Rape Kits Long Untested Now Subject to New Legislation

rape kit backlog
Most people would be horrified to hear that there are up to 400,000 rape kits in storage throughout the US that have never been tested. However it is true; and moreover, it is a finding that was published as far back as 2009 that is only in the last year seeing wider action. It seems a tremendous miscarriage of justice, and it is a matter of specific concern since the statute of limitations for rape (the amount of time that can pass before a state can no longer prosecute a rape charge) varies from state to state. New legislation has finally been passed which now subjects long untested rape kits to deeper scrutiny.

Why would evidence of rape go untested for decades, one might ask. The reasons for this lack of testing vary. Some of the kits are not tested due to matters of economics, as a rape kit can cost from $500 to up to $1,500 to process. Because of the prohibitive cost, many law enforcement agencies will choose which rape kits to process in order of which cases seem to have the greatest chance of yielding a guilty verdict.

This method leads to another of the top three reasons a rape kit may sit on a shelf in an evidence room for 20 or more years, and that is a lack of a prosecutable case. Such cases include ones in which the victim declined to testify, or, and much more a matter of concern to human rights activists, a perception that certain persons are less likely to be believed in prosecuting a rape charge because they were intoxicated at the time of the alleged rape.

This perception creates a startling difficulty in the issue of rape prosecution in that most rapes fall into a category that is often dubbed “acquaintance rape,” in which a victim is raped after drinking, being drugged or otherwise having their memory and responses impaired.

Rape victim advocates are concerned that this kind of bias in rape investigation and prosecution not only allows the perpetrators of the largest subset of rapes to go unpunished and thus go on perpetrating other rapes but further sends the signal that all one has to do to get away with rape is to impair one’s victim first. If the waters are muddy enough that the prosecution feels a rape case will be unlikely to yield a guilty verdict, a rape kit may be relegated to a back shelf due to the cost of testing the kit.

Since the original report was aired on CBS in 2009, many states began taking a look at their rape kit backlogs, some of which go back to the 1980’s when many law-enforcement bodies began collecting such kits. The inventories taken show shocking numbers. 12,000 untested kits in Memphis alone. 16,000 in the state of Texas. In Houston, some 3,846 kits were untested as of 2009, though many were not tested because there was no question as to the identity of the rapist.

In Oakland, CA, manpower has been a problem for a long time, resulting in a backlog because they had only four to six investigators available to investigate up to 659 cases apiece. By 2009 they had gotten their backlog down to 489 “solvable” kits that had somehow been missed in the shuffle, and were attempting to reapportion manpower to deal with the backlog in case these older cases could help to solve newer ones. In Detroit there were approximately 5,800 untested kits, some due to lack of other evidence or for other reasons that made prosecution unlikely.

A spokeswoman for Rape Project, Natasha Alexenko, has quoted an estimate of up to 400,000 rape kits as yet untested in the United States. Alexenko is a rape survivor whose rapist was identified and prosecuted ten years after the event due to a decade-long delay in the testing of her rape kit.

rape kitAnother rape survivor, Meagan Ybos, recognized her rapist in 2012 when police notified local news outlets about the arrest of a suspected serial rapist. Her forensic rape kit had been taken in 2003 when she was 16, but she had never heard anything further about it. Ybos states that if her rape kit had been analyzed in a timely manner, this serial rapist might have been caught before he had the chance to harm so many other people. At best, nine years later, it served only to add to evidence already collected against the rapist.

There is a light at the end of the tunnel, however. New bills are being considered which will hopefully move this problem further up into legal radar in at least 17 states. The bills, like the one being considered in Tennessee, look to address this tragic backlog by directing law enforcement agencies to inventory their backlog of rape kits in order to see which of the kits were and were not tested, and in some cases enforcing a time limit so that rape kits cannot go untested for too long. Texas, Colorado, and Illinois have already passed laws enforcing an accounting of all as-yet untested rape kits statewide.

Lacking speedy action by their states on the matter, some cities are also joining the new wave of rape kit testing enforcement. The results are very telling indeed. In New York, where every single rape kit is now examined (in excess of 1,300 kits per year), 70 percent of these investigations result in an arrest. This number is three times that of the national average of 25 percent. In LA, where they began working through the backlog before 2009 with the assistance of federal funding, the investigations produced 405 suspect identifications with the FBI database by the time of the original 2009 expose. In Minnesota, rape kits which had previously not been tested due to a lack of victim cooperation were put through the system with the help of a federal grant. Eight rapists were prosecuted and jailed almost immediately due to this effort; a laudably quick result.

All of these cases are a far cry from New York’s success, or that of Pennsylvania, where every rape kit is tested; but they are all a great deal more reassuring to advocates than the results reported from states such as Alabama, Alaska, Florida, Maryland, Indiana, and Ohio, where authorities state they have no idea how many of their backlogged rape kits have been tested, or that they have no way of knowing which kits have been tested and which have not because rape kits are not filed in a manner which would make such a determination readily apparent. Much more disheartening are cases like that of New Mexico, where rather than being stored for future reference, rape kits are destroyed after the nine-year statute of limitations has passed whether they have been tested or not.

On the national level, however, Congress went further than granting monies to jurisdictions requesting funding to test rape kits. In 2013 the House passed SAFER, the Sexual Assault Forensics Registry Act, so that data could be provided regarding the number of rape cases which remain unsolved and the number of rape kits still awaiting testing, as well as so that better standards can be established for the storage and the tracking while in storage of rape kits, and the use of DNA as evidence in cases of sexual assault. This new legislation has a good chance of ensuring that many long untested rape kits will be subject to organized scrutiny.

The federal government has also begun to subsidise the testing of rape kits with centralized funding so that cash-strapped jurisdictions can still investigate and prosecute these cases before more rapes can be perpetrated. The act makes it possible for the method to be streamlined so that rape kits can be organized by parameters such as whether enough DNA exists in the samples belonging to persons other than the victim to make the tests viable.

Of course, sometimes reopening these cold cases could lead to pain for survivors of rape who have long since attempted to put their rapes behind them. However, pursuit of the evidence in states like New York have shown a wealth of convictions that conceivably go a long way toward removing offenders from the streets. At the very least, this new legislation ensures that at least a good proportion of the U.S.’s long untested rape kits will be subject to a more rigorous filing system, and that the evidence will be more likely to lead to investigation. Advocates have hopes that this act, along with greater local attention to the problem, will ensure that more rape survivors will see their rapists prosecuted, that less rapists will go free to continue perpetrating these violent crimes, and that more “acquaintance rapes” will be pursued to a satisfying conclusion.

By Kat Turner

The New Zealand Herald

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