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DIY Rape Kits Are a Terrible Idea, Says Basically Everyone

Legal experts and advocates say evidence from an at-home rape kit wouldn't be admissible in court.

by Marie Solis
06 September 2019, 7:55am

Courtesy of MeToo Kit

This article originally appeared on VICE US.

The first DIY rape kit is raising concerns among advocates and attorneys, who worry that the new product encourages sexual assault survivors to collect evidence that won’t be admissible in court.

The “MeToo Kit”—named after the movement—advertises itself as a way for assault survivors to “take back control” of their experience by allowing them to “collect evidence in a setting and timing of their choice,” outside of a traditional hospital or clinic setting. The kits, which were developed by a New York City startup, don't have an official launch date, but as of right now a standard one would include swabs, a container for a saliva sample, and sealable plastic bags to store the materials. The kit would also include access to an app, meant to guide survivors through the process. (It’s not clear how much the kit would cost.)

“Swab. Spit. Seal,” reads the tagline on the box.

But experts say conducting a rape exam isn’t as easy as “Swab. Spit. Seal.” When survivors of sexual assault request a rape kit at a hospital, it’s performed by a licensed medical professional, who has received training specific to the examination. Those licensed professionals are then required to keep the kit in a secure area unless the patient wants them to turn the kit over to law enforcement, at which point authorities would log the evidence and store it according to protocol.

Some survivors find this exam to be retraumatizing, which is one of the reasons the founder of the MeToo Kit wanted to create an at-home version. But if the complex process that ensues when a survivor receives a rape kit at a hospital—known as the “chain of custody”—is disrupted at any point, it could sabotage survivors’ chances of using the materials as evidence against their alleged assailant in court. And that fact precludes the idea of using a rape kit at home.

“Each point of contact with the evidence is important to the admissibility of it,” said Patricia Powers, an attorney adviser at AEquitas, a nonprofit organization made up of former prosecutors. Powers, who primarily handled sexual assault cases during her 27 years as a prosecutor in Washington state, said that if survivors of assault attempt to administer their own rape kit, they could be endangering their health as well as jeopardizing their criminal case.

Traditional rape kits aren’t limited to collecting samples of bodily fluids. They also involve an extensive “head-to-toe” examination, which can involve photographing any bruises or cuts, treating wounds, providing STI testing, administering emergency contraception, and connecting survivors with resources they may need to process their assault.

“If you consider a victim attempting to perform this exam without this kind of support or training, there certainly can be issues that impact not just the admissibility of any evidence, but the wellbeing of victims who do need support,” Powers said.

Powers isn’t the only one with legal concerns. Last week, Michigan Attorney General Dana Nessel issued a Notice of Intended Action to the kit’s founder, entrepreneur Madison Campbell.

In the letter, Nessel called Campbell’s MeToo Kit business “unlawful” and informed her that she would be asking the Ingham County Circuit Court to issue a subpoena, allowing the attorney general’s office to investigate the enterprise.

“This company is … luring victims into thinking that an at-home-do-it-yourself sexual assault kit will stand up in court,” Nessel said in the accompanying press release. “Nothing could be further from the truth. Career prosecutors know that evidence collected in this way would not provide the necessary chain of custody.”

And in New York, Karen Friedman Agnifilo, the chief assistant district attorney of the Manhattan District Attorney’s Office confirmed in an interview with the New York Post that “material collected with this product would be inadmissible in court.”

Campbell, who herself is a survivor of sexual assault, said that since the product is still in development, there’s room to improve it. She plans to reach out to attorneys general across the country—starting with Michigan and New York, the source of the most recent criticism—to “create the best possible product” and find a way to make the kits an acceptable form of evidence in court.

“An at-home forensic test has never been done before, and we want to work with the correct allies to ensure we make this admissible,” she told VICE. Campbell said "a significant portion of the development involves ensuring that the kit's hardware and software meet legal standards and we want to ensure that before we launch."

Still, the dubious legality of the product is just one facet of the criticism against it. Advocates for sexual assault survivors also worry about Campbell’s intention of rolling out a university pilot program, which she said would ideally involve campus officials providing every student with a MeToo Kit at the start of the school year. So far, five schools have agreed to test the product on their campus.

“If every freshman during orientation was given a kit, we believe that it would not only enable survivors the privacy and comfort of collecting evidence at home, but also create a psychological deterrent on campus,” she explained. “Perhaps the predatory nature of parties on college campuses would change if everyone knew that everyone had a kit.”

Not so, said Sage Carson, the manager of Know Your IX, an organization dedicated to ending sexual violence in schools. “The idea that rape kits will deter someone from committing violence is simply not founded in any research,” she said. "Survivors that have access to a hospital have access to a sexual assault examination and that hasn’t stopped rapists from assaulting people.”

Carson—who is a survivor of sexual assault as well—and others have also taken issue with the name of Campbell’s product, and have accused the company of co-opting the #MeToo movement for financial gain, at the expense of survivors.

Nessel, the Michigan attorney general, said Campbell was “shamelessly trying to take advantage of the ‘Me Too’ movement.” Carson called the branding “insidious,” and said it was disappointing that Campbell had taken a movement that had been empowering to survivors and “turned around to try to make a profit.” (Campbell told VICE she’s open to changing the name of the product.)

Carson likened the MeToo Kits to other capitalist ventures designed to prevent sexual assault or help survivors in the immediate aftermath. Multiple companies have developed “smart jewelry” with built-in panic buttons and alarm systems to alert police or emergency contacts that the wearer is in danger. In 2014, students from North Carolina State University created a nail polish that could detect date rape drugs in a drink; a test kit of the product, which starts at $34.99, went to market in 2018.

Survivors aren’t asking for any of these gimmicks, Carson argued. The justice they’re asking for involves a complete overhaul of our institutions and the social mores that tolerate sexual abuse—no single product can achieve that, she said.

Instead, she suggests the company focus its efforts on more substantive changes, like advocating for states to require hospitals to provide victims with survivor advocates, who can accompany them through the sexual assault exam, and help them navigate criminal, civil, or campus judiciary processes.

“We really need to be looking at changes survivors need and are asking for,” Carson said. “In my six years of working with survivors I’ve never had a survivor request an at-home rape kit.”

Follow Marie Solis on Twitter.