In 2016, a woman WBEZ is calling Linda Johnson was raped by someone she knew. She went to the hospital, where workers collected DNA evidence through a sexual assault kit, but there was never any question about who raped her. In fact, the man who did it admitted they had sex, but claimed the sex was consensual.
At that point, the DNA evidence was irrelevant, the only question left was consent.
“DNA is never going to show whether or not the sex was consensual,” said victim advocate Mallory Littlejohn, who helped Johnson through the court process.
And yet, prosecutors refused to move forward with the case against Johnson’s rapist until they got the DNA test results back. That took more than two years.
“It almost defies logic because everybody in the room, the perpetrator, the cops, the state’s attorneys, my client, myself, we all know who the sex occurred with, and so the DNA is not going to help us,” Littlejohn said.
Ultimately, the man pleaded guilty to aggravated battery, nearly three years after the assault.
Johnson did not want to talk about her experience, but she agreed to let Littlejohn share the rough outline of her case, provided her identity not be revealed.
Littlejohn is the managing attorney at the Chicago Alliance Against Sexual Exploitation. She said Johnson’s case is typical of the cases she sees — most sexual assaults are committed by someone known to the victim, usually their defense is consent.
But the cases drag on for years, waiting for test results that are often irrelevant to the final outcome. And that has an impact beyond individual survivors of sexual assault or those accused of the crimes.
“Test everything and then we’ll see what happens”
Illinois has a big problem with its DNA backlog. In the first quarter of 2019, state police reported more than 6,000 cases with untested DNA evidence in its crime labs. Nearly a thousand had been sitting untested for more than a year.
The backlog delays justice for victims, keeps defendants stuck in jail and clogs up the entire court system. And every time a case like Johnson’s gets added, the backlog grows.
In April, Illinois Gov. JB Pritzker toured the state crime lab in Chicago and lamented that “unacceptable backlogs” had “plagued” the DNA testing process “for far too long.”
The Illinois State Police put out a plan to address the backlog that included a pledge to hire 10 additional trainees in the DNA section of the lab by the end of the year.
But Acting Director Brendan Kelly said the state police are not going to be able to dramatically reduce the backlog on their own.
“We have problems within the four walls of the lab, certainly there are issues within the laboratory system and we’re getting at that,” Kelly said. “But outside the lab, in the investigative process, in the court process … there are delays that frankly are artificial.”
Kelly said police and prosecutors need to be more selective with what they’re submitting for testing in the first place.
Before he took over the state police, Kelly was the state’s attorney for St. Clair County in Southern Illinois.
“I will tell you from my time as a prosecutor, sometimes we are guilty of just saying test everything and then we’ll see what happens,” Kelly said.
He said that approach might make sense when assessing an individual case, but it doesn’t work with the realities of the justice system in Illinois.
“Everybody wants to jump to the front of the line and have their case tested first,” Kelly said. “We’re going to have to develop better management and a better way of triaging what those important things are.”
“Society … buys into this monster myth”
The most recent report from the state police crime lab shows almost 3,000 sexual assault and abuse cases awaiting DNA testing.
Based on sexual assault statistics, the majority of those cases are likely not ones in which the main question is whether sex or happened, or who did it.
Littlejohn said in cases like that, when the defense is that the sex is consensual, prosecutors could make a dent in the backlog by making the tough decision to go forward without waiting on DNA evidence.
The Cook County state’s attorney declined to be interviewed for this story. But in a statement, a spokeswoman said they cannot make decisions on whether to work up DNA evidence based on what they believe a potential defense might be. Defense attorneys said they understand prosecutors’ position.
“From my point of view, I don’t see the logic,” Littlejohn said. “The law in Illinois is pretty clear that credible victim testimony is enough to secure a conviction.”
Littlejohn said in many cases she’s handled, besides victim testimony, police have videotaped statements with defendants admitting they had sex and claiming it was consensual, or text messages between the victim and perpetrator.
In lots of other types of cases, prosecutors go to trial without DNA evidence. But with sexual assault, Littlejohn said it’s seen as an essential part of every case.
“It’s society, society is the one who kind of buys into this monster myth that is a stranger that jumps out and that’s when you need the DNA tests, to link the stranger to the sexual assault,” Littlejohn said.
That means juries expect DNA evidence, which means prosecutors don’t feel comfortable going forward without it.
It’s a problem rooted in biases and unreasonable expectations.
But Littlejohn said considering the long delays, and the impact it has on survivors, defendants and the entire court system, police and prosecutors need to come up with solutions.
She said they can’t keep waiting for the state police to just test more and more DNA. Instead, they need to start making tough choices and go forward without it when they can.
Patrick Smith is a reporter on WBEZ’s Criminal Justice desk. Follow him @pksmid.