She says she’s democratizing rape kits. Two state attorneys general say she’s guilty of deception. Olivia Reingold meets the woman trying to disrupt our criminal justice system.
I love TFP but have to say, this article falls short. No hard-hitting at all, as to exactly WHY DAs would have an issue with these kits and their claims, maybe because it is so clear (as commenters are pointing out). As much as I am inclined to be skeptical of DA James, I have to say I think she’s right on this one. Sure, Leda can sell junk and “buyer beware” right along with rest of capitalism (and I am a fan thereof!), but I see little solid help coming from Leda’s product, except for some cash flow.
I'm sure this has been pointed out in the comments (I hope!) but it seems like the article missed a pretty glaring problem with a DIY rape kit: chain of custody of the samples collected for one - how could this be admissible as evidence if there's not a verified way of how the samples themselves were collected, could someone with nefarious intent collect a semen sample from a bedsheet or from some other contact that wasn't sexual assault for one? Lack of other physical evidence that is normally gathered at a hospital examination (bruising, tearing, other physical indications of an assault) that wouldn't be differentiated from samples gathered from a consensual encounter versus non-consensual when "self-collected" that might inhibit an investigation/prosecution without, etc.
I mean these are probably the reasons (and maybe more) as to why these kits are not legally admissible, so if they are not, what's the point? What do these kits provide the user with if not a means to prosecute a case? The example of "Bunny" - the cops wouldn't pursue her accusation, what happened after she used the kit? I guess I'm not clear about what the service is providing of value to rape victims - and that if they are being sold and/or distributed without being very, very clear about the potential to damage a conviction (already difficult enough to obtain) if the victim "disturbs the evidence" using this DIY kit to collect on their own without an examination - let alone that the DIY kit itself will likely not be of any value in achieving a conviction.
BTW - as a woman, and someone who has been sexually assaulted at a younger age, I totally get the impetus behind what the creator claims was her rationale for a "DIY rape kit" - not wanting to be "assaulted again" under the crude and impersonal lights of medical staff and gloved hands - totally. But maybe the solution here is for reforms on how examinations are conducted etc (can a victim self-gather under the guidance of a professional in person to ensure the chain of custody etc issues are resolved so that such evidence can be admissible, while also giving the victims some better care) versus a "start up" money making scheme?
And ngl, but her previous association with Martin Shkrelli (he of Pharma Boy infamy) is not exactly reassuring - nevertheless another TFP article that starts right but just glosses over the surface in service of chasing a familiar narrative (Democratic AG's - particularly ones that are labeled as "progressive", bonus points for Leticia James of one of the successful Trump prosecutions! - hassling a (conservative coded) white woman, with some possible "the left is the REAL anti-woman movement" tossed in on the side) and ignores more substantive issues surrounding this "product". Come on TFP, less narrative, more substance please.
I've read a lot of comments here about potential abuse and "your DNA is everywhere."
Most men do not innocently leave their semen where strangers can access it. And semen is a special kind of DNA - since it is a germ cell and only contains half of your DNA. I suspect that a semen DNA test would look quite different in a lab than saliva or sweat or any other "innocent" source of DNA.
“I don’t care if it’s supported in a court of law or whatever,” she says. “It is justice. Someone cared.”
So, people will buy a test kit to be cared for? Maybe they could package it as a post-rape care kit.
How is this justice? This is vigilantism.
How about campaigning for better survivor treatment? How about learning about and advocating within the criminal justice system?
It's telling that they frame this as a free speech issue. Sale of deceptive goods is not protected by the First Amendment. If they can't meet consumer protection standards (not that high!), they are selling snake oil.
Agree, I'm very unclear about the "justice" angle here, if the kits are inadmissible in a prosecution, then what good are they doing for the victim?
Olivia also seems super credulous on the "amazing coincidence" that a 57 year old sales associate in rural Nevada happened to have a friend of a friend (who passed along the story of her assault, which on the surface seems... odd?) that just so happened to be a lobbyist for this "product". What are the odds. And what was the follow up as to what this product did for "Bunny" anyway? If the police were already not investigating (that seems to be the real issue btw) then what did using this kit do for her? Was anyone brought to justice? Would have been maybe helpful to the pitch of the story (that presumes this founder is being unfairly maligned by some pretty standard targets of TFP's readership "Progressive DA's") to provide some vetted cases of what value these kits have provided to rape victims... and maybe of those who weren't weirdly tangentially related to the company at that?
I don't even need to read this article to know that this is a junk product. Just read the rules of evidence, including chain-of-custody standards in any state.
I have an even better idea for a start-up evidence business: body-cam jewelry. Ear rings, bracelets, pendants etc that are mini recording devices. Wear them 24/7. Get everything on camera.
Interesting idea! The problem is, sexual assaults are difficult to prosecute less because of lack of testing, and more because they are inherently cases of "he said/she said". These might be a useful for at least getting genetic evidence of intercourse having happened, but they won't provide any help backing up a woman's account of whether or not the sex was consensual. Also, not having a trained 3rd party conduct the test leaves room for fraud.
Funny (sad). Not much talk about preventing rape. Not much talk about what Gavin Newsom/Kamala Harris’ "defund the police" produced in California and it's horrible result for women:
•Legalized car theft
•Legalized retail theft
•Convicted rapists out in 4 yrs
•Convicted killers out in 15 yrs
•Convicted fentanyl dealers released on arrest
•91% of CA prisoners have priors for serious crimes
•Chance of being the victim of a violent crime 1 in 200
Fascinating article and Leda Health sounds really cool. Kudos to Campbell for working to fix a system that failed her. But there’s some major holes in this article. How exactly do the rape kits work? And why exactly does James say that it wouldn’t be admissible evidence? Reingold tells a nice story in this piece, but I feel like I’m being sold a Leda kit. Would like to see a bit more critical analysis.
I agree that there is a major “chain of custody” issue here. This evidence may go the way of polygraphs in courts (zero to low value, varies by court) but with online witnesses/therapists who knows. Apparently, just about anything works for civil trials in NY.
But the legal action against her is likely unwarranted, bc she is providing a valuable service. Maybe the potential customer doesn’t need evidence for a Court. They give that up by not going to the authorities. Maybe they do gain empowerment. For someone who has just had control viciously stripped away, this product and this message are possibly a Godsend. Add in online support… Also, I’m a libertarian so it’s none of NY’s freaking business if the customers are properly warned. They don’t need mommy government—Weinstein was sentenced based on (obviously) inadmissible evidence so it appears NY likes to play loose and fast with the rules and ppl’s rights and re-traumatize victims in their sloppiness. If that incompetence was my alternative, I’d rather be the path-maker of weird evidence.
"But the legal action against her is likely unwarranted, bc she is providing a valuable service. Maybe the potential customer doesn’t need evidence for a Court. They give that up by not going to the authorities. Maybe they do gain empowerment."
But how are they gaining "empowerment" if the kits can't actually be used in a legal investigation/prosecution.. what can they be used for? How are they "empowering" to collect a sample that is also going to "sit on a shelf"?
Look - as a female who has been sexually assaulted in the past, i'm all for improving the process for victims to get care and justice, I'm just completely unclear how this product delivers that, and Olivia's "reporting" didn't provide that clarity at all.
Olivia, first, you have been missed. Second good article. Third, Joshua Marquis spoke of this in the comments, but what about the chain of custody for these kits? A gun case can get tossed out rather easily if the chain of custody can't be maintained for that gun. Would someone performing the collection of evidence for the kit have to testify in court as to its collection? Finally, it is NOT ok for a journalistic organization to rely on the subject to take a photo. Sorry, I know, I am anal, but TFP needs to take the photograph.
Chain of command. There is no link between the reporting of the crime, and the collection, maintenance, and presentation of the evidence. They need to account for who has had access to the evidence, and whether it has been corrupted. This is makes a mockery of our justice system, and potentially can lead to innocent men being tried because a "victim" decided they did not like them anymore.
This is vital in any criminal trial. The prosecution has to prove, and the court has to ensure, that any evidence is free from tampering before it can be admitted. Defense attorneys will pounce on this. And it has nothing to do with this specific crime. The Rules of Evidence apply to all crimes.
No question, there are many rape kits that are unprocessed. Prosecutors have budgets, and prosecutors will authorize expenditure for rape kits where the the defendant is known and denies it because those are active cases. Stranger rape is an investigator budget item, and those budgets are smaller and usually separate. Descriptions of rapes vary as well, and police will prioritize cases that are worse.
Sex crimes investigators have been made famous by the Law & Order SVU show with Mariska Hargitay, herself having experienced rape, and her character of Olivia Benson being conceived by rape. I know from personal experience that some jurisdictions, the sex crimes unit has been targeted by detectives on the take. An SVU cop can easily get $10,000-$50,000 in cash for obstructing justice, lying on the stand, etcetera, to protect well off defendants. I have records on one of those involving a father and his children. That cop was a woman, so don't think it's just about men on the force. Dirty cops working sex crimes definitely happens. For the mother of those children in this case, realizing the SVU cop was dirty was terrifying. I'm sure she wasnt the only woman this happened to.
Many (most?) detectives become jaded, including female detectives. A very tough (and kind) woman detective told me recently about a female victim killed with long garden shears shoved up her vagina. She sees things like that regularly. In Madison's story it's not clear if she objected or not. A detective facing a hyper-privileged college girl who is traumatized by the rape Madison describes by a man she was dating? The detective finds it trying to say the least. Here they are dealing with horrific crimes, and they don't have the time and resources to process those crime scenes as they want to. It makes experienced detectives think, "Oh, honey. For god's sake, get a clue. Handle your life. Nobody has time for this." They can't say it out loud, not these days.
Then there are the women who lie. Women do tell lies. Women lie to protect themselves, to manipulate others, to get advantage. There was a man (black) who was released from prison after his accuser was recorded telling her friend that she lied because otherwise her mother would be so angry with her! This girl destroyed a man's life because she couldn't face her mother finding out she had sex with "that man" willingly. People routinely tell lies about murder, drugs, and alcohol. So who would think lies won't be told about rape? A military study in which all parties took polygraph tests, showed some 60% of cases the accuser's polygraph said she was lying, and the accused's polygraph said he was telling the truth. Some 40% eventually admitted they were lying for some reason. Many detectives know these things. After being on the force for a while, they get such cases. The motive can be anything from saving face (with mom, friends, etc.) to revenge. I remember a divorce case I happened to sit in on in court, where it came out that the wife, in fury, had flushed rags and towels down the toilets until she plugged the pipes, and then ran the water and left it on to wreck their house. I am told by detectives that that this sort of thing is mild. Experienced detectives know that women will lie and do all sorts of things to get revenge. It's part of why they can appear so unsympathetic. If they hear about such a case from a colleague, or they get manipulated by a mean girl out to "get" some guy, it makes them wary.
Then, there is the unfortunate fact that with the #metoo movement, it became fashionable for a young woman to have their rape story. It makes them a bit special, with the other girls who have one. Not boring. My goddaughter did this. In her case it wasn't made up from whole cloth, but it was the result of being seductive, knowing it, liking it, but not yet connecting entirely that such behavior might have a result. She didn't tell the man no at the time. She never mentioned it to anyone until she got to college. The propaganda of the #metoo movement that told girls they should be able to wear anything, go anywhere, and be safe has resulted in death. I know of a university that covered up the rape and murder of a coed on location in South America. She went out at night dressed like what the local culture considers "a whore." The professor in charge also barred the grad student running things down there from telling any new students to dress modestly, and barred her from telling them that the murder happened. The professor lied to the parents as well, to cover things up.
It is also true that in rape cases, including stranger rape and rape by friends or relatives, the majority of women just want to hide afterwards. It is probable that most women who are raped by strangers never report it. Or if it's someone they know, and they said no, they don't want to wreck his life.
I have a friend who decided not to report a man's crime because she didn't want to destroy his life. She went through what most would call extreme adventures in South America beforehand, including lying in an iron bathtub for days while two armies shot at each other through the walls of the house she was in. She had also helped bust men out of prison where they were being tortured, and hitchiked on freight aircraft. Later, when she was in Med School, she lived alone in a cabin on a farm a few miles away. One night she was naked on her bed in summer, out there in the tomato fields reading, and a black classmate came in her door. It was open for a breeze. He had a long kitchen knife. He walked to her bed, stabbed the knife into the bed next to her hip to the hilt, let go of the knife, and started to undo his pants, leaning over her. She grabbed the knife out of the bed, cocked one foot and kicked him against the far wall. (She was 6'3".) She leaped up with the knife, and told him to get out. He ran. She never reported it. She took it as a compliment to her overwhelming attractiveness. For her, "Nothing actually happened, anyway." Her life experience made that assault into not so big a deal. That man went on to become a doctor and had a life, wife and kids.
Another problem is that what the word "rape" means varies a lot by state. In California, for instance, most people don't realize that a part of a hand touching genitalia or through underwear, without penetration, is rape. Whereas, the majority of people think that if someone is accused of rape then it means ejaculation into some orifice. In addition, jurisdictions vary tremendously in the amount of money that police have to use on investigations. Most places are tight for money. But, a few, like Santa Clara, and the city of Atherton, are relatively rich. Mostly, this doesn't apply to these rape kit cases, but it's a complicating factor.
Thus, this article misses the issues involved rather thoroughly. Does it scratch the surface? Yes, but barely, and it reads like a piece commissioned by Madison, although I don't think it is. I think it is a product of Olivia's age and naivete as a writer, sweetie pie though she is.
The big problem is that if Madison is allowed to create her database of "We believe you" DNA identifications, prosecutors know that this will have DNA from innocent men. It will be used by women wanting to "get back" at men because there are mean girls out there. It will also have DNA from questionable situations that a prosecutor wouldn't be likely to touch. Will it have DNA from women who were raped criminally? Yes, it will. But what proportion will that be? That will be a question that will be virtually impossible to determine.
I think that is why Leda and Madison are getting served shutdown orders and sued. It is far beyond free speech to create a forum where anyone can post purported physical evidence results that convict a person of felonies in the eyes of the world. Madison is not on just on the side of the angels here.
“Sex crimes investigators have been made famous by the Law & Order SVU show with Mariska Hargitay, herself a daughter of rape.”
Are you confusing her with her character here? Olivia Benson was conceived through rape; Mariska Hargitay is the daughter of celebrity parents.
Nobody’s a “daughter of rape,” the same way that nobody’s a “daughter of IVF” or “daughter of missionary position.” Rape is the way they were conceived, not their parent.
The guy who nearly raped your friend went on to be a doctor? Great - JUST who I’d want examining my body. God.
Do you have a source for the California thing? All the laws I’m finding specify “sexual intercourse.”
Agree that women sometimes lie about rape - usually, I think, when it comes to light that they’ve had sex they didn’t want anyone to know about.
You're right. I did confuse Mariska's character was the one conceived by rape, and that Mariska was raped. Fixed that above. I remember "daughter of rape" being used on the show. You are correct about it not being a parent.
Penal code 289 is the one you want, plus 263. In practice, it is any touch. The theory behind any touch on underwear is that underwear is also a foreign object.
"...(k) As used in this section:
(1) “Sexual penetration” is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
(2) “Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ.
(3) “Unknown object” shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.
Didn’t mean to sound like I was picking on you about “daughter of rape.” During many years with the pro-life movement, I’ve read a lot of personal accounts by people who were conceived by rape, and it’s not a term I’ve ever seen them use.
I see what you’re saying with the California penal codes. I think the confusion comes from “a part of a hand touching genitalia or through underwear, without penetration” - I was thinking of stuff like a man touching a woman’s labia majora, not right outside her vagina.
"... however slight is sufficient to complete the crime."
Technically, a wedgie with pants on would be covered and whoever could be put away for 15 years. Technically, the horsing around among girls at gymnastics gyms would be covered for sure.
As a career criminal defense attorney its important for readers to understand there is a difference between whether evidence is admissible and whether it carries any weight.
I don't see how a victim testifying how she performed or used the DIY rape test kit would be inadmissible, and the lab results, if it was submitted to a reputable lab. Of course, there would be all sorts of problems with whether a jury should rely on this evidence, but to me that would be subject to substantial cross-examination, and a jury question.
Fair point - but what if the "weight" given to a DIY sample is the tipping point of a conviction versus acquittal, versus a standardized collected sample (assuming all the evidence is the same)? As a defense attorney I'm sure you would be pretty likely to contest the issues around the "how and when and from where" the sample was collected, even if it was submitted to a verified lab after (as you should)... If it is more likely that a "DIY sample" will get more challenge in a defense (and it results in an acquittal on that basis), then it's not really of much benefit to the victim : /
I could buy a Leda kit, capture some stranger's DNA in a bar, send it in and... ta da. He won't even know until someone doxxes him. Could a person do this? Would they do it? ~4% of America is sociopathic enough to be diagnosable if tested.
One could, for that matter, send in swabs from 100 women. One could send in swabs from that neighbor kid who beat up your kid. You start to see the problem?
I assume that as a defense attorney, you understand these problems generally. But most people haven't really thought through the issues with something like Leda. It's going to produce nightmare scenarios for people.
Interesting and legitimate. But how is this different, as far as the admissibility of evidence, than a rape victim pointing out a random guy in the street as her attacker 6 months after the crime and the guy being indicted even though none of the physical evidence implicates him? The jury hears it and decides if they believe her or not. I had a case just like that . It took six years to clear my client based on the DNA evidence.
James is a POS and so is Michelle Henry. If a kit is being used after consensual sex testimony can negate just the same as a "enjoyable" probe by a hospital employee.
I love TFP but have to say, this article falls short. No hard-hitting at all, as to exactly WHY DAs would have an issue with these kits and their claims, maybe because it is so clear (as commenters are pointing out). As much as I am inclined to be skeptical of DA James, I have to say I think she’s right on this one. Sure, Leda can sell junk and “buyer beware” right along with rest of capitalism (and I am a fan thereof!), but I see little solid help coming from Leda’s product, except for some cash flow.
I'm sure this has been pointed out in the comments (I hope!) but it seems like the article missed a pretty glaring problem with a DIY rape kit: chain of custody of the samples collected for one - how could this be admissible as evidence if there's not a verified way of how the samples themselves were collected, could someone with nefarious intent collect a semen sample from a bedsheet or from some other contact that wasn't sexual assault for one? Lack of other physical evidence that is normally gathered at a hospital examination (bruising, tearing, other physical indications of an assault) that wouldn't be differentiated from samples gathered from a consensual encounter versus non-consensual when "self-collected" that might inhibit an investigation/prosecution without, etc.
I mean these are probably the reasons (and maybe more) as to why these kits are not legally admissible, so if they are not, what's the point? What do these kits provide the user with if not a means to prosecute a case? The example of "Bunny" - the cops wouldn't pursue her accusation, what happened after she used the kit? I guess I'm not clear about what the service is providing of value to rape victims - and that if they are being sold and/or distributed without being very, very clear about the potential to damage a conviction (already difficult enough to obtain) if the victim "disturbs the evidence" using this DIY kit to collect on their own without an examination - let alone that the DIY kit itself will likely not be of any value in achieving a conviction.
BTW - as a woman, and someone who has been sexually assaulted at a younger age, I totally get the impetus behind what the creator claims was her rationale for a "DIY rape kit" - not wanting to be "assaulted again" under the crude and impersonal lights of medical staff and gloved hands - totally. But maybe the solution here is for reforms on how examinations are conducted etc (can a victim self-gather under the guidance of a professional in person to ensure the chain of custody etc issues are resolved so that such evidence can be admissible, while also giving the victims some better care) versus a "start up" money making scheme?
And ngl, but her previous association with Martin Shkrelli (he of Pharma Boy infamy) is not exactly reassuring - nevertheless another TFP article that starts right but just glosses over the surface in service of chasing a familiar narrative (Democratic AG's - particularly ones that are labeled as "progressive", bonus points for Leticia James of one of the successful Trump prosecutions! - hassling a (conservative coded) white woman, with some possible "the left is the REAL anti-woman movement" tossed in on the side) and ignores more substantive issues surrounding this "product". Come on TFP, less narrative, more substance please.
I've read a lot of comments here about potential abuse and "your DNA is everywhere."
Most men do not innocently leave their semen where strangers can access it. And semen is a special kind of DNA - since it is a germ cell and only contains half of your DNA. I suspect that a semen DNA test would look quite different in a lab than saliva or sweat or any other "innocent" source of DNA.
If anyone knows for sure, please speak up.
“I don’t care if it’s supported in a court of law or whatever,” she says. “It is justice. Someone cared.”
So, people will buy a test kit to be cared for? Maybe they could package it as a post-rape care kit.
How is this justice? This is vigilantism.
How about campaigning for better survivor treatment? How about learning about and advocating within the criminal justice system?
It's telling that they frame this as a free speech issue. Sale of deceptive goods is not protected by the First Amendment. If they can't meet consumer protection standards (not that high!), they are selling snake oil.
Agree, I'm very unclear about the "justice" angle here, if the kits are inadmissible in a prosecution, then what good are they doing for the victim?
Olivia also seems super credulous on the "amazing coincidence" that a 57 year old sales associate in rural Nevada happened to have a friend of a friend (who passed along the story of her assault, which on the surface seems... odd?) that just so happened to be a lobbyist for this "product". What are the odds. And what was the follow up as to what this product did for "Bunny" anyway? If the police were already not investigating (that seems to be the real issue btw) then what did using this kit do for her? Was anyone brought to justice? Would have been maybe helpful to the pitch of the story (that presumes this founder is being unfairly maligned by some pretty standard targets of TFP's readership "Progressive DA's") to provide some vetted cases of what value these kits have provided to rape victims... and maybe of those who weren't weirdly tangentially related to the company at that?
I don't even need to read this article to know that this is a junk product. Just read the rules of evidence, including chain-of-custody standards in any state.
I have an even better idea for a start-up evidence business: body-cam jewelry. Ear rings, bracelets, pendants etc that are mini recording devices. Wear them 24/7. Get everything on camera.
Interesting idea! The problem is, sexual assaults are difficult to prosecute less because of lack of testing, and more because they are inherently cases of "he said/she said". These might be a useful for at least getting genetic evidence of intercourse having happened, but they won't provide any help backing up a woman's account of whether or not the sex was consensual. Also, not having a trained 3rd party conduct the test leaves room for fraud.
Exactly.
Funny (sad). Not much talk about preventing rape. Not much talk about what Gavin Newsom/Kamala Harris’ "defund the police" produced in California and it's horrible result for women:
•Legalized car theft
•Legalized retail theft
•Convicted rapists out in 4 yrs
•Convicted killers out in 15 yrs
•Convicted fentanyl dealers released on arrest
•91% of CA prisoners have priors for serious crimes
•Chance of being the victim of a violent crime 1 in 200
chain of custody. What's to keep a person from using the kit to wreck someone's life on purpose?
Fascinating article and Leda Health sounds really cool. Kudos to Campbell for working to fix a system that failed her. But there’s some major holes in this article. How exactly do the rape kits work? And why exactly does James say that it wouldn’t be admissible evidence? Reingold tells a nice story in this piece, but I feel like I’m being sold a Leda kit. Would like to see a bit more critical analysis.
I agree that there is a major “chain of custody” issue here. This evidence may go the way of polygraphs in courts (zero to low value, varies by court) but with online witnesses/therapists who knows. Apparently, just about anything works for civil trials in NY.
But the legal action against her is likely unwarranted, bc she is providing a valuable service. Maybe the potential customer doesn’t need evidence for a Court. They give that up by not going to the authorities. Maybe they do gain empowerment. For someone who has just had control viciously stripped away, this product and this message are possibly a Godsend. Add in online support… Also, I’m a libertarian so it’s none of NY’s freaking business if the customers are properly warned. They don’t need mommy government—Weinstein was sentenced based on (obviously) inadmissible evidence so it appears NY likes to play loose and fast with the rules and ppl’s rights and re-traumatize victims in their sloppiness. If that incompetence was my alternative, I’d rather be the path-maker of weird evidence.
"But the legal action against her is likely unwarranted, bc she is providing a valuable service. Maybe the potential customer doesn’t need evidence for a Court. They give that up by not going to the authorities. Maybe they do gain empowerment."
But how are they gaining "empowerment" if the kits can't actually be used in a legal investigation/prosecution.. what can they be used for? How are they "empowering" to collect a sample that is also going to "sit on a shelf"?
Look - as a female who has been sexually assaulted in the past, i'm all for improving the process for victims to get care and justice, I'm just completely unclear how this product delivers that, and Olivia's "reporting" didn't provide that clarity at all.
Olivia, first, you have been missed. Second good article. Third, Joshua Marquis spoke of this in the comments, but what about the chain of custody for these kits? A gun case can get tossed out rather easily if the chain of custody can't be maintained for that gun. Would someone performing the collection of evidence for the kit have to testify in court as to its collection? Finally, it is NOT ok for a journalistic organization to rely on the subject to take a photo. Sorry, I know, I am anal, but TFP needs to take the photograph.
Chain of command. There is no link between the reporting of the crime, and the collection, maintenance, and presentation of the evidence. They need to account for who has had access to the evidence, and whether it has been corrupted. This is makes a mockery of our justice system, and potentially can lead to innocent men being tried because a "victim" decided they did not like them anymore.
I think you mean "chain of custody."
Thank you, Amy!
I think you meant "chain of custody."
This is vital in any criminal trial. The prosecution has to prove, and the court has to ensure, that any evidence is free from tampering before it can be admitted. Defense attorneys will pounce on this. And it has nothing to do with this specific crime. The Rules of Evidence apply to all crimes.
Regarding Olivia's article on Madison and the Leda "rape kits". https://www.thefp.com/p/madison-campbell-fraud-or-feminist
No question, there are many rape kits that are unprocessed. Prosecutors have budgets, and prosecutors will authorize expenditure for rape kits where the the defendant is known and denies it because those are active cases. Stranger rape is an investigator budget item, and those budgets are smaller and usually separate. Descriptions of rapes vary as well, and police will prioritize cases that are worse.
Sex crimes investigators have been made famous by the Law & Order SVU show with Mariska Hargitay, herself having experienced rape, and her character of Olivia Benson being conceived by rape. I know from personal experience that some jurisdictions, the sex crimes unit has been targeted by detectives on the take. An SVU cop can easily get $10,000-$50,000 in cash for obstructing justice, lying on the stand, etcetera, to protect well off defendants. I have records on one of those involving a father and his children. That cop was a woman, so don't think it's just about men on the force. Dirty cops working sex crimes definitely happens. For the mother of those children in this case, realizing the SVU cop was dirty was terrifying. I'm sure she wasnt the only woman this happened to.
Many (most?) detectives become jaded, including female detectives. A very tough (and kind) woman detective told me recently about a female victim killed with long garden shears shoved up her vagina. She sees things like that regularly. In Madison's story it's not clear if she objected or not. A detective facing a hyper-privileged college girl who is traumatized by the rape Madison describes by a man she was dating? The detective finds it trying to say the least. Here they are dealing with horrific crimes, and they don't have the time and resources to process those crime scenes as they want to. It makes experienced detectives think, "Oh, honey. For god's sake, get a clue. Handle your life. Nobody has time for this." They can't say it out loud, not these days.
Then there are the women who lie. Women do tell lies. Women lie to protect themselves, to manipulate others, to get advantage. There was a man (black) who was released from prison after his accuser was recorded telling her friend that she lied because otherwise her mother would be so angry with her! This girl destroyed a man's life because she couldn't face her mother finding out she had sex with "that man" willingly. People routinely tell lies about murder, drugs, and alcohol. So who would think lies won't be told about rape? A military study in which all parties took polygraph tests, showed some 60% of cases the accuser's polygraph said she was lying, and the accused's polygraph said he was telling the truth. Some 40% eventually admitted they were lying for some reason. Many detectives know these things. After being on the force for a while, they get such cases. The motive can be anything from saving face (with mom, friends, etc.) to revenge. I remember a divorce case I happened to sit in on in court, where it came out that the wife, in fury, had flushed rags and towels down the toilets until she plugged the pipes, and then ran the water and left it on to wreck their house. I am told by detectives that that this sort of thing is mild. Experienced detectives know that women will lie and do all sorts of things to get revenge. It's part of why they can appear so unsympathetic. If they hear about such a case from a colleague, or they get manipulated by a mean girl out to "get" some guy, it makes them wary.
Then, there is the unfortunate fact that with the #metoo movement, it became fashionable for a young woman to have their rape story. It makes them a bit special, with the other girls who have one. Not boring. My goddaughter did this. In her case it wasn't made up from whole cloth, but it was the result of being seductive, knowing it, liking it, but not yet connecting entirely that such behavior might have a result. She didn't tell the man no at the time. She never mentioned it to anyone until she got to college. The propaganda of the #metoo movement that told girls they should be able to wear anything, go anywhere, and be safe has resulted in death. I know of a university that covered up the rape and murder of a coed on location in South America. She went out at night dressed like what the local culture considers "a whore." The professor in charge also barred the grad student running things down there from telling any new students to dress modestly, and barred her from telling them that the murder happened. The professor lied to the parents as well, to cover things up.
It is also true that in rape cases, including stranger rape and rape by friends or relatives, the majority of women just want to hide afterwards. It is probable that most women who are raped by strangers never report it. Or if it's someone they know, and they said no, they don't want to wreck his life.
I have a friend who decided not to report a man's crime because she didn't want to destroy his life. She went through what most would call extreme adventures in South America beforehand, including lying in an iron bathtub for days while two armies shot at each other through the walls of the house she was in. She had also helped bust men out of prison where they were being tortured, and hitchiked on freight aircraft. Later, when she was in Med School, she lived alone in a cabin on a farm a few miles away. One night she was naked on her bed in summer, out there in the tomato fields reading, and a black classmate came in her door. It was open for a breeze. He had a long kitchen knife. He walked to her bed, stabbed the knife into the bed next to her hip to the hilt, let go of the knife, and started to undo his pants, leaning over her. She grabbed the knife out of the bed, cocked one foot and kicked him against the far wall. (She was 6'3".) She leaped up with the knife, and told him to get out. He ran. She never reported it. She took it as a compliment to her overwhelming attractiveness. For her, "Nothing actually happened, anyway." Her life experience made that assault into not so big a deal. That man went on to become a doctor and had a life, wife and kids.
Another problem is that what the word "rape" means varies a lot by state. In California, for instance, most people don't realize that a part of a hand touching genitalia or through underwear, without penetration, is rape. Whereas, the majority of people think that if someone is accused of rape then it means ejaculation into some orifice. In addition, jurisdictions vary tremendously in the amount of money that police have to use on investigations. Most places are tight for money. But, a few, like Santa Clara, and the city of Atherton, are relatively rich. Mostly, this doesn't apply to these rape kit cases, but it's a complicating factor.
Thus, this article misses the issues involved rather thoroughly. Does it scratch the surface? Yes, but barely, and it reads like a piece commissioned by Madison, although I don't think it is. I think it is a product of Olivia's age and naivete as a writer, sweetie pie though she is.
The big problem is that if Madison is allowed to create her database of "We believe you" DNA identifications, prosecutors know that this will have DNA from innocent men. It will be used by women wanting to "get back" at men because there are mean girls out there. It will also have DNA from questionable situations that a prosecutor wouldn't be likely to touch. Will it have DNA from women who were raped criminally? Yes, it will. But what proportion will that be? That will be a question that will be virtually impossible to determine.
I think that is why Leda and Madison are getting served shutdown orders and sued. It is far beyond free speech to create a forum where anyone can post purported physical evidence results that convict a person of felonies in the eyes of the world. Madison is not on just on the side of the angels here.
“Sex crimes investigators have been made famous by the Law & Order SVU show with Mariska Hargitay, herself a daughter of rape.”
Are you confusing her with her character here? Olivia Benson was conceived through rape; Mariska Hargitay is the daughter of celebrity parents.
Nobody’s a “daughter of rape,” the same way that nobody’s a “daughter of IVF” or “daughter of missionary position.” Rape is the way they were conceived, not their parent.
The guy who nearly raped your friend went on to be a doctor? Great - JUST who I’d want examining my body. God.
Do you have a source for the California thing? All the laws I’m finding specify “sexual intercourse.”
Agree that women sometimes lie about rape - usually, I think, when it comes to light that they’ve had sex they didn’t want anyone to know about.
You're right. I did confuse Mariska's character was the one conceived by rape, and that Mariska was raped. Fixed that above. I remember "daughter of rape" being used on the show. You are correct about it not being a parent.
Penal code 289 is the one you want, plus 263. In practice, it is any touch. The theory behind any touch on underwear is that underwear is also a foreign object.
"...(k) As used in this section:
(1) “Sexual penetration” is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
(2) “Foreign object, substance, instrument, or device” shall include any part of the body, except a sexual organ.
(3) “Unknown object” shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=289.&lawCode=PEN
Penal code 263 is part of it. "...Any sexual penetration, however slight, is sufficient to complete the crime."
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=263.&nodeTreePath=4.8.1&lawCode=PEN
Didn’t mean to sound like I was picking on you about “daughter of rape.” During many years with the pro-life movement, I’ve read a lot of personal accounts by people who were conceived by rape, and it’s not a term I’ve ever seen them use.
I see what you’re saying with the California penal codes. I think the confusion comes from “a part of a hand touching genitalia or through underwear, without penetration” - I was thinking of stuff like a man touching a woman’s labia majora, not right outside her vagina.
"... however slight is sufficient to complete the crime."
Technically, a wedgie with pants on would be covered and whoever could be put away for 15 years. Technically, the horsing around among girls at gymnastics gyms would be covered for sure.
As a career criminal defense attorney its important for readers to understand there is a difference between whether evidence is admissible and whether it carries any weight.
I don't see how a victim testifying how she performed or used the DIY rape test kit would be inadmissible, and the lab results, if it was submitted to a reputable lab. Of course, there would be all sorts of problems with whether a jury should rely on this evidence, but to me that would be subject to substantial cross-examination, and a jury question.
Fair point - but what if the "weight" given to a DIY sample is the tipping point of a conviction versus acquittal, versus a standardized collected sample (assuming all the evidence is the same)? As a defense attorney I'm sure you would be pretty likely to contest the issues around the "how and when and from where" the sample was collected, even if it was submitted to a verified lab after (as you should)... If it is more likely that a "DIY sample" will get more challenge in a defense (and it results in an acquittal on that basis), then it's not really of much benefit to the victim : /
We have to look at the flip side.
I could buy a Leda kit, capture some stranger's DNA in a bar, send it in and... ta da. He won't even know until someone doxxes him. Could a person do this? Would they do it? ~4% of America is sociopathic enough to be diagnosable if tested.
One could, for that matter, send in swabs from 100 women. One could send in swabs from that neighbor kid who beat up your kid. You start to see the problem?
I assume that as a defense attorney, you understand these problems generally. But most people haven't really thought through the issues with something like Leda. It's going to produce nightmare scenarios for people.
Interesting and legitimate. But how is this different, as far as the admissibility of evidence, than a rape victim pointing out a random guy in the street as her attacker 6 months after the crime and the guy being indicted even though none of the physical evidence implicates him? The jury hears it and decides if they believe her or not. I had a case just like that . It took six years to clear my client based on the DNA evidence.
How is it different? You told me how it's different. This IS "the DNA evidence", that is the gold standard for reliable.
DNA evidence has the stamp of certainty. "DNA doesn't lie."
It's possible to identify people using relatives who have supplied their DNA profiles. That's how some serial killers were finally identified.
A rape test kit is also DNA evidence.
Precisely so. My point.
People lie. Sad but true.
James is a POS and so is Michelle Henry. If a kit is being used after consensual sex testimony can negate just the same as a "enjoyable" probe by a hospital employee.
I agree but without the POS comment.