How Drug War Prosecutors Cynically Exploit Rape Survivor Advocacy 

    One of the biggest crises in law enforcement is the rape kit “backlog”which is more like rape kit sabotage. Since rape kits were first developed in the 1970s, rape survivors have subjected themselves to countless “inherently traumatic” bodily probes with the promise of receiving justice.

    In reality, that was a lie. Police and prosecutors have consistently only tested the kits when they felt an allegation was “believable”a subjective judgment call hopelessly laden with the biases around gender, race, class, and drug and alcohol use of those making the decision.

    Enter stage left the Joyful Heart Foundation to run interference for law enforcement officials who were hell-bent on focusing their efforts instead on the cruel and futile War on Drugs. Founded in 2004 by Mariska Hartigay, the actor who plays the justice-driven detective Olivia Benson on Law and Order: Special Victims Unit, this group made ending the rape kit backlog its “top priority” in 2010. 

    Not uncoincidentally, of 796 matches for “rape kit backlog” listed on the Guardian’s comprehensive newspaper clippings depository,, 766 articlesor 96 percentwere published during or after 2010.

    Yet Joyful Heart’s campaigning over deliberate or reckless indifference to rape cases has been seized upon by law enforcement for cynical PR purposes. For example, there is a press release from Joyful Heart’s “End The Backlog” website discussing how former Attorney General (and now Ohio Governor) Mike DeWine created a Sexual Assault Kit Testing Initiative to go back and test old rape kits. Joyful Heart’s prominence meant that the public narrative quickly became that DeWine was some sort of hero for rape survivors.

    Inevitably, DeWine trumpeted his initiative to clear the backlog on his 2018 gubernatorial campaign website, while bolstering his conservative “tough on crime” record as a prosecutor in the same breath.

    So why didn’t DeWine make sure that rape kits were being consistently tested when he was a Assistant Greene County Prosecuting Attorney in the late 1970s? Or when he left that post for the state senate? And why does he enjoy close political relationships with elected local prosecutors like Hamilton County Prosecutor Joe Deters, who recently told the Cincinnati Enquirer that an attorney who was raped by a client “shouldn’t be having parties with her clients,” and “she shouldn’t bring alcohol to the party”?

    The answer lies in an ideology that unites Governor DeWine and Prosecutor Detersone that they see as more important than ensuring all rape survivors get justice. That the answer to all criminal justice-related issues, including drug use, is a scorched-earth punitive approach.

    Governor DeWine temporarily paused the death penalty, but only because he was afraid that the three-drug cocktail used to execute people might be ruled unconstitutional. Deters, the primary generator of death sentences in Ohio, quipped at the time that, “The reality is we are killing someone. It’s not pretty. It’s ugly. We’ve got a boatload of fentanyl sitting in [storage] right now. Bring back the firing squad. That has been ruled constitutional.” Within months, DeWine changed his mind, satisfied that Ohio’s lethal injection protocol is legal.

    Deters asked Governor DeWine to send the National Guard into Cincinnati, as he thought “armed soldiers on street corners is the best way to stop the recent surge in shootings,” according to the Enquirer. Apparently, DeWine agreed on principle, but Cincinnati Police Chief Eliot Isaac told him to cool his jets.

    Perhaps most tellingly of all, while DeWine was Attorney General of Ohio, he and Deters signed off on a proposal to treat overdoses as not only homicide, but murders eligible for life-without-parole sentences.

    The advocacy of Joyful Heart has too often been co-opted by powerful white men to allow them to pursue the very worst abuses of human rights and people who use drugs while getting a free pass from the media.

    And not only men. During her first run for San Diego County district attorney, Summer Stephan captured the public imagination having convinced New York Times’ Women in the World series to run a puff piece about her being a “real-life Olivia Benson.”

    How that played out was appalling. As interim DA in 2017, Stephan had a SWAT team raid the house of attorney Jessica McElfresh, because she was representing a man running a legal cannabis business. And after she got elected, DA Stephan, the self-acclaimed hero of sex-crime survivors, let a serial rapist cop who assaulted more than a dozen women get off with a plea for a greatly reduced sentence and no sex offender registry. She claimed that the overwhelming majority of the survivors supported the plea—a claim they publicly disproved.

    Harsh carceral policies are not the path to ending sexual offenses, as Victoria Law has explored for Filter. And advocating for justice for rape survivors, including clearing the shameful rape kit backlog, does not necessitate overlooking the many other abuses committed by prosecutors and law enforcement every day.

    The weaponization of survivors to bolster bad law enforcement practices and embolden bad prosecutorsas Meaghan Ybos recently expressed for The Appeal regarding Chanel Miller of the Brock Turner caseis widespread.

    Prosecutors are using them to throw a red herring to reporterslike Stephan yelling at the police department for allegedly messing up their failed “end the backlog” adventureand get a pass for all the other harm they do.

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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