The Horrifying Consequences of Our National Rape Kit Backlog
In 2008, two Berkeley, California, teen girls, ages 15 and 19, were brutally raped and robbed at gunpoint. In the hours following the crime they went to a local medical center, where they informed staff of what happened so that evidence could be collected for rape kits. For six years, those rape kits remained untested in an Alameda County evidence room, and correspondingly, the assailant in the case remained on the street. When the kits were finally processed in 2014, the DNA they contained matched Keith Kenard Asberry Jr., a repeat offender who later sexually assaulted another woman. Asberry now sits in prison, awaiting trail on multiple charges of kidnapping, sexual assault and robbery. The case is an example of how rape kits can help solve cases of sexual assault. It also drives home how rape kit backlogs—Alameda County reportedly has 1,900 additional kits that remain unprocessed—can have tremendous and far-reaching consequences.
"When we don't test these kits, we send this message to survivors that their cases don't matter or that what happened to them doesn't matter,” Ilse Knecht, of survivor advocacy group Joyful Heart Foundation, told the Public News Service. “And when we do test them, we turn that around, and we affirm the survivor's account of what happened, and we take dangerous offenders off the street."
It’s long been known that rape is vastly underreported. Studies both decades old and recent consistently find an estimated 80 percent—a staggering, troubling figure—of sexual assaults are never reported to law enforcement. (Black and other women of color are more likely to be raped and even less likely to report, than their white peers. Male survivors of sexual violence also grossly underreport.) There are myriad personal, cultural, social and societal reasons survivors choose not to disclose sexual assault, including the fear that reporting will lead to yet more trauma and yield nothing, least of all justice. That fear couldn’t be more justified, and our national backlog of rape kits is proof.
Provided they are actually tested for DNA evidence, rape kits can help identify rapists, exonerate the innocent and prevent rapists from assaulting again. Unfortunately, those outcomes are rare for many reasons, including that the overwhelming majority of rape kits are shelved and abandoned in evidence rooms to gather dust, the material within them slowly degrading over time. At last count, the U.S. Department of Justice estimated that there are somewhere around 400,000 (likely a huge underestimation) untested rape kits sitting in evidence lockers around the country. Over the last decade, thousands (here again, numbers remain fuzzy and estimates are likely unreliable) of rape kits have been intentionally destroyed or accidentally misplaced by law enforcement agencies.
The concrete numbers we do have are both shameful and disturbing. In Illinois, officials report a backlog of around 1,600 rape kits, and survivors of sexual assault can expect it to take as long as a year before testing on a kit is concluded. In Salt Lake City, Utah, of the 942 kits collected in the decade between 2004 and 2014, a little over 200 were destroyed. Kentucky last year determined it has more than 3,000 untested kits, an estimate that omits the unknown number of kits destroyed over the years by some state police departments. In 2014, the Memphis police department stumbled across nearly 200 rape kits dating back to the late 1970s, adding to a backlog across Tennessee which then stood—but has since been reduced from—12,000. An Atlanta hospital never turned over to cops some 1,500 rape kits dating back nearly 20 years, even in the 136 cases where patients explicitly requested in writing that they do so.
If each kit is for law enforcement the most bare-bones forensic evidence of a crime, for rape survivors the kits are documents of a devastating physical and psychological experience with potentially life-long impact. Consider the deep consequences when even one of those kits—which require survivors, within 72 hours of sexual violation, to undergo an invasive four- to six-hour exam when swabs and scrapings are taken—is lost, destroyed or left unprocessed on a shelf. The 2013 prosecution of a Colorado rape case was derailed when it was discovered that the survivor’s rape kit, along with 48 others collected in 2009, had been improperly destroyed by authorities. (Aurora Police Chief Dan Oates, speaking with the Denver Post about the woman’s reaction to being informed her case could no longer move forward, told the paper she had been "gracious and understanding. More understanding than I would have been in that situation.") A Savannah, Georgia, woman expressed the disillusionment and anger she felt after learning local police had destroyed her rape kit.
"It’s like free rein for rapists,” she told a local CBS affiliate. “They might as well go ahead and legalize [rape]."
The causes of rape kit backlogs around the country are one and the same with the barriers to clearing them. Testing a single rape kit can cost anywhere from $800 to $1,000, and cash-strapped cities, municipalities and police departments report they simply don’t have the money to pay for the cost. The Washington State Patrol Crime Lab announced last year that it lacks the funds to hire enough staff to get through the state’s backlog of 6,000 rape kits while also handling the influx of new cases. The Daily Kos notes that in some cases, the funding problem is inextricably linked to the short shrift given to women’s issues, pointing out that Kentucky gave a $43 million tax break to the Creationist Museum. Those monies, at least in some part, likely came at the cost of clearing away the state’s massive rape kit backlog.
Victim blaming, shaming and disbelief, all of which keep many survivors from reporting in the first place, also contribute to the mounting backlogs and carelessness with which some departments have treated kits. USA Today, in an exhaustive study on sexual assault kits around the country, notes that a 2008 survey commissioned by the Justice Department called out Detroit police for "negative, victimâ€blaming beliefs." Michigan State University researchers, in their resulting 551-page report, described the horrifying and stereotypical attitudes among officers that led to the backlog. Remember as you read this the thousands of survivors who encountered these attitudes upon reporting their rapes, which came from the people who were supposed to help them:
Rape survivors were often assumed to be prostitutes and therefore what had happened to them was considered to be their own fault. Adolescents were assumed to be lying, trying to avoid getting into trouble by concocting a false story about being raped. Police said that those who had been assaulted by friends and acquaintances had “got-what-they-got” because they had chosen to associate with the perpetrator. Case after case was labeled “a deal gone bad” or otherwise dismissed as “not really a rape,” and these attitudes directly affected law enforcement personnel’s decisions regarding whether to submit a rape kit for forensic testing.
It’s worth noting that 81 percent of Detroit’s then-untested kits belonged to black women, making the DoJ report a frightening and infuriating look at how the intersecting issues of racism, sexual violence, misogyny and criminal injustice play out in real life.
Differing mandates, state by state and even city by city, are yet another factor affecting rape kit treatment. The Guardian uses as an example Florida, where rape kits are kept anywhere from 30 days to four years, depending on the crisis center’s location. Too often, as USA Today notes, there are no “written guidelines,” leaving decisions to “the discretion of investigating officers.” Under the Violence Against Women Act, “Jane Doe” rape kits—which allow survivors to have evidence collected anonymously, without reporting to police—leave it up to states to decide when kits are tested, as well as where and how long evidence is kept. In states where specific timeframes are given for rape kit retention, survivors can end up having to periodically revisit the emotional trauma of their rapes to ensure evidence isn’t destroyed. Survivor Amanda Nguyen must file for an extension in Massachusetts every six months to keep her kit from being destroyed, despite the state’s 15-year statute of limitations for prosecuting rapes.
“My life is reoriented to the date of the rape,” Nguyen told the Huffington Post. “It’s quite traumatic and it’s totally preventable...Survivors should not have to fight to keep their rape kit from the trash can.”
When rape kits are actually put to the test, it’s impossible to put a price on the returns they yield for survivors and others. In Ohio, tests of 10,000 backlogged kits have led to 445 indictments. Houston, Texas, after clearing its backlog of almost 6,700 kits, discovered “850 matches, 29 prosecutions and 6 convictions,” per USA Today. Last year, the Detroit Free Press reported that an effort to test the city’s 12,000 kits has identified “2,478 suspects—including 456 serial rapists...and 20 convictions have been secured.” Some of those cases have likely been cold for a long time, and without testing, would have remained that way.
As critical as kits are for bringing the guilty to justice, they are also often indispensable for freeing the innocent. Alan Newton served 21 years in prison on rape, robbery and assault charges. Maintaining his innocence since his 1985 conviction, Newton requested a review of DNA evidence in 1994. According to the Innocence Project, “his request was denied because evidence had been presumed to be lost.” Only after the organization became involved with Newton’s case did “an exhaustive search” for the associated rape kit resume. Following its location and testing by the Bronx District Attorney’s Office in 2005, Newton was cleared based on DNA evidence and released the next year.
Michael Phillips, an African-American man sent to jail in 1990 for raping a white teenager, was released in 2002, but was reincarcerated because he hadn’t registered as a sex offender. Phillips filed a petition “challenging his sexual assault conviction as well as his conviction for failing to register on grounds of innocence and alleging that DNA testing would exonerate him.” When the petition was denied, Phillips abandoned efforts to clear his name. He was exonerated only because a Texas effort to process untested rape kits happened to uncover DNA evidence proving his innocence. By the time of his release, Phillips had served nearly 25 years behind bars.
Last year, two important efforts to test the nation’s sexual assault backlog brought some of these revelations to light. In March 2015, Vice President Joe Biden announced the White House’s Sexual Assault Kit Initiative, which distributed $41 million to jurisdictions around the nation to help fund costs associated with handling backlogs. New York City launched a similar effort, announced by Manhattan District Attorney Cyrus R. Vance Jr., distributing $38 million—taken from Wall Street rule breakers, no less—to law enforcement departments across 20 states. In addition, on the heels of the USA Today study, 20 states have begun to push legislative reforms that will lead to backlog clearances, standardization of procedures and other critical changes. These include laws mandating the testing of all new sexual assault kits.
This is all good and incredibly overdue news. But the situation, due to its sheer immensity and the lack of quick fixes, still continues to feel dire for many. The rape kit backlog vividly illustrates the way our systems of criminal justice, maintained by fallible humans who have internalized our toxic, culturally held notions about numerous groups—women, rape survivors across gender, people of color as “believable” victims and assumed perpetrators—fail and further marginalize the marginalized, producing disastrous human consequences. We have to do more, for survivors, advocates, the innocent, and ultimately, anyone interested in achieving justice.