Reinvestigating Rape: Old Evidence, New Answers

*Update: After this article was published, the FBI and NIJ announced that that they would begin testing rape kits for departments nationwide, free of cost. Local departments are only responsible for paying postage.

A growing number of communities across the country are wrestling with how to deal with rape kit “backlogs.” 

The issue, brought to the public’s attention in recent years by human rights advocates and the media, is often talked about in terms of numbers: How many kits are untested? How much will it cost to test them? How many rapists will be caught?

But reporting on the topic must go deeper. Behind each kit is a person who, often years ago, allowed a nurse or doctor to collect evidence of a potential crime from their body.

And now, without their knowledge or permission, that chapter of their life is being reopened.

Though delayed, forensic testing offers a chance for justice in some cases. It also triggers unwanted trauma in others. 

The reopening of thousands of sexual assault cases allows journalists to look at how reports were handled in the past and how policy, training and education might prevent future attacks.

Below are answers to some common questions about rape kit testing, along with useful links, resources and questions reporters can pose to authorities.

For further assistance or specific questions email Plain Dealer reporter Rachel Dissell, and click here for Dissell's quick tips for reporters on understanding forensic testing, crime laws, and how sexual violence can impact survivors and their communities.

What are these backlogs?

Technically, a rape kit backlog is when there is a delay of 30 days or more in testing a kit submitted to a lab. That can occur because crime labs are understaffed or budgets are not sufficient to cover testing. However, the latest backlog news is related to sexual assault evidence collected at hospitals or medical centers that had been turned over to police but never sent for testing – or never tested for the presence of DNA. Often victims did not know that the evidence in their cases was not processed. 

Questions:

• Has local law enforcement tallied the number of rape kits not sent for DNA testing? If so, how many years back did the evidence go?
• Are kits that were tested for only semen or blood typing years ago being retested for DNA?
• What agency policies (both previous and current) govern when and how sexual assault evidence is tested and how long evidence is retained? (Often these guidelines at the state and local level have changed over the years depending on the leadership, cost of testing, lab access and evolving technology.)
• What is the state’s statute of limitations for prosecuting sexual assault and rape cases? (this can vary based on age of the victim and when the report was made.)
• Is the state enacting kit testing laws or setting guidelines, that require some or all collected kits to be counted or processed?
• Are there incentives or penalties in place for jurisdictions not submitting kits (old or new)?
• Will processing older, previously untested kits impact the ability of law enforcement to test evidence or investigate newly reported sexual assaults?

Why would police departments decide not to send evidence for testing if it could help catch a rapist?

Initially when DNA was introduced as a law enforcement tool it was expensive and also viewed as something to bolster a sexual assault prosecution – not to solve a case. Many times, rape kits were only tested if a case was going to trial.

Even up until recently, the law enforcement community has debated which sexual assault kits should be sent for forensic analysis. Some argue that only kits that could reveal the unknown identity of a rapist should be tested.

Others argue that all kits, regardless of whether the suspect is known or unknown, should be analyzed. Those who support the “test all” approach say that DNA profiles found in kits connected to relative or acquaintance rape could provide valuable links to other unsolved crimes. 

Lawmakers have recently worked to allocate millions in federal dollars to mitigate the financial strain cities face when attempting to test hundreds or thousands of previously untested rape kits.

Police departments also may not have made adult sexual assault cases a priority. 

Many departments have or had policies or practices in place that were not supportive or encouraging to victims. Lack of training and understanding of how victims react after an assault also can mislead investigators to conclude that victims are lying. 

Other times, victims decided for any number of reasons that prosecuting a case wasn’t in their best interest.

Questions: 

• When did local law enforcement first start using sexual assault or rape kits as evidence?
• Were there limitations on rape kit processing due to cost or policy? 
• How much does it now cost to fully DNA test a rape kit?
• How often are rape kits used in current prosecutions?
• Do detectives have training in the role that a rape kit can play in an investigation? 

Why is there a big push to test sexual assault kits now?

The issue has gotten far more attention as DNA testing has led to more arrests and prosecutions – especially in serial rape cases. Reports from organizations like Human Rights Watch first started bringing to light the story of the untested kits with a groundbreaking report in 2009 on untested kits in Los Angeles. 

The following year, they examined the issue in Illinois. 

New York City was among the early leaders in identifying and processing rape kit evidence starting in 1999. That project led to hundreds of prosecutions and at least one exoneration.

After the project, the arrest rate in rape cases increased and now all evidence is tested regardless of whether the case will be prosecuted.

News of another wave of unprocessed kits started to surface in recent years with large caches of untested kits discovered in Detroit, Dallas, Houston, Cleveland, Memphis, Salt Lake City, San Francisco and other cities. EndTheBacklog.org has a state-by-state tally reports on untested rape kits. 

Each city and state has taken a slightly different approach to tackling the testing, and in Detroit and Dallas, federal grants are supporting research on the process and results.

Attention has heightened as states that have taken on testing initiatives have seen promising results, including Ohio, which has seen DNA hits or matches in as many as one in every three kits processed.

Research is still in progress but early indications show that testing rape kits and prosecuting attackers can not only prevent trauma but save money spent on counseling, medical treatment, lost wages and other expenses. In many cases, undetected rapists also have committed other non-sex crimes, such as thefts, burglaries and other offenses that have a community cost.

Questions:

• If local law enforcement has committed to kit testing, find out whether they are using the “fork lift” approach to test all kits or are only testing certain kits, such as ones in reported stranger rapes or unprosecuted rapes. Some jurisdictions have opted to test everything on their shelves because sorting through thousands of pieces of evidence is cumbersome. Other agencies want to test only kits in cases where there has been no prosecution, regardless of whether the kit was previously tested.
• What are the timeframes for getting kits tested?
• Will government labs or private labs do the testing?
• What is the cost of testing per kit? What is the total cost and who will pay?
• Are there an adequate number of investigators, prosecutors and victim advocates handling an increased number of cases?
• Has testing called into question any previous convictions? 

Is it important for sexual assault kits from 10 or 20 years ago to get tested? Can’t we just start testing all new kits? 

Evidence is overwhelming that testing previously untested kits has helped solve cases – and likely prevented rapes. 

Research from experts like David Lisak demonstrates that most rapes are part of a series. Lisak points out that most men are NOT rapists. But those who are tend to have multiple victims. 

Rape kit testing is increasingly providing evidence that those victims can be acquaintances, strangers or both. The crimes can be clustered into a short time period or geographical area or spread out to different neighborhoods, cities and even states over a period of decades.

In Cleveland, for example, one-third of cases indicted as part of a kit testing initiative involve a suspect tied to more than one rape. That doesn’t count prior sex crime convictions or cases that were reported but never prosecuted.

And there are a mounting number of cases where crime labs have found DNA of a potential attacker that hasn’t yet “hit” to a suspect but could in the future. 

With the increasing popularity of DNA collection laws, more DNA is being submitted to state and national databases resulting in more hits or matches.

Though controversial, the U.S. Supreme Court decided last year that police could legally collect DNA from people arrested in connection with serious crimes.  

Questions:

• Have local law enforcement used DNA in the past to link rapes to others and identify attackers?
• Do police track when multiple reports are made against the same person, and whether or not they are prosecuted?
• Are local police following the state’s DNA collection laws, whether it be at the time of arrest or conviction? 

Does a DNA match mean a case is solved?

Not necessarily. After a “hit” or match is made between a kit profile and a known person whose DNA is in the database, police are notified. The hit sparks further investigation. Police attempt to reach the victim and find out first whether the DNA could belong to a consensual partner. If not, they move forward with investigating the case just as they should any sexual assault report. That could mean interviewing the suspect, if locatable.

The suspect could deny knowing the victim or say they had consensual sex with the victim. 

Local prosecutors generally make decisions on whether to pursue cases that are within the statute of limitations based on evidence. 

In certain cases, hits or matches may link cases to suspects who are deceased, which can provide answers but not lead to prosecution.

Questions:  

• What steps are local law enforcement taking once notified of a hit or match?
• Is there a team approach, including investigators, prosecutors and advocates?
• Are the advocates community-based, such as a local rape crisis center, or do the justice system advocates work for police or prosecutors?
• Has law enforcement received training to help them understand the dynamics of notifying victims and confronting suspects?
• Will victims be notified if DNA found in their kit identifies a suspect who is deceased?

If testing identifies a potential rapist but the state’s statute of limitations has passed, can anything be done? All states have different statutes of limitations for sexual assault cases. Some in recent years have passed laws allowing an exception for DNA evidence in certain circumstances though these laws vary significantly across the country.

However, even if a case cannot be prosecuted, victims can still participate in the justice process as witnesses in other cases to help show a pattern of activity by an attacker. If their attacker is incarcerated, victims can write letters or give testimony to discourage the parole of their attacker.

Questions:

• Will victims be informed of a hit or match in their case even if it can no longer be prosecuted?
• Do victims have the right to know a suspect’s name if that person is not going to be charged with a crime?
• Are victims told of possible civil steps they could take to protect themselves from rape suspects that can’t be prosecuted?
• Have investigators looked into other potential unprosecuted reports that may be within a statute of limitations?

How long do law enforcement agencies have to keep rape kits?

It varies from state to state depending on the statute of limitations or other evidence retention laws that are in place. Though many departments have been criticized for not testing rape kits, some have stored kits for far longer than they were legally bound to, and are in possession of evidence going back to the 1980s or even earlier. 

Questions:

• For how long do local law enforcement agencies retain sexual assault evidence?
• Do they have rape kits only or other evidence as well that predates that process? 

How much does it cost to test a rape kit?

The cost varies widely depending on the type of testing, volume of testing and whether kits are being processes by a government-run or private lab. General estimates are between $400 and $1,200 per kit.

When talking about testing a backlog, it is important to understand the steps of forensic DNA testing. 

Items within submitted kits, such as swabs and underwear, can be prescreened for the presence of semen before the more expensive DNA testing is done. Some kits will also need additional testing after DNA hits. If a case is going to trial, other clothing or items in a kit may need to be tested, especially if a case involves multiple assailants.

Questions:

• What kind of DNA testing capabilities do state and local labs have?
• Do they have the ability to test samples in batches using robots or do they test one at a time?
• Will labs test older kits alongside new ones, possibly slowing down the process for newly reported cases?

What are John Doe DNA or John Doe indictments?

Prosecutors in some states are asking grand juries to indict the unidentified DNA of a person or multiple people found in sexual assault evidence kits. Other jurisdictions are filing warrants for the arrest of the person or people the DNA belongs to. The hope is that through further investigation or after a criminal arrest, the suspect’s DNA will be identified by name. The tactic so far has stood up legally and is often used in cases where one DNA profile is connected to multiple attacks. It is more commonly but not exclusively used when the attacker was a stranger to the victim. 

Questions:

• Do local prosecutors plan to use John Doe indictments? 
• Have they used this type of indictment before?
• Are there specific requirements or are there legal precedents in my state related to indicting DNA profiles?
• What will investigators do to find the identity of the attacker if they do indict?

What does this all mean for the victim who reported the crime?

Many victims do not know that evidence in their case was not tested. Each person has a different reaction.

Some are thrilled there could be a break in their case. Others have moved on and do not want a traumatic chapter of their lives reopened. 

Cities that have begun to tackle backlogs have tried a number of different methods, none of which is perfect. 

Some have tried to notify victims in person when possible. Others have called or sent letters to victims asking them to contact an investigator. 

Some law enforcement agencies are working in tandem with sexual assault advocates so that victims have support from the moment they are notified that their case has been reopened.

Houston and Memphis both decided to open up hotlines where victims could call and get information. 

The National Center for Victims of Crime has been researching the issue and getting feedback from women who got such notifications to come up with best practices for victim notification and to inform victims of their legal rights. 

Questions:

• How can victims find out if a kit collected after they reported an assault at a hospital is being tested?
• Do victims have the right to ask that their kit not be tested?
• Can victims ask that their kits be tested even if the statute of limitations in their case had passed?
• Do investigators have to reveal the results of forensic testing to a victim?
• Are there long-term support services available for victims once and investigation and/or prosecution is over?

What if a victim had a rape kit collected in the hospital but did not report the crime? 

Sometimes called Jane Doe or anonymous rape kits, the terms refer to evidence collected and handed over to police without the name of the victim attached.  States have widely varying laws on what is done with this evidence, from destroying it after a certain number of days to storing it alongside other rape kits. 

Advocacy groups and Sexual Assault Nurse Examiners or SANE nurses have concerns about law enforcement testing the Jane Doe or anonymous kits because they fear it will prevent future victims from seeking medical treatment. They also feel it is unfair to forensically examine evidence if a victim decided they only wanted medical attention and not to report a crime to authorities.

Questions:

• If victims had anonymous kits taken are those kits being tested?
• What were victims told about evidence testing when they originally sought treatment?
• Will law enforcement be able to find out a victims’ identity based on a medical record number of other identifier, even if their name isn’t included on a report?
• Do victims have a right to ask that their anonymously taken sexual assault evidence not be processed?

How can victims best be supported after finding out their rape kit is being or has been tested?

Victims can be supported by sexual assault center advocates or referred for special counseling to cope with trauma connected with the reopening of the report they made. 

There are different types of advocates available to victims and they have different roles. Community-based advocates who work for a rape crisis or domestic violence center are trained and expected to assist a victim whether or not their case is being investigated or prosecuted. They also are bound to keep confidential what a victim tells them unless the victim says otherwise.

The courts or prosecutor/district attorneys’ offices often employ Justice system advocates and their role is generally to help victims and/or witnesses through the investigation or court process. They can answer questions, provide information and help a victim voice their concerns or wishes. However, they work for the justice system and not the victim. They are not bound to keep conversations confidential.

Beyond advocacy, victims can also apply to state funds to help cover the cost of counseling, medical treatment and travel as well as other expenses. 

Rape cases can be difficult to prosecute and take to trial. Is it even harder to get a conviction in 10 or 20-year-old cases?

While it is true some rape cases are difficult to put in front of a jury, prosecutors are finding several ways in which older cases have stronger evidence than when first reported. 

In some cases, there is evidence of a pattern of sex crimes that investigators didn’t know about originally. In other cases, victims, who may have been struggling with addiction or mental health issues are in a stronger, healthier place and able to help with a prosecution. And, of course, DNA is a strong tool. While DNA doesn’t prove to prosecutors that a rape occurred, it can be helpful in a number of ways. 

Investigators who work on cold case sexual assaults can first confront a suspect with a photo of a reporting victim or times and dates. If the person denies knowing the victim or any sexual contact, the presence of DNA is much harder to explain in court. 

However, juries can sometimes have a hard time believing victim testimony, especially if memories are fuzzy because of the passage of time or the trauma a person suffered during their attack. 

More prosecutors are turning to experts to help juries understand how victims react to the trauma of rape and dispel myths and assumptions of how they should act?

Questions:

• How are local authorities deciding which rape kit cases to prosecute?
• Are they prosecuting mainly “stranger” cases or cases with multiple victims?
• Are victims or their advocates involved in the conversations about whether to offer a plea or take a case to trial?
• Do prosecutors have an expert available to explain victim behavior in the wake of a sexual assault?
• Do prosecutors have a guideline or policy about pleas in rape kit cases so they are resolved consistently?  

But is it fair to prosecute people so long after crimes were reported?

Defense attorneys in many jurisdictions have argued that it is unfair for clients to have to defend a decades-old allegation. Witnesses sometimes can’t be located or memories are faded and evidence they might have gathered is no longer available. So far, the legal results are mixed. Most cases have been allowed to proceed by judges citing the statute of limitations and related laws. However, a few cases have been tossed out of court or dismissed based on technical factors relating to evidence collection, previous judicial proceedings or the death of the victim. Backlog and rape kit testing project cases will likely by working their way through the courts for years.

Questions:

• What legal precedence is there related to delayed prosecution of rape cases? 
• Will judges allow a case to be prosecuted if the victim is deceased?
• Do local defense attorneys have sufficient training in DNA testing techniques?

What if a victim does not want a case that they reported to be prosecuted?

The choice of whether to indict a suspect in a rape case rests with the prosecutor, who represents the state, not the victim. Prosecutors don’t need a victim’s permission but generally prefer to have their cooperation because it makes a case stronger.

Specific to rape kits, prosecutors may feel they have to balance the safety of the community – preventing future rapes – with the victim’s wishes. 

In making decisions they may look at whether the suspect is in prison or not, whether the suspect could be a serial rapist and how strong the evidence is in the particular rape cases.

Some advocacy groups have questioned whether it is ever fair to force a rape victim to testify against their wishes. They warn that trauma could cause psychological damage, addiction relapse and other potential mental health issues. 

Questions:

• Will the local prosecutor force a victim to testify or subpoena them?
• Are prosecutors working in concert with advocates or mental health providers to avoid further harm to victims?
• What is a prosecutor's responsibility ethically to prevent future crimes?  

Resources:

2012 National Institute of Justice Report explains forensic evidence backlogs, including definitions and historical perspective.

In this tip sheet, Rachel Dissell offers advice for reporters on understanding forensic testing, crime laws, and how sexual violence can impact survivors and their communities.

PBS glossary and National Institute of Justice glossary with definitions for technical terms related to DNA testing. 

Sarah Tofte, with The Joyful Heart Foundation, explains past decisions made about testing rape evidence.

National Center for Victims of Crime resources and information related to many facets of sexual assault kit testing, including victim rights, victim notification as well as policy and legislative information. 

End the Backlog website tracks news about untested and backlogged sexual assault kits across the country. It also tracks legal and policy issues.

Researcher Rebecca Campbell’s three-part video interview is a primer on why some law enforcement may have had trouble believing the reports of rape victims. It is also helpful for understanding how being assaulted impact the brain.

Dart Center tip sheet on covering sexual violence.

New York County District Attorney’s Office slideshow detailing how New York City dealt with more than 17,000 untested rape kits. 

AEquitas: The Prosecutors' Resource on Violence Against Women can provide technical answers on tactics of legal precedent in prosecuting rape cases.  

End Violence Against Women International (EVAWI) is a non-profit with a focus on changing the response to gender-based violence. Provides interdisciplinary training and technical assistance to investigators, nurses, advocates and more.

A visual look at how sexual assault kits are used to preserve evidence.

Each lab may use a slightly different process for testing rape kits but, in general, the same steps are followed. Here is a quick primer on how Ohio’s crime lab tests rape kits.