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DNA Backlog in Rape Cases Examined by Senate Committee

On December 15, the Senate Judiciary Committee held a hearing, “Ensuring the Effective Use of DNA Evidence to Solve Rape Cases Nationwide.”

Chair Patrick Leahy (D-VT) said, “As I have researched this problem of untested rape kits, there is one thing that I have heard again and again which should be of great comfort to Debbie and Rob [Smith] and to all of us here: the Debbie Smith program has been working and making a major difference. I have heard from the Justice Department, the states, law enforcement, and victims’ advocates that Debbie Smith grants have led to significant and meaningful backlog reduction and to justice for victims, in jurisdictions across the country…Of course we would not be here today if there were not still a problem. Despite the good strides we have made and the significant federal funding for backlog reduction, we have seen alarming reports of continuing backlogs. A study last year found 12,500 untested rape kits in the Los Angeles area alone, and while Los Angeles has since made progress in addressing the problem, other cities have now reported backlogs almost as severe. The Justice Department released a report last month finding that in 18 percent of open, unsolved rape cases, evidence had not even been submitted to a crime lab.”

“When a rape victim submits to the very intrusive four-hour evidence collection process, she at least knows that she has done her part,” said Debbie Smith, chief executive office of H-E-A-R-T, Inc. and the sexual assault survivor for whom the Debbie Smith Rape Kit Backlog Reduction Act (P.L. 108-405) is named. “[S]he has done all that has been asked of her to keep this man from hurting anyone else. Unfortunately, there is a very good chance that this vital evidence will sit on a shelf with thousands of other rape kits. Each box holds within it vital evidence that is crucial to the safety of women everywhere. Each day that passes without the identity of these rapists being known allows them to continue to claim victims…and they will. Statistics prove that the average rapist claims eight to twelve victims before he is caught. How many of them could have been prevented?” Ms. Smith added, “DNA revealed the identity of my rapist, giving me the sweet breath of validation and promised justice. I want every victim of sexual assault to experience this gift of renewed life, and I am here today on behalf of those thousands of victims whose cases continue to sit on the shelves, I am here for those future victims, and for those who sit in a prison cell wrongly accused…I am also here for those who can no longer speak for themselves…Finally, I am present today on behalf of those wonderful forensic nurses, some who give up their own personal money and time to learn how to best help a victim of sexual assault, and I am here for the scientists who are overworked and underpaid, but continue to labor feeling overwhelmed by what seems to be an endless task.” Ms. Smith added, “When someone is robbed, everything possible is done to find this person who has taken what does not belong to him. Prosecution is pursued and the guilty is made to return what was stolen to its rightful owner. You are powerless to return to rape victims what was taken from her… But you can give her justice by making her rapist pay for his crime.”

Steve Redding, senior assistant county attorney in the Violent Crimes Division, DNA Prosecutions and Forensics in Hennepin County, Minnesota, discussed one of several issues that have arisen since the advent of DNA testing: whether all rape kits should be tested. “In terms of improving and ensuring the effective use of DNA evidence to solve rape cases, there has been a spate of publicity recently about thousands of rape kits sitting untested in police warehouses…This begs the question: Should there be a requirement that all of these kits be tested?” he continued, “Before deciding to test all kits, I believe there are two important considerations [that] must be dealt with. First, most sexual assault support organizations advise women who have a rape exam performed that the decision to notify police and to have testing done on the evidence taken from them is their decision, not a decision for the police or prosecutor to make. The crime of rape is significantly underreported for a variety of reasons. Many times, there is late reporting, by which time any biological evidence is no longer available. Everything possible should be done to encourage all victimized women to participate in the reporting and collection of biological evidence. However, if testing was absolutely mandatory, women would have to be advised that if they participate in the examination, the rape kit would be turned over to police and to a DNA lab. This would lead to a reduction in reporting perhaps only a slight reduction, but a reduction nevertheless. Second, the testing of kits and the development of a DNA profile from these kits results in that person’s DNA profile being put into a national database. Congress has placed significant restrictions on what DNA profiles can be entered into the database. Even after participating in a rape exam at a hospital, some women inform police that they have no intention of cooperating with a prosecution. Under these or other circumstances, placing that profile into the national database may contravene entry requirements.”

Susan Smith Howley, public policy director for the National Center for Victims of Crime, addressed the lack of information about the cause of DNA backlogs. She said, “We would like to be able to appear today with a concrete recommendation to address the rape kit backlog. But before we can recommend a clear path forward, we need more information. For example, a recently released National Institute of Justice (NIJ) report on law enforcement forensic evidence processing nationwide revealed that many local law enforcement agencies are not forwarding rape kits to labs in cases where they haven’t identified a suspect. We need to know more: is the problem a lack of knowledge about the investigative power of DNA, lack of funding to process evidence, or lack of will? The answer to that question should guide the approach forward. We also need to know whether there is any benefit in testing all kits, even in cases when the identity of the defendant is not at issue. We might learn the answer to that question from the experience of those jurisdictions, such as Los Angeles, that have worked to clear their rape kit backlog by testing every kit. Their experience should inform the national policy response.” Ms. Howley continued, “Until we have this information, we are reluctant to recommend that every rape kit be tested. While such a policy might be easy to understand and administer, it could negatively affect other cases. Because our capacity to process DNA and other forensic evidence is limited, to require testing of all rape kits even where such processing is unlikely to produce any probative evidence will inevitably reduce or delay testing in other types of cases.”

“DNA is a powerful investigative tool to solve many cases, including sexual crimes,” said Stephanie Stoiloff, commander of the Crime Laboratory Bureau of the Miami-Dade Police Department. “While crime laboratories nationwide are working to reduce backlogs and increase their capacity to analyze the maximum number of cases possible, crime laboratories are also facing great difficulties in obtaining the resources necessary to analyze DNA as well as all other forensic disciplines…Crime laboratories are faced with insufficient personnel, facilities, equipment, training, and funding to meet the service needs and expectations of investigators, courts, and citizens. Forensic science has become an increasingly critical component of the successful investigation and prosecution of criminal cases. However, the timely disposition of cases is impacted by a lack of funding to support the staffing, equipment, training, and facility needs of forensic laboratories nationwide.” She continued, “As a result of the glamorization of forensic science on television, DNA requests are made of the crime laboratory because the jury expects the evidence to be tested. There are many, many requests that are made of the lab to perform DNA testing when the identity of the subject is not in question. If identity is not in question, why drain precious laboratory resources? Prosecutors need to explain that television drama is just that: a dramatization of fictitious events and capabilities. In a perfect world with unlimited resources including staffing, space and supplies, every lab could analyze every sample from every case. However, the reality is quite different. There are resource issues nationwide that preclude the analysis of every item and of every case…For example, if a consensual sexual assault is submitted for analysis with an underage female and her adult boyfriend, should this receive the same level of attention as a stranger rape? Crime laboratories, as a whole, do not treat these cases the same way. We clearly understand the value of analyzing sexual assault evidence. This does NOT mean that a consensual sex case would not ever be analyzed, but it does mean that the prioritization is necessarily different. If crime laboratories were to examine every case as they are submitted, then other cases would go unexamined.”

Jayann Sepich of the Surviving Parents Coalition said, “When I learned of the existence of DNA evidence in [my daughter’s] case and CODIS [Combined DNA Index System], I thought, ‘A person this horrible will commit another crime and be arrested. Soon we’ll know who killed Katie.’ But that’s when I learned that, while every state takes fingerprints from individuals arrested for crimes, most state laws did not allow law enforcement to take DNA for felony arrests. I was dumbstruck. We do not allow our law enforcement to check the DNA database for a possible match before allowing people accused of the most heinous crimes in our society murder and rape to be released on bail. We do not bother to check the DNA database. We just release them. This is when I began to research and study the issue of taking DNA upon arrest. Based on my research, I became a national advocate for the taking of DNA upon arrest. My husband and I started the non-profit association DNASaves in order to advocate for arrestee DNA laws nationwide. We know we cannot ever bring back Katie. But, we absolutely believe that we may be able to prevent this horrible pain from being visited upon other, unsuspecting parents. In 2006, my husband and I fought for the enactment of ‘Katie’s Law’ in New Mexico to require DNA upon arrest for felonies. Since ‘Katie’s Law’ was implemented in January 2007, New Mexico’s DNA database program has registered 104 matches of unsolved crimes to 86 individual arrestee DNA profiles (several arrestees were linked to multiple unsolved crimes)…Of the 104 matches in New Mexico, nine of these have identified suspects in unsolved murders, and 16 have identified suspects in unsolved sex-related crimes…But we cannot consider only one side of the database. Without a strong database of offenders and arrestees, we will necessarily limit the number of cases for which we can identify potential suspects through DNA matches. Likewise, a strong database of offenders and arrestees is useless to law enforcement if the evidence is not being submitted and/or analyzed.”

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