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VOL. 129 | NO. 61 | Friday, March 28, 2014

Second Rape Kit Lawsuit Names More Officials

By Bill Dries

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The second federal lawsuit since December over the Memphis Police Department’s backlog of 12,000 untested rape kits casts a wider net of defendants than the first lawsuit, including the current and former Memphis police directors and the current and former district attorneys general.

And like the first lawsuit, it seeks more information as part of the discovery process in court about how the backlog came to exist over a 25- to 30-year period.

YBOS

The lawsuit filed Wednesday, March 26, by attorneys for Meaghan Ybos, Madison Graves and Rachel Johnson is focused on a distinct part of what could become a sprawling legal narrative of victims – named and unnamed – and a common allegation that the backlog was a policy, whether written or unwritten, formal or informal.

It alleges the city “did not have an effective inventorying system for the rape kits it processed, nor was there any effective inter-departmental communication as to the prioritization of certain kits that it prepared and as to certain rape cases being investigated.”

“There was no effective organization of rape kits taken by, received by and turned over by the Memphis Sexual Assault Resource Center,” the lawsuit continues. “Further there was no system for storage of rape kits and this failure exposed said kits to ruination.”

Ybos, Graves and Johnson were each allegedly raped by Anthony Alliano during a string of rapes in the Cordova area over a decade.

The lawsuit names as defendants the city of Memphis and Shelby County government, the Shelby County Rape Crisis Center, Memphis Sexual Assault Resource Center, former District Attorney General Bill Gibbons, current District Attorney General Amy Weirich, former Memphis police director Larry Godwin, current police director Toney Armstrong, and Alliano.

All three plaintiffs are identified by name in the court filing, which is a public record.

Alliano pleaded guilty to eight rapes and is currently trying to take back his guilty plea.

The lawsuit contends not testing the rape kits was an “institutional practice” of the city and county institutions, including the Memphis Police Department and the district attorney general’s office.

“The actions of malfeasance alleged herein to be made by the city, county and its agents were by or at the direction and ratification of persons with final policy making authority,” reads the lawsuit filed by attorneys Paul Forrest Craig and Daniel O. Lofton. “The actions of malfeasance and nonfeasance broadly alleged herein were taken so routinely as to create a custom which has the force of law.”

The lawsuit seeks compensatory damages for all three women, arguing the failure to test the rape kits and investigate the complaints constitutes negligence, a violation of due process guarantees and the equal protection clause of the U.S. Constitution.

The overall claim does not set a specific dollar amount.

Each of the women alleges 10 separate counts of violations by the defendants, including a claim of breach of contract and detrimental reliance. The claim alleges that when the women agreed to let investigators obtain body fluids for the rape kits, there was “the express promise that the materials attained would be properly tested.”

The same claim and others in the Wednesday filing are included in the amended lawsuit filed in the U.S. District Court for the Western District of Tennessee in December by a woman identified only as Jane Doe, who, like Ybos, Graves and Johnson, was raped, with investigators later using a sexual assault kit to gather body fluids for an investigation.

The amended lawsuit filed earlier this month specifically alleges that Godwin knew rape kits were not being tested and publicly denied there was any backlog.

Attorneys for the city of Memphis have filed a motion to dismiss the Jane Doe lawsuit, arguing, in part, there is no right or requirement that police test every rape kit they take.

The position in the court filings comes as Memphis Mayor A C Wharton Jr. has said outside court that the city’s goal is to clear the backlog with testing and to ensure that every rape kit taken going forward is tested.

The city’s position in the first lawsuit also questions Jane Doe’s version of the investigation into her rape and how it was conducted.

Since the first lawsuit was filed, Armstrong has repeatedly declined comment when asked by reporters or Memphis City Council members about how the rape kit backlog came to exist. Starting late last year, Armstrong told council members he didn’t know. Now he is saying he can’t comment on those points because the matter is in court.

Armstrong’s monthly updates to the council on the backlog began with questions, but no answers, about its origins. Now the focus is exclusively on steps his department is taking going forward to address the backlog.

Wharton appointed former U.S. Attorney Veronica Coleman-Davis to investigate the origins of the backlog for the city after the lawsuit was filed. She has said her investigation will include talking with police officials.

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