Via America’s Lawyer: Legal journalist Mollye Barrows joins Farron Cousins to discuss lawsuits being filed by women across the country against police departments for neglecting to investigate rape kits, leaving HUNDREDS OF THOUSANDS in a growing backlog, oftentimes for years. Plaintiffs argue that this failure to process and investigate these rape cases discriminates against women and is a direct violation of the Equal Protection Clause. Farron Cousins fills in for Mike Papantonio on this episode of America’s Lawyer.


*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Farron Cousins:                  Women across the country are going to court in a sweeping demand for increased police emphasis on investigating rape cases, many of which have been backlogged and neglected for years by police departments. Legal journalist Mollye Barrows joins us now to break this down. So Mollye, first off explain to us what this rape kit backlog actually is. What does that mean? What’s happening here?

Mollye Barrows:                So according to these criminal justice advocacy groups like End the Backlog, which I recently learned was actually founded by Mariska Hargitay, the actress from, you know, SVU special victims unit on Law and Order. But it’s essentially an initiative to bring attention to the fact that you have literally hundreds of thousands of untested rape kits in law enforcement agencies and in labs across the country. And they say it’s a two part problem, that there is no federal law mandating essentially the tracking and testing of these kits. And so they’re being gathered in some cases and simply not sent to the lab for testing or they’re being sent to the lab for testing and they’re not being prioritized for testing.

So the result is the same and that these test kits are sitting there languishing for, in some cases, years actually collecting mold and nothing’s been done. So that’s the problem in a nutshell of what this backlog is. And then the other issue is that it’s the cost. So there’s a number of reasons why law enforcement agencies say that these tests aren’t being taken care of immediately and it’s that they don’t have the resources or the personnel, but these women that are being victimized essentially by not having the rape kits tested, aren’t buying it. And so you’re seeing a wave of lawsuits across the country.

Farron Cousins:                  So, so what are these survivors, what are they alleging against the police departments in court?

Mollye Barrows:                It’s a, it’s a number of issues. Most of these cases are actually being filed in federal court and what they’re looking towards is the equal protection clause. Basically saying that they’re not being treated fairly. They’re being unfairly discriminated against because of being a woman. Again, going back to police aren’t prioritizing these for whatever reason. If they’re blaming it on resources, they don’t want to pay a thousand to $1,500 per test to get it tested or maybe they don’t have the proper personnel trained. So that’s what some of these lawsuits are, are saying that they’re basically neglecting to process these kits. They’re not setting aside the resources. They’re not properly training personnel and essentially a wide group of people, victims, women primarily are being discriminated against. So that’s where the equal protection clause comes in. They’re essentially saying that by failing to test the kit, it’s deliberate indifference.

Farron Cousins:                  Yeah. So, so, so what obstacles have we seen between, you know, the, the delay in this, the, the statute of limitations, which is a huge issue we see in any kind of sexual assault case.

Mollye Barrows:                Right.

Farron Cousins:                  But it seems like delaying these or not prioritizing them, letting them languish and get moldy as you pointed out. Doesn’t that kind of interfere with the statute of limitations a bit?

Mollye Barrows:                It is, and I think part of what you’re saying is because this is a new, they’re breaking new ground for pursuing these cases. And so in some regards, courts are having to take a fresh look at the equal protection clause. And if the, if this was, if this is what a victim is, in fact suing under, they’re saying, well you don’t meet the criteria because of statute of limitations or you don’t meet the criteria because who are you comparing your group to? If you as women were discriminated against, that’s part of the problem. There was one woman, a victim in San Francisco who sued the San Francisco police department. She said she was raped after going to an outdoor city concert in 2010. She kept asking for two years, where’s the results of my rape kit? It’s a humiliating process, Farron. These women have to go to a doctor or a hospital, you know, basically get swabs.

You’ve already been through this traumatic experience and then to go through this and then you’re waiting for the results because you want to file charges or you want to pursue, find out who your attacker was. In some cases they don’t even know. And, and on a tangent, by the way, going off on a tangent, the Manhattan district attorney’s office got some money to help jurisdictions across the country to test some of these untested kits. And when they started doing that, they are clearing some of these cases in big ways. Like they cleared some 64 cases, including a case out in Arizona, which was the basis of another lawsuit. But going back to the San Francisco victim, she basically said, hey, I, why isn’t my, why hasn’t my rape kit been tested yet? And this was two years afterwards. Then two years after that in 2014, she discovered there were hundreds of backlog cases, untested kits.

And so that’s when she filed this lawsuit saying, hey, this is discriminatory. You’re not doing what you said you should do and I’m being unfairly persecuted and so are these other victims. And the district court said, well, your statute of limitations actually started when you’re rape kit was tested in 2012. It didn’t start when you learned about the backlog in 2014. So going back to your point, what other avenues do they have? It’s almost new ground. They’re trying to figure out how to apply this law and if it does apply and I think it’s just a matter of the right case getting before the right judge and the right circumstances in order to make some headway. Because I think you saw with domestic violence victims back in the 70s and 80s too.

Farron Cousins:                  Well, and so in addition to going after the police departments here, is there any other groups that these survivors are, are going after?

Mollye Barrows:                The labs and their processes and how they determine and prioritize how cases should be tested. But for the most part it’s basically just all part of the criminal justice system in general. And so they’re starting with these police departments because they’re, in their in these advocacy groups’ mind, and minds I should say as well as the victims, they’re looking at it like, hey, you have hundreds and, you know, thousands of cases potentially they can’t really tell because again, there is no mandatory reporting, but there’s, you know, hundreds of thousands of cases backlogged across the country. And, and they’re essentially saying, hey, if you’re not going to, if you’re not going to do something about it, then then let me go to somebody else and have them do it so we can find out who did this and perhaps take a perpetrator off the street. They’d really don’t have a lot of other options except to help that other law enforcement will come in.

Like maybe a County district attorney’s office or the justice department. For example, there was a raid back in 2007 apparently in a Chicago community where the department of justice went and found evidence that there were, let’s see. Yeah, into police prosecutors and public university officials in Missoula, Montana. And they found evidence that all three were violating the equal protection clause by failing to respond to these sexual assault cases and they signed legal agreements to change the practice. But since Trump has taken office, the department of justice has not been holding these law enforcement agencies accountable like they had before. So if there’s no watchdog, these police are basically left to their own devices.

And again, going back to victim’s saying, we go and file complaints and we get these direct responses from law enforcement. One woman, San Francisco victim was saying that they told her she was menstruating and that she shouldn’t have been out partying with the city. Otherwise that might not have happened to her. And it’s unbelievable that you hear these things, but this is the kind of situation that these victims are coming across the type of interactions that they’re having in some cases with law enforcement. And then the tangible result is these hundreds of untested kits. They’re saying that’s evidence enough that they’re being discriminated against and nobody really cares.

Farron Cousins:                  Well, and you know, I, I am the last person to ever be in favor of kind of privatizing something. But when you think about the fact that now we’ve got all these, these DNA companies out there.

Mollye Barrows:                Yeah.

Farron Cousins:                  You swab your cheek, you send it in.

Mollye Barrows:                Hey 23andMe, you want to get in on the rape kit testing business?

Farron Cousins:                  And, and in just a couple of weeks they send you back this thing, your entire family tree from your DNA. They have the resources in the private industry to do this. And it seems like this could be a decent opportunity, although that is also fraught with lots of legal questions too.

Mollye Barrows:                Sure.

Farron Cousins:                  But, but the technology is out there with these companies.

Mollye Barrows:                Yes.

Farron Cousins:                  And if we could, as a government, as a state government, federal government, whatever it is, find a good partner in this that’s one, not going to overcharge us on this, but two also not sell this data to anyone else, which that in and of itself is a problem.

Mollye Barrows:                You’re so right.

Farron Cousins:                  We have these groups out there that are capable of doing this. They have the technology and it seems almost stubborn that they will not help in these particular cases. These are serious issues. These are, these are rapes.

Mollye Barrows:                Absolutely.

Farron Cousins:                  And we need to solve them and they could be helping with this and yet they just, they want money.

Mollye Barrows:                Yeah, and if it’s going to cost a thousand to $1500, then why can’t you priority, privatize it and basically have accredited agencies that go through whatever law enforcement standards are required in order to be able to be, you know, testify in court that your results are legal and that they’ve been gone, you know, they’ve gone through a certain process. Because I think that’s part of it. They need to have these accredited labs that are going to hold up in court with whatever their results are. But, you know, you’re absolutely right. It’s interesting. I think these women don’t have a lot of options, but we do have the technology to find out what the answers are and as proven in that Manhattan DA’s case, when he started putting money into these cases, they found serial rapists. I mean that’s what they found. And in some cases, you know, for instance, the San Francisco case, again, when they, when she did get her results back, it was a hit to someone that they didn’t know.

But in other cases they’re getting hits to where, oh my goodness, we’re seeing a pattern here. This person victimized any number of women in a certain city or in a certain community or they committed a different crime and now we’ve connected them. Just like they did with, was it the, I can’t remember the serial killer, but out in California when they basically used these DNA companies and found a relative based on DNA found on a victim of a, of a, of one of his crimes, and they went through that at avenues. So if they can spend that kind of time and resources to find the serial killer on DNA, then it, it does lend credence to their complaint that hey, you just simply don’t care.

Farron Cousins:                  Right.

Mollye Barrows:                You’re simply not prioritizing. And how do you prove that in court? So they’re going at it with this equal protection clause, but the courts are saying, ah, you’re not quite there yet. You know, we’re either going to put a hit a, a, a, a wrench in the works by saying, what group are you comparing yourself to? How have you been harmed? How are you being treated any, treated any differently? What do you do as a woman who’s not had their rape kit tested? Do you compare yourself to a man who’s a victim of domestic violence as how police treated him? Where’s the comparable group?

Farron Cousins:                  Right.

Mollye Barrows:                You know.

Farron Cousins:                  And that’s, that’s going to be something that’s difficult, but…

Mollye Barrows:                It’s doable.

Farron Cousins:                  I think they have a very solid case here. So, Mollye Barrows, thank you very much for telling us this story.

Mollye Barrows:                Thanks Farron.

Farron Cousins is the executive editor of The Trial Lawyer magazine and a contributing writer at He is the co-host / guest host for Ring of Fire Radio. His writings have appeared on Alternet, Truthout, and The Huffington Post. Farron received his bachelor's degree in Political Science from the University of West Florida in 2005 and became a member of American MENSA in 2009. Follow him on Twitter @farronbalanced