates will still have to scream and fuss just to get a kit tested.

So maybe it's time to pressure Congress, you might think. Why not try to get a bill passed demanding that the rape kits be tested and even putting federal money toward that goal?

Again, been there, done that. The Debbie Smith Act was passed in 2004 and reauthorized last year. Due to pressure from lobbyists representing DNA-testing equipment manufacturers, the language of the law was watered down so that the funding can go to any DNA backlog -- the wider the net, the more profit the companies stand to make. In fact, Los Angeles was awarded $4.9 million in federal grant funds to test DNA evidence between 2004 and 2008, and we saw how much good that did us.

Tofte does think that pressuring our representatives to get the language narrowed to its original intent is worthwhile, but it's hard to put a lot of faith in that process after seeing how Congress so often seems to follow the money.

Before you throw up your hands and give up completely, New York may have one model for action. The state got rid of its rape-kit backlog back in 2003 thanks to city officials passing a policy requiring every rape kit to be sent for DNA testing within 60 days. They also improved communication -- the moment a DNA profile from a rape kit matches a profile in the DNA database, the crime lab, prosecutor's office, and police department are made aware. This required an increase in hiring -- both on the DNA analysis end and the investigative end. After all, with so many more leads, the police needed officers to follow up. The result? An increase in arrests and prosecution rates -- which, in the long run, means more rapists behind bars where they are prevented from pursuing more victims, and more victims feeling as though the system works.

Perhaps this will have to be fought at the municipal and state levels, one embarrassed and vote-seeking local official at a time. It won't change the limits of our legal system and the profound and exhausting disappointment that we have to fight for even the rights that seem as if they should be guaranteed, but at least more women will get justice.

Now that's positive.