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VOL. 129 | NO. 166 | Tuesday, August 26, 2014

Rape Kit Backlog Prompts Court Fight on Two Fronts

By Bill Dries

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The court fight over the city’s backlog of untested rape kits has two legal fronts with the filing this week of a Circuit Court lawsuit by Meaghan Ybos, Madison Graves and Rachel Johnson, the three rape survivors who filed suit earlier this year in U.S. District Court against Memphis and Shelby County over the backlog.

One of the two federal court lawsuits over the city and county rape kit backlogs has been refiled in Circuit Court following a move to dismiss the lawsuit in federal court by attorneys for the three women who filed the suit earlier this year.

(Daily News File/Lance Murphey)

The federal civil lawsuit, filed in March by Ybos, Graves and Johnson, was dismissed a week ago by U.S. District Judge John Fowlkes on a motion by attorneys for the women.

The dismissal does not affect a Jane Doe lawsuit also filed earlier this year in federal court as an equal protection Constitutional claim. That lawsuit is still pending before Fowlkes, who has directed that discovery in that case will continue.

The state civil lawsuit, filed Monday, Aug. 25, repeats many of the claims made in the original federal lawsuit but does not include the claims that the rape kit backlog violates the equal protection clause of the U.S. Constitution and other federal constitutional claims.

In the filing by attorneys Daniel O. Lofton and Paul Forrest Craig, they note that if the Circuit Court lawsuit included claims that the civil rights of the three women were violated, city and county governments could claim traditional sovereign governmental immunity under state law.

“This would deprive all individuals described herein from being allowed to pursue their claims for negligent infliction of emotional distress; it would leave them without remedy,” the lawsuit reads.

It claims that word of the backlog a year ago caused them and other women pain and “severe emotional disturbance which in many cases resulted in objectively verifiable physical manifestation.”

“This was in most cases an aggravation of or a renewal of a pre-existing emotional and psychological condition which originated with the underlying sexual assault,” the lawsuit reads. “However, this aggravation is of the utmost seriousness and has affected a multitude of women across the city and county, all of whom may appear, verify these emotional claims and present as members of the instant class upon certification of the same.”

The new lawsuit is based on the state’s Governmental Tort Liabilities Act and alleges the city and county “had prior notice of the reckless, willful and wanton actions of their employees and agents, but took no steps to train them, correct abuses or authority or discourage the irresponsible use of authority.”

It seeks class-action status for all rape victims, including the three women, who submitted sexual assault kits and then learned in late 2013 the city of Memphis had a backlog of more than 12,000 untested rape kits. The lawsuit claims a renewal of emotional injuries from the rapes with the disclosure of the backlog, which Memphis Police Director Toney Armstrong initially estimated at 2,000 and then revised to 12,000.

“The city and county have admitted that their collective mismanagement of the DNA evidence has led to the destruction of numerous kits due to spoilation,” the Circuit Court lawsuit reads. “This evidence is irreplaceable. This lost evidence substantially impedes the conviction of rapists and serial rapists and the exoneration of others wrongfully convicted or accused of the same.”

Attorneys for the city and county had moved for dismissal of the federal lawsuit soon after it was filed, claiming Graves and Johnson did not have legal standing because the city and county claimed their rape kits were tested and processed soon after they were assaulted.

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