New Report Indicates that Rape Kit Backlog Likely a National Crisis

A study of crime labs in Los Angeles indicates that many sexual assault victims wait in vain for prosecution of rapists. The lead investigator for Human Rights Watch, Sarah Tofte, now wants to study backlogs at labs in cities across the country.

According to a new report by Human Rights Watch (HRW) at least 12,669 untested sexual assault kits have been languishing in police storage facilities and crime labs in Los Angeles County. Rape kits can include critical DNA evidence that make a conviction possible; the Los Angeles Police Department had a 25 percent rape arrest rate in 2007.

At a time when Take Back the Night marches ignite most college campuses and community and nonprofit organizations across the country specialize in sexual assault prevention and first responder services for rape victims, it’s a real wake up call to learn that there has been little progress on the legislative end. Sarah Tofte, the lead investigator on the report, explains: “We are essentially at the same place we were thirty years ago in terms of prosecutions and convictions of rape.”

A rape kit is essentially a collection of evidence that medical providers, usually nurse practitioners, amass following a sexual assault. The processing cost, between $500 and $1000, has proven well worth it in the pursuit of justice; multiple studies confirm that rape kits lead to more arrests, prosecutions and convictions.

But when rape kits are collected and then unprocessed, a conviction is difficult to come by and confusion ensues. A sexual assault nurse examiner told HRW: “My clients seem to assume that if they have not heard back from the police, it is not because testing was not done; it was because testing was done but there was no DNA in the kit. Not hearing from the police can contribute to the self-blame and doubt that victims are feeling about the rape.”

It also robs them of the opportunity to advocate. If they assume, as one might, that their local police department is functional and following up on all investigations, they would see no reason to check on the status of their kit or seek out someone who could advocate for them. Tofte explains, “When I started to look at what distinguished the kits that did get tested from those that didn’t, it was usually the presence of a victim’s rights advocate.”

When kits are finally tested months, and even worse, years after the experience, victims may also be resistant to revisiting the trauma. One advocate told HRW about a rape victim who refused to participate in a case even though the investigating officer found a DNA match from her rape kit. After a full year, she wanted to move on: “I think that if the detective had been able to identify her rapist in the weeks and months after it happened, she would have been able to cooperate,” the advocate explained.

The report, Testing Justice, has women across the country wondering: Could this be a nationwide trend in untested rape kits and thwarted justice? In 2005, the most recent year for which federal crime lab data is available, the DNA backlog doubled, indicating that public crime labs nationwide would need to increase their DNA analyst staff by 73 percent to process all the evidence coming in. Tofte’s goal is to get a national report on rape kit backlogs out within the next year—focusing on Chicago, Houston, Dallas, Baltimore and all of Maryland, upstate New York, and the state of Georgia.

Many national advocates have put their hope in the Debbie Smith Act, passed in 2004, which was supposed to prevent and/or alleviate backlogs like the one exposed in the HRW report. But Los Angeles crime labs, the very same ones that warehouse stacks and stacks of rape kits, were awarded $4.9 million in federal grant funds to test DNA evidence between 2004 and 2008. States are not required to use the funding specifically for rape kits, only DNA backlogs—a stipulation that Tofte believes was highly motivated by powerful lobbies associated with crime labs and DNA testing companies. They could increase profits if all of their equipment was utilized at a higher rate, not just the tools involved in processing rape kits. “The Debbie Smith Reauthorization Act” was signed into law in 2008 (P.L. 110-360), authorizing $151 million in each fiscal year from FY2009-FY2014 to process DNA evidence, but once again, the language allows for a loophole out of targeting DNA evidence associated specifically with sexual assault.

Since the report was released, outraged citizens have donated over $2 million to the Police Foundation of Los Angeles, but Tofte isn’t confident that any of the money has been used to start processing the backlog. Though the money is earmarked for rape kit testing, there is no oversight so the foundation could sit on the money as long as it wants. Likewise, there is no federal committee in charge of making sure that the Debbie Smith funding goes, even in part, to funding rape kit processing.

Hope may lie in finding a victim of a repeat offender who, in Los Angeles or elsewhere, is willing to sue the police force, city, and/or county governments for not processing the kit that could have convicted her rapist before he got to her in the first place. Tofte explains, “That might embarrass the LAPD enough that they would finally fix the system.” Until then, nearly 13,000 women wait for justice.