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Another View -- Brendan Finn: Better evidence needs for drugged sexual assault cases

By BRENDAN FINN
June 17. 2018 9:35PM




Editor’s Note: This is the second of a two-part series on Drug Faciliated Sexual Assault. The first part can be read here.

Last week, I used Bill Cosby’s trial to reexamine Drug Facilitated Sexual Assault (DFSA), an insidious crime that leaves its victims with very low chances of obtaining justice. Today, I would like to suggest some common-sense, achievable solutions to the problem.

Though a 2007 study found that 3 million American women had been DFSA victims, and 40,000 in 2006 alone, it is largely ignored by the criminal justice community. Incredibly, despite epidemic-levels of occurrence, the federal laws criminalizing DFSA have resulted in a total of 19 convictions in 20 years. We don’t know why federal DFSA convictions are so rare, but a major reason is likely how ineffectively we collect and process DFSA evidence.

Toxicology kits used to collect victims’ blood and urine samples to be tested for DFSA agents remain unstandardized. So too is the training for their use and laboratory processing of the evidence they collect.

Since 1999, leading forensic toxicologists have unsuccessfully recommended standardizing DFSA sample sizes, analytical techniques, and the drugs and minimum levels for which to test. The Society of Forensic Toxicologists updated its guidelines in 2012 to increase the window for urine sample collection from 24 to 120 hours. Yet, without standardized toxicology collection procedures, expanded forensic capabilities will be unable to benefit DFSA victims.

Dr. Mark LeBeau, chief scientist of the FBI Laboratory’s Scientific Analysis Section, estimates that approximately 25 percent of toxicology kits the lab receives include blood samples, but not urine samples. It is impossible to estimate how much toxicology evidence widespread procedural inconsistency has lost, and how many investigations it has inhibited.

When evidence is collected, it is too often processed in labs without the instruments needed to identify the trace compounds of DFSA agents in victims’ fluid samples. According to Dr. LeBeau, most labs are equipped only to identify quantities of narcotics that would result from habitual use. Machines designed to test for employee drug habits have far less sensitivity than that which is required to detect the fleeting, trace amounts from DFSA.

Because of the precipitous decrease in DFSA research, the extent of the relationship between unstandardized toxicology evidence procedures and diminished DFSA evidence is unknown. Its contribution to the inadequacy of toxicology labs is clearer, however. Major developments in chemistry emerge about every three years. Without consistent studies, we will remain ignorant of their applications to DFSA evidence processing. For example, Dr. LeBeau recommends studies that test for DFSA agents with mass spectrometers, instruments that can detect substances as small as a picogram (one trillionth of a gram.) Now that technological advances have made mass spectrometers more affordable and available, one promising potential methodology would use them to test for DFSA agents in victims’ hair follicles.

The federal government has undertaken several nationwide initiatives to improve and standardize SAKs and how they are processed. The Department of Justice (DOJ) devoted $38 million to the Sexual Assault Kit (SAK) Initiative, which offered grants to improve SAK testing procedures and to process the backlog of untested SAKs. The initiative neglected the need to standardize toxicology kits and improve their processing.

So did the Sexual Assault Forensic Evidence Reporting (SAFER) Act, which mandated the development of protocols and practices for DNA evidence collection and processing. So did the SAK guidelines that DOJ released last year in its "National Best Practices for Sexual Assault Kits.” Ironically subtitled “A Multi-Disciplinary Approach,” the latter omitted any mention of toxicology and DFSA.

Consequently, unstandardized toxicology kits, training, and evidence processing continue to compound the inherent challenges of prosecuting DFSA.

As we hear Bill Cosby’s accusers detail the extent of the trauma they suffered after DFSA, we should remember that this particularly cruel crime did not disappear with the Quaalude prescription. In fact, it is likely to continue injuring millions of women and men in the years ahead if we do not standardize and improve toxicology evidence collection and processing.

DOJ should solicit DFSA studies to help do so, and get better and more DFSA evidence in the hands of law enforcement. Only then can we pull ourselves from this tailspin that leaves DFSA victims less and less likely to press charges against their attackers.

Today, there are an unknown number of Americans deciding not to seek justice because they correctly assess the dispiriting chances we have given them of attaining it. Let’s take this moment to stop ignoring them and this problem, and restore their rights as Americans to be protected under the law.

Brendan Finn serves on the State Veterans Council and lives in Newfields.


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