Untested Rape Kits: Who is to blame and what is the solution?

In the United States, sexual assaults occur every two minutes. After a sexual assault, if a victim goes to the hospital, medical personnel compile a rape kit. A rape kit is a type of forensic DNA evidence collected from victims after a sexual assault has taken place. The process is often invasive and can take hours to complete. Police departments and prosecutors use the evidence collected during this process to identify suspects, increase the likelihood of prosecution, and in some instances exonerate wrongly identified and prosecuted individuals. What then is the problem that law enforcement, prosecutors, and defense attorneys are running into concerning rape kits? Many are untested. 

During an investigation conducted by USA Today and a number of journalists from sister stations in summer of 2015, USA Today reported that there are at least 70,000 untested rape kits spreading across 1,000 police agencies. Although this has been one of the largest and most detailed inventories conducted on untested rape kits ever, there are still potentially hundreds of thousands of untested rape kits that have yet to be identified. The study did not reach the over 18,000 police departments nationwide during the investigation phase. To add to the number of untested rape kits, news reports state that there are still thirty-four states who have yet to count the number of untested rape kits in their possession. The problem is even greater in smaller, rural communities who are not equipped to handle rape kits appropriately. One of the hindrances to testing rape kits is that it costs approximately $1,000 per rape kit. 

Before the USA Today study, Congress attempted to address the issue when it unanimously enacted the SAFER Act in 2013. SAFER provides $45 million in resources to assist local police departments across the nation in testing rape kits by providing them with a greater percentage of the grant money to provide to each state under the Debbi Smith Act. In addition, the law establishes standards for tracking, storing, and using DNA evidence during sexual assault prosecution. 

Despite this new law, there are still potentially hundreds of thousands untested rape kits sitting in police agencies across the country waiting to be tested. Many critics are blaming the Department of Justice, stating that they have failed to provide the guidelines and funds to the states to address the issue. However, it is unclear who is to blame. Because of the confusion, some states have recently stepped up and taken actions into their own hands. For example, in New York City, the city had a backlog of approximately 17,000 untested rape kits. In response to this backlog, the city prioritized untested rape kits and developed a system to test every rape kit within their jurisdiction. As a result, the arrests for rape percentage increased significantly from 40% to 70%. 

If the SAFER Act is enforced and states are required to test all pending untested rape kits in their jurisdiction or if states begin testing themselves, it will have substantial effects on local practitioners. If untested rape kits begin to produce DNA profiles, then prosecutors must determine whether the case is prosecutable. If cities that have a backlog begin testing untested rape kits in an effort to decrease their backlog, prosecutors, the courts, and defense attorneys could see similar results to those in New York City: a significant increase in the number of rape arrests and investigations. It is estimated that approximately 50% of the untested rape kits will deliver a DNA profile, leaving a large number of potentially prosecutable cases in the hands of local prosecutors.

In the event cases associated with untested rape kits are deemed prosecutable, it will require prosecutors to reopen the case entirely by interviewing victims, obtain samples to confirm that the DNA is from the alleged perpetrator, and investigate the circumstances of the incident. Of the hundreds of thousands of untested rape kits, if even 50% of them create DNA profiles as the estimates suggest, prosecutors will see a significant increase in their caseload, especially in the cities with the deepest backlogs. In smaller, rural communities, practitioners could see their work load double. The courts as well as defense attorneys will also see a significant increase in sexual assault cases if prosecutors deem these cases prosecutable, increasing the number of cases that defense attorneys take on and the number of cases that the courts will have to hear. 

By Emma McArthur 

Senior Staffer

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Guest Post: 5 Reasons Why Rape Victims Struggle for Justice

Throughout history rape has been recognized as a crime, although criminal codes – and the very definition of rape – have varied from culture to culture and from one era to another.  Whether rape victims get justice has always depended upon where (and when) they lived.  In the modern-day United States we like to think we are relatively enlightened in this regard.  We have the advantage of heightened educational and legislative efforts over the past forty years, driven largely by the feminist and human rights movements. Groundbreaking books such as Susan Brownmiller’s classic 1975 work, Against Our Will: Men, Women and Rape, explored the dynamics of rape.  Contrary to the subtitle, Brownmiller’s book tackled not just male-on-female rape, but also homosexual rape (particularly in prisons) and the sexual assault of children.  The net result of four decades of education is that attitudes and laws are more protective of the victims than they used to be, at least in the U.S. and many other First World countries.