By Jennifer Timmons, Safeworld Field Partners Manager & Editor
In New York City, where the rape kit backlog has been eliminated, its arrest rate for rape jumped from 40% to 70%.
But, in other regions, thousands of rape kit results remain waiting to be analysed.
A rape kit is referred to by medical personnel as sexual assault evidence collection kit, sexual assault forensic evidence (SAFE) kit, Sexual offense evidence collection (SOEC) kit, Physical Evidence Recovery Kit (PERK), or simply, sexual assault kit (SAK), is a set of items used by medical personnel for gathering and preserving physical evidence following an allegation of sexual assault which can be used in a rape investigation.
In the 1970s, a Chicago police sargeant named Louis Vitullo developed a method by which to collect and analyze evidence in sexual assault cases; this was first called the Vitullo kit
During a forensic medical exam, a sexual assault evidence collection kit may or may not be used. The evidence kit affords the opportunity to collect any DNA that may have been left by the perpetrator. The kit is filled with tools that may be used by the examiner for evidence collection during the forensic medical exam.
The contents of a rape kit varies across states and even within states, but generally may include:
• Instructions, Bags and sheets for evidence collection • Swabs for collecting fluids from the lips, cheeks, thighs, vagina, anus, and buttocks • Blood collection devices • Comb used to collect hair and fiber from the victim’s body • Clear glass slides • Envelopes for preserving the victim’s clothes, head hair, pubic hair, and blood samples • Nail pick for scraping debris from beneath the nails • White sheets to catch physical evidence stripped from the body • Documentation forms • Labels.
“When victims go through a three-hour-plus rape-kit exam, they expect police to use the evidence to catch the rapist.” Kym Worthy, Wayne County Prosecutor, Detroit, Michigan
Four to five hundred thousand. That is the estimated number of untested rape kits sitting in police evidence storage facilities and crime labs across the United States, according to Human Rights Watch, federal government experts, and countless advocates in many fields working to solve the problem of the nation's backlog of untested rape kits – all 400,000 to 500,000 of them.
While the numbers are estimates, they are nonetheless staggering when considering how many women are waiting – often years, for their rape kits to be analyzed.
Non-governmental organisations (NGOs) and media investigative reports have found rape kits in many jurisdictions nationwide, including:
In New York City, where the rape kit backlog has been eliminated, its arrest rate for rape jumped from 40% to 70%. Testing its backlog resulted in over 200 prosecutions of cold cases.
The national arrest rate for rape stands at 24%, according to the FBI and Human Rights Watch (HRW). This is the same rate from 30 years ago.
Analyzing the DNA evidence in a rape kit can help identify an unknown perpetrator, confirm the presence of a known assailant, corroborate the victim's account of the rape, and exonerate innocent defendants, says Endthebacklog.com. Testing also works to move more cases through the system.
And help bring justice and healing to the survivor of sexual assault. But not before a victim endures potentially more trauma on top of the crime that was already committed.
“It’s very difficult to talk about what rape feels like at exactly the moment it happens or is going to happen, because words rarely cut it....my body just shut down, too paralyzed to move. My mind went some place else – like I was watching this happen to someone else.
“Someone who presses charges for rape has to go through a humiliating medical exam, long questioning sessions by police and the district attorney to see if there is a case, and a session to explain to family members that they were raped. I felt too ashamed to endure this and felt nobody would believe me, which ended up being very true.” Natalie, 34, Nevada
A victim's body becomes part of the crime scene when rape has been committed.
The victim – from here on referred to as a survivor, has the option after a sexual assault to go to the hospital to have a forensic examination by a trained professional – a physician, or Sexual Assault Nurse Examiner (SANE), or a forensic examiner who has received specialized training.
Rape crisis centers, advocates, and health professionals recommend that those who've been sexually assaulted, go to an emergency room as soon as possible to collect evidence, even if the survivor decides not to report the crime, or later decides not to pursue prosecution.
The Cleveland Rape Crisis Center recommends:
"...Going to an emergency room with a specially trained Sexual Assault Nurse Examiner (SANE) as soon as possible, but especially within 96 hours of the assault.
Remember that you can choose later that you do not wish to report to law enforcement or continue with prosecution, even if you have had a medical/forensic exam. Remember to always ask questions if you do not understand and that you can REFUSE any part of the exam if you so choose.”
A forensic examination is painstakingly detailed, may typically take up to three or more hours, and further subjects already traumatized sexual assault survivors to feeling more vulnerable by exposing their bodies to invasive testing for samples by strangers, albeit medical professionals.
The medical forensic exam will most likely begin with the examiner obtaining a complete and thorough medical history from the victim. The exam also involves a head-to-toe physical examination, which includes the genital area.
This may also include:
Once the examination is completed and all specimens are collected, they are carefully packaged and stored to assure that they are not contaminated. Trained professionals are able to maintain chain of custody to assure that the evidence can be used in court.
"Women go to the hospital and their bodies are a crime scene and treated as such. For these kits then to just to sit in a laboratory or in police vaults or wherever they sit, denies victims of sexual assault any opportunity for justice. I just wonder how many more there are?" Carol Bart, 52, of Texas, speaking to the Associated Press on her experience of having to wait 24 years before her rape kit was finally tested.
Unlike waiting for results from a lab from a medical work-up, sexual assault survivors will not get their results from submitting themselves to a rape kit medical exam within days.
Maybe months. More likely, years. If at all.
Hence, the overwhelming backlog of untested rape kits.
Hundreds of thousands. Nationwide.
How did this happen?
According to Endthebacklog.com, an effort created by the Joyful Heart Foundation to shine a light on the existence of the rape kit backlog across the United States:
“Sexual assault evidence kits were collected from victims starting in the 1970s, but DNA testing was not regularly used as evidence until the mid-1990s, after significant advancements in DNA technology. This means that very few rape kits collected before the 1990s would have been tested for DNA, although they may have been analyzed to determine the perpetrator's blood type.
“Thus, ever since rape kit evidence collection exams have existed, there were likely untested rape kits sitting in police storage facilities according to common practice of the time and due to a lack of testing technology. Still, in recent audits of rape kit backlogs, investigators found untested rape kits not just from old cases, but also from new cases that occurred well after DNA evidence technology advances made such evidence valuable.”
But what about today?
A number of reasons are given by law enforcement as to why so many rape kits languish in police storage facilities or crime labs.
For one, whether or not a kit is tested in the many jurisdictions where there is no law or policy that mandates the testing of all collected rape kits, is based on the discretion of police or prosecutors, says Endthebacklog.com.
Lack of resouces necessary for testing the kits as well as lack of personnel, are both a reason why law enforcement may not request a rape kit and why kits can sit for months and, in some cases, years, before being tested.
Also, the policies for handling rape kits vary across many police departments, even among cities within the same state.
A five-month investigation by CBS News (2010) found a staggering number of rape kits across the country that had been sent to crime labs for testing. A sampling:
Birmingham, Alabama: According to the Birmingham Police Department, there were at least 2,100 rape kits in storage, but the department did not know if they were tested or untested.
Oakland, California: Oakland Police Department did a "hard census" of their untested kits in storage and found 489 untested kits from "solvable" stranger rapes that they realized they should have tested – but never did.
These kits dated back to 2003. Ten in 2003, 108 in 2004, 102 in 2005, 90 in 2006, 69 in 2007, 69 in 2008, and 42 in 2009, according to the Oakland Police Department Crime Lab.
Why were the kits never tested?
"It was not a priority for the Oakland Police Department," said Lt. Kevin Wiley of the Oakland PD's Special Victims Unit. Wiley said back in 2002 and 2003, the department had only four to six sex crimes investigators who were overwhelmed by individual caseloads of 659 cases per investigator. Recommended caseload for a sex crimes investigator is 10 to 15.
Also, due to the backlog in sex crimes investigations it was not unusual for a victim to report a rape and not hear from an investigator for a full year. As of 2010, Wiley said his investigators were down to about 55 to 70 cases per investigator.
Indianpolis, Indiana: According to the Indianapolis Metropolitan Police Department, there were currently 1,356 rape kits in storage, but the department did not know which kits were tested and which were untested.
Sergeant Paul Thompson of the Indianapolis Metropolitan Police Department told CBS in an email, "The kits would not be tested if the victim did not report the incident or chose not to pursue prosecution or cooperate in the investigation." Kits are destroyed if the responsible officer says they can be destroyed, he added.
Albuquerque, New Mexico: At the Albuquerque Police Department lab there were 1,116 rape kits from active cases that have not been tested that are up to nine years old.
These kits had not been tested for the following reasons, according to department spokesman Paul Feist: the suspect pled guilty and the kit wasn't needed, charges were dropped, or the victim changed her mind and did not want to prosecute.The statute of limitations for rape in New Mexico is nine years. After nine years the department can destroy the rape kits.
Cincinnati, Columbus, and Cleveland, Ohio: The Cincinnati Police Department had 1,248 rape kits in storage, but did not know if they were tested or untested.
The Columbus Police Department did not know how many untested kits it had in storage. The Cleveland Police Department also did not know how many untested kits it had in storage and sent all of its DNA requests to the state lab.
“Carrie was a high school student in 2008 when she was raped in an alleyway by her home in northern Illinois. The man was a family friend of her father’s, but someone she barely knew.
“Immediately after the rape, Carrie went to the local hospital to have her body examined for a rape kit.
“When police came to the hospital to interview Carrie, they indicated that they previously picked up the individual in question—for sexually assaulting the teenage daughter of a family friend. The police took Carrie’s rape kit with them when they left the hospital, and Carrie assumed it was tested.
“After that night in the hospital, Carrie did not hear back from the police. She called once a day, then once a month. Six months after her rape Carrie finally received a call back from the prosecutor who reviewed her case. The prosecutor told her she was keeping the case open, but 'didn’t have any evidence to move it forward'.
“Carrie inquired about the results of her rape kit, and was informed that it had not been tested because her case 'would not be a strong candidate for prosecution'.
“When she asked the prosecutor’s office why, she was told that 'It is too hard to prove that what happened to you was rape. You may think its rape, but it’s your word against his.'”
– “I Used to Think the Law Would Protect Me”, HRW, July 2010
There are many reasons – or perhaps, excuses, given by law enforcement for the overwhelming number of untested rape kits.
But is there something more? Something the public doesn't see beyond the headlines?
The Department of Justice's Office on Violence Against Women hosted a roundtable to discuss how to eliminate the backlog of rape kits – with emphasis on a survivor-center approach, in Washington, D.C., in May 2010.
Survivor advocates, law enforcement officers, sexual assault nurse examiners (SANEs), prosecutors, and forensic analysts each presented challenges they face daily.
Sexual assault nurse examiners (SANEs):
* For example, according to a National Institute of Justice (NIJ) report, although the police and sheriff's departments in Los Angeles County use the same rape kit, the rest of California does not. This can affect consistent collection and processing procedures. [The NIJ is an agency of the U.S. Department of Justice.]
Furthermore, says NIJ, collecting consistent and high-quality evidence can be a particular problem in non- urban jurisdictions. Nine hundred of the 1,350 rape crisis centers in the U.S. are in rural areas, where turnover among hospital and clinic staff is high.
Many people in rural America, including Indian Country, do not know how to obtain or use a rape kit, and they have no access to a sexual assault nurse examiner (SANE).
Local and state law enforcement agencies, and crime laboratories:
Advocates for survivors:
Importantly, participants discussed if and how survivor advocates – who support survivors and connect them to community resources before, during, and after an investigation – could be involved in notifying victims if a case is reopened or a CODIS hit is obtained.
In sharing their diverse perspectives, these experts contributed to a more thorough awareness of the backlog, and shed light on current efforts to reduce the backlog, and explored potential solutions to the problem.
A National Institute of Justice (NIJ) report on untested rape kits reported that there may be legitimate reasons why some of the recently discovered unanalyzed SAKs (sexual assault kits/rape kits) were not sent to a lab.
Not all evidence collected in an alleged sexual assault is going to be probative – to persuade one of the truth in an allegation, the report states.
In cases where "consent" is an issue – in which the suspect admits sexual contact, but maintains it was consensual, detectives may consider that the rape kit does not add any important information to the investigation. Evidence also may not be sent to a lab for analysis if charges against the alleged perpetrator have been dropped or the suspect has pled guilty.
The report also states that one of the primary reasons the the massive backlog of rape kits is that the tracking and counting of rape kits is an antiquated process in many U.S. Jurisdictions.
Also, a recent survey that NIJ conducted reveals four in 10 of the nation's law enforcement agencies – 43 percent, do not have a computerized system for tracking forensic evidence, either in their inventory or after it is sent to the crime lab.
In that survey of law enforcement forensic testing processing, 44 percent of the law enforcement agencies said that one of the reasons they did not send evidence to the lab was that a suspect had not been identified. Fifteen percent said that they did not submit evidence because analysis had not been requested by a prosecutor.
Those findings indicated that some law enforcement agencies may not fully understand the potential value of forensic evidence in developing new leads in a criminal investigation, the NIJ found.
It can't be emphasized enough: the arrest rape for rape remains unchanged since the 1970s, at 24 %.
This is what Human Rights Watch (HRW) reports in their book, The Unfinished Revolution: Voices from the Global Fight for Women's Rights.
Sarah Tofte, who has studied rape kit pile-ups for HRW, writes in the The Daily Beast that, “Only in the last 40 years have laws and systems been put in place to prohibit a victim’s prior sexual activity from being entered into evidence, to eliminate the requirement that there be a corroborating witness to a rape, and to create procedures to collect physical evidence from victims.”
Now, police and prosecutors are extensively trained in how to move cases forward, and sexual-assault investigative and prosecutorial units are common in most major cities.
Yet despite these efforts, the number of reported rapes that lead to an arrests – much less a conviction, remains intractably small, Toft writes. In 2010 the arrest rate for rape was 24 percent, which was exactly what it was in the late 1970s, when the FBI first began tracking such data.
Thus, so many rape cases in this country don’t just remain unresolved, they remain uninvestigated.
This is all the more unimaginable when one considers data from the Centers for Disease Control and Prevention (CDC)'sNational Intimate Partner and Sexual Violence Survey (NISVS) that reports:
“On average, 24 people per minute are victims of rape, physical violence, or stalking by an intimate partner in the United States, based on a survey conducted in 2010. Over the course of a year, that equals more than 12 million women and men.
“Those numbers only tell part of the story—more than one million women are raped in a year and over six million women and men are victims of stalking in a year. These findings emphasize that sexual violence, stalking, and intimate partner violence are important and widespread public health problems in the United States.”
It's the proverbial elephant in the room for rape survivor advocates when it comes to tackling the problem of untested rape kits: stranger rape versus so-called acquaintance rape.
The NIJ reports that over the years, biases may have affected the decision to not send sexual assault evidence to the lab if, for example, the victim was a prostituted woman, a drug abuser or was mentally ill.
Although few would dispute the existence of a bias in the criminal justice system – a higher priority placed on arresting a stranger who attacks an unknown person than on a college student who rapes an intoxicated date – this distinction is disturbing to some survivor advocates, NIJ says, who argue that every rape is a stranger rape: to a victim, some say, an acquaintance becomes a "stranger" when he rapes her.
Many survivor advocates also maintain that not aggressively pursuing acquaintance rape may mean that other sexual assaults are not prevented – that same college student, they say, may continue assaulting women.
As representatives from the Los Angeles Police Department (LAPD) shared at the time of the roundtable in Washington D.C. mentioned above, acquaintance rapes received lower priority in processing rape kits.
Sarah Tofte, reporting for The Daily Beast, writes that most reported rapes are perpetrated by someone the victim knows, and law enforcement operate on the misguided assumption that these so-called acquaintance-rape cases are too hard to prove or are false reports by victims motivated to harm the accused.
Consequently, these “non-stranger” rape cases often languish after they are reported, and, even when they do move forward, law-enforcement officers see no need to test a rape kit in the case, since they already know who the suspect is.
She points out: “This approach to non-stranger rape cases ignores the reality of sexual violence and rape-kit testing—government studies show that very few victims give false reports of rape; research has found that non-stranger assailants are the most likely to be repeat offenders; and rape-kit testing can provide investigative information in all kinds of rape cases, including non-stranger cases.”
Testing ALL kits would go a long way toward eliminating biases would reveal potential connections between stranger rapes and acquaintance rapes, many advocates have told NIJ.
Advocates of testing of all rape kit cases also point out that uploading all profiles into CODIS – the FBI's Combined DNA Index System, may link crimes that otherwise would not have been linked.
Morever, advocates stress that is it is important to note that increased training and education may help officials and survivors in varous cultures – including some American Indian tribes, where there are cultural taboos concerning a sexual assault examination.
Rape-kit testing will not solve all rape cases, but it has the ability to move more of them forward, Tofte emphasized. She reports that national studies have shown that cases in which a rape kit was collected, tested, and contained DNA evidence of the offender’s contact with a victim were significantly more likely to move forward in the criminal-justice system than cases in which there was no rape kit collected.
When older rape kits are discovered, jurisdictions face the dilemma of considering what their testing policy will be if statute of limitations (SOL) in a case has passed.
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated.
If a case cannot be prosecuted because the deadline for filing has passed, is it a wise use of resources to have the rape kit evidence tested?
The answer is not as obvious as it may seem, says the National Institute of Justice (NIJ).
Some proponents of testing all rape kits argue that, even if a case cannot be prosecuted – or the victim does not want to move forward – the evidence should nonetheless be tested to determine if the rapist might have committed other rapes. Evidence of prior, unresolved sexual assaults may also be considered in the sentencing of a rapist.
Others argue that cases should be pursued – even if the SOL has passed, as a way to provide some resolution to the victims.
Much of that will depend on availability of resources.
Notifying survivors during the process of testing rape kits is a complex issue for all involved, yet crucial toward helping to bring justice to them.
Questions about protocol have arisen for many working through the backlog of rape kits. They include:
In the National Institute of Justice (NIJ)'s report on untested rape kits, experts noted that there are many factors that can complicate the process of moving through the investigation of a rape case.
For example, a survivor, now 38 years-old, never told her husband or 15-year-old daughter about the rape; what if she has had years of counseling and moved on? Beyond simply being notified at one step or another in the criminal justice process, does the victim get a say – or not – in whether her case moves from the police evidence room to the lab, from the prosecutor's office to the courtroom?
Not all victims want to enter the criminal justice process, experts told NIJ.
For some, the primary concern after being raped is medical care: testing for HIV, STDs and pregnancy, or receiving mental health care.
Survivor advocates estimate that perhaps half of the victims of a long-ago rape would want to be told that evidence had been found in their case; they would want to be told the results of DNA analysis and be a part of any prosecution. The other half, they say, would just want to continue on with their lives.
Even finding survivors may not be easy, experts told NIJ, because many survivors of sexual violence try to distance themselves from the crime – including moving away from where the crime occurred.
Survivor safety is a top priority for everyone.
Advocates warn that a victim of a long-ago rape could be currently living in a domestic violence situation and that contact by the police could act as a trigger for violence by her current partner.
They also note that a victim who is suddenly told that the unsolved crime may now be investigated, including DNA analysis of the rape kit, may suddenly feel in greater danger from the person who raped her.
Kellie Greene, founder of SOAR (Speaking Out About Rape), a rape survivor advocacy organization – and a rape survivor herself, had worked with a woman in Texas whose rapist was identified through DNA only after the statute of limitations had expired in her case. Her only option now -- the only way she can help keep her rapist off the street -- is to testify at his annual parole hearing, which means that, every year, she must relive the rape. She told NIJ:
“There are real people behind every one of the sexual assault kits that remain untested. It will be difficult for each one, regardless if they welcome a renewed investigation or have tried to forget and move on in their lives, perhaps never telling their family of the assault.
“As we move forward in solving the problem of untested evidence in sexual assault cases, I believe it is crucial that our criminal justice system be mindful of the unique issues these survivors will face.”
“The message to victims is when someone sexually assaults them, their body becomes a crime scene and they are submitting to a very invasive exam – and the state frankly ought to pay for it. … It’s forensic evidence."
- Jill Karofsky, head of the Wisconsin Department of Justice’s Office of Crime Victim Services, speaking to the Post-Crescent.
A rape kit can cost upwards of $1,200.
Since 2009, under the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA), states must certify that they do not “Require a victim of sexual assault to participate in the criminal justice system or cooperate with law enforcement in order to be provided with a forensic medical exam, reimbursement for charges incurred on account of such an exam, or both.”
Under this law, a state must ensure that victims have access to an exam free of charge or with a full reimbursement – even if the victim decides not to cooperate with law enforcement investigators, explains the Rape, Abuse, and Incest National Network (RAINN). Previously, states were required to ensure access to exams free of charge, but could put conditions on the exam, such as cooperating with law enforcement officials.
Unfortunately, rape survivors have still been charged for the kit in some places across the country, even up through 2012, thus enduring yet another traumatic event: getting a bill in the mail for the costs of their rape kit.
Hospitals in northeastern Wisconsin have for years charged sexual assault victims as much as $1,200 for the cost of their examinations and rape kits, according to a report by the Post-Crescent newspaper. This, despite the availability of government funds to cover the cost of sexual assault examinations and rape kits, many hospitals were sending the bill to victims.
Besides the rape kit tests, rape survivors may have been charged for other expenses, such as a pregnancy test, antibiotics, and medical supplies, which can bring the total bill to $1,200 or more.
Hospitals in the ThedaCare system in Wisconsin used to absorb the cost for years as part of their charity care, said a program coordinator at Appleton Medical Center. After a change to comply with the health system’s billing rules, some victims last year were forced to pay the costs themselves.
Now, says head of the Wisconsin Department of Justice’s Office of Crime Victim Services Jill Karofsky, the state government recently began working with hospitals to educate them on how to properly use government funds so that rape victims wouldn’t be charged for examinations.
A ProPublica report discovered that even states that abide by VAWA can take advantage of its loopholes, leaving victims without the full protections that lawmakers intended.
Illinois requires hospitals to bill forensic exams to a victim's insurance company, although the state covers exams for the poor and uninsured, as well as co-pays and deductibles for everyone else.
Maryland law leaves the billing issue open to interpretation, because it doesn't explicitly prevent hospitals from billing insurance companies. Although VAWA clearly intended that states or local authorities pay for exams, both Illinois' and Maryland's policies comply with the law.
VAWA also does not require states to cover non-forensic medical expenses, including ambulance rides, emergency room stays or treatment for injuries sustained during the assault, reported ProPublica.
Jennifer Pollitt-Hill, former executive director of the Maryland Coalition Against Sexual Assault, which helped implement the new VAWA requirements, told ProPublica that while these states are technically compliant with VAWA, they are dodging the spirit of the law:
"States are settling for the letter of the law rather than doing what's best for victims," she said.
Human Rights Watch (HRW) has reported that poorly drafted state laws and bureaucratic bungling mean that too many rape victims across the country are pressed to pay, or arrange payment for, the cost of their rape kits:
“For example, Oklahoma's law caps compensation for rape victims at $450. This covers barely one-third of the estimated cost of collecting a rape kit in that state. Maine's law caps compensation at $500.The laws in North Dakota, Oregon, and the District of Columbia allow the victim to seek compensation for any cost she incurs for the collection of her rape kit.
“This means that the victim may first have to pay the bill herself, and then apply for compensation. In Montana, the victim is supposed to be compensated as long as the victim compensation fund does not run out and as long as she cooperates with the investigation.”
On the other hand, states – like Texas, have laws that appear adequate, but can be poorly executed. Texas's statute seems clear: law enforcement must pay the cost of a rape kit. In practice, the payment process is far from simple, HRW reported.
ProPublica also noted that Texas authorities pay for an exam only if the suvivor reports her attack within four days — a time limit that could exclude some victims and viable evidence, experts say.
"VAWA doesn't address how long victims have to get their exam, so technically Texas is complying with the law.
In February 2009, HRW spoke with a rape victim in Texas who received a notice from the hospital that the police had paid $700 toward the cost of the exam, leaving her responsible for the remaining $800. She didn't know about the victim compensation fund, and made two payments of $50 each before a survivor's advocate helped her to apply to the fund, which eventually paid the remainder.
This particular survivor told Human Rights Watch, "I don't understand why they had to involve me at all. Why couldn't [the victim compensation fund] and the police and the hospital have worked it out on their own? The payment of my rape kit seemed like a big hassle."
RAINN recommends that if survivors plan to apply for their state's victim compensation fund, they will generally first have to report their attack to police to be eligible; they can contact their local rape crisis center to learn about the rules in their state.
Many state and local crime laboratories face significant challenges in in hiring and retaining staff. Some forensic scientists leave to pursue careers at federal laboratories, in the private sector, or at other state and local labs that pay more, according to NIJ's report on eliminating the backlog of rape kits.
The challenge of ensuring a sufficient, well-trained staff in the crime lab also extends to funding sources. Georgia Board of Investigation (GBI) officials noted that 17 of the 32 employees at headquarters are paid from federal grants administered by the National Institute of Justice (NIJ).
Although federal grants are extremely useful, state and local officials point out that funding analyst positions from non-guaranteed grants makes it difficult to plan for the future, says NIJ.
In a 2007 NIJ-funded survey of 148 public labs, nearly 90 percent said that they would not have sufficient funding to continue operations without federal grants and were falling behind in casework and not keeping up with new technologies.
These findings emphasize the importance for state and local jurisdictions to engage in fiscal planning that allows them to sustain strong crime lab operations, concludes NIJ.
“If rape victims are willing to come forward, they need to know they’re being taken seriously.”
– Kym Worthy, Wayne County Prosecutor, Detroit Michigan
Kym Worthy, Wayne County Prosecutor in Detroit, Michigan, has been fiercely working to tackle her city's rape kit backlog ever since a colleague of hers stumbled upon more than 11,000 rape kits piled up in a dusty, Detroit police warehouse in 2009.
She was outraged.
“There were no police reports attached to the kits,” she says, explaining that her colleagues “literally had to dust them off” and “physically go through and open them to get the name of the victim, the date that it happened.” she told The Daily Beast.
She has been fighting to get the kits logged, tested for DNA, and then entered into the national DNA database, known as CODIS.
Last year, Kym Worthy applied for and received one of two first-time ever $1 million dollar federal grants (the other went to the city of Houston, Texas) from the National Institute of Justice (NIJ), which helped to cover a review of all 11,303 of the city’s kits, but not tests of all the kits.
The Wayne County Prosecutor plans to use the results of the study to establish a blueprint for other cities.
To date, she has identified 21 serial rapists. A notable accomplishment, considering the daunting challenges she faces. On her office's website, she writes:
“My staff of over 180 assistant prosecuting attorneys, 24 investigators, and 70 clerical and non lawyers support staff prosecute over 52% of all felony cases in Michigan.
“Forbes Magazine recently named Detroit as the most violent city in America. Our office is one of the 10th largest by case load in America, and yet our staff is miniscule compared to offices like Los Angeles who enjoy a staff of over 2,200, or even Philadelphia, who employ over 600 people.”
“DNA testing is a powerful law enforcement resource – a smart on crime tool that we’re using in cutting edge ways in California...Public safety is too important not to embrace innovation and adopt technology where needed. Crime scene evidence is too important to sit unanalyzed for months, while the victims await justice.” – Kamala D. Harris, California Attorney General
In January 2012, California Attorney General Kamala D. Harris announced that the California Department of Justice had cleared a backlog that slowed the analysis of DNA crime scene evidence – and would now be able to perform routine analysis within 30 days, down from an average of 90 to 120 days.
Attorney General Harris made DNA testing a priority in 2011, because of the direct link between timely investigations and successful prosecutions, according to her office's website. Along with committing resources and encouraging Department of Justice (DOJ) labs to improve their procedures, the attorney general introduced new technology that dramatically increased the speed with which cases are analyzed.
Using robotics, an extraction method in sexual assault evidence analysis that once took two days – now takes just two hours.
As a result of these efficiencies, state forensic analysts - for the first time ever - eliminated the backlog of untested evidence. In 2011, the Department’s Bureau of Forensic Services analyzed 5,400 evidence samples – an increase of 11 percent from 2010 (4,800) and 24 percent from 2009 (4,100). The Bureau serves 47 of California’s 58 counties.
Her office says that as part of the DNA analysis, evidence samples are run through the CAL-DNA Data Bank, which contains the DNA profiles of 1.8 million offenders and arrestees in California, as well as crime scene evidence.
It is the largest working DNA data bank in the United States and the fourth largest in the world.
On a city level, Los Angeles Mayor Antonio Villaraigosa announced in 2011 the elimination of the city's backlog of 6,132 untested sexual assault evidence kits, or "rape kits," collected through December 2008.
In 2009, Los Angeles County had the largest known rape kit backlog in the United States. At that time, some 12,000 rape kits-which potentially contained DNA and other evidence collected from rape victims' bodies and clothes immediately after the crime-were sitting in police storage facilities in the Los Angeles Police Department (LAPD), the Los Angeles County Sheriff's Department, and 47 independent police departments in Los Angeles County, according to Human Rights Watch (HRW) The city of Los Angeles held 6,132 of the untested kits counted in 2009, which it refers to as its pre-December 2008 "historical backlog."
As of April 27, 2011, the city reported that it has reduced that backlog to zero. The uploading of DNA samples from the newly tested rape kits has so far yielded 753 hits in the FBI's national DNA database CODIS.
HRW reports that questions remain as to whether the LAPD will be able to avoid a subsequent backlog, especially in light of budgetary woes in Los Angeles and throughout the state of California.
In October 2012, California Governor Jerry Brown returned Assembly Bill 322 (AB322) to the California State Assembly without his signature.
AB 322 would have have established a two-and-a-half-year pilot program to test all rape kits in 10 California counties that make arrests in fewer than 12% of reported forcible rapes.
According to Endthebacklog.com, much like the laws recently passed in Illinois (2010) and Texas (2011), the bill would originally have required all jurisdictions to report on the number of untested rape kits in their storage facilities on an annual basis and to test all kits in a timely manner if sufficient resources are available, but was later amended to limiting the counting and processing of rape kits to a pilot program in the 10 counties with the lowest arrest rates for sexual assault.
Governor Brown explained his decision to veto the bill:
“I don’t see why we would mandate counties to participate in a program they don’t want, especially when the state is cutting back on so many programs that are needed and wanted. Local officials are in the best position to determine whether to participate in such a program.”
Statewide, Proposition 34 was on on the California ballot for election year 2012.
Under Proposition 34 – or the SAFE California Initiative, which stands for "Savings, Accountability and Full Enforcement," prisoners already on death row would be sentenced to life in prison without the possibility of parole.
Amy Goodman of Democracy Now! reports that as California faces a budget crisis, independent analysts estimate that getting rid of the death penalty could save California taxpayers $130 million annually. Supporters of the measure note some of the money would be used to resolve outstanding rape and murder cases.
One of those supporters is former warden of San Quentin State Prison, Jeanne Woodford:
“The Proposition 34 does three simple things. It takes the existing law and crosses out death penalty and leaves life without possibility of parole as the harshest punishment in California. It sets aside $100 million in total to be spent over three-and-a-half years for the sole purpose of solving the 46 percent of homicides and the 56 percent of reported rapes that go unsolved each year on average in the state of California.
“And finally, it requires that all inmates serving life without possibility of parole work and pay restitution into the Victims Compensation Fund.”
Unfortunately, California's rape survivors will still have to hold out hope for justice to arrive: voters rejected Proposition 34 on November 6, 2012.
"This bill will give victims of sexual assault some peace of mind, knowing that these evidence kits will not just sit on a shelf collecting dust," – State Senator Wendy Davis, Forth Worth, Texas
In September 2011, Governor Rick Perry signed into law Senate Bill 1636 (SB1636), which would require law enforcement to submit rape kits for DNA testing.
SB 1636, authored by state Sen. Wendy Davis, D (Democrat)-Fort Worth, would require a police department to submit a rape kit to a crime lab within at least 30 days of determining that a sexual assault has occurred. DNA analysis would have to be done no later than 90 days after the sexual assault was reported.
After testing, the Texas Department of Public Safety would compare the DNA profile to those already in databases maintained by the state and the FBI. To the extent that funding is available, the bill also requires testing of untested rape kits in active cases since 1996, according the Texas Tribune.
Initially, an $11 million price tag on the rape kit bill generated concerns among lawmakers and law enforcement officials. Davis, however, changed the measure to require testing only when funding is available and ensure that no new money would be required; thus, the governor signed into law a “lighter” version of her bill.
SB 1636 requires even the smallest law enforcement agencies to report how many rape kits they’ve left untested, then submit them to a crime lab, reports The Texas Observer.
Unfortunately, the Texas Legislature passed the bill without allocating new funding to the cause.
It’s up to crime labs and police departments to raise money to test the old evidence.
Torie Camp, deputy director of the Texas Association Against Sexual Assault, told The Texas Observer that, “One of the solutions offered by 1636 is that we’d get a complete picture.” Law enforcement agencies were required to report their rape kit backlogs to the Department of Public Safety (DPS) by mid-October 2010, but they've been slow to respond, if at all.
Before the law passed, it drew opposition from some police officials who said there’s no reason to test all the old kits. It’s expensive, crime labs are swamped, and in many cases, victims already know the person who raped them, the officials said.
That's not quite the attitude that would be welcome among rape survivors and their advocates. As The Texas Observer's Patrick Michels notes,
“For a victim who’s just been raped, having their lips, cheeks, vagina or anus swabbed for evidence is no small ordeal—they do it because they believe it will help bring their rapist to justice.”
“I learned a lesson when I found out that the police had closed my case without even interviewing [the rapist], or testing the rape kit. I learned that you cannot trust that the justice system will bring hope to you or bring your rapist to jail. You cannot hope that what went wrong will be righted.“ — Justine, Springfield, IL, June 23, 2007, HRW
An in-depth Human Rights Watch (HRW) report on the rape kit backlog in Illinois revealed a patchwork of chaotic and under-resourced law enforcement responses to rape victims, showed a distinct lack of uniformity across Illinois in how rape kits were processed and tracked, revealed nsufficient hospital personnel and facilities to help victims of sexual assault, subjective decisions by police and prosecutors about whether to move forward with a case, and discovered testing delays at the state crime laboratory, which all contributed to the problem of the state's rape kit backlog.
Thankfully, on July 6, 2010, Governor Pat Quinn signed into law Senate Bill 3269 (SB 3269) the Assault Evidence Submission Act, which made Illinois the first state in the country to require law enforcement officials to track and send rape kit evidence to labs for DNA testing within 10 days of collection from the hospital.
SB 3269 would also require law enforcement agencies to provide the Illinois State Police with an inventory of all untested kits in their possession. Once the Illinois State Police have received these inventories, the bill would require that by Feb. 15, 2011, the Illinois State Police must submit to the Governor, Attorney General and General Assembly a plan for analyzing the inventory evidence, including a timeline for completion of the analysis.
Illinois Attorney General Lisa Madigan, who helped craft SB 3269, said on her website:
“Leaving evidence that is so painstakingly collected sitting untested on police departments’ shelves sends a horrible message to survivors of these violent crimes. This legislation will overhaul the analysis process and help to restore victims’ faith that the justice system will work to ensure their cases are prosecuted and their offenders put behind bars.”
Previously, the first Illinois law, the Sexual Assault Survivors Emergency Treatment Act of 2004, mandated that rape kits collected by Illinois state and local police on or after January 1, 2005, and sent to the Illinois State Police for testing, were required to be tested by the Illinois State Police (ISP) crime laboratory within one year. It also required the testing of every kit sent to the crime laboratory before January 1, 2005, within two years of the law’s enactment.
However, provisions were vague and confusing as to whether they required every rape kit collected by law enforcement be sent to the crime lab for testing, according to HRW.
But even with the second, improved law, lack of funding for testing remains a source of concern: the law includes a provision that testing of every kit within the time frame specified will only occur if sufficient staffing and resources are available.
As of January 1, 2011, Governor Pat Quinn also signed the Illinois House of Representatives Bill 5976 (HR 5976) which addresses victims' confidentiality rights and the timely processing of rape kit evidence.
In 2001, New York City adopted a policy of testing every rape kit booked into evidence, after discovering a backlog of 16,000 kits in 1999.
As of 2009, the tested kits have resulted in at least 2,000 cold hits (when the DNA profile from the rape kit matched a DNA profile from a separate crime scene or offender in a local, state, or national DNA databank), as well as 200 active investigations, arrests, or prosecutions, according to many sources, says The Daily Beast.
The New York Police Department (NYPD) has seen its arrest rate for rape increase dramatically, from 40 percent to 70 percent of reported cases, and there are increased numbers of prosecutions and convictions for rape, since the rape kit testing backlog was completed in 2003.
This feat garnered national recognition as best practice. Among those who noticed was Illinois Attorney General Lisa Madigan, who expects similar results:
“In Illinois, we expect similar results. More investigations will proceed, prosecution rates will increase, and victims and their attackers each will receive the justice they deserve. Victims of rape have been traumatized enough. The criminal justice system must offer them hope and closure rather than callous disregard.”
Good news came for rape survivors and their advocates in New York City early in 2012, when the city council announced the restoration of $730,000 in critical funding to the Office of the Chief Medical Examiner (OCME) that will preserve 12 positions in forensic biology and evidence.
The council's restoration enables the OCME to continue supporting current DNA caseloads, which would have otherwise begun to experience a backlog of untested cases and potentially dangerous and unacceptable delay of results.
On March 3, 1989, Debbie Smith's life was rudely interrupted.
A man wearing a ski mask entered her Williamsburg, Virginia, home and threatened her with a gun, dragged her into the woods, blindfolded her, and raped her repeatedly over the next hour, while her husband, a police officer, was sleeping upstairs.
She participated in the collection of DNA evidence for a rape kit, but it was not formally tested and entered into a national database until 1994.
On July 24, 1995, a DNA technician identified Debbie's attacker as Norman Jimmerson, while analyzing various DNA records. Jimmerson, then serving time for abducting and robbing two women in 1989, was sentenced to 161 years in prison under Virginia's Three Strikes Law.
A bill, The Debbie Smith Act (see details in section below) was passed in Congress in 2004, and provides United States federal government grants to eligible states and units of local government to conduct DNA analyses of backlogged DNA samples collected from victims of crimes and criminal offenders.
Debbie has generously shared her perspective on the rate kit backlog with Safeworld.
What were your thoughts when you went through the exam? Did you expect justice to come soon, your rapist to be identified and caught?
“Going through the rape kit exam was extremely difficult.
“My only thought throughout the exam was that this may be the only way to catch this man and prevent him from claiming future victims. Because of my experience at the hospital, I am a huge advocate for sexual assualt nurse examiners. This one-on-one process can make an unbearable situation a little easier.
“The rape kit exam at its best is demoralizing under this traumatic situation, but these trained forensic nurses help to make the victim calmer, allowing her to focus on the questions being asked. I did expect faster results because I did not understand the process. It would have been helpful to have had that type of info.”
As a rape survivor, what do you think are the biggest factors that are holding back progress in getting rape kits analyzed? Lack of resources is a recurring "theme" in various state efforts, but I wonder how you feel about the backlog situation: do you sense a negative perception of rape survivors? An attitude of "let's not talk about this"?
“Resources are a problem in getting these kits off the shelves. Even when the money is available there is a staffing issue. It takes a great deal of time to train someone to do this type of testing. The DNA testing results is also a victim of its own success...causing more backlogs.
“Yes, there is a negative perception of rape victims. We must not only prove the rapist's guilt, but our innocence as well.
“Rape is an uncomfortable topic because it makes us face our own vulnerability. If we can make the rape the victim's fault then I don't feel quite as vulnerable, creating a false sense of security (Meaning, if a person hasn't put herself in a situation that might increase the risk of her being attacked – drinking too much, in a place like a bar or alone at night, etc, then she might feel less vulnerable).
“It is a dirty, ugly, private crime! Victims have worn the cloak of shame long enough! We must learn to speak out about this crime with the same intensity as any other crime. No matter what a person does they do not deserve to be raped.”
Do you have a message for lawmakers, both in Congress and in state and local jurisdictions?
“The laws need to be balanced. The rights of both victims and offender need to be protected. He's innocent until proven guilty. I have to prove my innocence to establish his guilt. “This is not balanced in any sense.”
Since her attack, Debbie Smith founded her own organization to support rape survivors, called H-E-A-R-T: Hope Exists After Rape Trauma.
Violence Against Women Act (VAWA)
In May 2009, the federal Violence Against Women Act of 2005 (VAWA) went into effect, requiring state governments who wish to continue receiving federal funding to pay for "Jane Doe rape kits" or, "anonymous rape tests" that allow victims too traumatized to go to the police to undergo the procedure at hospitals, and which will maintain the collected evidence in a sealed envelope identified only by a number – unless police access its contents upon the victim's decision to press charges.
While the practice had been recommended by the Federal Bureau of Investigation (FBI) since at least 1999, and was already followed at some health clinics, colleges, and hospitals, and in the state of Massachusetts, many jurisdictions up until then refused to pay the estimated $800 – or higher, cost of the rape examination without a police report filed by the victim.
As noted earlier, some hospitals have still been sending bills for rape kit exams and any extra charges, to rape survivors.
The Debbie Smith Act
The Debbie Smith Act of 2004 provides United States federal government grants to eligible states and units of local government to conduct DNA analyses of backlogged DNA samples collected from victims of crimes and criminal offender
The Act expands the Combined Indiex System (CODIS) and provides legal assistance to survivors of dating violence.
When President George W. Bush signed it into law on October 30, 2004, the Act amended the DNA Analysis Backlog Elimination Act of 2000, the DNA Identification Act of 1994, and the Violence Against Women Act of 2000.
Debbie Smith, mentioned in the above section, and for whom the Act was named, is a rape survivor who was attacked on on March 3, 1989.
On July 24, 1995, a DNA technician identified Debbie's attacker, Norman Jimmerson, while analyzing various DNA records. Jimmerson, then serving time for abducting and robbing two women in 1989, was sentenced to 161 years in prison under Virginia's Three Strikes Law.
The Debbie Smith Act was reauthorized in 2008, which maintains previous appropriation levels for the Debbie Smith DNA Backlog Grant Program through 2014.
The 2008 Reauthorization amends the DNA Authorization Act of 2000 by authorizing the appropriation of $151,000,000 each year for fiscal years 2009 through 2014, for grants to eligible states and local units of government to conduct DNA analysis of backlogged DNA samples collected from victims and criminal offenders.
The SAFER Act (I)
The SAFER Act (H.R. 1523/S. 3250) of 2012 is a no-cost bill that will create the Sexual Assault Forensic Evidence Registry (SAFER), which will track the status of DNA evidence collected in rape cases – commonly known as rape kits.
The Rape, Abuse, and Incest National Network (RAINN) emphasizes on their website that the SAFER Act:
“...will bring transparency to the DNA rape kit testing process, help us efficiently target resources to cities that have the biggest backlogs, and empower the communities with information about the rape kit testing status in their area. It will help eliminate the evidence backlog and take thousands of rapists off the streets.”
The SAFER Act also includes a tracking element that identifies kits that have gone untested for a year and prioritizes testing them, according the The Denver Post. It is a bill to amend the DNA Analysis Backlog Elimination Act of 2000 to provide for Debbie Smith grants for auditing sexual assault evidence backlogs.
U.S. Senator John Cornyn, R-Texas (Republican), who is the sponsor of the Senate version of the SAFER Act of 2012, says that under current law, 40 percent of all grants to state and local law enforcement agencies under the Debbie Smith Act must be used to address untested DNA evidence. The SAFER Act would raise this threshold to 75 percent.
It would also make 7 percent of Debbie Smith Act funds available for audits of rape-kit backlogs.
“The SAFER Act would reallocate federal appropriations; it would not create new spending”, he recently wrote in the Star-Telegram.
Presently, the bill has yet to be passed by both the Senate and House of Representatives.
Clearly, some progress has been made by supportive lawmakers and rape survivor advocates to end the massive backlogs of rape kits, nationwide.
This despite lack of resources for funding trained staff and programs, state budgetary concerns, and countless challenges faced by sexual assault nurse examiners (SANEs), law enforcement agencies and crime labs, forensic scientists, and advocates, who work hard to try to help survivors of violent sexual assault.
It's a complex issue that has for years has compelled people from many fields to continally come together and make real progress on bringing justice to rape survivors.
Not an easy task.
Especially where money is concerned.
Recall that when Texas State Senator Wendy Davis authored a rape kit bill, the legislature and the law enforcement community coughed when her bill initially had an $11 million price tag on it, and then she had to amend it to require testing only when funding is available and ensure that no new money would be required.
The end result: the Texas Legislature passed the bill without allocating new funding to the cause.
Then there are stickier dilemmas to contend with, such as statutes of limitations expiring, survivor notification questions, and misconceptions and biases surrounding rape survivors themselves.
So, how can the public avoid getting overdosed on yet another outcry about the state of rape kit backlogs?
Perhaps it would be helpful to remember the nitty gritty details about rape in America:
The decision to undergo a rape kit exam – with the expectation that it will be tested – and then waiting perhaps many years for their rapists to be identified, can only compound the stress and trauma that rape survivors have already endured from their attackers.
Thankfully, organizations like the Rape, Abuse & Incest National Network (RAINN), Speaking Out Against Rape (SOAR), H-E-A-R-T (Hope Exists After Rape Trauma), the Joyful Heart Foundation, and countless others continue to work tirelessly to support rape survivors and advocate on their behalf for their rights on many levels, including educating the public and working with legislators, law enforcement, and the medical community.
Yet the fact remains that justice is still a dream for thousands of survivors – which could become reality if their rape kits were analyzed and entered into a database, thereby making it possible for an identification of their attackers.
Don't rape survivors deserve to be a higher priority for society?
Safeworld gratefully acknowledges Natalie Nolt for her generous contribution in helping with research for this article.
* Prior to 2011, the definition of rape that the Federal Bureau of Investigation (FBI) utilized was:
“The carnal knowledge of a female forcibly and against her will.”
This definition had not been changed for over 80 years.
It is currently defined as:
“Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
U.S. Attorney General Eric Holder formally announced the revisions to the Uniform Crime Report’s (UCR) definition of rape in January 2012.
Many experts and survivor advocates have said the new definition will lead to a more comprehensive statistical reporting of rape nationwide because the new definition is more inclusive, better reflects state criminal codes, and focuses on the various forms of sexual penetration understood to be rape.