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Do You Live in a Rapist-Friendly State? (Yes, There Is Such a Thing.)

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Hitting the lottery once in a lifetime will never happen to most of us, but Brian Brockington just hit the criminal justice system jackpot, not once, not twice, but three times. DNA evidence has linked him to three sexual assaults, but lucky old Brian will soon be released from prison without ever serving a single day for any of the assaults in question.

So is Brian Brockington just one of the "luckiest" men alive? Perhaps. But he had some help. Continuing the lotto metaphor, you could say the powers that be screwed up and now all of us have to pay up, starting with the women DNA evidence links him to assaulting. Or in casino terms one might say the slot machines are severely broken and those in charge of the house haven't made repairing them a priority. As a result we'll likely see a lot more Brian Brockingtons winning the criminal lotto in coming years. Allow me to explain.

As reported in the New York Daily News:

Brockington, 35, was arrested on rape charges in 2007 and his cousin Rodney Howard, 36, was arrested two years later after their DNA matched evidence from a 1993 gun-point attack on a 29-year-old woman. But because of a police backlog, the DNA evidence from the crime wasn't processed for nearly a decade -- and prosecutors filed charges a day after the crime's 10-year statute of limitations expired, said Steven Reed, spokesman for the Bronx DA. The DA's office realized their error only after the cousins were arrested -- and prosecutors were forced to drop the rape charges.

Brockington was subsequently linked to two other sexual assaults.

The scary thing about the Brockington case (you know, besides the fact that an alleged serial rapist will likely soon be walking among us) is that the current system virtually insures that Brockington will not be the last alleged rapist set free by what some are calling a "technicality" but increasingly looks like willful legal negligence. Not simply on the part of police and prosecutors, but on the part of legislators.

In interviews with representatives from organizations dedicated to aiding survivors of sexual assault and improving the criminal justice system's prosecution of sex crimes, I learned that as the current system stands the release of the Brian Brockingtons of the world is virtually inevitable, caused by a nearly perfect storm of the following:

• Only five states in America have no statute of limitations for any felony, meaning any felony crime can be prosecuted at any point at which prosecutors believe there is sufficient evidence, even if the alleged crime took place decades earlier.

• Only 27 states have explicit DNA exceptions on the books rendering statute of limitations non-enforceable or significantly widening the time frame for such limitations should DNA evidence link a suspect to a crime.

• The Justice Department estimates there are at least 100,000 rape kits from unsolved sex crime cases waiting to be tested at labs around America.

• The actual amount of evidence waiting testing nationwide is much higher than 100,000, because before DNA collection became the norm there was no universal standard for storage of such evidence. This means there is an untold amount of evidence stored in unknown places and unaccounted for, some of it misplaced and misfiled for decades.

You do the math. This means that in a plurality of states, regardless of whether or not DNA evidence successfully links a perpetrator to past crimes, there is very little our criminal justice system can do to insure that perpetrator will serve any time. The reason? Because of a woefully antiquated and inept system that at the very least has been slow to adapt to the 21st century, and at the very worst has consciously chosen to treat sex crimes as low on the list of legislative and prosecutorial priorities.

Despite advancements in DNA technology a number of states still adhere to arcane statute of limitations provisions, meaning regardless of what evidence is unearthed that crime may not be prosecuted. "The rationale behind statute of limitations is that memories fade. DNA doesn't fade. It's good forever," said Scott Berkowitz, President of RAINN, the Rape Abuse and Incest National Network. "As long as you have the evidence, you should be able to use it anytime you finally identify the suspect."

But even those states that have attempted to address the statute of limitations problem have left loopholes in them so big a truck could drive through or more accurately, a criminal can escape through. For instance, while the New York state legislature bowed to pressure in 2006 and finally amended state law to eradicate statute of limitations for class B felonies, covering those deemed the most serious sex crimes such as first degree rape, a host of sex crimes are not covered. "We wouldn't be able to prosecute a case like Penn State here in New York," Joe Farrell, a spokesperson for New York State Coalition Against Sexual Assault said, referring to child molestation allegations against Jerry Sandusky, a former assistant football coach at Pennsylvania State University. That means even if DNA evidence was discovered, such as a piece of one of the victim's clothing linking Sandusky to a crime, there would be nothing anyone could do to prosecute in the state of New York. "Ideally we would like to see the removal of all statute of limitations for such crimes to allow for delayed reporting."

But the legal challenges presented by statute of limitations provisions represent one broken cog in a piece of machinery full of defects. In many jurisdictions the processing of DNA evidence is so backlogged that as the statute of limitations clock ticks, with the ability to prosecute certain cases drawing to a close, the DNA evidence that could be used to prosecute said cases sits unanalyzed. There have even been instances in which a perpetrator was in custody for another crime, but because a rape kit had not been processed in a timely manner he was released before he was eventually linked to an unsolved sexual assault.

Some states, New York among them, have been shamed into doing the right thing and clearing the backlog. (Though the rape charges against Brian Brockington were just dropped days ago, the case represents a holdover from the years before the statute of limitations law was changed and the backlog was cleared in New York, illustrating the dangers other states face by not properly addressing those two issues immediately.) But plenty of other states have thousands of rape kits waiting to be tested, with the cities Detroit and Houston being among the worst offenders. (Click here to see an in-depth report on this issue from CBS News in 2009.)

According to one expert interviewed, Houston represents a troubling, yet perfect example of just how badly broken the system is. It was originally believed there were a couple of thousand untested kits in the city, until thousands more were discovered in facilities other than labs. If every major city is like Houston -- and it is believed that many are -- then we have absolutely no way of knowing just how bad the backlog really is. We just know that it is bad. As this expert pointed out, "Part of the problem is that law enforcement is hesitant to invest resources in testing kits related to non-stranger assaults. Of course the problem is there are perpetrators who may assault someone they know as well as victimize strangers, but law enforcement may never make that connection because those kits are not being tested." (She asked that her name not be used since she is not the designated spokesperson for the organization she works with.)

So what, if anything, can we all do to prevent future Brian Brockingtons from winning the criminal lotto? For starters:

1) Contact your member of Congress and urge them to support H.R. 1523, "The S.A.F.E.R. Act." S.A.F.E.R. stands for Sexual Assault Forensic Evidence Registry. Co-sponsored by Reps. Carolyn Maloney and Ted Poe, The S.A.F.E.R. Act would create a national database of rape kits maintained by the Justice Department and would require local jurisdictions to inventory all kits in their possession. It would also allow law enforcement to track which kits are attached to cases in which the statute of limitations window is drawing to a close.
2) If you live in a state that still has statute of limitations provisions for sex crimes (and chances are you probably do) contact your state legislators and request that they amend the law. (To see which states have the worst statute of limitations provisions for sex crimes, or as I call them "predator friendly states," please click here.)

If you would like to learn about other ways in which you can help, such as signing a petition in support of The S.A.F.E.R. Act, or to access contact information for your elected officials, or review the statute of limitations law in your state please click here Let's all do our part to make sure that fewer Brian Brockingtons are set free.

Keli Goff is the author of The GQ Candidate and a Contributing Editor for Loop21.com where this post originally appeared.