Abandoned Evidence Suspends Justice

Proposed California law aims to shrink backlog of untested rape kits

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Illustration by Lizzy Choi
Illustration by Lizzy Choi

Hundreds of thousands of unprocessed and untested rape kits sit in evidence lockers across the country, while thousands of sexual assailants walk free. Because there is no standard for processing them, many of these kits are never tested.

Estimates of the rape kit backlog near 9,000 in California alone, though the actual number is probably much higher. California Assembly Bill 2499 will require law enforcement agencies to test and track the status of rape kits. This bill will come into effect in July 2018. When kits in the statewide backlog are processed, California will be able to prosecute violent criminals.

When the Los Angeles Police Department finally cleared its rape kit backlog in 2011, they arrested over 300 sexual assailants and rapists using DNA evidence. 300 violent criminals were taken off the streets.

The overwhelming number of untested rape kits across the country is unacceptable. For thousands of people, closure is still sitting in an evidence locker.

A rape kit is administered by specially trained nurses to collect physical evidence from a survivor of sexual assault. It is then used by law enforcement agencies to match DNA to the perpetrator.

Backlogs accumulate in two ways: first, by law enforcement agencies not sending samples to forensic analysis labs; and second, by forensic labs neglecting to actually test received samples. The backlog has plagued the country for decades. In 2009, Detroit Police Department discovered more than 11,000 unprocessed kits, some dating back over 30 years — many passed the statute of limitations before being rediscovered.

AB 41, proposed by Assemblyman David Chiu (D-SF), would require updates every 120 days on the status of rape kits collected by law enforcement agencies. On Feb. 28, a 7-0 vote moved AB 41 out of the Assembly Public Safety Committee, referring it to the committee of appropriations, which reviews all state bills with fiscal impact.

Thousands of survivors have cases that are incomplete, and thousands of rapists and sexual assailants remain free due to unprocessed DNA evidence that may be sitting in an evidence locker. California needs a statewide standard on how long evidence from sexual assault cases can be held before it is tested.

Under AB 41, law enforcement agencies would be forced to properly catalogue received samples and report regularly if a sample hasn’t been sent for testing. Once the sample is sent, the forensics lab would assume responsibility for regular reports if the sample remains untested.

Gov. Jerry Brown signed a bill last year to end the statute of limitations for sexual assault cases that occur after Jan. 1, 2017. This means a prosecution could be started at anytime and the evidentiary period for rape kits would not expire. The 120-day recurring report mandate would act as a continual reminder to law enforcement agencies that a kit needs testing. The idea is to keep law enforcement and forensics labs accountable.

Kits remain untested for numerous reasons, including unclear, outdated or non-existent policies, lack of training and knowledge on sexual assault patterns and whether the identity of the perpetrator is known. The most voiced reason for why rape kits aren’t tested is lack of resources. It costs between $1,000 to $1,500 to process one kit.

Testing rape kits is expensive because it is a time-intensive process. It takes hours of searching for a DNA sample deemed viable by FBI standards, followed by searching through the FBI’s Combined DNA Index System (CODIS). Between 30 and 40 percent samples yield a match. Though this is not a great percentage, for random sexual assaults it is the only option.

Creating a mandate is not going to solve this problem. There needs to be systemic and cultural overhaul for lasting change. The fact that thousands of violent criminals are walking free is harmful as it perpetuates the notion that sexual assault isn’t as dangerous or important as other crimes.

Rape is often a serial crime. About half of 243 previously untested rape kits from Cuyahoga County, Ohio, were linked to serial offenders, according to analysis performed by the Begun Center for Violence Prevention Research and Education. If a rapist is free, they often continue to commit acts of sexual violence.

Though important and potentially effective, steps beyond AB 41 need to be made in order to help give sexual assault survivors the closure they deserve. Stronger laws with solid time constraints on when a rape kit must be tested must be implemented on both the state and federal levels. Laws like these, when combined with necessary allocated funds, have the ability to improve rape trial processes greatly and protect the right to justice for survivors around the country.

Rape kits are crucial to criminal investigations, and leaving them untested halts justice. By increasing education on sexual assault, voicing our demands for legal and judicial justice for survivors and making sure this issue does not fall to the side, we can help fix a broken system.