SAN FRANCISCO (CBS SF) - A sexual assault survivor announced Wednesday that she is petitioning the U.S. Supreme Court over allegations that the San Francisco Police Department systematically failed to investigate rape, including her own assault in 2010.
Heather Marlowe has pursued her legal case against the Police Department for several years and helped to bring to light that the department was in possession of hundreds of untested sexual assault kits found in storage. Such kits are DNA evidence medically gathered from assault survivors.
Marlowe's own rape kit went untested for years, despite her active role in investigating her case. And while the department blamed a backlog in processing evidence, Marlowe alleges that there is a systemic failure by police nationwide to properly investigate rape.
"This is not a San Francisco issue," said Marlowe's attorney, Becky James. "This is an issue that is happening across the country in police departments everywhere."
Instead of devoting resources to complex rape investigations, Marlowe alleges that police departments focus on lower level crime, for example in the "broken window" policing strategy where police emphasize enforcement of graffiti and other low-level offenses under the theory that their presence will prevent more severe crime.
"It's a matter of policing priorities and choosing to investigate lower hanging fruit crimes versus violent crime like rape," Marlowe said.
John Cote, a spokesperson for the San Francisco City Attorney's Office, called Marlowe's petition "meritless" in a statement, arguing that "every court that has looked at this lawsuit has agreed that City employees did not violate Ms. Marlowe's constitutional rights."
"Rape is a heinous crime, and it's unfortunate that neither the DNA testing the San Francisco Police Department conducted on Ms. Marlowe's rape kit nor the department's additional investigation has identified the perpetrator," Cote said.
The Supreme Court is expected to decide whether to review the case in October.
According to the petition, Marlowe was assaulted on May 16, 2010, while attending the annual Bay to Breakers race in San Francisco. She was handed a red plastic cup of beer and soon lost consciousness.
When she regained consciousness eight hours later, she was in a strange home and had no memory of what had happened to her. She was injured and had pain in her pelvis. A man she had never met was sitting next to her, she asked him what had happened and he told her, "We had sex."
She reported that she had been drugged and raped to the San Francisco Police Department and the case was assigned to Officer Joe Cordes to investigate.
The petition alleges Cordes took a series of bizarre investigative steps such as instructing Marlowe to knock on the door of a home while he distracted the owner to see if she could identify it as the scene of the crime and asking her to set up a date with a possible suspect under an assumed name.
Meanwhile, Marlowe sought the results of the DNA testing from her rape kit, but a year later the department admitted it had not been tested because of the crime lab's "backlog." She continued to follow up, but by August 2012, she was told that the case was inactive and her rape kit had been placed in storage.
The petition alleges that the Police Department told her that she should not have been out partying that day because she is a woman, weighs less than men and had menstruations.
Throughout the ordeal, Marlowe wrote and developed a one-woman play called The Haze, which dramatized her challenges in getting her assault investigated. The play brought publicity to the case and drew the attention of reporters and then-Police Commission President Suzy Loftus, who is now running for San Francisco district attorney.
According to the petition, Marlowe was invited to speak at a Police Commission meeting about her experience in 2013. She did, but city staff also gave a presentation that disputed her assertions, saying that every rape kit had been tested. Marlowe felt that she had been effectively set up to be called a liar.
"It was a traumatizing moment for me," Marlowe said. "It added further injury to this whole experience."
The following year, an audit released by the Police Department confirmed that the department in fact was in possession of hundreds of untested rape kits. Further evidence emerged of serious issues in evidence processing in the San Francisco police crime lab.
Loftus is named as a defendant in Marlowe's petition because of the experience at the Police Commission meeting. In a statement, Loftus said that once she learned of the untested rape kits, she worked to make sure that the department processed the backlog of evidence.
"What we learned from Ms. Marlowe's advocacy is important - we changed the law to improve transparency and prioritize the needs of survivors," Loftus said.
Since then, San Francisco police have tested the old rape kits and now process them within 38 days, according to department spokesperson David Stevenson.
Many police agencies across the country have similar backlogs of sexual assault kits that remain untested. Manhattan District Attorney Cy Vance has provided grants to give departments funds to process untested rape kits.
But Marlowe objects to the term "backlog," arguing that it's not a matter of a lack of financial resources that leaves rape kits untested, but simply a failure of police to seriously investigate the crime of rape.
Rape survivors often tell stories of detectives who disbelieve or equivocate when taking reports of sexual assault, for example asking the survivors what they were wearing, blaming their drinking or suggesting the sex was consensual.
For Marlowe, the detective acknowledged her assault, but she alleges that he still didn't conduct a thorough investigation.
"It's not an issue where the detective didn't believe Ms. Marlowe, it's almost worse," James said. "He did believe her and he didn't care."
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