Gender & Sexuality Law Blog

Milli Kanani Hansen, currently a second year law student at Columbia Law School is on the editorial board of the Human Rights Law Review, is the Research Chair for Rights Link (is a human rights law student organization at Columbia Law School that provides free legal research services to human rights and public interest law groups both domestically and around the world) and is working on a student note (a student law review article) on the lack of rights that victims of sexual assault crimes have over the DNA evidence collected from their bodies  — hardly any states require law enforcement agencies to inform a victim when his/her rape kit is not tested, a victim does not have a right to possess/take her rape kit from police custody, and most law enforcement officers don’t communicate with victims between the time of the assault and the trial, if there is one.  She read the article in today’s New York Times,  Indicting DNA Profiles Is Vital in Old Rape Cases, by Al Baker and has these reactions:

Every two minutes, someone is raped in the United States. Most of these victims consent to the collection of physical evidence from their bodies, or a “rape kit”. Rape kits can help identify unknown assailants, confirm the presence of a known suspect’s DNA, corroborate a victim’s version of events in a contested assault, and exonerate innocent suspects.

In the last decade, law enforcement officers and prosecutors in New York City have been at the forefront of finding ways to maximize the evidentiary value of these rape kits. After discovering a backlog of over 16,000 untested rape kits in police storage facilities in 1999, the New York Police Department (NYPD) and the Manhattan District Attorney’s office ensured that the back-log was eliminated and implemented a policy to test all rape kits. This testing of backlogged kits resulted in over 2,000 cold hits, and, since 2003, the NYPD has seen its arrest rate for rape increase significantly – from 40 percent to 70 percent of all reported cases.

A New York Times article published in today’s paper highlights the success Manhattan prosecutors have had in using the evidence collected from those rape kits to identify and convict rapists in cases with no known suspects. Aware that the statute of limitations prevented cases from being brought against assailants who were unknown, prosecutors have indicted the rapist’s DNA with the hopes of later being able to connect that DNA to an individual. While the statute of limitations for certain sex crimes was lifted in 2006, these DNA indictments are important for the rape cases prior to 2006 in which there is no named suspect.

While the use of DNA evidence to exonerate wrongfully convicted individuals has gotten quite a bit of attention over the past years, the rights of victims to have DNA evidence used effectively has largely been ignored. A study funded by the National Institute of Justice found that evidence from approximately 169,000 rape cases still sits in law enforcement storage facilities. A Bureau of Justice Statistics bulletin suggests that here may be thousands of more samples that sit in crime lab storage facilities. Because jurisdictions are not required to report or publish the number of untested samples in their possession, it is difficult to get any sort of accurate picture of the magnitude of the problem in the United States. A report published by Human Rights Watch in March of 2009 found that, in Los Angeles County alone, there were over 12,500 untested rape kits in police evidence facilities. Over 1,200 of those kits were from unsolved cases in which the attacker was a stranger to the victim – the type of case in which DNA evidence can be most probative or helpful.

The process of collecting a rape kit can be invasive and uncomfortable, often taking four to six hours to complete. While victims often leave with the expectation that their rape kits will be used by law enforcement officials to further their cases, most victims don’t know that thousands of rape kits sit untested in police storage facilities. Each of those kits represents a lost opportunity for justice for victims of rape.

Federal efforts to address this problem, while perhaps well-intentioned, have been woefully weak. The Debbie Smith DNA Backlog Grant Program (42 U.S.C. § 14135), originally enacted in 2000 and reauthorized just last year, gives money to jurisdictions to address the backlog of DNA testing. Despite being named for a rape victim who, as a result of the testing backlog, waited six years before having her assailant identified, the federal program does not effectively bring relief for most rape victims. Law enforcement agencies are not required to use any of the money obtained through the program for the testing of rape kits, and the vague reporting requirements connected with the grant don’t facilitate congressional oversight. A lack of political will at the local level contributes to the perpetuation of the problem. An October 2008 audit of the Los Angles city crime lab, for instance, revealed that over $2 million dollars of federal funding went unused even as the backlog of rape continued to grow. In my own analysis of the reports submitted by jurisdictions receiving federal funds, the results have been discouraging. Of the 59 cities that actually provided data on the number of DNA cases backlogged in their jurisdiction, over half actually had an increase in the backlog during the grant period.

Testing every rape kit and effectively using the evidence collected to secure the rights of sexual assault victims will require both financial commitment and initiative by law enforcement agencies. The pay-off is not only justice for victims, but a reduction in the number of assailants allowed to escape punishment. As a Manhattan district attorney in the sex crimes unit noted, “We had the political will to [test all rape kits], and now, the policy is a no-brainer given all the rapes we have been able to solve and prosecute.” Stronger federal incentives for jurisdictions to test rape kits might help. Public pressure on local law enforcement agencies to address the problem is essential. Until then, all rape victims will not have the access to justice they deserve.