For LGBTQ+ Survivors, the Criminal Justice System is More Complicated

On December 20, 2016, Amanda Nguyen spoke at the TED2016 event on her efforts to change federal law to make the criminal justice system more transparent and accessible for survivors of sexual violence.

Nguyen, herself a survivor, specifically addresses inconsistencies across state lines with regard to the testing of rape kits in “Re-writing Laws to Help Sexual Assault Survivors.”

But she touched upon a larger issue–that of how legal definitions and the structure of the criminal justice system itself keeps many from being able to seek justice for their assault. LGBTQ+ survivors, particularly, face significant hurdles when seeking legal recourse for an unwanted sexual experience.

Rape kits, which consist of evidence collected by specially trained medical personnel after a rape, often go untested–or are destroyed. In Massachusetts, kits are often destroyed after 6 months if the survivor does not report the crime, even though the statute of limitations for the crime is 15 years.

“That means,” says Nguyen, “every six months, the survivor needs to fight to hold on to this evidence from the trash can.”

For LGBTQ+ survivors, the process of collecting and testing a rape kit can be even more complicated. ENDTHEBACKLOG, an organization dedicated to ending the backlog of untested rape kits in the United States, has found that rape kits can and do go untested because there is “no male suspect” in the case.

In a statement, ENDTHEBACKLOG says, “upon further investigation, we learned this notation meant the case was ‘a female-on-female sex crime.’”

ENDTHEBACKLOG further says that all rape kits should be tested, even if there is no male suspect, because the evidence from a kit could “achieve powerful results regardless of the suspect’s gender.”

According to Sharon Stapel, executive director of the New York City Anti-Violence Project, an organization which seeks to empower LGBTQ+ survivors, such experiences are not uncommon for LGBTQ+ survivors. While recognizing the importance of testing a rape kit as a crucial part of the process of legal recourse for an attack, Stapel says that it is but one part of the response.

Stapel explains that, in many cases, law enforcement operates from a place of misinformation about the LGBTQ+ community.

“These misperceptions increase barriers to reporting for many LGBT people and increase the likelihood of re-traumatizing survivors when they do report,” she says.

Stapel calls for more training for law enforcement and for that training to include clarifications of common misconceptions. They include the idea that transgender people are sex workers by default, and therefore cannot be survivors of sexual assault.

“Once LGBT people are seen and heard as survivors of sexual violence, we will stop judging the legitimacy of that violence because there are ‘no male suspects,’ and instead begin to respond to the needs of survivors,” says Stapel.

The judgment of whether sexual violence against an LGBTQ+ person is legally considered legitimate is an issue in itself, and definitions can vary across state lines and between levels of the court system.

For example, in North Carolina, rape is defined by the state’s penal code as unwanted vaginal penetration with a penis. At the federal level, rape is defined by the Department of Justice as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

Such inconsistencies in what can be legally defined as rape can be a barrier to justice for many, but especially for LGBTQ+ survivors.

These obstacles can become even more pronounced when the survivor identifies with the term, but not with its legal definition. For example, a woman who has been raped by another woman would not be able to press that specific charge in the North Carolina court system.

Rachel Maguire, 21, is a senior at UNC-Chapel Hill and the editor-in-chief of SIREN, a feminist magazine that frequently highlights such issues.

“This discourages folks in the queer community from seeking legal action after an assault occurs, therefore some people may not even try the legal route,” she says.

Maguire also states that finding out a rape charge may be literally impossible in the case of violence against an LGBTQ+ person could be a re-traumatizing experience for the survivor, and that such language can serve to turn people away from the justice system as a whole.

Though inconsistencies in the criminal justice system make legal recourse for survivors complicated, Nguyen is hopeful about the power of legislation to resolve problems such as untested kits.

In her speech at TED, she reminds the audience that “you have agency over what happens in your own states and in your own towns.”

In late 2016, former President Barack Obama signed her Sexual Assault Survivors’ Bill of Rights into law. The law remains in effect.

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