A Senate Judiciary Committee hearing to be held tomorrow, May 20, will provide rape survivors and advocates a chance to question why, throughout the country, rape kits are still not being processed in a timely fashion, despite more than a billion dollars in public funding since 2004, and the passage of two federal laws aimed at solving this problem.
The hearing, titled, “Taking Sexual Assault Seriously: The Rape Kit Backlog and Human Rights,” will address fundamental questions such as how public funds have been spent. A three-month investigation by Rewire has revealed that the agency charged with overseeing this effort, the National Institute of Justice (NIJ) has been unable to answer these rudimentary questions, leaving advocates at a loss to explain why so little progress has been made on the backlog even while the Obama administration has identified it as a top priority for sexual justice.
Rebecca O’Connor, the vice president for public policy at the Rape, Abuse & Incest National Network (RAINN), told Rewire that the enduring backlog of rape kits is a source of frustration for rape survivors.
“It is frustrating from the advocate side, especially when you’re hearing it from survivors, the personal experience of undergoing these [rape kit] exams and what it means to them to submit to it,” she said.
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As the situation currently stands, there are no reliable numbers on things as basic as how many rape kits are awaiting testing, whether the funds have even been used to test rape kits, or whether the money has been used for other purposes, such as testing DNA samples from crimes like homicide or, even, in relation to the detention of unauthorized immigrants.
The situation has frustrated members of Congress who have spent years lobbying to reduce the backlog and to ensure that rapists are prosecuted. They are also concerned that victims are being put through the additional trauma of submitting to the collection of DNA for no reason.
Carolyn Maloney, D-NY, co-sponsored one of the key laws in 2013, known as the Sexual Assault Forensic Evidence Reporting Act, or the SAFER Act.
“I introduced the SAFER Act with Congressman Ted Poe of Texas because even though we represent very different parts of the country we both heard stories of storage closets of untested DNA kits being discovered years later and wanted to target funding to the DNA programs and provide an incentive for law enforcement to audit and track their backlog,” Maloney told Rewire in a written statement.
“I am concerned that the programs for backlog auditing have not been properly established as required, and I am hopeful that issue will soon be resolved,” Maloney said.
One of the remaining questions that advocates and lawmakers want answered, is how many untested rape kits are currently stored throughout the nation’s thousands of police departments, private storage facilities, and crime labs.
Estimates vary widely, as do definitions of what should be included in the “backlog.” The NIJ uses a narrow definition that only counts kits that have been sent to a laboratory, and have not been tested for at least 30 days after a request for testing was made.
Despite definitional disagreements, a commonly used number is 400,000, but advocates told Rewire that, in truth, no one knows the answer.
Longtime sexual assault researcher Rebecca Campbell, who is a professor of ecological-community psychology at Michigan State University, told Rewire that social science studies suggest there are at least 200,000 untested kits.
But to get actual numbers would require obtaining records from each city—and potentially, each precinct—in the nation, because rape kits, along with other DNA evidence, are usually gathered and tested at the local level, with no centralized state or federal record keeping. Indeed, there is no single rape kit “backlog,” but rather, thousands of individual backlogs scattered throughout jurisdictions with varying laws, funding, and priorities.
Demonstrating the difficulty of obtaining this information, the New-York based Joyful Heart Foundation—whose managing director, Sarah Haacke Byrd, will be testifying at Wednesday’s hearing—has been working independently to track cities’ rape kit backlogs through news reports and public records requests. It has found data for individual cities that shows thousands of untested rape kits, but its findings still fall far short of a comprehensive national picture of the extent of the problem.
O’Connor says resolving this basic question is key to achieving any progress in reducing the rape kit backlog.
“We get the question every single day, from members of Congress, from lawmakers at the state level, from victim advocates, etc., ‘How many kits are there? How many?’” she said. “We don’t know. And that’s a problem. We worked SAFER out to be something where law-enforcement agencies were saying, ‘Look, we want to get a grasp on this.’ It’s not fun; nobody wants to air dirty laundry, so to speak, but we need to know.”
The SAFER Act is in fact an amendment to the marquee law intended to address the problem of untested rape kits—the Debbie Smith Act. Passed in 2004, that act, an authorizing bill, was named after Debbie Smith, a woman from Williamsburg, Virginia, who was raped by a stranger in the woods behind her house in 1989. Smith’s rape kit was tested, and a DNA sample from her rapist was entered into the statewide criminal database. But the offender went on to rape more women, and because their kits were not tested soon after, Smith’s case went unsolved for six years.
The Debbie Smith Act is itself part of a larger law, the Justice for All Act, which is a George W. Bush-era victims’ bill of rights.
Maloney, who introduced the Debbie Smith Act, says it was intended to deal with what had been recognized as a phenomenon of police departments letting their sexual assault forensic samples pile up. In press statements she has referred to the Debbie Smith Act as “the most important anti-rape legislation ever signed into law.”
But the reality is that funding under the Debbie Smith Act was not targeted only for the DNA testing of rape kits and so funds appropriated under it were not necessarily applied to reducing the backlog.
The reason is that DNA testing includes a range of processes, only some of which relate to sexual assault.
The vernacular term “rape kit” refers to a collection of blood, semen, hair, saliva, clothes, and other evidence gathered from victims’ bodies and the crime scene. Evidence can be gathered from a corpse, or from a survivor during a forensic exam. The exam usually occurs at a hospital and takes several hours.
The hospital then gives the rape kit to the police department, which is supposed to process the kit if the victim chooses to report the crime. However, many victims decide not to make a report. In some jurisdictions, even kits collected from those survivors are counted as part of the backlog, while other jurisdictions exclude those kits from their backlog count.
Research and news investigations have shown that, for a variety of reasons, many of the kits have remained untested, on police shelves or in storage units for years.
For the kit to have any influence on the survivor’s case, it would need to be taken to a public or private crime lab and tested. The process is expensive; testing and analyzing the DNA can cost up to $1,500. A 2007 report prepared for the Justice Department found that between 2002 and 2007, forensic evidence had been collected but not submitted to a crime lab for analysis in 18 percent of sexual assault cases. (This was reportedly the case for 14 percent of all unsolved homicides.)
A significant problem with the way the Debbie Smith Act was drafted was that it did not specify that only rape kits could be tested using funds appropriated under this act. Rather, grants could be used to test backlogged DNA samples from a variety of offenders and crime scenes, including crimes unrelated to sexual assault, such as homicide and property crimes.
The law was later expanded to include DNA testing of arrestees and detained immigrants suspected of entering the U.S. illegally. In addition to testing DNA samples, Debbie Smith grants could be used to expand crime labs’ laboratory capacities and staff in order to increase their abilities to process more DNA more efficiently. The intention was then to upload these samples to the FBI’s Combined DNA Index System (CODIS), a network of federal, state, and local criminal databases.
Had the NIJ properly tracked where each of its grants was going, it would be possible to determine how much of the more than $1 billion in Debbie Smith funds over a decade has actually gone toward rape kits, as opposed to addressing non-sexual assault related purposes.
However, the NIJ has been unable to answer these basic questions.
In 2013, the Government Accountability Office (GAO) reviewed how NIJ was administering its DNA-related grant programs and determined there was little oversight and transparency. The GAO found that the NIJ could not adequately explain its DNA-related grant-funding decisions and could not adequately determine if award recipients met their funding goals outlined in their grant applications.
In addition to this poor oversight, the confusion about where Debbie Smith funds are going results partly from the way its funding was structured. In a configuration not unusual for congressional funding bills, the Debbie Smith program was never given its own separate funding stream.
The NIJ has not received appropriations specific to the Debbie Smith Act. Instead Congress has appropriated more than $100 million each year to the NIJ that may be used to reduce DNA backlogs and enhance crime laboratory capacity. The NIJ has applied this money to existing grant programs whose purposes are “consistent” with those specified in the Debbie Smith Act.
A big portion of Debbie Smith funding has been used for the DNA Backlog Reduction Program, whose stated program goals are similar to the Debbie Smith Act but are not specific to sexual assault.
This leads to unclear figures from the NIJ on how much Debbie Smith Act funding is actually dedicated to reducing the rape kit backlog, or instead, to other purposes that are interpreted as being “consistent” with the Act. For example, an NIJ report into Debbie Smith funding spending in fiscal year 2013 reported that the NIJ appropriated $97 million toward DNA analysis and forensic grant funding, with about 77 percent allocated to the DNA Backlog Reduction Program, with no specific indication of whether this means rape kits.
In response to a question from Rewire, the NIJ said that between 2008 to 2013, Congress appropriated $808 million “to provide grant and other awards for state and local governments to reduce the DNA backlog and increase DNA lab capacity, as well as for other forensic science purposes.” The NIJ spokesperson said that the agency had spent $525 million of that amount on DNA backlog initiatives.
But when we asked how much had been spent specifically to reduce backlogs of sexual assault evidence kits, the NIJ spokesperson wrote that the “NIJ does not currently track sexual assault kits in laboratories.”
To be sure, some of these funds go toward building capacity within the entities responsible for general DNA-testing within their jurisdiction. Many police crime labs don’t have the manpower or equipment to process a lot of rape kits, or the funds to send them to a private lab. So funding for general capacity can indirectly assist in reducing the rape kit backlog, even if those funds aren’t hypothecated for that use.
Perhaps the biggest frustration for sexual assault survivor advocates is that the SAFER Act has not yet been implemented, two years after it passed into law.
SAFER amended the Debbie Smith Act to require that a portion of the grant funding be used by law enforcement agencies to conduct audits of rape kits that are awaiting testing. The purpose was to help jurisdictions better understand the size of their backlogs and also to help local police departments figure out the best way to prevent backlogs from accruing in the future. Under SAFER, a portion of Debbie Smith funding must also be used to ensure that sexual assault forensic evidence is processed “in an appropriate and timely manner and in accordance with specified protocols and practices.” And 75 percent of the funding must be used to analyze DNA samples from crime scenes and include them in CODIS, and to increase crime lab capacities. The law was also meant to begin tracking how Debbie Smith funding was being used to reduce local law enforcement agencies’ rape kit backlogs.
The sponsors of SAFER—Sen. John Cornyn (R-TX) and Rep. Ted Poe (R-TX)—have been urging the DOJ to implement the law. Last year they co-wrote a sharply worded letter to then-Attorney General Eric Holder asking the DOJ to “take immediate action” and to fully implement the SAFER Act. This year, Cornyn, who did not return multiple requests for comment, plans to address this issue at the hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution, which he chairs.
The NIJ did not respond to our questions about why the SAFER Act has not been implemented, but advocates say the failure to implement this law is a clear problem, and want to see it resolved immediately.
“We didn’t pass a law with the intent of it being window dressing,” said O’Connor, whose organization, RAINN, helped lobby for its passage. “It’s incredibly frustrating and frankly, demoralizing for those of us that are really trying to fight tooth and nail to make sure that we’re all working in a coordinated and efficient way with both federal and state resources.”