Nikki A. Basset

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ABSTRACT: In 1975, Michigan enacted a legal reform to protect victims of sexual assault whose cases deviated away from “real rape”: The myth that only physically violent cases between strangers are valid. However, 2009 marks the discovery of approximately 11, 000 untested sexual assault kits in Detroit—a clear demonstration that the myth of “real rape” persists and informs the criminal justice system. When a system so consistently fails, excludes, and harms victims of sexual assault, demands for greater policies and laws seem futile and instead, access to alternate means of justice and healing are necessary.


Historically, the only victims or survivors of sexual assault that were protected by the criminal justice system in the United States were ones who were forcibly penetrated by a man that was not their spouse and who could provide outside corroboration or proof that they resisted strenuously (Reddington, 2005, 235). This misunderstanding of sexual assault, a crime that requires a broader consideration of power, intersectionality, and coercion, leaves many victims without any options for justice and healing within the system.

Informed by “rape culture,” a systematic belief system that normalized and tolerates sexual violence, the criminal justice system uses “rape myths” to deny, downplay, or justify sexual violence (Bohner, Eyssel, Pina, Siebler, and Viki, 2009, 20). These myths work to blame the victim for their victimization, express disbelief in claims, exonerate the perpetrator, and assume that only certain people could be victims of sexual assault (Bohner, Eyssel, Pina, Siebler, and Viki, 2009, 20). Under rape culture, “real rape” is the idea that only “reputable” (white, affluent, able-bodied, straight, “legal”) individuals who were violently attacked by a weapon- wielding stranger could possibly be telling the truth. This is a myth. All rape is real rape.

In the 1970’s, rape-survivor advocacy groups brought attention to the mistreatment that victims of sexual assault faced when reporting their victimization and navigating the criminal justice system (Reddington, 2005, 236). Inspired by this was a movement for legal reform to account for sexual assault cases that do not conform to this “real rape” script, provide the prosecutor with the tools to convict offenders in these divergent cases, empower victims to come forward, and protect them when they do. However, these victims, the ones the legal reformers wanted to protect, are still not seeing justice in this system.

In 2009, approximately 11,000 untested sexual assault kits were discovered in a police storage facility in Detroit, Michigan (Campbell, Shaw, and Fehler-Cabral, 2015, 152). It was found that 71% of these untested sexual assault kits were warehoused because the assault deviated from what is considered “real rape” and fault was somehow attributed to the victim (160). Following this discovery, nation-wide and state-level initiatives stressed the importance to inform, educate, and engage the public on internalized rape culture as this was a clear demonstration of the harm it perpetuates.

While there is a pre-existing body of literature on how the criminal justice system fails victims of sexual assault, this paper goes beyond that literature. With the detailed examination of a case study, this paper highlights how no amount of reform seems to dismantle rape culture biases from within the criminal justice system. We need to stop looking to the criminal justice system for protection; instead, this paper argues that we need alternate and accessible means of justice and healing that is victim-centered and trauma-informed.


This work is informed by feminist critical theory, a method of deconstructing discourse to expose “Other” truths, without privileging any, in an attempt to resist dominant hierarchal power relations and affect social change (Hesse-Biber, Leavy, and Yaiser, 2004, 19). Within this framework are five main objectives: Situating the research, holding skepticism towards dominant knowledge, recognizing power relations, rejecting harmful categorizations, and being reflexive of one’s own position in the research themselves (Gannon and Davies, 2007, 72-75). In adopting this framework, I am attentive to the history and processes leading up to the discovery of the backlog, I am rejecting rape culture as a status quo, I am considering the intersections of identity and circumstance that influence access to justice, and make every effort to be transparent in my identity and experiences.

I am a queer, white, able-bodied, non-binary survivor of sexual assault. This work is motivated by my own lived experience as the assault I survived did not conform to “real rape”. The perpetrator was not a stranger, not a monster, and was not violent. This was an instance of persistence and coercion. This made it difficult to recognize, painful to talk about, and impossible to ask for what I needed to heal. Informed by internalized rape culture, I felt alone with my experience and wrong about my instincts. However, my unearned privileges—my whiteness, my Canadian citizenship, my access to post-secondary education—eventually allowed me to name, explore, and understand my survivorship. The work that I do now is for all victims and survivors of sexual assault (especially those with fewer privileges than myself). I see you, believe you, and stand in solidarity with you. Just as my experience is valid, so is yours.

History of Rape Laws

In order to understand the processes in which rape culture has become internalized within the criminal justice system, it is important to first locate oneself in the history of rape laws. Dating back to the slavery era, the first rape laws in the U.S. were based on English Common Law, which can be traced back to seventeenth-century medieval England (Reddington, 2005, 235). These laws defined raped as “carnal knowledge of a woman by force and against her will” (235). These laws were enacted to protect a man’s “property” and the assault was not considered a personal crime against the woman herself (235). In adapting the English Common Laws, most states only recognized rape if a man physically forced a woman who was not his spouse to have sexual intercourse, and she could prove through outside corroboration and physical injury that she resisted strenuously.

In the early 1970’s, attention was given to these rape laws as their narrow definition prohibited most victims from even accessing the criminal justice system (Reddington, 2005, 236). This motivated a legal reform with goals to remove the barriers that discouraged victims to report sexual assault and to provide prosecutors with the tools to successfully convict offenders (246).

In 1975, Michigan enacted what was considered the strongest and most comprehensive reform of all the states (Spohn and Horney, 1993, 383; Spears and Spohn, 1997, 522). Within this reform were elements that sought to redefine rape as sexual assault; redefine consent to include coercion, threat of injury, and power; reconsider charging and punishing by establishing four degrees of gender non-specific sexual assault misconduct; remove the marital exception, corroboration doctrine, and cautionary instruction; and enact a rape shield law that prohibits the defendants from using the victim’s character, behaviour, or reputation as evidence of false accusation (Reddington, 2005, 239-244).

The expectation was that this reform would improve the treatment of the victim which would consequently foster trust and confidence in other victims to come forward with reports of sexual assault (Spohn and Horney, 1993, 384). However, what Spears and Spohn found was that legally irrelevant victim characteristics, such as occupation, education, sexual history, reputation, behaviour, and mental illness, were still stronger predictors of prosecution rather than the seriousness of the case or evidentiary strength (1997, 521). Despite reform, it has been maintained that prosecutors still base their decisions to file charges or reject cases on extralegal factors which reflect the internalized biases of what is considered “real rape” (Spears and Spohn, 1997, 522). It has been suggested that reform has not achieved its instrumental goals because laws themselves cannot shift the focus of the trial from the victim’s to the perpetrator’s conduct when internalized rape culture that sustains this justice gap have not been addressed (Bryden and Lengnick, 1997, 1180).

One of the clearest demonstrations of the mistreatment and invalidation of victims due to internalized rape culture is the 2009 discovery of a backlog of approximately 11,000 untested sexual assault kits in Detroit.

Sexual Assault Kits

Before offering the account of this discovery, it is important to outline what a Sexual Assault Kit (SAK) is, and the purpose they serve in sexual assault cases to adequately illustrate how imperative it is to have them tested, and how irresponsible it is to allow them to accumulate at this scale.

Following the assault, whether the victim chooses to report their victimization to the police department or seek medical care, the interdependent nature of these systems results in contact with both, and the victim is inevitably advised to receive a medical forensic exam (MFE) (Shaw et al., 2016, 1477). The purpose of the MFE is to diagnose and treat injuries, offer emergency contraception to prevent pregnancy, and administer prophylaxis to treat any sexually transmitted infections that may have been contracted (Campbell, Shaw, and Fehler- Cabral, 2015, 153). In addition to these measures, a SAK is recommended as part of the exam.

This procedure is both time-consuming and highly invasive (Campbell, Shaw, and Fehler-Cabral, 2015, 153), as it requires collecting hairs, fingernails, pieces of clothing, and vaginal, anal, and oral swabs (Patterson and Campbell, 2012, 2260). Once completed, the SAK is taken into custody by law enforcement personnel who are then held responsible for submitting it to a crime laboratory for forensic analysis (Campbell, Shaw, and Fehler-Cabral, 2015, 153). If the SAK contains DNA that does not belong to the victim, this DNA can then be uploaded into a national forensic DNA database called CODIS (Combined DNA Index System) (153). This database consists of reference DNA profiles from convicted offenders (the offender index) and samples obtained from crime scenes of unknown offenders (the forensic index) (154; Campbell et al., 2016, 558). If there is a match, investigators are given a promising lead to the identity of the offender (Campbell, Shaw, and Fehler-Cabral, 2015, 153).

There has been some debate that SAK testing should be prioritized based on the relationship between the victim and the accused, but empirical evidence shows that all SAKs, regardless of this relationship, serve a critical purpose for CODIS (Campbell et al., 2016, 558). In instances where the accused is a stranger of an unknown identity, matches in both the offender and forensic index have utility. If the DNA profile from the SAK matches a sample in the offender index, a suspect and promising investigational lead is provided (558). A match in the forensic index does not provide the suspect’s identity, but it does populate CODIS and leaves potential for a match in the future (558). In cases where the identity of the accused is known, this evidence could confirm bodily contact between the victim and the accused, exonerate the wrongly accused, and further populate the CODIS system (Campbell, Shaw, and Fehler-Cabral, 2015, 154; Campbell et al., 2016, 558). Furthermore, matches from known suspects in the forensic index confirms the identity of unknown suspects in other cases and provides new investigational leads (Campbell, Shaw, and Fehler-Cabral, 2015, 154; Campbell et al., 2016, 558). Therefore, testing all SAKs, regardless of the victim-accused relationship, can prevent ongoing serial rape.

Despite the SAKs unquestionable utility for both stranger and non-stranger cases, only 52% of SAKs collected actually make it to the forensic crime lab for analysis (Patterson and Campbell, 2012, 2260). When just over half of all SAKs are not tested, there are severe implications for the victim in question, victims who came before them, and the victims that will come after them. They consented to the MFE and the SAK collection with the understanding that the kit would be analyzed and used for the investigation (Campbell, Shaw, and Fehler- Cabral, 2015, 154). In refusing this, justice is denied and trust is breached, as there is no opportunity for that evidence to inform the criminal proceedings (154).

Backlog Discovery

In 2008, systemic concerns regarding the processing of crime scene evidence called into question the fairness of past, present, and future criminal cases (Campbell, Shaw, and Fehler-Cabral, 2015, 155). This motivated a necessary examination of all aspects of police evidence storage. In 2009, an off-site storage facility—previously a multilevel parking structure—was toured by representatives from the local police, state police, and prosecutor’s office, to discuss evidence storage procedures (155). An assistant prosecutor questioned dozens of unmarked boxes sitting on the shelves to find that they all contained sexual assault kits. It became clear that the police department itself did not know that they had this massive accumulation of untested SAKs in their possession, as there was no readily accessible information or visual cues as to how many kits were in storage and how many of these had been tested (155).

On discovery of this backlog, a collaborative multi-disciplinary team of researchers, prosecutors, law enforcement, system-based victim advocates, information technology specialists, health care providers, community-based advocates, and forensic scientists were given an action-research grant to analyze a sample of the untested SAKs (Campbell et al., 2015, 15). The goals of the Action Research Project (ARP) were to assess the scope of the problem, identify underlying factors that contributed to the accumulation, develop a plan to efficiently test the SAKs, and create a victim-centered notification protocol (iii).

Researchers of the ARP found that across all Detroit organizations involved with SAK testing and victim services, chronic resource depletion due to their ongoing economic crisis led to many barriers (understaffing, budget cuts, leadership transitions, slow implementation of innovations, and minimal support), which contributed to the large accumulation of untested SAKs (Campbell et al., 2015, 99). This ongoing resource scarcity required that individuals with large and unmanageable workloads prioritize high-profile cases, decrease their empathy for people they did not have the capacity to help, and minimize their ability to collaborate and work with other organizations (100). That said, ARP researchers argued that chronic resource depletion was only part of the problem and a full explanation required a qualitative analysis of how various professions were approaching sexual assault cases, treating victims, and treating each other (100).

Through interviews, ethnographic observations, and archival records, this team of researchers found that chronic resource depletion and harmful victim-blaming attitudes informed by internalized rape culture became a reinforcing dynamic (Campbell et al., 2015, 100). Although the Detroit police maintained that there were valid reasons as to why the SAKs had gone untested, it was found that in 71% of the cases the SAKs were not submitted because of fault that was somehow attributed to the victim (Campbell, Shaw, and Fehler-Cabral, 2015, 160).

This victim-blaming was evident in the ways that reports had discussed occupation (“deal gone bad”) and victim-offender relationship (“got what they got”) in cases that had been labelled “not really a rape” (Campbell, Shaw, and Fehler-Cabral, 2015, 161-162). Because of resource and time constraints, investigators would not submit SAKs from cases that deviated from what was understood to be “real rape” to the forensic laboratory. This pattern of behaviour is an evident demonstration of how rape myths, despite the legal reform, are internalized within the criminal justice system and inform decisions that are made about cases that deviate away from “real rape”.


As the ARP research revealed that rape culture is a primary force that prejudices against victims of sexual assault and limits their access to justice, this resulted in many nation-wide and state- level victim advocacy initiatives, including a component in their mission to inform and educate the public on rape myths and their harmful impacts.

In Michigan, local non-profits such as Wayne County Sexual Assault Forensic Examiners Program (WC SAFE) and the Michigan Women’s Foundation and their initiative Enough Sexual Assault in Detroit (Enough SAID) were not only working to eliminate the backlog, investigate the cases that were closed and forgotten, and support and advocate for survivors with untested sexual assault kits, but they also included public education within their mission statements (WC SAFE, 2017-2018; Michigan Women’s Foundation, 2019).

The findings from the ARP research have also influenced nation-wide backlog elimination initiatives to include strong education components within their mission statements. For example, Joyful Heart Foundation, a national non-profit organization, seeks to transform society’s response to sexual assault and end gender-based violence. This foundation founded an initiative called End the Backlog with goals of conducting research that identifies the extent of backlogs across the nation, determines the best practices for eliminating it, expands national dialogue through public awareness, and engages with community and government agencies for a comprehensive sexual assault kit reform in policies and legislations at local, state, and federal levels (End the Backlog, 2016).

As all of these organizations have made it their mission to spread awareness on rape myth acceptance by engaging with the public, this strong emphasis suggests that the public would be coming into more regular and meaningful discourse on rape myths and how sexual assault more commonly deviates from what is considered “real rape”. Rape culture can be, and has been, unlearned, but this process demands a commitment to the work, as you must actively resist against dominant and mainstream discourse that perpetuates and maintains rape myth acceptance. It has been argued that what is required for survivors of sexual assault to have access to justice is a societal attitudinal shift from rape culture to consent culture. However, this process is slow, ongoing, infinite, and still exclusionary of many survivors of sexual assault.

While it is shown here that there are prejudices against victims of sexual assault whose case deviates away from “real rape”, there are many victims who are not safe to access the criminal justice system at all. These survivors are the ones who are pushed to the margins of society; these survivors are queer, BIPoC, disabled, and poor; they are sex workers, undocumented citizens, inmates and have criminal backgrounds; they are in abusive situations, have dependents or no network of support; they are the most vulnerable to sexual violence and yet have the least protection (Femifesto, 2016a; Femifesto 2016b; Femifesto 2016c).

Public education and widespread attitudinal change is important to dismantle internalized rape culture within the criminal justice system, but survivors need protection, access to support, and means to heal immediately. What is necessary are feasible alternative approaches to justice for all survivors rather than changing a system that continually fails us, excludes us, and harms us.

Beyond the Criminal Justice System

When victims of sexual assault are repeatedly failed, excluded, or harmed by the criminal justice system because of its inability to honour the stories, experiences, and pain from victims of sexual assault, there needs to be various alternative and accessible means available for them to experience justice in a way that is conducive to their healing. Outside of the criminal justice system, justice and healing is an individuated experience, where the specific needs of the survivor should determine what resources, services, and support they receive. As outlined by Common Justice (Armatta, 2018), alternative survivor support services should follow four guiding principles. The response to a disclosure should be intersectional, survivor-centered, accountability-based, and safety-driven (14-18). Sexual assault is a crime motivated by power, so it is critical to take an intersectional and anti-oppressive approach when responding. Where the criminal justice system holds the survivor as powerless as the perpetrator that assaulted them, a survivor-centered approach gives them back power, control, and agency. To be survivor-centered requires giving the person harmed the space to make decisions of how they will experience healing and find justice. An accountability-based approach requires that the person who harmed holds responsibility for the harm committed, acknowledging the impact this harm has on others, having empathy and expressing genuine remorse, taking the actions necessary to repair the harm, and making a commitment to not repeat similar harm (15). By honouring the survivors’ experiences and holding the perpetrator accountable, underlying causes of violence are addressed and this, in turn, inherently creates a safer community for everyone.


Sexual assault is a traumatic event that can cause multiple, negative, long-term effects, such as post-traumatic stress disorder, depression, fear and anxiety, substance dependence, and suicidal ideation as well as attempts (Campbell et al., 2009, 225-226). Despite a wide-spread understanding from the general public and authoritative officials that sexual assault is a heinous crime, it maintains that only certain sexual assault cases and victims are taken seriously, held space for, and granted justice.

Through analyzing the ways victims of sexual assault are treated within the criminal justice system both pre- and post- legal reform in Michigan, this paper makes it explicitly clear that legal reform is not enough to ensure greater access to justice. This was demonstrated when approximately 11,000 sexual assault kits were untested, warehoused, and forgotten about in a Detroit police storage facility because these cases did not conform to what is understood as a “real rape”.

It has been argued that, regardless of legal reformation, for victims of sexual assault to be treated properly, fairly, and empathetically throughout their case, there needs to be a widespread attitudinal change that addresses and dismantles rape culture. However, seven years later, after many initiatives have been working to engage and educate the public and demand better policy from the criminal justice system, even high-profile sexual assault cases are still exonerating the accused and most victims are left retraumatized without any options at all.

As a survivor of sexual assault, advocating and working for other survivors of sexual assault, I am using this case study to demand greater access to alternate means of justice and healing that are survivor-centered, accountability-based, safety-driven, and intersectional.

Works Cited

Armatta, Judith. 2018. “Ending sexual violence through transformative justice”. Interdisciplinary Journal of Partnership Studies 5, no. 1: 1-38.

Bohner, Gerd., Friederike Eyssel, Afroditi Pina, Frank Siebler, and G. Tendayi Viki.. 2009. “Rape Myth Acceptance: Cognitive, Affective, and Behavioural Effects of Beliefs that Blame the Victim and Exonerate the Perpetrator.” In Rape: Challenging Contemporary Thinking, edited by M. Horvath and J. Brown, 17-45. Cullompton, UK: Willan Publishing.

Bryden, David P., and Sonja Lengnick. 1997. “Rape in the Criminal Justice System.” Journal of Criminal Law & Criminology 87, no 4: 1194-1384.

Campbell, Rebecca., Emily Dworkin, and Giannina Cabral. 2009. “An Ecological Model of the Impact of Sexual Assault on Women’s Mental Health.” Trauma, Violence, and Abuse 10, no. 3: 225-246.

Campbell, Rebecca, Giannina Fehler-Cabral, Steven J. Pierce, Dhruv B. Sharma, Deborah Bybee, Jessica Shaw, Sheena Horsford, and Hannah Feeney. 2015. The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP). U.S. Department of Justice.

Campbell, Rebecca., Jessica Shaw, and Giannina Fehler-Cabral. 2015. “Shelving Justice: The Discovery of Thousands of Untested Rape Kits in Detroit.” City and Community 14, no. 2: 151-166.

Campbell, Rebecca, Steven J. Pierce, Dhruv B. Sharma, Hannah Feeney, and Giannina Fehler- Cabral. 2016. “Should Rape Kit Testing Be Prioritized by Victim-Offender Relationship?” Criminology & Public Policy 15, no. 2: 555-583.

End the Backlog. 2016. Joyful Heart Foundation Initiative. www.endthebacklog.org.

Femifesto. 2016a. “Stop Erasing Sexual Violence Survivors with Disabilities”. Accessed February 22, 2019. http://www.femifesto.ca/stop-erasing-sexual-violence-survivors-with-disabilities/.

Femifesto. 2016b. “Listen to Sexual Assault Survivors of Colour”. Accessed February 22, 2019. http://www.femifesto.ca/listen-to-survivors-of-colour/.

Femifesto. 2016c. “Debunking Myths About Rape in Prison”. Accessed February 22, 2019. http://www.femifesto.ca/debunking-myths-about-prison-rape/.

Gannon, S. and B. Davies. 2007. “Postmodern, Poststructural, and Critical Theories.” In Handbook of Feminist Research, edited by S. N. Hesse-Biber, 71-106. Thousand Oaks, London, New Delhi: Sage Publication.

Hesse-Biber, S. N, P. Leavy, and M. L. Yaiser. 2004. “Feminist Approaches to Research as a Process: Reconceptualising Epistemology, Methodology, and Method.” In Feminist Perspectives on Social Research, edited by S.N. Hesse-Biber and M. L. Yaiser, 3-26. New York, Oxford: Oxford University Press.

Michigan Women’s Foundation. 2019. “Enough SAID.” Accessed February 17, 2019. http://www.miwf.org/enough-said/.

Patterson, Debra., and Rebecca Campbell. 2012. “The Problem of Untested Sexual Assault Kits: Why Are Some Kits Never Submitted to a Crime Laboratory?” Journal of Interpersonal Violence 27, no. 11: 2259-2275.

Reddington, F. P. 2005. “A Brief History of Rape Law and Rape Law Reform in the United States.” In Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System, edited by F. P. Reddington and B. W. Kreisel, 235-249. Durham, North Carolina: Carolina Academic Press.

Shaw, Jessica, Rebecca Campbell, Julie Hagstron, Leslie O’Reilly, Gail Kreiger, Debi Cain, and Jeff Nye. 2016. “Bringing Research into Practice: An Evaluation of Michigan’s Sexual Assault Kit.” Journal of Interpersonal Violence, 31, no. 8: 1476-1500.

Spears, Jeffrey W. and Cassia C. Spohn. 1997. “The Effect of Evidence Factors and Victim Characteristics on Prosecutors’ Charging Decisions in Sexual Assault Cases.” Justice Quarterly 14, no. 3: 501-524.

Spohn, Cassia and Julia Horney. 1993. “Rape Law Reform and the Effect of Victim Characteristics on Case Processing.” Journal of Quantitative Criminology 9, no. 4: 383- 409.

WC SAFE. “About WC SAFE.” Accessed February 17, 2019. http://wcsafe.org/about-us/.

Nikki A. Basset is a genderqueer feminist and survivor currently residing in Halifax, NS. They work as a community educator supporting queer youth and founded not your boys club, an independent blog, radio show, safer spaces facilitation, and booking/promoting initiative that offers a platform for emerging femme, trans, and gender non-conforming musicians.

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