Petite and soft-spoken but determined to be heard, Gail Frances Gardner stood before one legislative committee after another this spring, cameras on for all to see, and told lawmakers about the worst night of her life.
She was 41 years old, asleep in her bed with her 9-year-old son after they’d returned from a church service in Orlando.
“As we slept, I felt something pounce on me,” Gardner recalled. “One of his hands was on my face as well as a sharp knife to my face and holding my throat. I felt my son move, startled by the intrusion, and I was told by the attacker not to scream or he’d kill me.
“I was then taken into the living room, where I was sexually violated.”
Traumatized, she reported the attack, submitted herself for forensic examination, and waited.
For 32 years.
That’s how long it took for her to learn that DNA evidence from her sexual assault kit, belatedly tested, showed that the man who raped her was no longer on the streets. The serial rapist was in prison and had been for years.
Gardner, now 73, a retired teacher with two master’s degrees, did not know that her kit had gone untested until two years ago, when she learned it by chance.
She traveled to the Florida Capitol again and again to tell lawmakers how merciful it would have been to have known sooner, to have spent fewer sleepless nights. It would be merciful not to wonder now whether other victims might have been spared had her rape kit been tested right away.
“This is a lifelong sentence,” she said. “All through the night, l would get up and look through the window and look through the blinds to see who was outside. Every noise would affect me.”
Gail’s Law, new legislation named for her, would help other rape survivors, she said, by mandating that rape kits be tested promptly and tracked through every step of an investigation so that survivors can know the status at any time. Gail’s Law was sponsored by Sen. Linda Stewart of Orlando and Rep. Emily Slosberg of Palm Beach County, both Democrats, and awaits Gov. Ron DeSantis’ signature.
It’s not just the backlog
Gardner’s rape kit was one of at least 13,435 untested kits found across Florida (including 8,600 from assaults committed before Oct. 1, 2014) during 2015. A sexual assault kit contains swabs, vials, and other containing physical evidence such as blood, hair, and semen. Victim advocates say it takes courage for victims to undergo such exams because their bodies have just been violated and then they must endure hours of examination before they can wash or change clothes.
Kits are collected by local law enforcement. Those submitted are tested at a Florida Department of Law Enforcement crime lab.
The 2015 Florida Legislature ordered the backlog of untested rape kits be cleared, which occurred thanks largely to funding from the U.S. Bureau of Justice Assistance, a branch of the Department of Justice. FDLE outsourced the work to a contractor — but not all the work.
Roughly 4,000 were not submitted for testing. Why?
FDLE reported that 41 percent of those rape kits represent victims who filed police reports but decided not to proceed with the investigation or prosecution of the case. In another 31 percent of cases, prosecutors chose not to prosecute. Eighteen percent were tests from a victim who declined to file a police report.
The National Center for Victims of Crime cites additional reasons that rape kits are never tested: underfunded and overworked crime labs and, notably, investigators’ discretion. That discretion traditionally has included deciding they didn’t need test results to pursue the case, not prioritizing sexual assault cases, and not believing the victim.
The Fourth Judicial Circuit State Attorney’s Office, based in Jacksonville, decided in 2014 that that wasn’t good enough. It teamed with the Jacksonville Sheriff’s Office and the Women’s Center of Jacksonville, a certified rape crisis center, to find out how many untested sexual assault kits lurked within its multiple local jurisdictions and how to better serve victims. They were shocked to find a lot of untested kits: nearly 2,000 just in that circuit.
Ilse Knecht, policy director at the New-York based Joyful Heart Foundation, a non-profit research and advocacy organization, said the volume of untested rape kits around the country, once exposed, shocked the nation. Actress-turned-activist Mariska Hargitay founded the organization in 2004 and produced a documentary about the backlogs. Major cities including Detroit, Los Angeles, and Memphis made headlines due to the immense number of untested kits in their custody, many not even safely stored.
Learning to listen
Hargitay has called the masses of disregarded, and sometime destroyed, rape kits “a betrayal” of the victims and a deep flaw in the way the criminal-justice system treats sexual assault.
Knecht calls it “barbaric.” She is advocating law-enforcement training so that investigators and prosecutors understand better how to listen to traumatized survivors and learn what they need to know to find and prosecute attackers.
“Just one detective makes the decision to pursue the case or not. And they don’t get that much training on sexual assault,” Knecht said in an interview with the Phoenix. “It’s not just lack of funding. It’s lack of prioritizing sexual assault. It’s because the investigator says, ‘I don’t believe this victim.’ Or, it’s because they don’t realize how violent this crime is.”
The Joyful Heart Foundation launched an “accountability project” in 2015 to learn more about untested rape kits beyond the nation’s biggest cities. It dispatched Freedom of Information Act requests for records across the country.
The Fourth Judicial Circuit in Florida eagerly responded and has been a leader in reforming the handling of sexual assault cases. Officials there sought and received more than $4 million in federal grants from the Sexual Assault Kit Initiative, which it used to clear its backlog and improve training for its law-enforcement officers.
In particular, officers are receiving “trauma-informed” training that explains why victims often have trouble recalling exactly what happened to them and suffer lapses in memory that might look to the untrained eye like a story not worth believing. Victims who are not believed find that further traumatizing and may withdraw from their own cases. Knecht asserts that only 2-7 percent of allegations of sexual assault are false.
Adair Newman, director of the Special Victims Unit in the office of Fourth Circuit State Attorney Melissa Nelson, said the multidisciplinary team based in Jacksonville has established an entire network of services: specially training sexual-assault investigators; nurses who perform examinations and administer rape kits to collect evidence; child-protection teams; hospital and victim services; and officers trained to solve cold cases — the ones in which a suspect is identified, possibly prosecuted, possibly taken off the streets.
It happens: The Fourth Circuit reports that of the 1,982 untested rape kits in its jurisdiction, nearly 400 resulted in DNA matches, with 86 suspects identified. A belatedly tested kit from 2010 led to a conviction in 2019. Three belatedly tested kits from 2006, 2007 and 2011 led to three arrests in 2018. A kit from 1996, not submitted for testing until 2016, identified a rapist in prison for an assault he committed in 2002, six years after the 1996 crime.
In addition to FDLE and the Fourth Judicial Circuit, other Florida jurisdictions that have obtained Bureau of Justice Assistance grants for kit tracking and specialized training are: the City of Jacksonville, the City of Fort Lauderdale, Miami-Dade Police Department Forensic Services Bureau, and Tallahassee Police Department. The grants are in two categories: Sexual Assault Kit Initiative (SAKI) and New York County District Attorney’s Office (DANY) Partnerships.
And, thanks to Gail’s Law, if signed by the governor, starting in 2023, victims of sexual assault will be able to log into a state database and know whether their rape kits are being used properly to pursue their attackers. If they are not, the victims will know what to do, as Gail Gardner did: Speak up and demand better treatment.