Below are answers to many frequently asked questions, grouped by topic.
Does Massachusetts have a backlog of unprocessed kits?
Answer: If an incident is not reported to law enforcement, the sexual assault evidence collection kits (SAECKs) will not be processed. The exception to this: for survivors 15 years old or younger, the SAECK will automatically be analyzed. For this reason, Massachusetts does not have a backlog, since the kit will not be opened unless it is reported. The toxicology kit is the one component of a kit that will be opened and tested regardless of whether or not it is reported to the police.
How long are the evidence collection kits stored at the crime lab and how do I know if it can still be analyzed?
Answer: In Massachusetts, unreported sexual assault evidence collection kits (SAECKs) collected after October 2016 are stored at the crime lab for 15 years. For kits collected before October 2016, the storage time expired at six months, so past that time, the department may have disposed of the kit. Some law enforcement departments store evidence collection kits indefinitely, so if you have questions about your kit storage, we encourage you to call our information line to get more information on your kit.
What are the areas that make up the crime lab?
Answer: The crime lab is made up of 18 sections and units, all of which focus on different areas to provide forensic services for Massachusetts district attorneys and law enforcement officials. The CODIS, DNA, and Toxicology Units are the most relevant crime lab units that handle sexual assault evidence. The CODIS Unit uses the COmbined DNA Index System (CODIS) to compare crime scene DNA evidence to DNA evidence from other cases to possibly identify a suspect. The DNA Unit analyzes evidence, such as blood, semen and saliva, that is found at a crime scene or is associated with a criminal investigation. Samples processed by the DNA Unit may be entered into CODIS. The Toxicology Unit tests blood and urine samples drawn during an investigation (for example, during a rape exam, if the survivor consents) to determine the presence or absence of drugs that could be used to facilitate a sexual assault.
If a survivor, after having a sexual assault evidence collection kit completed at a hospital, would no longer like to move forward with the case and there are no corroborating witnesses, can law enforcement proceed with matching DNA samples in the CODIS database resulting from the sexual assault evidence collection kit, then find a suspect and proceed to trial?
Answer: If a survivor changes their mind about moving forward on a case after making a police report, we would encourage them to connect with a local rape crisis center to help understand their rights and to help advocate with police to request that the case not be investigated further. There are a variety of case-specific considerations that might come up and so it is important to connect with someone to talk through this.
What happens to DNA found from my kit if my case is not prosecuted?
Answer: There are a few factors to consider. First is why the case was closed: The case may be closed because the survivor decides they do not want the case to move forward, or because the district attorney’s office determines there is not sufficient evidence to prosecute. Ultimately the district attorney decides whether or not to prosecute a case and what the prosecution strategy would be; however, a survivor may also decide at some point in the process that they no longer want the investigation to move forward. The DA’s office will assess public safety risks but will generally respect the decision not to prosecute.
Depending on the facts of the case, and at what point in the process the case has been closed, the kit may have been analyzed and DNA may have been produced from the kit. DNA obtained from a closed investigation would be stored in a database of crime scene evidence—even if the reported party’s name is not connected to the DNA. This database is one part of CODIS.
Can a sexual assault case be prosecuted even if DNA evidence is not found?
Answer: While only the district attorney’s office can definitively decide whether or not the offender will be prosecuted, once an assault is reported to the police, DNA is just one piece of evidence in a larger investigation. When determining whether or not to prosecute a case, the district attorney’s office will also consider the survivor’s account of the assault along with any other evidence that may corroborate this account (for example, physical materials that link the two parties at the crime scene, such as carpet fibers or grass stains, or a toxicology kit, if one was completed). Not all sexual assault evidence collection kits yield DNA evidence, and the absence of DNA does not mean that no crime occurred.
Why is DNA so important, why is it analyzed, and what does it prove?
Answer: Each person has their own unique DNA, which is genetic code. After the crime lab identifies and analyzes a DNA profile from a suspect, law enforcement can use this evidence to prove that a suspect was at the scene of the crime or had contact with the survivor. If there are no suspects in the case, scientists at the crime lab can search the DNA profile in the CODIS database for a possible match to other crime scene evidence. It is important to note that not all rape kits yield DNA evidence, but the presence or absence of DNA does not solely prove that a crime did or did not occur.
Does evidence collected in a sexual assault evidence collection kit help to identify the DNA of an individual who participated in a rape?
Answer: DNA is the unique genetic code that determines many of our individual human characteristics. It is found in most human cells, and, except in the case of identical twins, each person has their own unique DNA code. As part of the evidence collection process, the medical provider must ask the survivor if he or she had consensual (willing) sex with anyone in the past five days who may also have left behind DNA. This step helps law enforcement determine which DNA was left by a consensual partner and which DNA belongs to an offender. After the crime lab identifies and analyzes DNA profiles from a sexual assault evidence collection kit, law enforcement can use this evidence to prove that a suspect was at the scene of the crime or had contact with the survivor. If there are no suspects in the case, scientists at the crime lab can search the DNA profile in the CODIS database for a possible match to other crime scene evidence. Not all rape kits yield DNA evidence, but the presence or absence of DNA does not solely prove that a crime did or did not occur.
Does a sexual assault evidence collection kit have to be collected by a SANE (sexual assault examiner nurse) for the kit to be viable for a criminal investigation or can any nurse collect the kit?
Answer: The majority of hospitals do not have SANE nurses on call. In that case, an ER nurse will collect most of the evidence. If an internal exam is done as part of the kit that must be done by an attending physician. While SANEs do have special training and it can be a smoother process if a SANE collects the kit, there are no legal consequences if a non SANE nurse or doctor collects the evidence. The SANE program is also able to offer trainings to non-SANE nurses.
What types of assault warrant an evidence collection kit? For example, is it possible to find evidence from digital penetration (penetration with fingers)?
Answer: What evidence might be obtained through a kit depends on the case. It is possible that a kit could produce helpful evidence in the case of digital penetration; however, it may be less likely that DNA would be present. It is important to understand that an evidence collection kit is one piece of evidence that in collaboration with other information helps to build a case. A kit cannot independently prove what happened—the kit is intended to help corroborate a survivor’s report. Here are some ways a kit can be helpful: a kit could provide a DNA sample that match the perpetrator, a kit might provide carpet fibers that corroborate where the incident took place, a kit might show bruising or injury on the survivor’s body, etc.
Are SAECKs used for male victims of sexual assault or only women? (Who can get an evidence collection kit performed?)
Answer: Anyone, regardless of gender, can have a SAECK performed in the event of an assault, provided it is within the evidence collection window. Evidence must be collected within 120 hours of the assault; however, the oral and anal sections of the kit can only be collected within 24 hours, HIV prophylaxis must be started within 72 hours, and the toxicology (drug) test can only be collected within 96 hours.
Can a SAECK prove that an assault did or did not occur? (If someone does not know if they have been assaulted is there any way for them to find out definitively?)
Answer: An SAECK does not deliver results or answers; it is one piece of evidence that in corroboration with other evidence can help build a case. The exam may or may not produce any physical evidence; however, if physical evidence is not found, it does not mean that nothing happened. It just means that there was no physical evidence present at the time of evidence collection.
How long should an SAECK take to complete at the hospital?
Answer: The duration of the SAECK varies and depends on the individual details of the assault. Depending on the survivor’s account of the assault, not all of the 17 steps will necessarily be completed. Generally speaking, a kit might take anywhere from three to six hours to complete.
How long does it take to process a kit?
Answer: Depending on what evidence is obtained in a kit, analysis can take anywhere from about two weeks to months. Often the crime lab can determine more quickly whether or not DNA is present—this initial analysis is called “serology.” It can take much longer to determine a DNA profile and determine whether the profile matches other DNA on file.
Are anonymous kits tested if no police report has been filed? Can I receive those results and not press charges?
Answer: Most SAECKs are not processed unless the survivor reports the assault to the police. Evidence collected from a survivor 15 years or younger will be analyzed even if no report is made to law enforcement. Otherwise, kits are stored for 15 years, which is the statute of limitations for rape of a person 16 or older in Massachusetts, and a report can be made at any point within that time frame if the survivor decides to file a police report. Toxicology tests, which are an optional part of the kit, can be processed without filing a report.
Can a kit be completed if the survivor is unconscious or intoxicated?
Answer: Generally speaking, the answer is no. Every step of a SAECK requires the survivor’s unequivocal consent. Consent can only be given by a conscious and sober person. However, in certain instances it is possible that a medical proxy, such as a parent or spouse, may ultimately make the decision to perform the exam.
In what time frame can a kit be completed after an assault?
Answer: Some of the steps of an evidence collection kit are time sensitive. Within 24 hours of the assault, a survivor can have the oral and anal sections of the kit done. Within 72 hours, a survivor may begin HIV prophylaxis. Within 96 hours, a survivor can complete a toxicology kit to test for any drugs. Within 120 hours of the assault, a survivor can have a SAECK done and start a pregnancy prophylaxis, if appropriate, as well as an STI prophylaxis. There is no limit for having a medical exam to assess injuries and get tested and/or treatment for sexually transmitted infections and HIV. It is important to note that there are many steps included as part of the evidence collection process, and so even if it is past 24 hours, for example, but within five days, there may be other evidence on the survivor’s body. Beyond five days, a survivor can decide to go to a hospital or meet with their primary care physician for a checkup and/or to address medical concerns in the aftermath of an assault.
What, if anything, should someone avoid doing after an assault if planning on having a kit done?
Answer: A survivor can choose to have evidence collected within five days of an assault, the length of time it is possible for evidence to remain on the survivor’s body. A variety of factors can determine what evidence can be obtained. Some of those factors:
To maintain evidence, a survivor may choose to avoid eating, drinking, showering, or laundering any clothing worn during the assault. Regardless of whether someone bathes or washes their clothes, etc., a survivor can still choose to have evidence collected.
Is blood taken during a SAECK, and if so what is it tested for?
Answer: A blood sample may be taken during a SAECK for a variety of reasons, including the following: a medical provider may use a sample for a pregnancy test, if there is any possibility of pregnancy, or a blood sample may be taken to determine what medications are appropriate to prescribe to the survivor. Additionally, if the survivor or medical provider suspects that a drug was used to facilitate an assault, a blood and/or urine sample may be collected as part of the kit. This is called the “toxicology kit".”The samples in the kit will be tested for the presence of substances such as drugs, alcohol, prescription medications, and recreational drugs.
What should I do or expect if I am unable to give honest answers during the exam (for example, if a parent or partner is in the room)?
Answer: It depends on the reason for the survivor’s reluctance to give honest answers. If a survivor feels uncomfortable having a parent or partner in the room during a SANE exam, they can request that they not be present. If the survivor is reluctant due to activities that are illegal or that the survivor is concerned may reflect poorly on them that they may have partook in before/after the sexual assault, it may be helpful to consult with an attorney or a rape crisis center before deciding whether or not to make a report. A survivor could reach out to their local RCC to talk through specific concerns around this or to request a legal referral.
What happens if I had consensual sex after being assaulted but I still want to complete a kit?
Answer: Within five days of a sexual assault, a survivor can choose to go to the hospital for evidence collection. There are a number of factors that affect any case what evidence is found, and so there would be unique factors in a case like this. Some of the considerations include whether or not DNA was left behind in either/both instances and whether or not protection was used in either/both instances. If DNA was left behind and obtained from both instances, law enforcement may need to obtain a DNA sample from the consensual partner in order to separate this sample from the reported perpetrator’s DNA. The specific steps and options would be case by case; however, a survivor could absolutely choose to have evidence collected in this scenario.
If I store DNA evidence myself, can it be used by the police/crime lab?
Answer: It depends on the circumstances; it may be possible to use evidence stored by the survivor/victim in a criminal investigation. The underlying issue behind this is “chain of custody”’ Chain of custody is important for law enforcement since it ensures the integrity of evidence: that the evidence is what it purports to be. In order to maintain this, there must be continuous possession by each person who has possession of the evidence, and the evidence must remain in substantially the same condition when possession is turned over to another person. This can be more challenging to show if the evidence is stored with the victim/survivor rather than with law enforcement.
How long can DNA evidence remain on fabric? What factors into the length of time different samples remain viable?
Answer: Different bodily substances will be viable for differing amounts of time. For instance, semen and blood can produce a DNA profile even after a significant amount of time, whereas saliva would need to be tested more quickly to determine a DNA profile. How evidence is stored also has an effect on DNA viability: evidence is best stored in a cool temperature and in a paper bag/box rather than plastic. There may be other factors that would affect whether DNA could be found on an item, but it is possible that DNA could still be present after a significant period of time. While a lab can often determine whether a sample is new or old, they would not be able to pinpoint a date based on DNA alone.
Can you date DNA samples? (For example, can you tell that semen found during a kit is three days old?)
Answer: Depending on the DNA sample, the lab can determine whether a sample is recent or not. Analyzing a DNA sample of semen, a lab may be able to roughly determine how old a sample is, if it has been recently collected; however, they cannot pinpoint a precise day or time. A variety of factors—such as storage—can affect a DNA sample, and so DNA would be used in collaboration with other evidence to determine time frame of an incident.
Three days after a sexual assault has occurred, what is the likelihood of finding the DNA of the offender?
Answer: The likelihood of finding the DNA of a sexual assault offender three days after an assault varies and can depend on a number of circumstances. In Massachusetts, survivors can have evidence collected at a hospital within five days (120 hours) of an assault. A medical provider at the hospital will use a sexual assault evidence collection kit (SAECK), often called a “rape kit,” to conduct an exam and collect any evidence. After the exam is completed, the kit will be sent to the crime lab. The presence of biological evidence, such as blood, semen, or saliva, depends on a number of factors, including whether or not the survivor showered or changed clothing before the exam, the type of assault, and the amount of time since the assault occurred. It is important to know that not all kits yield DNA evidence and that the absence of DNA does not mean that no crime occurred. DNA evidence may not be found if the following has occurred:
How can evidence be collected from someone whose breasts and vagina were touched while the person was unconscious if there was no penile penetration?
Answer: It is still possible for evidence, including the survivor's account of the assault, to be collected using a sexual assault evidence collection lit (SAECK) even if there was no penile penetration during the assault. The doctor or nurse will determine which steps of the SAECK to complete (such as vaginal swabs) based on the survivor's story. When determining what steps to complete, the nurse or doctor will also take into account that the survivor was unconscious during the assault and may not recall the entire assault.
Can evidence be found on the survivor's underwear following a vaginal rape if the perpetrator didn't ejaculate?
Answer: It is possible for there to be evidence from a vaginal rape on a survivor's underwear even if there was no ejaculation. Other types of evidence that may be present on the underwear include evidence from the crime scene (for example, carpet fibers, if any), or any other evidence the perpetrator may have left behind, such as pubic hair.
Why do offenders continue perpetrating?
Answer: We know that there are some characteristics that many offenders share. For example, most perpetrators target people they know: 75% of all survivors know their perpetrators, and 80% of all rapes occur in the home. Furthermore, most offenders are male; 99% of female and 85% of male survivors were raped by a male. It is important to note, however, that although most perpetrators are male, most males are not perpetrators. Instead of using weapons, threats, or extreme physical force or violence, most “undetected rapists” (those who have not been convicted or served time in jail) are repeat offenders who premeditate their attacks, identify and isolate victims, and deliberately use only as much force as necessary (such as psychological weapons and alcohol). While there may be many individual reasons that lead offenders to continue to perpetrate, sexual assault is a crime that is often motivated by a desire for power and control.
Why do people commit sexual assault? Is there a common motivation?
Answer: Sexual assault is a crime that is often motivated by a desire for power and control over another person; however, there is no one reason or motivation for a person to commit this offense. There has been lots of research done on perpetration of sexual violence, and the Centers for Disease Control (CDC) has identified and compiled the risk factors for perpetration of sexual violence that exist at the individual, relationship, community, and societal levels. Having one or multiple risk factors doesn't mean that someone will commit sexual assault, but it does increase their likelihood. Understanding the various risk factors can help us develop solutions for prevention, from teaching healthy relationship skills in schools to creating better prevention policies in our communities. You can read more about the risk and protective factors of sexual violence perpetration on the CDC’s website.
How is consent defined? What steps can one take to clarify consent?
Answer: Consent is wanting to engage in sexual activity with another person. If someone has sex for any other reason besides wanting to, such as being forced, pressured, threatened, or incapacitated due to drugs or alcohol, then it's not consent.
States define consent in different ways. For example, the age in which someone can give consent may vary from state to state. In Massachusetts, people under the age of 16 cannot legally give consent to sexual activities, and people with specific disabilities may not be able to legally give consent. Schools and campuses often define consent in their policies, which may be in addition to state definitions of consent.
The laws and policies related to consent are often used to decide whether or not a crime or an act of sexual misconduct has been committed. Look up the laws in your state and the policies of your educational institution.
This project was supported by Grant #2009-WF-AX-0014 awarded by the Violence Against Women Grants Office, Office of Justice Programs, U.S. Department of Justice to the Massachusetts Executive Office of Public Safety & Security Office of Grants & Research and subgranted to the Boston Area Rape Crisis Center. Points of view in this document are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice or the Massachusetts Executive Office of Public Safety Programs Division.