When Justice Is Not Served: The Lack of Rape Kit Testing and Insufficiency of Accountability for Victims

Across the country, there is a little-noticed but pervasive and egregious delay happening in government crime labs. Over 100,000 known sexual assault forensic evidence specimens, also known as rape kits, are currently sitting on shelves untested across the United States, some of which have remained there for decades. [1] Despite the fact that this DNA evidence could be used to find perpetrators and press charges, there is an alarming lack of due process when it comes to the justice system’s failure to test so many rape kits, leading some advocates to argue for reform on constitutional grounds. Ultimately, it is essential to eliminate the statutes of limitations on felony sex crimes and institute a new law requiring that rape kits are tested within a reasonable amount of time as determined by the courts.

It is well known that DNA testing is very useful in the forensic field and is an incredibly valuable tool for solving crimes. [2] A 2022 study on a locality between 2005 and 2010 funded by the National Institute of Justice found that “DNA evidence had a dramatic relationship with cases’ progression in the criminal justice system and on conviction rates. Almost 75% of the cases in which the DNA profile matched the suspect resulted in a guilty plea or a trial, compared with less than a third of cases without a laboratory report.” [3] Sexual assault test samples are recommended to be taken from a victim’s body as soon as possible (ideally within nine days of the assault) because DNA evidence deteriorates with time. The collection of evidence via a rape kit is an incredibly invasive process that takes between four and six hours that should only be performed by specifically trained healthcare professionals in a medical or rape crisis center setting. [4]

After the collection of a rape kit, a general rule of thumb in law enforcement is that it should be booked into the system as evidence; the prosecutor or detective on the case requests DNA analysis of the sample, and then it is sent to a crime lab, tested there, and the results are sent back to the relevant authorities to check for a DNA match in their systems. [5] While not every rapist will already have a DNA sample in the possession of law enforcement, there have been many instances in which repeat offenders have been caught via DNA analysis from rape kits. [6] However, in a process in which so many steps must be followed and many bureaucratic processes adhered to, the “rape kit backlog” has formed. Now, tens (and potentially hundreds) of thousands of rape kits sit on shelves at healthcare facilities, crime labs, police evidence storage rooms, and more. Most importantly, there are no federal laws requiring that law enforcement departments track and test rape kits. [7]

Additionally, a common complaint from law enforcement agencies is that they do not have enough funding to end their backlogs of rape kits. [8] However, there are no consistently robust funding support systems on the federal or on many of the state levels. The most the federal government does to help local agencies test rape kits is provide one-time grant funding by way of the Debbie Smith Act, passed in 2004 and renewed in 2019. [9] But because these grants are one-time and must be applied for each time, they are far from a universal funding solution, and legal action will be required to ensure that rape kits are tested within a reasonable amount of time and the backlogs cleared.

One of the most troubling aspects of the rape kit backlog crisis is that many of them have yet to be tested, despite the fact that the statutes of limitations applying to them have expired or will do so soon. Statutes of limitations are laws that dictate the maximum amount of time after a crime is committed that claims can be brought, and their legal rationale is generally understood to be for the protection of defendants’ rights to due process. [10] After a statute expires, the incidents it is based on are no longer eligible for civil suits or criminal prosecution against them. [11] Therefore, it is inevitable given constrained resources and the necessary steps in processing rape kits that law enforcement incurs extreme delays, which may undercut due process for victims if they exceed the statute of limitations. The average number of years that rape kits in the U.S. sit on shelves untested is not known, but there is case-specific evidence that at times they can sometimes remain untested for over 30 years due to police bias, as well as communication errors, lack of bureaucratic priority, and insufficient funding allocations. [12] There is much state-by-state variation on statutes of limitations for the most serious felony sex crimes, but all states have established statutes of limitations between 10 and 21 years in length. [13] Hence, with the often necessary delays in rape kit processing, the statute of limitations impedes victims from receiving due process.

Statutes of limitations exist in order to ensure that prosecutions and lawsuits happen close to the time the crimes in question occurred. There are many reasons that justify their existence in most cases, such as the unreliability of witness testimony, deterioration of physical evidence, and minimization of litigation running through courts. [14] The 2003 Supreme Court ruling in Stogner v. California established that an expired statute of limitations cannot be reopened due to the Ex Post Facto and Due Process clauses; so it is necessary to respect that precedent. [15] But in sexual violence cases where the statutes of limitations have yet to expire (and for future cases), they must be eliminated to account for the prolonged rape kit testing backlog. There is obviously a delicate balance that must be maintained between the due process of the victim and that of the accused, but to close a case due to statutes of limitations before the associated DNA has been tested is a step too far. For a rapist to evade prosecution for a felony sex crime because an arbitrary amount of time has passed is the opposite of just; and statutes of limitations make it easier for repeat offenders to escape punishment and continue committing these horrific assaults. It makes no logical sense to have statutes of limitations for crimes in which the supporting DNA

evidence remains untested for decades at times because of inaction on the behalf of law enforcement and prosecutors are required by law to bring all “material exculpatory and impeachment evidence” to criminal trials. [16] Moreover, by requiring rape kits to be tested within a certain amount of time, cases in which DNA evidence is involved would still be prosecuted in a reasonable timeframe, as is necessary by law. In her majority opinion in Betterman v. Montana (2016), Supreme Court Justice Ruth Bader Ginsburg affirmed that the “Sixth Amendment’s Speedy Trial Clause [protects defendants in] the... period: from arrest or indictment through conviction.” [17]

As stockpiles of untested rape kits continue to grow, it is quite clear that victims’ Fifth Amendment and Fourteenth Amendment right to due process, as well as their Sixth Amendment right to a speedy trial are being violated by these agencies. Being forced to wait for years on end for a sample to come back because of inaction within the system is unjust. Many delays in testing can be attributed to police culture of not taking rape allegations seriously and wishing to only work on behalf of certain types of victims. [18] Law enforcement is acting negligently because they are not fulfilling their duty to process and test rape kits within a reasonable amount of time. Legally, negligence usually consists of direct actions, but can also consist of omissions when there is some duty to act. [19]

Besides eliminating statutes of limitations in cases where it is possible, we must have a federal law requiring all rape kits to be tested, within a time limit applicable to the Fifth Amendment to be determined by the courts. In 2017 Justice Department recommended that all rape kits be sent to labs and tested, but no significant federal actions have been taken ever since to spearhead this. [20] Only about 25% of all rape victims come forward to make a police report, with the hope that the perpetrator will be caught and prosecuted. Of them, 20% of those cases will lead to an actual arrest, and of that group, 20% of arrests are referred to prosecution. In the end, less than 0.5% of sexual assaults lead to justice for survivors. [21] A victim may not report a rape for psychological reasons including shame, a personal and/or intimate relationship with the perpetrator, fear of retaliation by the perpetrator or another person or group, anxiety, denial of trauma, and lack of trust in law enforcement. [22] In particular, younger and Black female victims are less likely than older and non-Black victims to report rape. [23] In the limited number of cases in which a rape is reported and the associated DNA evidence is collected, it is imperative that said evidence is tested as soon as possible.

In addition, the rape kit backlog, along with sexual violence as a whole, is a gender justice issue. 90% of adult and 82% of juvenile rape victims are female; and the fact that law enforcement nationwide continues to not prioritize testing rape kits could be seen as an issue of discrimination on the basis of sex, as such a large proportion of victims are female. [24] The Equal Protection Clause notably states that no state can “deny to any person within its jurisdiction the equal protection of the laws,” while Title IX specifically bans discrimination on the basis of sex. Title

IX also prohibits discrimination on the basis of sex within schools and educational programs that receive federal funding, demonstrating that the government already has a strong stance against gender discrimination. [25] According to the U.S. Department of Justice, “94% of women who are raped experience symptoms of post-traumatic stress disorder (PTSD) during the two weeks following the rape.” [26] Going forward, if the United States wishes to become a more equitable and less sexist country as a whole, it would do well to clear the backlog and move towards accountability for victims of sexual violence.

By allowing the rape kit backlog crisis to go on for decades in such an intensive way, U.S. law is very much aiding in the current patriarchal legal system. Statutes of limitations on felony sex crimes must be waived for cases in which the current statutes have not expired; and federal regulations must be put in place to make sure tests are processed and analyzed and that agencies have enough funding to comply. This action would be another step forward for gender equality as a whole, because sexual violence is an issue that far disproportionately affects women, as well as the general administration of justice. [27] The rape kit backlog is an issue of deep urgency on a number of levels, but it is especially important to take action to help deliver the justice that is deserved to hundreds of thousands of rape victims.

Edited by Daniel Kroll

[1] Molly Curington, “The Injustice of America’s Rape Kit Backlog,” Arkansas Journal of Social Change and Public Service, March 31, 2021, https://ualr.edu/socialchange/2021/03/31 /the-injustice-of-americas-rape-kit-backlog.

[2] National Institute of Justice, “National Best Practices for Sexual Assault Kits: A Multdisciplinary Approach,” U.S. Department of Justice, Office of Justice Programs, 2017, https://www.ojp.gov/pdffiles1/nij/250384.pdf.

[3] Sharita Miller, “Study Examines Impact of DNA Evidence in Sexual Assault Prosecutions,” University of Illinois School of Social Work News Bureau, April 8, 2022 https://socialwork. illinois.edu/news/study-examines-impact-of-dna-evidence-in-sexual-assault-prosecutions/.

[4] National Institute of Justice, “National Best Practices.”

[5] End The Backlog, “What is the Backlog?” Joyful Heart Foundation, https://www.endthe backlog.org/what-is-the-backlog/#:~:text=It%20is%20estimated%20that%20hundreds,and%20sa fety%20to%20a%20community.

[6] Caroline Mimbs Nyce, “The Atlantic Daily: These Attacks Could’ve Been Prevented,” The Atlantic, July 15, 2019, https://www.theatlantic.com/newsletters/archive/2019/07/nationwide- epidemic-of-untested-rape-kits-atlantic-daily/594046/.

[7] End the Backlog, “What is the Backlog?” [8] Nyce, “The Atlantic Daily.”

[9] End the Backlog, “Public Policy: Federal Response,” Joyful Heart Foundation, https://www.endthebacklog.org/public-policy/federal-response/.

[10] “Statute of Limitations,” in Wex, Legal Information Institute, Cornell Law School, https://www. law.cornell.edu/wex/statute_of_limitations.

[11] “Statute of Limitations,” in Wex.

[12] Kyle Hopkins, “After 3 Years and $1.5 Million Testing Rape Kits, Alaska Made One New Arrest,” The Anchorage Daily News/ProPublica, December 30th, 2020, https://www.propublica. org/article/after-3-years-and-1-5-million-testing-rape-kits-alaska- made-one-new-arrest.

[13] “State by State Guide on Statutes of Limitations,” Rape, Abuse, and Incest National Network (RAINN), https://www.rainn.org/state-state-guide-statutes-limitations.

[14] Tyler T. Ochoa and Andrew Wistrich, “The Puzzling Purposes of Statutes of Limitation,” Santa Clara Law Digital Commons, 1997, https://digitalcommons.law.scu.edu/cgi/viewcontent. cgi?article=1107&context=facpubs.

[15] Stogner v. California, 539 U.S. 607 (2003). [16] Brady v. Maryland, 373 U.S. 83, 87 (1963). [17] Betterman v. Montana, 578 U.S. 437 (2016). [18] Nyce, “The Atlantic Daily.”

[19] “Negligence,” in Wex, Legal Information Institute, Cornell Law School, https://www.law. cornell.edu/wex/negligence.

[20] National Institute of Justice, “National Best Practices.”

[21] “Victims of Sexual Violence: Statistics,” Rape, Abuse, and Incest National Network (RAINN), https://www.rainn.org/statistics/victims-sexual-violence.

[22] Jones, J., Alexander, C., Wynn, B., Rossman, L., & Dunnuck, C. (2009). Why women don’t report sexual assault to the police: The influence of psychosocial variables and traumatic injury. The Journal of Emergency Medicine, 36(4), 417–424. https://doi.org/10.1016/j.jemermed.2007. 10.077; Bicanic, I., Hehenkamp, L., van de Putte, E., van Wijk, A., & de Jongh, A. (2015). Predictors of delayed disclosure of rape in female adolescents and young adults. European Journal of Psychotraumatology, 6(1), 25883–25883. https://doi.org/10.3402/ejpt.v6.25883.

[23] Decker, M. R., Holliday, C. N., Hameeduddin, Z., Shah, R., Miller, J., Dantzler, J., & Goodmark, L. (2019). “You do not think of me as a human being”: Race and gender inequities intersect to discourage police reporting of violence against women. Journal of Urban Health, 96(5), 772–783. https://doi.org/10.1007/s11524-019-00359-z

[24] RAINN, “Victims of Sexual Violence.”

[25] “The 14th Amendment and the Evolution of Title IX,” U.S. Courts, https://www.uscourts. gov/educational-resources/educational-activities/14th-amendment-and-evolution-title-ix#:~:text= The%2014th%20Amendment%20provides%2C%20in,IX%20specifically%20prohibits%20sex% 20discrimination.

[26] Bureau of Justice Statistics, “Female Victims of Sexual Violence,1994-2010,” U.S. Department of Justice, March 2013, https://bjs.ojp.gov/content/pub/pdf/fvsv9410.pdf.

[27] RAINN, “Victims of Sexual Violence.”