Sunny Hostin

Rape Victims Sue Police Over Decade-Long Rape Kit Backlog

AP Photo / Al Goldis

December 27, 2013
Article by Katie Rucke for Mint Press News.

The lawsuit accuses the Memphis Police Department of a history of discriminating against females.

Several rape victims in Memphis, Tenn., have joined together to file a federal class action lawsuit against the Memphis Police Department for neglecting to test more than 12,000 rape kits that contain biological evidence collected from victims of sexual assault.

Some victims say they have waited more than 10 years for the city to process their rape kits, which they say is a violation of their civil rights. The victims argue they have the right to file suit against the police department because it violated their rights to equal protection as granted under the 14th Amendment of the U.S. Constitution by not processing the rape kits in a timely manner.

Specifically, the lawsuit accuses the department of “a history of discriminating against females,” and says that it treats domestic violence abuse reports from women with less priority than other crimes.

Rape kits are pieces of evidence in sexual assault cases that contain DNA evidence such as saliva, blood, semen, urine, skin cells and hair taken from the victim’s entire body — including the skin, genitalia, anus, mouth, and underneath fingernails — in the hopes that the attacker left behind DNA evidence.

Due to the detailed nature of the process of collecting the forensic evidence for the rape kit, the whole ordeal takes between four to six hours to complete, and includes photographs of the victim’s entire body as well DNA collection.

A rape kit is considered to be backlogged if it has not been tested within 30 days of being received at a crime lab, and if a police department fails to submit the evidence to a crime lab within 10 days of collecting the evidence.

Talking to local media, Robert Spence, the lawyer representing the Memphis victims, suggested that the department’s failure to process rape kits and apprehend a suspect may have led to a person conducting multiple rapes, since 5 to 10 percent of rape kit analyses point to repeat offenders.

And because someone is sexually assaulted in the U.S. every two minutes, solving some of these cases could potentially reduce the number of sex assault crimes.

In an unusual twist, Memphis Police Director Toney Armstrong doesn’t appear to be upset that the victims are suing his department. In fact, he says he welcomes the lawsuit and added that he hopes it will bring change to the current system.

“I certainly welcome any and all legislation that we can have to put in place to hold me accountable as a director to hold my investigators accountable moving forward so we won’t have this problem again,” he told WMCTV.

Although this particular lawsuit is specifically examining the rape kit backlog in Memphis, this is a nationwide issue.

According to a report from Time magazine, as of September 2013, it was estimated that there were about 400,000 untested kits in the U.S.. In some states, the backlog is more concerning than in others based on a state’s statute of limitations. Only 20 states don’t have a statute of limitations on rape cases.

Currently only three states — Illinois, Texas and Colorado — require law enforcement agencies to count, track and test any untested rape kits, but there is no federal law mandating the tracking and testing of rape kits.

Financial setback
One of the most common explanations for why such a backlog exists is inadequate funding, since each kit costs about $1,500 to test, and local police departments are already struggling to cover day-to-day costs due to increasingly tight budgets.

To get passed the financial holdup, some such as the Memphis Police Department, have asked state officials for additional funds, such as Memphis’ request for $500,000, so it could test 2,226 kits on its shelves. And according to the Texas Department of Public Safety, the state has set aside about $11 million to test 20,000 rape kits.

Local police departments, such as Memphis’, have also reportedly asked the federal government for grants as well. But even if the department is awarded the money, the city’s Chief Administrative Officer George Little said it will still likely take years to process all of the rape kits due to the large volume of untested kits.

And as many news reports point out, just because there are 400,000 untested kits does not mean testing those kits will lead to 400,000 rape prosecutions. In fact, only 50 to 60 percent of the rape kits contain biological material that does not belong to the victim.

For example in Ohio, Cleveland officials analyzed 4,000 kits in 2009. Of those rape kits, 58 led to indictments that are now pending, and of those cases, some are being contested by the defendants, citing a statute of limitations and a right to a speedy trial.

Law enforcement officials say another reason for the backlog is a staffing shortage in the labs. Earlier this fall, the Boston Police Department blamed staffing issues in the crime lab for the 20-to-23-week wait on testing rape kits, compared to eight weeks a few years earlier.

Since the financial aspect and staffing issues associated with the rape kit backlog are not fully understood or a satisfactory explanation for the decades-long wait victims are facing, the federal government awarded grants to researchers in Houston and Detroit in 2011 so they could explore why so many rape kits sit untested on evidence shelves for years.

Their findings have yet to be published, but the cities that call attention to the backlog and invest additional funds into testing the rape kits quickly see the number of untested kits diminish. Because of this trend, many advocacy groups and politicians argue the mere existence of a backlog like this in the U.S. is inexcusable.

As someone who has tried rape cases without that vital evidence, it is just inexcusable that this kind of thing still happens in our country today,” said CNN Legal Analyst Sunny Hostin, adding that especially since victims of sexual assault go through the invasive and difficult process of collecting the necessary information for the rape kit, it is even more disheartening to learn that often the evidence never gets tested.

Not a priority?
Yet another reason law enforcement officials give for the backlog is that in some investigations, a rape kit is not necessary and in some instances, a traumatic experience for the victim that doesn’t lead to any convictions.

According to Asst. Chief Mike Slinkard, head of forensics for the Houston Police Department, sometimes police opt to forgo the rape kit analysis if the suspect confesses, is identified by the victim, or if the victim is uncooperative or missing.

End the Backlog, a program run by the Joyful Heart Foundation — a group that advocates for the timely testing of rape kits — responded to Slinkard’s argument by saying that many law enforcement agencies don’t make sexual assault cases a priority and as a result don’t invest any resources in these types of cases.

“Members of law enforcement frequently disbelieve or even blame victims of sexual assault,” the group said. “Despite data proving otherwise, many agencies also maintain the philosophy that testing a rape kit is only useful when a stranger committed the assault. Some do not fully understand the value of rape kit testing.”

The group pointed to how New York City’s arrest rate for rape cases has increased from 40 percent to 70 percent since 2003 now that the city requires law enforcement officials to test every rape kit. And New York is not alone.

Based on a review of several news reports from various cities across the country, including Los Angeles, Detroit and Houston, it appears that once a city focuses on solving the backlog and manages to find the funds for the crime lab, the backlog diminishes.

In an article for Forensic Magazine, Chris Asplen, president of Asplen and Associates, LLC., who consults with local, state, federal and international governments regarding the use of forensic DNA technology, agreed that law enforcement doesn’t prioritize sexual assault cases and said that he doesn’t understand why there is “no true national outrage over this issue.”

Asplen explained that while there are advocacy groups and occasional news coverage of the backlogs, he said there is a “connectivity between failing to move quickly enough and the excruciating result of needless rape and murder unlike any other dynamic in the criminal justice system.”


Michigan Attorney General Bill Schuette holds a sexual assult evidence kit at a news conference Wednesday, June 5, 2013, in Lansing, Mich. After taking over the Detroit’s crime lab in 2008, the state discovered more than 11,000 untested rape-evidence boxes dating back 25 years. (AP Photo/Al Goldis)

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