by Kevin Bliss
More and more women across the nation are filing suit against law enforcement for the backlog of untested rape kits they carry, claiming this is a violation of the Equal Protection clause of the Constitution and discriminates against women.
Heather Marlowe's rape test kit sat in storage marked “inactive” in the San Francisco Police Department ("SFPD") for two years before it was tested. Pursuing her own case, Marlowe found that there were hundreds of other untested kits in SFPD's possession. She filed a civil action suit in 2016 against the city for failing to test these kits. She stated that the factors contributing to this neglect had a discriminatory impact on women and was part of a larger pattern that treated sexual assault with deliberate indifference. Her case was dismissed on a technicality and the decision was upheld by the United States Supreme Court in May 2019.
Marlowe is not alone, though. Similar suits have been filed in Texas, Maryland, Connecticut, Illinois, New York, and more.
Some advocacy groups estimate that untested rape kits in the United States number in the hundreds of thousands. Women claim that sexual assault is being under-policed and they are fighting for equal protection under the law.
Northwestern University law professor Deborah Tuerkheimer said this was going to be a difficult battle. Domestic violence victims made the same argument in the 1970s and ’80s. The courts then required that the plaintiffs show the police intentionally discriminated against them. Secondly, she said they will have to prove that victims of other crimes are being treated more favorably.
In an attempt to hold police accountable, Marlowe and another sexual assault survivors have cofounded the nonprofit People for the Enforcement of Rape Laws, advocating for more responsibility in how police respond to sexual violence.
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