The Rape Kit Backlog: Having the Answers Without the Resources to Decipher Them

 The Rape Kit Backlog: Having the Answers Without the Resources to Decipher Them

Emily Schreiber*

            Across the country, states are confronted with a daunting dilemma: they may have the DNA to prosecute those who have committed sexual assault, but are lacking either the policies or financial support necessary to make the link.  See, e.g., Christopher Connelly, Donations from Drivers Might Help End Rape Kit Backlog in Texas, NPR (Apr. 12, 2017, 4:32 PM), http://www.npr.org/2017/04/12/523588098/donations-from-drivers-might-help-end-rape-kit-backlog-in-texas; Why the Backlog Exists, End Backlog, http://endthebacklog.org/backlog/why-backlog-exists (last visited Feb. 15, 2018).  When a victim reports a sexual assault, he or she can have a doctor or nurse conduct an examination on his or her body, looking for DNA evidence to connect the crime to his or her attacker.  What Is the Rape Kit Backlog?, End Backlog, http://endthebacklog.org/backlog/what-rape-kit-backlog (last visited Feb. 15, 2018).  However, “[i]t is estimated that hundreds of thousands of rape kits sit untested in police department and crime lab storage facilities across the country,” resulting in the phenomenon of the “rape kit backlog.”  Id.  The kits can remain untested for two reasons: law enforcement officials or prosecutors may not request DNA analysis, or a crime lab may not test requested kits in a timely manner.  Id. 

In addition to attention from entities like non-profit organizations, the backlog is making its way into the courts.  See, e.g., id.  Most recently, on September 24, 2017, DeJenay Beckwith, along with others who are similarly situated, filed a class action lawsuit in the United States District Court for the Southern District of Texas against the City of Houston for failing to test thousands of Sexual Assault Evidence Kits.  Original Class Action Complaint at 2–3, Beckwith v. City of Houston, No. 4:17-cv-02859 (S.D. Tex. filed Sept. 24, 2017).  Beckwith was sexually assaulted in 2011 and a rape kit examination was performed, but not tested, until five years later.  Stephanie Francis Ward, Sexually Assaulted Woman Files Civil Rights Action Against City of Houston over Rape Kit Backlog, A.B.A. J. (Sept. 27, 2017, 5:30 PM), http://www.abajournal.com/news/article/sexually_ assaulted_texas_woman_ files_civil_rights_action_regarding_rape_kit.  The testing of the rape kit revealed a match with David Lee Cooper, a man whose “DNA had been included in the Combined DNA Index System . . . since 1991.”  Original Class Action Complaint, supra, at 15.  Cooper had been associated with other sexual assault crimes, including one involving a minor in 2002.  Id. at 14.  Thus, Ms. Beckwith’s complaint states that the root of the claim is not that Ms. Beckwith’s rape kit was not tested, but instead that the rape kits of Cooper’s earlier victims had not been tested.  Id.; Ward, supra.  Ms. Beckwith’s argument is had those kits been analyzed, Cooper would not have been able to sexually assault her.  Original Class Action Complaint, supra, at 14; Ward, supra.

The claims in Ms. Beckwith’s lawsuit include: “damages to the plaintiffs because of their subsequent rape by identifiable perpetrators,” and constitutional violations, including those under “the due process, equal protection and unreasonable search and seizure clauses.”  Original Class Action Complaint, supra, at 3–4.  Ms. Beckwith not only named the City of Houston as a defendant, but individually named as co-defendants those who she believes “are responsible for establishing policy, implementing and overseeing City of Houston policies, practice, and custom of failing to investigate rapes against females and/or were responsible for overseeing and training others to continue those violative policies, practices and/or customs.”  Id. at 5.  Additionally, Ms. Beckwith seeks to join other “similarly situated Plaintiffs,” including “all women and children who were sexually assaulted in Houston, Harris County, Texas, as the result of an offender not being previously identified due to” an untested rape kit and all women and children whose rape kits were not submitted for testing.  Id. at 6 (emphasis omitted).  Ms. Beckwith requests injunctive relief in the form of new policies surrounding the testing of rape kits, as well as monetary damages, the costs of the action, and attorneys’ fees.  Id. at 42–44.  While Peter Stout, one of the named defendants and CEO and President of the Houston Forensic Science Center, did not speak specifically about the lawsuit, he did note that the lab is very aware of the importance of “process[ing] sexual assault evidence in a timely fashion, noting that untested rape kits are a nationwide problem.”  Gabrielle Banks, Assault Survivor to Sue City, Officials over Rape Kit Backlog, Hous. Chron. (Sept. 25, 2017), http://www.houstonchronicle.com/news/houston-texas/houston/article/Assault-survivor-to-sue-city-officials-over-rape-12227930.php.

Mr. Stout’s statement on the nationwide backlog problem was not an excuse, but a reality.  “To date, over 200,000 untested rape kits have been uncovered” across the United States.  Where the Backlog Exists and What’s Happening to End It, End Backlog, http://endthebacklog.org/backlog/where-backlog-exists-and-whats-happening-end-it (last visited Feb. 15, 2018).  Around half of all states house cities that have enacted some kind of reform to their testing procedures in order to solve the backlog problem.  Id.  Those cities that have prioritized rape kit testing have witnessed considerable results.  In 2011, the Attorney General of Ohio started the “Sexual Assault Kit Testing Initiative, which incentivized law enforcement agencies across the state to submit all untested kits in storage to the state crime lab,” resulting in 13,931 kits being submitted for testing.  Test Rape Kits. Stop Serial Rapists., End Backlog, http://endthebacklog.org/backlog-why-rape-kit-testing-important/test-rape-kits-stop-serial-rapists (last visited Feb. 15, 2018).  As of September 2017, the crime lab had completed DNA analyses of over 6,800 kits, leading to the identification of 436 serial rapists, one of which harmed seventeen victims.  Id.  In 2009, the City of Detroit discovered 11,341 untested kits and as of September 2017, “has tested approximately 10,000” and identified “811 suspected serial rapists.”  Id.  The City of Memphis had a backlog of over 12,300 rape kits in 2014, but as of September 2017, close to 12,000 have been analyzed, resulting in 2,485 investigations and “246 requests for indictment.”  Id. 

Many states have been able to start tackling their backlog problem through outside funding, such as federal and state grants.  Press Release, Manhattan Dist. Attorney’s Office, District Attorney Vance Awards $38 Million in Grants to Help 32 Jurisdictions in 20 States Test Backlogged Rape Kits (Sept. 10, 2015), http://manhattanda.org/press-release/district-attorney-vance-awards-38-million-grants-help-32-jurisdictions-20-states-test-.  However, grants can only do so much when rape kits are being taken nearly every time a sexual assault occurs, and costing, on average, $1,000 to $1,500 each to test.  Why the Backlog Exists, supra.  Therefore, states, such as Texas, have adopted laws directing the Department of Public Safety to include donations to test sexual assault kits “when applying for and renewing driver’s licenses and personal identification certificates.”  Jim Malewitz, New Law Lets Texas Drivers Help Tackle the State’s Rape Kit Testing Backlog, Tex. Trib. (Sept. 18, 2017, 12:00 AM), https://www.texastribune.org/2017/09/18/how-texas-drivers-can-help-texas-tackle-its-rape-kit-testing-backlog/.  In addition to the crowdfunding law, Texas has also adopted a “new two-year budget appropriation of $4.2 million” to address the backlog problem.  Id.  Texas realized it had a 20,000 rape kit backlog in 2011, the year that Ms. Beckwith’s rape kit was taken, and in 2013, funneled $11 million into trying to tackle the problem.  Id.  With its backlog down to around 3,000 kits, Texas is still undertaking efforts to solve the issue and keep up testing so a backlog does not build again.  Id.

Lawsuits such as Ms. Beckwith’s expose the public to the glaring legal implications of rape kits that go without DNA testing—delayed justice, possible constitutional violations, and unsolved violence.  See Ward, supra.  These lawsuits frame the issue of untested kits as not only pertaining to an interest in protecting the public from those who commit sexual assault crimes, but also a means of preventing victims from being subjected to an invasive search that may never serve the purpose that likely justified the victim’s consent to the search in the first place.  Original Class Action Complaint, supra, at 15, 34­–36.  Some state legislatures have clearly chosen to confront their own backlogs, and some have not; however, if the courts—like in Ms. Beckwith’s case—begin to frame the issue of testing rape kits through a constitutional lens, the decision to act may become all the more urgent.

*Emily Schreiber is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review, as well as a Royal Graham Shannonhouse III Distinguished Scholar and a Law Scholar for Constitutional Law.  Emily also works as a law clerk at the Baltimore County State’s Attorney’s Office.