(NBC News) There is a growing backlash over do-it-yourself rape kits, products that makers say are meant to give victims a way to collect evidence if they are unwilling or unable to go to a hospital. But mounting legal threats may keep them off the market.
Founder Madison Campbell says she developed the MeToo Kit after she was sexually assaulted during her junior year of college. She, like many other survivors, says she was afraid to report the attack.
“I did not even feel like touching myself, let alone letting someone else touch me,” said Campbell.
Campbell says she remained silent until the #MeToo movement gave her the strength to speak out. Now 23 years old, she developed a kit for survivors, with swabs and other simple tools to collect DNA.
MeToo Kit was working on a pilot program ahead of next year’s planned launch to distribute the kits on college campuses, where four out of five victims of sexual assault never report it, according to the Rape, Assault, and Incest National Network (RAINN).
“If you can’t get to the hospital, if you don’t feel like reporting, it’s a better-than-nothing kind of approach,” said Campbell.
Another product, PRESERVEkit, was developed by former FBI agent Jane Mason, who specialized in evidence collection.
Mason retired in 2014, after 28 years in the FBI, and started working as a private investigator. She says she received multiple clients that were sexual assault victims trying to seek justice, often long after physical evidence was lost.
Mason says she thought, “wouldn’t it be nice if these victims had a way to save evidence to corroborate their allegations?” That inspired her to start Preserve Group and create a kit with the same evidence-collection tools she says she used in the FBI. She started selling the PRESERVEkit on Amazon in August.
Both Mason and Campbell say the at-home kits are meant to be a simple, stripped-down version of a hospital rape kit, so that a traumatized victim could be able to easily follow the instructions and save some of the assailant’s DNA. But the kits have received mounting criticism.
MeToo Kit received a letter from 16 members of Congress voicing concerns about the kit on September 20. Among them, fears that the at-home kits could deter survivors from using traditional reporting methods and that the evidence collected may not be admissible in court. The letter states that a “self-administered rape kit is an inadequate replacement for a forensic medical exam.”
“What we need is trauma-informed care, not just the DNA,” said Texas Representative Sylvia Garcia, one of 16 Democratic House members who signed the letter. “We should be encouraging women to go to a clinic, and to seek professional advice.”
Garcia said the letter is meant to gather more information about the product and to have concerns addressed by the company. The inquiry doesn’t go as far as the warnings and cease-and-desist letters issued against the DIY kit companies by state Attorneys General in recent weeks, including Oklahoma, New York, Hawaii, North Carolina, Florida, Virginia, and Michigan.
Some have also taken issue we the “MeToo” name.
“This company is shamelessly trying to take financial advantage of the #MeToo movement,” said Michigan Attorney General Dana Nessel in a public statement.
“We were working to establish funding and relationships with organizations to distribute the kits for free,” Campbell assures. “Our goal is for survivors to never have to foot the bill.”
The DIY kits have also drawn criticism from advocacy groups.
“While I think the intention is great, I do think this is concerning because it could negatively impact survivors,” said Wendy Swan, of the Campus Advocacy and Prevention Professionals Association (CAPPA), an organization that issued a statement urging universities not to purchase or distribute the kits.
“The lack of foresight around how these kits can be processed and included as viable evidence is a large concern,” said Swan. The group also lists concerns about the chain of custody for self-collected evidence.
The question of whether DNA collected from commercial rape kits would be admissible in court is largely unknown. A judge may have some discretion over the admissibility of evidence. Campbell points out that even hospital rape kits are not automatically admissible in sexual assault cases.
Mason said she pulled the PRESERVEkit from Amazon after a cease and desist letter from New York Attorney General Letitia James, which also issued a cease and desist to MeToo Kit. According to the letter, James is concerned about the for-profit nature of the companies, and that it may not be clear to the consumer that sexual assault forensic medical exams are issued free of charge.
The Violence Against Women Act requires states to provide sexual assault forensic exams at no cost if they wish to remain eligible for critical anti-crime grant funding. The government-run medical examinations can also offer injury treatment, access to mental health resources, STI and pregnancy testing, evidence documentation and emergency contraception that the at-home kits don’t provide. The letter also lists concerns that the kits may mislead consumers by not emphasizing that DNA collected with the kits may not be admissible in court.
In the Preserve Group response on September 21, Mason calls James’ concerns “false and baseless accusations.” Mason lists examples of case law with victim-submitted evidence, including State of Wisconsin v. Aaron Matthew Heine, the 2009 case in which an inmate saved semen from a corrections officer in a medicine cup and later turned it in for testing in a rape investigation. The judge admitted the victim’s DNA evidence and the conviction of the corrections officer was upheld on appeal.
“Private persons, such as victims, are not subject to the same strict chain of custody standards as police,” said former sex crimes attorney Wendy Murphy.
She thinks government officials should focus on the problems within our current system, including the way hospital rape kits are conducted.
“They require victims to answer many personal and irrelevant questions the defense can then use, unjustly, to attack their credibility,” said Murphy. “The public should understand that the demand for private rape kits emerged from many years of terrible injustices and violations of rights inflicted on rape victims.”
Both MeToo Kit and Preserve Group say the DIY kits are not meant to be a replacement for a hospital rape kit, professional medical care or a police report. Rather, the founders say they want to give survivors tools to capture time-sensitive DNA before it is lost, in case they decide to come forward at a later date. According to RAINN, DNA evidence usually needs to be collected within 72 hours to be usable by a crime lab.
Vermont survivor Sarah M., who wishes to remain anonymous, says when she was raped at age 15, she was too scared to report it.
“I didn’t think anyone would believe me. I didn’t know what to do. It’s not like there’s a class at school that says ‘here’s what you should do when you get raped,’” said Sarah.
Eight years later, she says she feels like she cannot come forward because she doesn’t have any physical evidence.
“If there were MeToo Kits in the drug store aisle when I was 15, where I can easily get condoms and Plan B, it would’ve drastically changed my situation. I may have realized how big of a problem this really is and been empowered to do something about it,” she said. “Instead, I felt like I had no options.”
The DIY kit companies, law enforcement officials, and advocacy groups all seem to agree that there are major challenges to combat sexual violence, including a national backlog of untested hospital rape kits and the issue of underreporting. About three out of every four sexual assaults are never reported to the police, according to RAINN.
“These tools are for that 77-percent,” said Mason of PRESERVEKit, which she hopes to put back on the market.
Campbell says she still plans to launch MeToo Kit in 2020. As the controversy has swirled in recent weeks, Campbell says she has faced online harassment and even death threats.
“We think it should be a constitutional right for individuals after a sexual assault to be able to swab the areas they were just assaulted,” said Campbell, “and I will fight for that.”
That fight may be an uphill battle, as more legal roadblocks pile up for makers of the at-home kit.
“There are a lot of things we can do, but this MeToo Kit is not the answer,” says Rep. Garcia.
If you or someone you know is a victim of sexual assault, there are resources available to get help. RAINN operates the National Sexual Assault Hotline via telephone at 800-656-HOPE (4673) and online at online.rainn.org.