Rape kit sat, “untested and unprocessed, first on a shelf and then in a storage facility for ‘inactive’ cases,” suit alleges


A woman who alleges her rape kit went untested by the San Francisco Police Department for years is taking her case to the highest court in the land — the United States Supreme Court — after two federal courts previously dismissed it. 

Heather Marlowe, who has previously sued the SFPD and city for failing to investigate her allegations of being drugged and raped in 2010, filed a petition last Monday, asking the highest court for a third opinion. 

Marlowe alleges that after she was drugged and raped during the 2010 Bay to Breakers race, police failed to process and provide her with the results of her “rape kit” — a forensic examination that collects DNA and other evidence of rape and its perpetrator. 

“Ms. Marlowe’s rape kit sat, untested and unprocessed, first on a shelf and then in a storage facility for ‘inactive’ cases,” the petition charges. “In response to Ms. Marlowe’s continued inquires, the police department claimed her kit had not been tested because of a ‘forensic backlog,’ and its decision to prioritize ‘more important crimes.’” 

Because of this, Marlowe alleges, she was not protected equally under the law. 

A United States District Court judge dismissed the case in January 2017, arguing that Marlowe failed to state a violation of equal protection and that she filed her suit well after the two-year statute of limitations had expired. The Ninth Circuit Court of Appeals upheld the dismissal in February. 

Now, Marlowe is asking for the Supreme Court to weigh in. The court will decide whether to take up Marlowe’s case on Oct. 1. 

Walk Against Rape 2016. Photo by Lola M. Chavez

The U.S. Supreme Court only reviews a small percentage of cases, Marlowe conceded in a Tuesday phone interview. “But this is a national issue,” she said. “Every single city has this issue. It is a public crisis.” 

At the time of Marlowe’s incident, the police department had built up a backlog of more than 1,000 rape kits, and declined opportunities to clear parts of that backlog. Now, years later, the department claims the backlog is completely cleared. In the first two quarters of this year, the department tested 339 kits, each taking 38 days on average to complete, according to a July 10 police department report

Still, the police department continues to face mounting complaints over how it handles rape cases in general, with survivors alleging that detectives fail to conduct thorough investigations and often treat victims as though they’re criminals. In May, domestic violence survivors sued the department for not expediently releasing police reports to both survivors of sexual assault and domestic violence — paperwork they need in order to obtain restraining orders. 

City Attorney spokesman John Cote wrote in an email that it was “unfortunate” the results of Marlowe’s kit and the department’s investigation could not identify her perpetrator. 

However, every court that has looked at this lawsuit has agreed that City employees did not violate Ms. Marlowe’s constitutional rights,” he wrote. “They tried to help her. At the end of the day, this office has a duty to defend taxpayer dollars from meritless lawsuits — and this is one of them.” 

In her petition, Marlowe claims that, on May 16, 2010, she drank beer given to her by a stranger at the Bay to Breakers. Eight hours later, she woke up in an unfamiliar home next to an unknown man, who told her that they had had sex. 

That day she went to the emergency room at San Francisco General Hospital where the forensic examination was performed. Police and hospital staff “assured her that the rape kit would be processed and the results would be returned within 14 to 60 days,” the petition states. 

Marlowe charges in the petition that the SFPD refused to provide the results of the kit in 2015 and alleges that it was never properly processed.  

The petition names as defendants the City and County of San Francisco, SFPD Deputy Chief Mikail Ali, former Officer Joe Cordes, former Chief Greg Suhr, and former Police Commission President Suzy Loftus, who is now running for District Attorney.  

Loftus, who currently works for the Sheriff’s Department, pledged in June that, should she win, she’d convene a team to re-examine every eligible rape case that was discharged for lack of evidence in her first 100 days. She, like the other DA candidates, has made reforming sexual assault prosecution a focus of the race.  

Of the charges, Loftus wrote in a text message “… the 9th Circuit has held there are no valid claims against me or the Police Commission.” She added that under her leadership, the Police Commission cleared the backlog of rape kits. 

A spokesperson with the San Francisco Police Department deferred all questions to the City Attorney’s office. 

Marlowe said she is ready for her day in court, but still must get past the petition stage.

So should we argue at the [Supreme Court] and win, it would allow us discovery to find out how and why SFPD and San Francisco neglected hundreds of rape cases and rape kits.”

Marlowe’s lawyer, Becky James of James & Associates, said she has filed “a number” of petitions in separate cases with the Supreme Court.

“None of them have been taken yet,” James said at a Wednesday press conference. “Hopefully this is the one.”