Last week, Democratic nominee for Texas governor and serial badass Wendy Davis announced her desire to eliminate the statute of limitations for prosecuting cases of rape and sexual battery in Texas.


Here's what Davis had to say during a press conference in Dallas:

“Eliminating the statute of limitations for rape will help to right that wrong by making sure that survivors like Lavinia will never again have to forgo justice just because someone stood back and let the clock run out on their case,” Davis said.

The Davis campaign pointed to several Texas rape case where the criminals got away with the crime because of the statute of limitations.

Like Texas, Washington State's statute of limitations for prosecuting rape cases is generally 10 years (not including crimes involving minors). There have been a few attempts to repeal the statute of limitations in Olympia, most notably by survivors of priest-perpetrated sexual abuse, but thus far efforts have failed.

Which made me curious: Do prosecutors and victim advocates in Washington State feel that abolishing our state statute of limitations for rape cases would help victims of sexual violence? So I started calling around. One of the first people I was able to reach was Tom McBride, a prosecuting attorney who's been with the Washington Association of Prosecuting Attorneys for 21 years. Here's what he had to say.

What is the intent behind having a statute of limitations when prosecuting rape cases?
It's a common-sense recognition that after enough time passes, you start to lack the certainty you need to decide something. We have a court system where the standard is proof beyond a reasonable doubt, so at what point in time can we still prosecute and preserve that standard while still proving our case? That said, there are always exceptions. For example, videotape evidence or DNA evidence.

The 10 years statute of limitations is accurate for Rape 1 and 2 if you report the crime within a year. If you don't report within a year, [the statute of limitations is] three years. That said, victims under 18 can report up until they turn 30. So, like with a 10-year-old, arguably they have a 20-year statute of limitation. Recognition that particularly with kids, if the abuser is in the home, they need to be out of the house and financially independent before they report.

Do you believe that eliminating the statute of limitations would help you prosecute rape cases?

Removing the statute doesn't help us prove cases or make the court system more responsive to rape. That said, we don't put a lot of energy into repealing or upholding the statute of limitations. You could say we're neutral. Repealing doesn't force our hand to file more cases—we can look at a case and decide it's too old or there's not enough evidence. And as a society, we have to be careful to not assume that we can prove a crime far after it's occurred. But at the same token it's hard for us to think that repealing it is the biggest, best thing you can do to help victims.

So what is the biggest, best thing that could be done to help victims?
Give us the resources to test all of our untested rape kits. I think our backlog is actually pretty low. What I don't know is, are those numbers based on what's been referred to the crime labs for testing? What I mean is, are there piles of rape kits sitting somewhere that have never been referred? That could be a bigger picture part of the backlog.

(According to my research: Gary Shutler, DNA technical manager for the Washington State Patrol, which runs DNA testing labs for law enforcement in Washington, oversees 30 full-time and five part-time casework DNA staff. According to Shutler, their current testing backlog is 483 DNA requests, with a median age of 38 days. Approximately 80 percent are violent crime cases, and about half of those are sexual assaults. That comes out to just under 200 sexual assault–related DNA tests.

But a 2002 report released by Maria Cantwell's office found a "huge discrepancy" between the number of victims who undergo rape examinations and the number of cases where samples were actually sent to state crime labs. From that report: In a five year period ending in 2002, "17,115 cases of forcible rape [were] reported to law enforcement, while DNA samples [were only] sent to the lab for testing in 4,165 cases. That means that in the past five years alone at least 12,950 women in Washington State have submitted to humiliating and traumatic exams for the collection of evidence that has not been analyzed to help solve their rape.")

Does the statute of limitations still hold if you identify a suspect using DNA evidence after that window for prosecution has passed?
Actually, if we have DNA, we can file charges against the DNA sample, even though we don't know who it is. That was a bill the prosecutor's association drafted and asked the legislature to adopt several years ago, and they did (see section 3). So if we have evidence of who committed the crime, even if we don't know the person's name, we can file charges. We take samples and run them through our data bank periodically. It's a great tool for catching serial rapists.

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The legislature also asked, "What if we have an untested rape kit, or didn't know we had a sample, and suddenly we can identify a suspect?" The second thing they did was grant us a one-year window to file charges if we conclusively identify someone (see also section 3).

So, in your opinion, expanding DNA testing of rape kits would be more beneficial to victims than repealing the statute of limitations for prosecuting rape cases?
I think the statute of limitations is a bit of a window dressing. We need timely testing of the evidence we have. There's sometimes a false expectation for victims that you can wait to come forward and still have a successful resolution of your case. Immediate reporting means you have the best chance at getting your case reported, filed, and prosecuted. I've heard some victim advocates argue that repealing the statute of limitations would be detrimental to that process. Again, when the bar for conviction is certain beyond a reasonable doubt, delays hurt.

So, yes, that said, I wish we would expand our DNA testing resource. Rape has recidivist offenders. We save misery down the road, being able to prove cases now. And we avoid making mistakes. Creating and documenting evidence—it would only take a couple more scientists to get in front of the curve and I think the results would be startling in terms of all the good we could accomplish.

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