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Sexual Assault Kits and Your Criminal Case (Part I)

It has been reported by USA Today and others that over 70,000 sexual assault kits remain untested across the United States, with over 13,000 of them in the State of Florida alone. Victim advocates who work with sexual assault and sexual violence victims decry these statistics, claiming that failing to process these kits in a timely manner is tantamount to denying victims an opportunity for justice. While the federal government has grant money available to help departments process these sexual assault kits, Florida officials claim it would take the state years in order to clear the backlog. Is this good news for criminal defendants charged with sexual crimes?

First, Let’s Clarify What Sexual Assault Kits are … and What They Are Not

Sexual assault kits are maintained by local law enforcement agencies and some hospitals and medical providers for use when a victim claims he or she was sexually assaulted (i.e., raped) or penetrated by the sex organ of another person. The kit contains the items necessary to collect swabs of the area or areas that the perpetrator allegedly penetrated. Swabs that are properly collected are then sealed within the sexual assault kit and the entire kit is sent to a laboratory so that the swabs can be analyzed. The swab may reveal the DNA of only the victim (which would tend to disprove the victim’s allegations of rape or sexual assault) or the swab may reveal the presence of the victim’s DNA plus DNA from other individuals (which would tend to support the victim’s story).

Contrary to the belief by some, sexual assault kits are not the “magic bullet” that automatically leads to a conviction. There are some serious limitations to sexual assault kits:

  • Sexual assault kits cannot say how another person’s DNA was found on the victim;
  • Sexual assault kits cannot say whether any sexual encounter between the victim and the other individual was consensual or not; and
  • Unless the victim is able to identify the alleged perpetrator and a search warrant is secured to obtain a DNA sample from this person for purposes of comparison, a sexual assault kit is not even able to tell who the alleged perpetrator is.

In essence, all that a sexual assault kit can tell a law enforcement officer, a judge, or a jury is whether the DNA of another person was found on the victim’s person.

Are Sexual Assault Kits Useless to the Prosecution Then?

Not necessarily. There are two widely-used defenses to sexual assault charges: the defendant will usually claim (1) he or she never had any sexual contact with the victim; or (2) he or she did have contact with the victim, but such contact was consensual in nature. Sexual assault kits are of little value in the latter situation, but can be useful in the former case where an alleged perpetrator denies having had any sexual contact with the victim at all.

If you have been charged with a sexual crime such as sexual assault, you should treat your charges seriously and retain an experienced and aggressive South Florida criminal defense attorney. Jeffrey S. Weiner has been representing criminal defendants in Miami and throughout South Florida for years. Contact his office at (305) 670-9919 to discuss your charges today.

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