Because The Government Blew It

In what may be one of the most bizarre gaps of logic offered as if it makes any sense at all, Amanda Marcotte at Slate’s XX Factor contends that the statute of limitations for rape should be eliminated.

State Sen. Wendy Davis, the Democratic candidate for Texas governor who rose to national fame last year by spearheading a fight against a draconian abortion bill, held a press conference Wednesday to highlight her ideas on how to fight sexual assault. Talking about her legislative efforts to process the estimated backlog of 16,000 untested rape kits in the state, Davis said she wanted to take the solution a step further. She proposed lifting the statute of limitations for sexual assault entirely, in no small part to make sure that rapists don’t escape justice just because a rape kit lingered untested for so long that the window for prosecution closed.

Texas has a ten-year statute of limitations for rape, already substantially longer than most states, but that’s not good enough.  After all, they have a backlog of untested rape kits, and can’t possibly get to them within ten years.

One solution, of course, would be for the state to test the friggin kits timely.  You know, do the job right?  But no, that would cost money. That would be hard on the state. Doing things right is not a solution that brings a smile to politicians faces, as it suggests they are doing things wrong, which suggests they suck at running government. That would never do.

Masters’ case is just as much about evolving technology as it is about the bureaucratic backlog of unprocessed rape kits, but with 16,000 untested kits to go through, the concern that some rapists will go free just because no one bothered to process the kits in time is a very serious one.

Feminists are not big fans of Blackstone’s ratio.  At least not when it comes to one of their sacred cow crimes.  Drugs? Different. Murder? Who cares. But rape? Let no rapist go free. None. And throw a few who aren’t rapists in there for good measure. Even if they didn’t rape, they’re men, so no doubt they did something to deserve to be imprisoned.  Regardless, they are perfectly happy to suffer some collateral damage in the war against men, because rape culture.

Obviously, in an ideal world, rape kits would be processed quickly, and no rape cases would sit around unsolved for 10 or 20 years because of bureaucratic morass. But as the Cleveland example shows, that is exactly what has been happening. Lifting or at least extending the statute of limitations is a necessary fix to deal with a problem that has been going on for far too long.

The internal references to Marcotte’s post are to the anecdotal stories invariably relied upon to juice up the emotions of her readers. They are as tuned into their feelings as they are disdainful of reason.

So there is a bureaucratic morass, and the solution is the evisceration of defendants’ rights. Not merely helpful to forfeit the statute of limitations on the altar of government incompetence, but necessary.  The worse the incompetence, the more necessary “to deal with a problem that has been going on for far too long.”  But now, it’s important. And now, it comes at the expense of defendants. Cool story, Amanda.

I searched Marcotte’s post carefully for an explanation of why statutes of limitations matter, and it was nowhere to be found.  Some will understand that they exist to give the accused due process, the ability to find evidence and witnesses to challenge the accusation of a moment in time a decade earlier.  Others will see it as another legal technicality that lets rapists go free.

There is strong sympathy for the accusers, rape victims, bolstered by a well-organized feminist machine.  Sure, they share liberal concerns for the rights of the accused, except when it involves women, when suddenly all concern for rights disappears like magic. There is no advocacy group for accused rapists to counter the hype.

The organized criminal defense bar is deeply conflicted on matters like this. While it may well appreciate the constitutional dimensions of statutes of limitations, it also shares the sympathy toward feminist issues, as liberalism runs deep within the group.  The response, if any, will be tepid at best.  After all, it’s hard to pick between sacred cow beliefs.

Those who think that such crazy, outlier notions as the evisceration of constitutional rights, statutes of limitations, are so insanely disconnected from the failure of government to do its job in a timely and competent manner, could never be adopted by rational people, are failing to see the trend.  Nobody seems capable or willing to give any of this deep thought, when there is a Menckian solution in the offing.

After all, it’s hard to make the government do its job properly, and it’s counterproductive to offend the very government officials one needs to accomplish the only outcome that really matters: convicting every person accused of rape.  It’s so much easier to just eliminate the statute of limitations.  And there is nobody pointing out that this is both irrational and fundamentally wrong. Almost nobody.

26 thoughts on “Because The Government Blew It

  1. lawrence kaplan

    SHG is in favor of rape
    He wants all rapists to escape
    Why does he go on about all that trivial legal stuff
    They’re men accused rape–isn’t that enough?
    So let’s eliminate the statute of limitations
    And leave a proud legacy to future generations.
    “Verdict first, sentence afterward”
    Lewcarrol would really be proud

  2. lawrence kaplan

    I hit the button too early. My last two lines should be:

    “Sentence first, verdict afterward”– We read it with a smile.
    But now it’s justice–feminist style.

  3. Gloria Wolk

    Dan asked why you like rapists so much. I would like to refer him to, and ask him to read the many stories of people wrongly sent to prison for rape (sometimes murder, as well) and later exonerated. Not all “Registered Sex Offenders” are guilty–Brian Banks is a glaring example of a young man whose life was nearly ruined by false charges. Seven years later the girl admitted she lied. Her lie cost Banks’ mother her home and car (for legal fees) and cost the mother and son enormous stress and grief and lost opportunities.

    As a female, the mother of two daughters and grandmother of three girls, I certainly want to prevent rape and have rapists severely punished. But I also worry about my son and my four grandsons, and the possibility of false accusations that could destroy their lives as much as it destroys victims of rape.

  4. Richard G. Kopf


    Cattle rustling and horse thievery is up 40 percent in Texas and Oklahoma according to MOSE BUCHELE of State Impact. Over 10,000 cows and horses were reported missing or stolen in 2013. Given her quest for justice by proposing the abolition of the statute of limitation for rape, Ms. Wendy should get with the real problem and abolish the statute of limitations for cattle and horse thieves. While she is at it, she ought to reinstate to the death penalty for stealing these critters.

    Don’t mess with Texas. Or is it hook ’em horns. I am so confused.

    All the best.


    1. SHG Post author

      [Trigger warning: Beastiality joke ahead; could cause trauma to those who, I dunno, like animals a bit too much?]

      I haven’t lost any of my cattle yet, but if I do, you can bet I’ll demand they test the rape kit immediately.

      [No cattle were harmed in the making of this comment.]

      1. Jack

        I am absolutely appalled! Have no decency? I am entitled to a lawfully adequate trigger warning for your extremely offensive “trigger warning”. How dare you utter that dirty “B” word? Don’t you know “inter-species erotica” is the only proper term for sensual man-ugulate love? You can’t just hurt my feelings like that, this is America!

        And your so-called “free speech” and “first amendment” aren’t going to save you this time – I called my attorney and he ensures me that you are libel for such offending words. He told me quote “you are going to need to bring a first-aid kit”, ostensibly for the seven figure damages I am going to collect for the severe trauma dealt to my feefees!

  5. Bartleby the Scrivener

    To say this is insane would be rude to the insane. This is mind bogglingly wrong.

    No, ma’am. The problem is not with the rights of the accused. The failing is on YOUR part. Do your job correctly, and the statute of limitations won’t be an issue. Your pathetic arguments can be offered as justification for removing the statute of limitations for ANY crime, and they fall flat there as well.

    So, no…this is not the proper solution. Do your job, do it correctly, and don’t try to violate the rights of others if you fail.

  6. lawrence kaplan

    Bartleby: “Do your job correctly.” You really expect them to do their job correctly?! Now it is you who is being insane.

  7. sorrykb

    I’m a liberal and a feminist, and I think this idea is beyond terrible. The clear and proper solution would be to test the kits in a timely manner.

    And seriously, does Texas really need to make its criminal justice system even worse? Hasn’t it accomplished enough already?

    1. ShelbyC

      It’s not even clear that all the kits should be tested. It’s probably not a good use of scarce resource to test, for example, kits where the assailant is known and had plead, or cases that are no longer being perused for other means.

  8. Fubar


    Nobody seems capable or willing to give any of this deep thought, when there is a Menckian solution in the offing.

    To add perhaps one nanometer of depth to whatever thought Marcotte, Davis et al. might have given to this misbegotten proposal, it’s obvious that the “problem” they seek to “solve” is entirely a budget and spending matter: the monetary cost of processing some number of rape kits.

    The actual issue is not, repeat not, whether the rape defendant indicated by rape kit DNA can be immediately further identified, found or arrested, but merely whether a DNA profile exists, thereby providing some measure of proof of some person’s identity. Indictment of DNA profiles alone, with no further identity of a defendant, is not unheard of.

    Subject to the body of case law on stale indictments I won’t go into here, it’s fair to say that the “problem” Marcotte, Davis et al. cite is trivially solved by merely spending more money. More money means more DNA profiles; more profiles means more indictments.

    But convincing a legislature to spend more money is much harder than convincing a legislature to eviscerate the rights of every citizen. One costs money up front. The other doesn’t.

    The unfortunate fact is that the proposal has some prospect for traction among two extreme and usually opposed political camps: crazy “lawn order” conservatives, and crazy soi disant feminists.

    There ain’t no limerick for that.

    1. John Barleycorn

      it hurts law and order

      to think

      that feminism thinks law and order is hurting feminism

      by (law and order) being hurt

      to think

      that feminism thinks law and order is hurting feminism

      by making feminism feel guilty

      at hurting law and order

      by (feminism) thinking

      that law and order is hurting feminism

      by (law and order) being hurt

      to think that feminism thinks law and order is hurting feminism

      by the fact that

      da capo sine fine

      *Slightly modified and thoroughly plagiarized to incorporate a nightmare Fubar was having when he suffered from writers block after reading R.D. Laing and went to bed without supper.

  9. ExCop-LawStudent

    This is grandstanding by Davis. If there is DNA evidence, there is no limitation in Texas.

    “Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:
    (1) no limitation:
    (C) sexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained;
    Tex. Crim. Proc. Code Ann. art. 12.01 (Vernon).

    There is also no limit on prosecuting sexual assault of a child, indecency with a child, etc.

    Since the only way a rape kit is going to really ID the offender is DNA, this is just grandstanding on her part, probably because she’s so far behind in the polls.

    1. ShelbyC

      But the exception requires DNA testing to occur, right? It can’t just be sitting there waiting to be tested.

      (And that’s an odd exception, it doesn’t seem to require that the DNA be used in the trial…)

    2. RKTlaw

      Your reading of the statute you cited is, at best, curious. The portion you cite appears to contemplate a situation where the DNA has been tested, the alleged victim has been excluded, but there is not a match at that time. It is probably in place for a possible CODIS hit down the line. So, no, what Davis is proposing does not appear to be already covered by Texas law. That being said, it’s a bad idea for the reasons SHG articulated.

      1. ExCop-LawStudent

        I should have been more clear.

        Yes, I am aware that it is not exactly what Davis proposed, what I am saying is that for all practical purposes, after 10 years, only a CODIS hit is going to result in a prosecution. The practical effect is nil, because even at departments that have the resources to investigate cold cases, there is not much likelihood that the department will go after sexual assault cases that do not have DNA.

        I am saying is that Davis is proposing this because she’s between 8-17 points behind in the race (dependent on what poll you use). Texas, over the years have gone from a 3-year SOL to 5, then 10, and now 10/none (with DNA).

        There appears to be only one case on the issue in Texas, Bailey v. State, 11-11-00020-CR, 2013 WL 398943 (Tex. App.—Eastland Jan. 31, 2013, no pet.) (not designated for publication), from a 1999 sexual assault of an 88-year old woman. Apparently Bailey was identified as a suspect early on, but was not prosecuted until after there was a DNA hit in 2006 (after the victim died). He was convicted in 2010. The appeal was to quash the indictment due to delay, but the COA affirmed, mentioning twice that there was no limitation in this case due to the DNA testing.

        The CODIS hit was what spurred the police to reopen the case. Otherwise it was a dead case, not likely to be prosecuted even though they had identified the suspect. I don’t see a prosecution happening with non-DNA cases, even if Davis gets the change she wants. It’s not needed and it is a bad idea.

  10. Jay

    > The organized criminal defense bar is deeply conflicted on matters like this. While it may well appreciate the constitutional dimensions of statutes of limitations, it also shares the sympathy toward feminist issues, as liberalism runs deep within the group. The response, if any, will be tepid at best. After all, it’s hard to pick between sacred cow beliefs.

    Cynically, there is another reason, not mentioned, why criminal defense lawyers would look favorably on removal of statute of limitations.

    It’s the same reason why family court lawyers so often oppose family court reforms.

    1. SHG Post author

      No criminal defense lawyer is in favor of eliminating statutes of limitations to get more business. Contrary to the lunatic fringe, that’s not how it works.

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