Whose rape kit? Stabilizing the Vitullo® Kit through positivist criminology and protocol feminism

Abstract

Science and Technology Studies (STS) scholarship has increasingly focused on the rape kit, with scholars critiquing the gendered biases that are enacted through the medico-legal exam and how the kit itself serves as a technoscientific witness of rape. However, little scholarship has focused on the discourses surrounding the early US Vitullo® Kit. This article traces the stabilization of the kit from 1973 to 1987, attending to how community advocates embraced technoscientific protocols to intervene in medico-legal evidence collection. I bring insights from criminology in conversation with STS, to examine archival records associated with the Vitullo® Kit. I argue the kit emerged as a strategic feminist and positivist criminological intervention, in which discourses about the perceived reliability and objectivity of protocol technoscience were believed to counter gendered stereotypes embedded in the justice system. This project, sheds new light on the neglected contributions of community advocates in developing this kit.

Keywords

Forensic gender and crime protocol feminism rape kit sexual violence

From 1973 to 1975, the Chicago-based victim advocate Marty Goddard and Dr Cynthia Porter Erie, an assistant professor at University of Illinois at Chicago, conducted informal, cold-call interviews with law enforcement, state’s attorney’s offices, and crime laboratories across the country, asking what inhibited rape prosecution in their areas. Repeatedly, the women were told that quality evidence was a central yet solvable barrier. Although forensic evidence circulates through many actors in the criminal justice apparatus, including hospital staff, police, crime lab technicians, and prosecutors, with each offering a junction to reinterpret evidence, Goddard and Erie decided to intervene at the source, where criminal justice and medico-legal actors initially collected evidence in the emergency room. Their efforts led to the development of the early US rape kit—the Vitullo® Kit.

The term rape kit typically describes the forensic assembling of biological evidence for scientific analysis. During this process, a trained medical professional collects specimens such as blood, saliva, or sweat from a victim’s or perpetrator’s body or belongings and secures these specimens for biomedical testing. For a seemingly mundane object comprised of swabs, slides, and envelopes, the kit has effected a thorny impact on the criminal justice system. Since its introduction, proponents have elevated the forensic technology as the definitive standard for investigating sexual assault (Farrell, 1987). However, despite the perceived reliability of the kit, forensic evidence continues to have minimal impact on the disposition of charged cases (Du Mont and White, 2007; Sommers and Baskin, 2011). Scholars have analyzed the rape kit from a number of insightful angles. These include, among others, the symbolic power of the rape kit (Corrigan, 2013a; Parnis and Du Mont, 2006); the kit’s role as a technoscientific witness of rape within the criminal justice system (Quinlan, 2017); barriers to the effective use of medico-legal findings in adjudicating cases (Du Mont and White, 2007); the kit’s role in facilitating the “second assault” of rape victims (Corrigan, 2013a); and the raced, gendered, and classed biases performed through the kit (Mulla, 2014). Yet there remains a significant gap on the origins of the Vitullo® Kit.

In this article, I trace the stabilization of the Vitullo® Kit as a technoscientific intervention in the criminal justice system and analyze the technoscientific discourses that surrounded its development. For scholars, practitioners, and advocates alike, examining the origins of the kit can refocus attention on the persistent themes and social factors that permeate its use in the criminal justice system. While the rape kit is often conflated with DNA testing, the Vitullo® Kit predates this technique, and its intended purpose was process reform—to increase the likelihood of prosecution by enhancing the ability of medico-legal actors, police, and prosecutors to produce reliable evidence. Although contemporary research shows there is significant discretion in evidentiary collection practices (Parnis and Mont, 2002), during the 1970s, victims’ rights activists regarded rigid methods of preserving and processing evidence as a means of offering material substantiation for sexual violence claims—substituting the reliability of the scientific process for the perceived unreliability of victims’ voices. Through my analysis, I bring theoretical insights from Science and Technology Studies (STS) into conversation with feminist criminology to argue the Vitullo® Kit emerged as a strategic feminist and positivist criminological intervention, in which discourses about the perceived reliability and objectivity of the kit were believed to counter gendered stereotypes embedded in the criminal justice system.

Literature review

In this section, I provide a brief background on positivist criminology and the gendered beliefs about sexual violence embedded in 1970s rape law. I then offer an overview of Science and Technology Studies approaches to forensic evidence knowledge making and the rape kit.

Positivism, feminist criminology, and 1970s rape law

In the US context, the relationship between law and science is derived from the political commitment to resolve conflict through law and the belief that science and technological progress produce objective truth (Jasanoff, 1997; Lynch et al., 2010). It is these entwined and constitutive cultures of law and science that led to the development of positivist criminology—referring to the belief that science can disclose an objective reality and that social order is something knowable and reducible to the laws of nature. The epistemology of positivist criminology relies on counting and classification to reveal the “truths” of the social and natural world, without critical reflection or meaningful interpretation (Morrison, 2014). As many feminist criminologists have argued, commitment to positivist inquiry lead to essentialized and androcentric assumptions about crime victims and offenders that often overlooked the constitutive role of power (Cain, 1990; Daly and Chesney-Lind, 1988; Naffine, 2018). In contrast to positivist criminology, feminist criminology emerged in the 1970s and 1980s as a practice concerned with how knowledge about crime is created and who is creating it (Mason and Stubbs, 2010). Of particular interest to feminist criminologists is confronting the stereotyped and singular accounts of women in popular criminology that are based on assumptions of gendered behavior (Gelsthorpe, 2002), especially in the context of rape law (Corrigan, 2013b; Du Mont and Parnis, 1999).

In light of gendered beliefs about crime in rape law, a primary goal of the 1970s feminist victim advocacy movement was to challenge the treatment of rape victims in the criminal justice system and craft support systems as a buttress against women’s lack of social power and status (Young, 2006). Feminists have long established that while victims have struggled to have any rape case taken seriously, victims whose assaults did not align with the expected classic rape narrative struggled even more (e.g. Brownmiller, 1975). As Linda Williams (1984) articulated, the classic rape narrative—in which an unknown man brutally assaults (a woman) in an isolated yet public place, after which the woman is required to prove the attack happened, and that she actively resisted it—is culturally considered the most legible form of sexual violence. The classic rape script deploys tropes of the innocent/pure victim and frames offenders as perverted psychopaths with abnormal, broken, and unchangeable masculinity characterized by insatiable sexual desires (Shelby and Hatch, 2014). This script is embedded in the criminal justice system and in our cultural imaginary as the most widely enacted form of assault, and constitutes a significant and problematic rape myth (Ryan, 1988).

Early feminist criminology sought to expose the prevalence of rape stereotypes in explanations of crime, law, and policy (Smart, 1995). While the history of feminist activists’ work on rape policy is covered elsewhere (Bevacqua, 2000), the gendered problem of evidence and rape myths embedded in 1970s law is especially relevant for this analysis. In 1977, the Battelle Law and Justice Study Center published Forcible rape: An analysis of legal issues (LeGrand et al., 1977: 20), in which the authors cite three elements must be proven in a criminal trial of rape: (1) that a sexual assault, through penetration or other contact, did occur; (2) that the sexual assault occurred through force or without consent of the victim; and (3) that the defendant accomplished the sexual assault. These elements did not differ significantly from those prosecutors need to prove in other criminal cases. However, rape differed from other crimes in the type of evidence allowed and required in legal defense, such as the introduction of a victim’s prior sexual history or the judge’s formal warning to jurors about the propensity for women to lie about rape. While rape law reform helped to formally challenge this gendered disparity, these practices were especially acute before 1975 (Koss and Harvey, 1991).

The legal importance of physical evidence in rape cases was perhaps most influenced by the longstanding rape corroboration requirement. Corroboration laws required victims to prove some or all of the following: (1) force, resistance, or lack of consent; (2) penetration; and (3) the identity of the rapist (LeGrand et al., 1977). At the time, proof of force was established with evidence of torn clothing or hysteria; proof of penetration was determined through medical evidence, such as the presence of sperm or vaginal trauma; and proof of identity was determined by the victim’s identification of descriptors of the perpetrator’s identity or belongings. Before the 1980s, it was common to require victims to undergo psychiatric evaluation and polygraphs to confirm victimization. These special evidentiary requirements were predicated on the belief that victims tend to lie, and extend, at least partly, from the legal system’s embrace of Freudian psychoanalysts (Anderson, 2004). Importantly, the gendered stereotypes and special evidentiary laws present in 1970s rape law provided a crucial context for the development of the rape kit.

Feminist Science and Technology Studies (STS), forensics, and the rape kit

STS is an interdisciplinary field that understands and analyzes technoscience as a social practice, rather than a benign, authoritarian mode of evidence production (Law, 2016). Although science often claims value neutrality, it participates in the construction, maintenance, and rationalization of inequality (Keller, 1985; Rose, 1983). Feminist STS examines scientific representations as practices of marginalization, reduction, and omission and links these practices to social discourses of gender, race, class, and sexuality (Harding, 1991; Hatch, 2016; Pollock, 2012). Feminist STS parallels feminist criminological critiques of the limitations of empirical epistemologies (Naffine, 2018; Young, 1996) and thinks constructively about the social dimensions of scientific knowledge (Longino, 1989).

Feminist STS often examines the ways in which technoscientific objects and scientific inquiry produce knowledge about women’s bodies. Such examinations include analyses of intersectional discourses surrounding women’s body hair removal (Herzig, 2015); the intrauterine device (IUD) (Dugdale, 2000); gynecology teaching associates (Kapsalis, 1997); and the feminist women’s health movement as it impacted the Pap smear (Murphy, 2012). These analyses trace the contested processes through which technoscientific objects are assembled to create knowledge about the body. Of particular interest in regard to the rape kit is Michelle Murphy’s (2012: 495) description of 1970s feminist medical practices as a form of protocol feminism—a feminism focused on the re-crafting and distribution of technosocial practices to facilitate the care and study of the sexed body. Within the women’s health movement, protocols served to routinize technoscience and enable its mobility across networks and spaces.

In the context of crime, STS scholars have examined knowledge-making forensic practices and policies, such as fingerprinting (Cole, 2009) and DNA analysis (Aronson, 2007; Lynch et al., 2010). STS analyses expose the myriad ways forensic evidence is socially produced. For example, Corinna Kruse’s (2015) ethnography reveals how forensic evidence is shaped by complementary and contested epistemological practices within the criminal justice system—termed epistemological friction. She examines how law enforcement actors draw on conventional crime discourses to co-produce and interpret evidence in differing ways through competing law enforcement epistemologies.

Regarding the rape kit specifically, this forensic evidence storytelling is tied to sociocultural narratives about victims and offenders. However, these narratives are often informed by gendered and racialized rape myths (Mulla, 2014). As legal scholar Rose Corrigan (2013a) describes, the rape kit functions primarily as a “trial by ordeal” that helps establish the validity of assault claims. Drawing on actor-network-theory, Andrea Quinlan’s (2017) STS analysis of the Canadian rape kit provides insight into the relationships between rape stereotypes and forensic evidence. She explains how through feminist activists’ critiques of medico-legal rape care, the kit stabilized a belief within the criminal justice system that technoscience could provide credible forensic evidence, institutionalization, and changes in law. As a knowledge-making technology, Quinlan characterizes the kit as a technoscientific witness of sexual assault—that is to say the kit itself becomes a seemingly objective mode of producing knowledge about an assault.

The rape kit as a technoscientific witness constitutes a mode of positivist criminology. In doing so, it serves to perpetuate a dichotomy between cultural knowledge about sexual assault and objective forensic evidence. It also obscures other persistent problems in criminal justice responses to sexual assault, such as ignoring how gender norms lead to a broader de-prioritization of rape cases in the criminal justice system, whether that be through general disinterest, disbelief, or articulations of law that determine what legally counts as rape.

Current study

The purpose of this research is to trace the emergence of the Vitullo® Kit as a technoscientific intervention in the criminal justice system. Two research questions guide this analysis: (1) What social conditions or patterns of interaction led to the development of the rape kit? (2) Which discourses were mobilized and/or maintained in the creation of the rape kit during the 1970s? This research expands the existing literature in two meaningful ways. First, it fills a gap surrounding the early development of the Vitullo® Kit. To date, the history of the Vitullo® Kit as a community-driven endeavor remains hidden. The scant literature on its development focuses primarily on the namesake in the trademark—police sergeant Louis R Vitullo (1924–2006)—rather than the trademark’s owner, the Citizens Committee for Victim Assistance (e.g. Badejoko et al., 2010). Certainly, Vitullo played a critical role but failing to engage with the salient role of victim advocates in mobilizing the kit does a great disservice to the histories of gender violence, feminist health, and victim advocacy. Second, this research knits together STS insights into the rape kit with those of feminist criminology to produce what Sheila Brown (2006) terms a criminology of hybrids that resists the traditional dualisms that appear in positivist behavioral science, including those within criminology such as nature/society, science/society, and the human/nonhuman. Brown (2006: 225) argues this polarization “closed off the very real possibility that the most effective explanations and understandings of crime and control arise at the interstices” and calls for an integrated model of criminology that includes STS. Bringing these critical feminisms into dialogue facilitates a more critical lens to understand the role of forensic science in the criminal justice system. It also offers a methodological intervention in the empiricist tendency to create a false dichotomy between cultural knowledge and scientific evidence.

Data

The archival data for this project came from activist records, oral histories, newspaper accounts, copyright and trademark filings, and state legislation on the Vitullo® Kit between 1973 and 1987. These years bookend the initial development of the kit until the trademark lapsed in 1988. Overwhelmingly, the data from this project come from the HERS (Health Evaluation and Referral Service) records special collections at the University of Illinois at Chicago’s Richard J Daley Library. Their primary-source holdings on the Citizens Committee for Victim Assistance proved invaluable in constructing a history of the Vitullo® Kit and its institutionalization. Like most archival data, the HERS holdings are partial—consisting primarily of organization meeting notes, training materials, and interoffice memos. I used the notes taken during my 2016 summer visit to the archive in conjunction with a University of Akron oral history project conducted with Marty Goddard in 2003 and deep searches of historical newspaper and legislative records in ProQuest and LexisNexis to fill in missing moments, contextualize passing or partial references, and identify the contemporaneous reception of the rape kit among different actors. The data center the actions and perspectives of the activist-actors who drove the Vitullo® Kit’s development—Marty Goddard and the CCVA. It is possible a history of the Vitullo® Kit told primarily from the perspective of medical actors, law enforcement, or legislators could bring new insights into the discourses surrounding the kit’s development. However, the purpose of this research is to focus on the feminist actors who initiated its development. It is worth noting there was limited information about the specific individuals working for the CCVA. While the primary voice in my retelling is Goddard’s, many unnamed CCVA activists undoubtedly contributed to its creation.

Method

Discourse analysis was used to trace the emergence of the Vitullo® Kit and examine the technoscientific discourses and practices surrounding its development. Discourse is a mode of constituting knowledge and producing meanings about a subject, and discourse analysis allows the researcher to uncover the possible meanings of a text in light of the systems of power that shape the construction and distribution of those meanings (Hoy, 1999). In particular, discourse analysis is useful for uncovering the sociopolitical conditions that shape and frame a social problem for exposing the assumptions that naturalize discourse (Foucault, 1971; Hartsock, 1990).

I used a multistep iterative coding process to categorize the discursive themes surrounding the Vitullo® Kit. First, I conducted an initial cold read of the documents to absorb the full scope of data available without delving into analysis. After the initial reading, I coded for broad themes in the texts related to the perceived benefits and practical impact of the kits in the criminal justice system, including how the kits would benefit victims and prosecutors and provide a means to hold law enforcement accountable to pursue sexual violence cases. Next, I iteratively reviewed and refined codings to clarify the speaker’s intent and to interpret the data within the context of the broader sociopolitical apparatus. As archival data are always partial, a speaker in the texts would often comment on a particular law, policy, or practice that required further investigation into historical legal rulings, state legislation, and newspaper sources to confirm or clarify a discursive utterance. I iteratively reread and recoded the full scope of archival documents to exhaust alternative readings of the data.

Findings

I analyzed the discourses and practices surrounding the development of the Vitullo® Kit from 1973 to 1987 in archival records associated with the Citizens Committee for Victim Assistance. The discourses reveal an embrace of (1) protocol feminism as a solution to the poor treatment of victims within hospitals and the criminal justice system, and (2) a positivist criminological framing of rape kits as a seemingly “fresh source of technoscientific power” to prosecute cases and improve the care of victims. These themes construct the Vitullo® Kit as a technoscientific witness of rape that, through protocol feminism, facilitated the rapid stabilization of the kit in the local criminal justice system. Notably, there were no competing framings of the kit presented in the CCVA’s archive, historical newspaper accounts, and government documents. The absence of competing framings served to naturalize and sediment the perceived benefits of the kit as a technoscientific witness of assault among victim advocates, law enforcement, and legislators.

Epistemological friction and the problem of evidence

The CCVA formed from a loose collection of victim advocates who were “fed up” with how police and hospital staff treated victims at a time when there was no formal crime victims’ advocacy movement. Rather than sidestep the system, these advocates engaged the criminal justice system. As mentioned earlier, from 1973 to 1975, advocates Goddard and Erie interviewed actors in the justice system to uncover problems surrounding rape prosecution in an effort to “create positive change… contribute to the solution”.¹ Repeatedly, the problem of medico-legal victim care and the collection of quality evidence was identified as a central site of epistemological friction between victim advocates, medical staff, and crime lab technicians. If a victim’s clothing was taken as evidence, women were sometimes sent home nearly nude, wearing nothing but hospital gowns. Victims’ names and other personal details were disclosed to reporters without permission—a fundamental violation of privacy and safety. Moreover, there were persistent problems with how evidence was collected; consistently, hospital staff were cited as untrained in appropriate evidence collection processes. Goddard² recalls one crime lab technician’s critique of the process:

Marty, we don’t get evidence. Sometimes people try and they take two slides with swabs from say the vagina or the mouth and or the rectum. They put it on the slides. They make the slides. They rubber band ’em together and they’re face to face. So there goes that. It’s worthless. It’s just absolutely worthless. We don’t get hair. We don’t get fingernail scrapings. We don’t—nothing’s marked to tell you what’s vagina and what is the rectum. We don’t get decent clothing evidence.

The repeated emphasis on forensic evidence from the crime lab is unsurprising—as evidence is the currency of the court. However, in response to the prioritization of evidence, Goddard would confirm, “if what I’m hearing is correct, you all don’t have any [useable] evidence so how can we prosecute successfully?”³ Embracing the crime lab’s epistemology of positivist criminology, the CCVA believed the legal system could work for rape victims if only victims had rigorous, reliable, and quality evidence to support their claims of assault, and the group worked to stabilize evidence collection reform as a fixable barrier to prosecution. However, in contrast to the crime lab’s sole emphasis on evidence collection, the CCVA sought to develop standardized evidentiary and therapeutic protocols that could overcome the poor medico-legal care and challenge the status quo practice of disbelieving victims.⁴ Goddard knew the system was unfair. She recalls, “it’s the criminal justice system. It isn’t the ‘victims’ justice system.”⁵ Thus, Goddard viewed her law enforcement collaboration as partial and strategic. “Being nice” and “not name calling” were tactics that allowed her to navigate bureaucracies as an outsider and make normative change within those spaces.⁶ She described her activism as “keep[ing] one foot in with the institutions, and one foot out … that way you can move any way you want … so you’re not bought.”⁷ This strategy was effective, albeit at times, controversial.

From 1975 to 1978, the CCVA, with funding from the Playboy Foundation, developed a standardized evidence collection protocol, employing the help of Officer Louis R Vitullo. The prototype, the Vitullo® Kit, which would be a model for modern kits contained: protocol forms; microscopic slides and swabs for sperm detection; envelopes, boxes, and labels for collecting hair and trace evidence; and bags for clothing and evidence-holding bags. At the time, it was contentious for a victim advocacy group to accept money from the Playboy Foundation and the CCVA took a lot of “flack” from other women’s groups.⁸ But, Goddard viewed Playboy as less problematic than magazines like Penthouse and Hustler and was motivated to produce the kits. In the early years, less controversial fundraising options were closed. The CCVA could not obtain a credit line and the patriarchal philanthropy world was primarily interested in funding the Girl Scouts of America and the YWCA. With no alternative, the CCVA opted to put aside their “feelings for objectification of women in the magazine” and moved forward in the interest of improving medico-legal care and evidence collection.⁹ Margaret Standish, who ran the Playboy Foundation at the time, ordered the components for 10,000 kits. The Foundation set up folding tables at their office and provided sandwiches and coffee for a group of older men and women from the Retired and Senior Volunteer Program to assemble the first kits.

As the CCVA worked to materialize the kit, changes to local law created a facilitating context that would later help local hospitals and law enforcement prioritize evidence collection. In 1975, Chicago passed strict bipartisan municipal codes that, as mandated in the “Rape Victims Emergency Treatment Act” (Public Act 79-564),¹⁰ required victims to be forensically examined by a gynecologist (section 127-17.1), and offered emergency contraception and medication to protect against sexually transmitted infections (section 127-17.1). In 1976, the Illinois Department of Public Health issued the statewide “Guidelines for the Treatment of Sexual Assault Victims”, which provided minimum requirements for conducting evidence-gathering medical exams, including standards for how to properly cut clothing and obtain secretions for semen analysis. However, even with a legal mandate, hospital staff had trouble complying with requirements, furthering the perception that institutionalized training protocols were necessary.¹¹

To summarize, the choices of the CCVA to engage directly with law enforcement helped to prioritize the kit as a valuable site of therapeutic and evidentiary intervention. In the archival documents, the hospital is framed as a critical site of poor evidence collection that hindered the justice system’s ability to prosecute cases. The CCVA’s newly developed partnerships exposed the need for a standardized evidence collection process and changes in law created a crucial backdrop for circulating the kit.

The rapid innovation of medico-legal rape care through protocol feminism

The CCVA leveraged its close partnerships with the criminal justice system to rapidly institutionalize Vitullo® Kit protocols and gain support from key community actors—government officials, first responders, and hospital personnel. Structured engagement with hospitals and the criminal justice system, through protocol feminism, facilitated the accelerated adoption of kits in Illinois. Trademarked on 30 August 1978, Vitullo® Kits were first used just two weeks later, on 14 September 1978.¹² Hospitals that sent staff to attend the CCVA’s training on medico-legal victim care received a supply of kits. By the end of 1978, personnel from 72 hospitals had undergone training, and 26 Chicago-area hospital emergency rooms required the kits as part of their standard evidence procedure for rape victims.¹³ The four daylong seminars, moderated by CCVA staff, included interdisciplinary presenters on forensic practices and victim trauma. Seminar activities were designed to increase excitement around proper forensic evidence collection, while facilitation by CCVA staff centered the experiences of victims and educated attendees on the nuances of victim behavior using emerging scientific “rape crisis theories”. Attendees toured crime laboratories and listened to lectures by the chief serologist of the Illinois Department of Law Enforcement. Participants could witness firsthand how kits would be processed. Rape Victim Assistance Program coordinators for the Illinois Department of Public Health spoke on the emergency room treatment of victims and new legislation. Through the multi-level protocol training, the emphasis on collecting evidence through the Vitullo® Kit further stabilized the kit as the standard for effective victim care. The training also exposed medical staff and actors in the criminal justice system to contemporary victimology and forensic evidence collection practices:¹⁴

The first-level training included pre- and post-testing of attendees on rape topics; small group exercises and discussions on attitudes, feelings, and fears about dealing with victims; and the identification of positive and negative trends that can affect the incidence of rape and reporting.

Second-level training focused on the laws affecting hospital treatment of assault victims; medical protocol for emergency room treatment; evidence collection procedures; the roles of police, state’s attorney, and victim witnesses; and the legal process flow chart. This session also included a medical and legal quiz.

In the third session, the CCVA provided instruction on interview techniques, rape trauma syndrome, empathic listening, and role-playing interviews.

The final session focused on the special needs of children, teens, and older adults who experience assault, as well as on racial minorities and men who are victims. This session also included instruction on how to advocate as part of a team.

In 1976, when local law and policy mandated hospitals conduct forensic exams, the CCVA embarked on a statewide project to train personnel at 138 hospitals on Vitullo® Kit accompanying protocols. Just one year after the kit’s introduction, on 29 October 1979, the Chicago Police Department issued a training bulletin¹⁵ on rape investigations, specifying the use and criminological benefits of the Vitullo® Kit and new rape protocols. The bulletin aimed to: inform law enforcement about the physiological and physical trauma of assault; urge them to interview the victim only when she is “ready”; provide education on victims’ rights and privacy; outline procedures for conducting investigations; and emphasize the importance of the medico-legal exam. Most importantly, the bulletin educated law enforcement on basic medico-legal vocabulary, processes, and responsibilities:

The Vitullo Evidence Collection Kit is used at the hospital emergency room to collect evidence. However, the crime scene may also provide valuable evidence and it should be secured and processed […] Offer to take the victim to a hospital and encourage her to go there. Explain that it is very important for her to get proper medical treatment and to have physical evidence collected […] During the course of the emergency room treatment the physician will examine the patient, including the vaginal area, for possible evidence. Using the Vitullo Evidence Collection Kit, slides for the presence of semen, hair samples, stains and other material will be collected for analysis by the Criminalistics Division.

The bulletin frames the Vitullo® Kit as the only appropriate means for collecting evidence, further supporting its stabilization within law enforcement. However, it also situates law enforcement as managers of hospital staff, disciples of forensic evidence, and stakeholders in navigating victims through the criminal justice system. The bulletin dictates:

medical personnel are usually willing to help the police in the collection of evidence from the rape victim. The investigator should be prepared to answer any questions the hospital staff have about what material to collect and how to package it, e.g., use of the Vitullo Evidence Collection Kit.

These and other protocols naturalized the kit as a “truth-producing” technique. In the same month the police training bulletin was released, the CCVA issued a protocol for how advocates, law enforcement, or community members should receive rape victim calls. This protocol enrolls the interviewer to promote forensic evidence collection. After verifying and clarifying the victim’s immediate safety needs, the interviewer is coached to assert, “[l]et me say again how necessary it is for you to get medically checked. We need to make sure that we do not destroy any evidence.”¹⁶

In training community members and institutions to prioritize evidence, the CCVA mobilized a network that circulated messages about the significance of forensic evidence collection through the Vitullo® Kit. Between 26 February 1980 and 29 May 1980 alone, the CCVA trained 745 professionals in Illinois. Of those, 438 were hospital personnel, 134 were in law enforcement, and 173 were in social service fields.¹⁷ The training promoted the therapeutic and evidentiary benefits of the new medico-legal rape care protocols and became a traveling means to distribute Vitullo® Kits across networks. There was a remarkably rapid adoption of the kit in the urban Chicago area. Local laboratories processed 77% of the 6495 Vitullo® Kits distributed in Chicago between September 1978 and September 1980.¹⁸ Further away from the city-center, there was less fervor to use the kit. The suburban and downstate areas had significantly lower rates of rape kit processing. For the same period, only 11% of the 1489 distributed kits in suburban Cook County were processed, and just 5% of the 2338 distributed kits in downstate Illinois were processed.¹⁹

Although the Vitullo® Kit gained significant circulation throughout Illinois, maintaining institutionalization was an iterative effort. As evidence collection errors increased due to hospital staff turnover, protocol revisions were needed. Within a year and a half of the kit’s introduction, the CCVA crafted a recertification program.²⁰ CCVA documents show they continuously improved and updated the protocol training based on feedback from stakeholders, changes in law, and improvements in forensic practice. The CCVA also collaborated with the Chicago Hospital Council, an organization comprised of executive hospital personnel that coordinated and resolved issues across the city’s hospitals, to improve and further order medico-legal protocols. A 1980 memo from Goldie Lansky at the Chicago Hospital Council who worked closely with Goddard and Dr Erie from the beginning, reveals there was a top–down effort to institutionalize care protocols and minimize patients’ psychological stress during the medico-legal exam.²¹ These efforts included limiting the number of hospital staff who interacted with the patient and collecting legal evidence with the Vitullo® Kit—including using an improved checklist to gather consent; clarifying collection procedures; ensuring the labeling and sealing of evidence; and notifying police to pick up evidence kit and records. Lansky dictated hospital staff should inform victims about what is happening in the exam and whether a procedure is to “evaluate an injury, to protect her future health, or to collect legal evidence. [although] separation of the medical evaluation and the collection of legal evidence is impossible”. Lansky goes on to specify “some procedures are mandated by law […] while others are recommended to provide optimal medical care or provide evidence for a full and fair legal resolution of the assault”.²²

To help ensure hospital staff and law enforcement adhered to these efforts, the CCVA created the “Preferred Path of Emergency Room Care for Sexual Assault Victims” flowchart, which details 23 steps to center victims in the medico-legal exam.²³ This flowchart includes prompts to identify victims’ wishes about “pregnancy treatment” and contacting significant others, and then requires the staff member offer social and psychological services to attend to medical, physical, and emotional needs. The CCVA also made material improvement to the kit, such as with the adoption of air-dried swabs, and based on lessons learned with hospital staff, refined the kit’s configuration, written instructions, and procedures. Each iterative change to the Vitullo® Kit protocols required retraining hospital staff.²⁴

In sum, the CCVA ushered the institutionalization of the kit through a protocol feminism focused on the redesigning and distribution of technosocial practices to facilitate the care and forensic cultivation of the rape victim’s body. Through iterative training, the CCVA mobilized multisector stakeholders to champion evidence collection through the Vitullo® Kit. This effort helped to stabilize the kit as a relevant criminal justice technology. In urban areas, which had stronger laws supporting use of the kit, adoption and enthusiasm were higher than in rural Illinois. During this early era of the kit, the CCVA governed policy and protocol updates in attempts to control frictions between victim-centric care, the potentially insensitive practices of on-the-ground rape kit users, and evidence collection.

Private and public embrace of positivist criminology

Less than three months after Vitullo® Kits were first used in hospitals, legislators and government officials invoked positivist criminological discourses about the rape kit as a technoscientific way to produce victim and suspect identities. The kits were framed as the new paragon in prosecution, drawing on the discourse that technoscience could produce objective and undeniable truth. Notably, the CCVA’s emphasis on victim care is absent in both public and private communication on the kit. For example, a 1978 New York Times article described the kits as “innocuous-looking brown cardboard boxes […] that could be a powerful new weapon in the conviction of rapists in Illinois”.²⁵ And in describing the kit’s purpose, Sergeant Vitullo told reporters he “wanted to standardize and protect evidence so that guilt can be established beyond a reasonable doubt—we want to avoid the loss, contamination, or alteration of evidence” (Brodt, 1980). Similarly, Illinois State Attorney Bernard Carey proclaimed, “One of the most important factors in rape cases is corroborative physical evidence, which these kits are designed to provide. This evidence should raise the number of cases successfully prosecuted.”²⁶

Highlighting the appeal of standardization, Sergeant Rudy Nimocks of the Chicago Police Department’s homicide/sex division asserted officers were obtaining 25% more prosecutable evidence from emergency rooms using the kits (Brodt, 1980). Nimocks, who was a long-time CCVA ally, stressed: “[i]n addition to the kits being very practical, we find it impresses the jurors when you have a uniform set of criteria in the collection of evidence”. In communication to the CCVA, medical staff at St Mary’s Hospital in Centralia, Illinois, indicated “they love the kits” and noted how they improved standardization. Nursing staff at St Mary’s Hospital reported three cases in which pubic hairs of the offender, collected with the kits, led to convictions.²⁷ Newspaper coverage of the Vitullo® Kit suggests that the kits were well received by medical staff. Dr Marshall Segal, a Chicago emergency room doctor, reported to the New York Times in 1978 that the Vitullo® Kit was “a great advance, since it standardizes medical and nursing procedure”. Segal went on to distinguish the kit from other available kits that, unlike the Vitullo® Kit, “have not been standardized by a whole community working together—the hospitals, the police, and the patients”. Similarly, Dr Harold A Jayne of the Illinois Masonic Medical Center reported, “[i]n the past, we have had our own system of collecting evidence. This is far simpler and easier to use. It is good for the simplest to the most complex case.” ²⁸ One complaint was voiced by Mercy Hospital nursing supervisor Barbara Stroden, who contested the kit’s adoption, indicating, “[i]t requires 20 minutes of paperwork, which is a lot … when the emergency room is busy”.²⁹

Private CCVA records indicate other pockets of resistance to the new forensic care protocols, especially outside the Chicago area. However, similar to Barbara Stroden’s concern, the resistance centered on a refusal to adhere to collection procedures and constituted epistemological friction, rather than representing an explicit rejection of positivist criminology. These issues tended to appear in downstate and rural Illinois. CCVA notes cite the following example in Granite City,

The police and the lab people have tried to tell [hospital staff] what to do, but both have a hard time getting them to do better. The police even sent a memo saying pluck hairs, don’t cut them. Sometimes even the social worker tries to get them to pluck.³⁰

CCVA records indicate similar problems in East St Louis:

In spite of the practice the hospital gets from their high volume of victims, most of the kits have many errors. The lab has only been called to court to testify on two cases in three years because most cases don’t get that far.³¹

In downstate Illinois, a representative of the Illinois Department of Children and Family Services in Champaign contacted the CCVA, concerned that Paxton Community Hospital was not using Vitullo® Kits. When pressed about adopting the kits, the Director of Nursing at Paxton Community Hospital indicated that they transferred victims 32 miles away to the Carle Foundation Hospital because Paxton staff “do not deal with slides and smears”. Similarly, the emergency room supervisor at St John’s Hospital in Springfield explained the hospital had a “policy against routinely taking specimens from the mouth, anus, and vagina of sexual assault victims” and that doctors there refused to take specimens because of “personal discomfort”.³²

Soon after the Vitullo® Kits institutionalized in Illinois, the CCVA received inquiries from other states about adopting the kit.³³ By 1983 the CCVA contracted production of the kits to Becton Dickinson, a medical technology company, to professionalize manufacturing.³⁴ Over seven years, the CCVA had trained 6500 members of law enforcement, hospital staff, and prosecutors.³⁵ Viewing their mission as “accomplished”, the CCVA voluntarily shuttered in 1983.³⁶ Goddard moved on to other victim advocacy projects—first focusing on Illinois’s backlog of crime victims’ compensation cases—and the Vitullo® Kit trademark lapsed in 1988. Various medical and forensic supply companies began producing generic rape kits. By 1987, almost a dozen manufacturers were producing rape kits, and hospitals outside of Illinois and New York had adopted their use (Farrell, 1987).

In Massachusetts, the perceived importance of forensic evidence collection in corroborating victim accounts was echoed by legislators who were positivist about the promise of technoscience to materialize evidence. In 1987, according to newspaper accounts, Massachusetts Representative Joseph K Mackey proclaimed, “[i]mproved blood grouping also allows a doctor to determine and testify on the amount of time that has passed between penetration and the victim’s arrival at the hospital”. Similarly, Representative Susan C Tucker (D-Andover) declared, “[t]he standardized rape kit will prove to be extremely important as a legal back-up for women” (Farrell, 1987: 46). Emphasizing the kit’s potential to challenge gendered beliefs about assault, Karolyn LeClaire, of the Massachusetts Department of Public Safety’s crime laboratory, argued that rape kits were valuable in supporting narratives, “especially in acquaintance rape … if the victim says the man pulled her hair, then pulled head hairs on her clothing will corroborate her story” (Farrell, 1987).

Discussion: Stabilizing the Vitullo® Kit in the criminal justice system

While it is undeniable the rape kit can serve as a source of secondary victimization for rape victims (Corrigan, 2013a; Mulla, 2014), the Vitullo® Kit is a remarkable feminist intervention in the criminal justice system. It was conceived, developed, and circulated by grassroots feminists in response to the infusion of rape myths into medico-legal practices and to the development of special evidentiary rules for sexual assault cases. However, the perceived utility of this intervention came grounded in positivism—that is, the belief science can disclose an objective reality and that social order is something knowable and reducible to the laws of nature. In this case, victim advocates strategically embraced positivism through protocols to secure evidence for the criminal justice system and produce seemingly objective knowledge about victims’ sexual assaults. This knowledge could then be used to assist in legal decision making.

As a protocol intervention, the kits were meant to simultaneously reform victim care and support consistent production of forensic evidence through process intervention. Kit proponents viewed the rigid methods of preserving and processing evidence offered material substantiation for sexual violence claims—substituting the reliability of the scientific process for the perceived unreliability of victims’ voices. In other words, the Vitullo® Kit was explicitly crafted as what Andrea Quinlan (2017) describes as a technoscientific witness of rape. As the kits were grounded in technoscience, they were widely viewed as an effective means to counter the cultural and legal barriers faced by victims attempting to prosecute their cases. Across interest groups, the consistent belief technoscience could resolve problems in prosecution speaks to the perceived power of positivism and its ability to produce reliable knowledge.

As a citizen-driven regulatory intervention, the Vitullo® Kit draws attention to the role of “publics” in re-imagining legal and scientific expertise. Feminist advocates were effective in mobilizing support for the kit through local legislators, politicians, and journalists. Yet, use of the name “Vitullo Evidence Collection Kit” rather than “CCVA Evidence Collection Kit”, or even “Rape Evidence Collection Kit” is noteworthy. As neither Vitullo nor the CCVA profited from the kits, it is plausible, and perhaps quite likely, the namesake attribution occurred in homage to Vitullo’s contribution and constituted positive partnership management from the CCVA’s perspective, especially as they sought to “keep one foot in the door” with the criminal justice system. Yet the name is also a reminder of how entanglements of law and technoscience generate social patterns that mobilize and silence particular interests.

Importantly, the Vitullo® Kit intervention was not aimed at transforming the entire medico-legal nexus, but regulating one oppressive practice. This narrow focus on evidence collection provides an important limitation in the Vitullo® Kit’s ability to revolutionize the broad and persistent problematic practices surrounding legal responses to sexual violence. While the Vitullo® Kit protocols sought to standardize medico-legal care and render sexual violence visible through forensic evidence production, it did so within the discursive bounds of dominant rape mythologies. In other words, the rape kit protocol stabilized within the messy and multidirectional network of techniques, cultures, and law that co-produce knowledge about sexual violence. Consequently, the long-term effects of its adoption in producing power/knowledge have also been messy and multidirectional.

The Vitullo® Kit offered clear therapeutic and evidentiary benefits in a particular moment. Yet, a rape kit does not necessarily restore power to victims. Given the hundreds of thousands of backlogged kits and unknown number of forgotten or lost kits, one could argue the rape kit has maintained some status quo power dynamics between rape victims and the criminal justice system. One small but salient example of this dynamic is that victims who undergo medico-legal examination have exceptionally limited rights to information about their kits. At the time of this writing, few states have laws that mandate a victim has a right to information on the status of their kit. In the words of Marty Goddard, “it isn’t the victims’ justice system”.³⁷ Fortunately, systems of governance and regulation are mutable.

Questions about how rape kits perpetuate power are relevant to the evidential-therapeutic tensions of other forensic technologies. In an investigation into the controversies surrounding use of the colposcope in rape investigations, Gethin Rees (2015) examined conflicts between proponents who saw the forensic potential of the magnifying technology and critics who viewed it as a mode to further harm and objectify victims’ bodies. Like the colposcope, the rape kit exposes the complications of introducing a technology into an existing sociolegal apparatus. Technologies can be co-opted. Their effects can be multiple and competing. The legal system may interpret knowledge in unanticipated ways. In short, there are many opportunities for the victim-centric affordances of a particular technology to be compromised in practice. These issues are magnified as interventions are scaled to the state, national, and international levels—each of which comprise an increasingly complex and multi-layered constellation of sociolegal onto-epistemologies.

Conclusion

This research sheds new light on the neglected contributions of the Citizens Committee for Victim Assistance in developing the Vitullo® Kit and contributes scholarly insights into the rape kit as a form of criminological positivism and protocol feminism. In this article, I uncovered the social conditions that led to the development of the kit and examined which discourses were mobilized in its creation. The perceived reliability and objectivity of the technoscientific kit were believed to counter sexual violence stereotypes embedded in the criminal justice system. As technoscience increasingly shapes cultural understandings and responses to sexual assault, more analysis on how these discourses interact to shape the use of the rape kit is needed. Investigations should especially focus on issues of rape kit governance and regulation, for example, regarding the rape kit backlog, victims’ rights, and due process.

Following Sheila Brown’s (2006) call for a criminology of hybrids, insights from feminist STS and criminology may help examine applied practices at the intersection of sexual violence, technology, and law—especially in leveraging analyses to construct pathways out of traditional, patriarchal forensic practices and further interrogate the intersections of crime and science in ways that avoid essentialist and androcentric frames. For example, STS may help feminist criminology think through some of the political concerns it has identified in its interventionist commitments, such as recognizing intersectionality, history, and context (Cook and Bessant, 1997; Daly, 2010); recognizing and addressing the ways in which gendered discourses shape experiences of and labeling of crime (Salter, 2016; Young, 1996); and minimizing secondary victimization (Carmody and Carrington, 2000; Jordan, 2001). Here, feminist criminology can help STS in contributing directly to on-the-ground, justice-oriented projects connected to public policy and activism, and effecting desired and necessary change within the criminological technosocial system.

Footnotes

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

ORCID iD

Renee Shelby

Author Biography

Renee Shelby is a PhD candidate in the School of History and Sociology at the Georgia Institute of Technology, USA. Her research is situated at the intersection of feminist science studies and feminist criminology, with a particular focus on sexual violence, materiality, and law.

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