By Alex Emslie
A San Francisco woman is suing the city and Police Department leadership for allegedly failing to test DNA evidence in her rape, compelling her to confront a suspect as a condition of continuing to investigate and generally botching a case that’s gone unsolved for more than five years.
Plaintiff Heather Marlowe drank a beer that an unidentified male handed to her at the San Francisco festival/footrace Bay to Breakers in 2010, according to the civil rights lawsuit filed in federal court Jan. 7. She became “much more inebriated than would have been normal,” the lawsuit says, then awoke nauseous and in pain several hours later in an unfamiliar home.
Marlowe went to the nearest emergency room and called the police. A nurse collected DNA samples for a sexual assault evidence kit, commonly known as a rape kit. But Marlowe says that as far as she knows, that evidence was never processed nor was potentially matching DNA collected from a suspect who police later questioned.
The suit says the Police Department’s alleged conduct violated her rights to due process and equal protection under the law.
“I’ve reached a point where I’m not clear about anything anymore in regards to what they’ve told me about my case,” Marlowe said at a press conference Tuesday announcing the lawsuit. “I have learned that this is an issue that is going on across the city, across the Bay Area, across the state of California, across the country, to the number upwards of 400,000 untested rape kits, ignored rape kits.”
The San Francisco Police Department says it has already addressed the issue. The department identified 753 unprocessed rape kits collected between 2003 and 2013 and announced all had been cleared by late 2014. Under fire for failing to test older untested kits, police say they found an additional 473 kits and submitted them for analysis in September.
But Marlowe says she has documentation from a police captain that the department had “several thousand” untested kits, and the 1,226 total that were submitted for processing doesn’t appear to clear that backlog.
“The reality in San Francisco has been that rape kits have gone untested by the thousands,” said Marlowe’s attorney, Irwin Zalkin. “San Francisco Police Department decided they’re going to test some of the untested rape kits. Not all, some. To this day, Heather doesn’t know if her rape kit has ever been tested. They have promised her repeatedly that it has or it will be. She has asked for proof, it hasn’t been delivered.”
Zalkin said he’ll ask the court for an independent audit of the Police Department’s rape kit backlog.
As she fought for DNA testing, Marlowe says she also pursued other investigatory leads with SFPD Officer Joe Cordes, who is also named in the lawsuit.
Marlowe’s complaint alleges Cordes met Marlowe at a house she identified as the possible scene of her rape about a week after the alleged assault.
“They knocked on the door and a man answered,” the complaint says. “Cordes demanded that Marlowe enter the home while Cordes distracted the owner to see if Marlowe could identify the home as the scene of her rape.”
And a few days later, “Cordes instructed Marlowe to make contact with the suspect and flirt with him in order to elicit a confession that suspect had indeed raped Marlowe,” the lawsuit alleges, adding that Cordes also told Marlowe to “set up a date” with the suspect to prove she could identify him in a crowd.
Richard Barton, a retired district attorney’s investigator and police officer specializing in sexual assault investigations, said in an interview that it’s not unheard of for an officer to ask a rape victim to make a “pretext call.”
“A pretext call is where a victim or a witness, somebody will contact the suspect over the telephone with the idea of either getting an apology or getting facts,” Barton said. “Every victim is different, and it’s not criticism of the victim if he or she doesn’t want to do a pretext call because they can be very traumatic.”
Marlowe said that if she didn’t take on the investigation herself, SFPD officers implied that her case would be abandoned.
“They basically said that unless you move this forward yourself, we won’t be investigating any further,” she said.
The Police Department did not respond to repeated inquiries for an up-to-date account of any rape kit backlog.