‘Proving’ rape is hard. Denialism makes it impossible

Lux nightmare
December 30, 2023

In the wake of Oct. 7, as reports of brutal sexual assault by terrorists who infiltrated Southern Israel first began to emerge, it was common to hear demands for proof. Where were the rape kits, the survivor testimonies, the autopsies? If Hamas’ attack involved systemic sexual abuse, then where was the evidence?

Nearly three months later, an extensive investigation by The New York Times has provided exactly that. Thanks to video footage, photographs, GPS data from mobile phones and interviews with more than 150 people, including witnesses, medical personnel, soldiers and rape counselors, the Times pieced together a harrowing a picture of the brutal sexual violence that unfolded across the Gaza Envelope that day.

While I’m glad the investigative team took the time to document these accounts, I’m also troubled by the continued emphasis on proof and documentation — not just for these particular victims and survivors, but for victims of sexual violence across the globe.

Collecting evidence of rape isn’t simple

Even under the best of circumstances, “proving” sexual assault is a tricky business.

As a certified rape crisis counselor who’s been present in the hospital for numerous post-sexual assault exams, I’m intimately familiar with the challenges of obtaining forensic evidence, and know exactly how complicated the task taken on by the Times must have been.

Experts recommend that rape kit exams be performed as soon as possible, and definitely within 96 hours of the assault. Survivors are advised to refrain from showering, eating, drinking, changing clothes or even going to the bathroom, as all of these activities run the risk of erasing crucial evidence from the body.

Unsurprisingly, these aren’t particularly realistic asks to make of the victims of Oct. 7, most of whom are dead.

While television shows like Law & Order: SVU make rape kits look like effortless collection of irrefutable proof, the truth is quite a bit more complicated. Rape kits are little more than a collection of swabs, vials and documentation of the various injuries accumulated during an assault. A rape kit can provide DNA samples that link a perpetrator to a survivor, and evidence of injuries that appear consistent with a sexual assault. But it’s not uncommon for survivors to emerge from a rape kit examination with no usable evidence collected at all. And if evidence is obtained, whether or not that proves a rape occurred is often in the eye of the beholder.

In the case of Oct. 7, a number of the injuries documented — including mutilated genitals and broken pelvises — are inarguably the result of severe abuse. But not every sexual assault leaves behind such gruesome evidence.

Many of the challenges that have frustrated anyone hoping to get a clearer picture — bodies that were buried before forensic evidence could be collected, examiners who worried that documenting evidence of sexual assault might break protocol, further violate or disrespect the dead, and survivors who are still too traumatized to openly speak about what they endured — are inherent challenges of many sexual assault forensic examinations.

But a sexual assault that was not forensically documented is no less painful or traumatic. And the final moments in the lives of the Oct. 7 victims who were buried before anyone could collect semen samples or inspect their genitals for injury were no less horrific simply because no one managed to create a public record of their experiences of abuse.

It is understandable that many of us feel attached to the idea of forensic documentation of sexual assault. There’s a comfort in having concrete evidence of sexual abuse. Rape kits promise to help us make sense of senseless violence.

And yet there’s a danger in putting too much stock in our collective ability to document and “prove” sexual violence. The tighter we cling to semen samples and horrific photos and vicious injuries, the more we isolate and alienate the victims and survivors who lack concrete documentation of their pain.

And in the case of Oct. 7 specifically, an obsessive focus on the particulars of how victims were violated seems to miss the larger point. Imagine for a moment that the overwhelming evidence attesting to sexual violence did not exist. Is a violent massacre somehow less horrific if no sexual violence occurred? Would Hamas’ actions be more forgivable if corpses had been desecrated in a non-sexual fashion?

Personally, I don’t think so — and I worry that the collective obsession with demanding documentation for sexual crimes in particular can blind us to the full scale of the horror that occurred — and the care that traumatized people across Israel and in Gaza desperately need right now, regardless of their ability to provide “proof” of their suffering.

Sexual assault is a brutal and traumatic violation, whether it occurs in the familiar confines of your own bed or amid the chaotic horror of a terrorist attack. It does not conform to logic or rules, and it can leave no physical trace just as easily as it can permanently scar a person’s body.

Supporting victims and survivors requires us to accept the uncomfortable reality that for every sexual assault we successfully document, there are countless others that will never be formally recorded.

That does not make them any less real. That does not make them any less tragic.