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Rape Kit Backlog Subject of House Hearing

On May 20, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing, “Rape Kit Backlogs: Failing the Test of Providing Justice to Sexual Assault Survivors.”

Testifying during the first panel, Rep. Carolyn Maloney (D-NY), discussed another bill she currently is working on to help eliminate the DNA backlog, the Justice for Survivors of Sexual Assault Act, H.R. 4114. Rep. Maloney, who sponsored the Debbie Smith Act (P.L. 110-360), said, “Despite the availability of funds, it appears that some jurisdictions are unable to account for or process their backlogs – whether or not in evidence storage facilities or in crime labs. One of the real problems is that the demand for more DNA testing has outpaced the available capacity for analysis. My new bill, H.R. 4114, aims to help build that capacity, tackling only rape kits, and importantly, requiring jurisdictions to report rape kit backlog numbers — because we currently just don’t have the data. By creating incentives for jurisdictions to eliminate their rape kit backlogs, process their incoming rape kits in a timely manner, and publicly report their backlog numbers, this legislation would go a long way to ensuring that the purpose and intent of the Debbie Smith Act is fully realized.”

“I’m sorry to say Los Angeles knows all too well about the rape kit backlog,” said Rep. Adam Schiff (D-CA). He continued, “In 2008, a full accounting of rape kits sitting in storage for more than 30 days revealed that the backlog stood at over 13,000 kits between the city and county labs. A breakdown of the backlog revealed that over 200 kits in the county alone were older than ten years, and therefore beyond the statute of limitations for a rape case, even if a positive hit was discovered. Los Angeles is far from alone. Many other cities have these backlogs, whether their citizens know it or not…There is a simple step that we could take immediately to speed the processing of sexual assault evidence and to improve the efficiency of public labs. The National DNA Index System rule governs what can be uploaded into the national database. The rule requires that any crime scene evidence outsourced by a private lab must undergo a technical review by the public lab, which is a manual rechecking of the private lab’s work. The technical review of each kit is a time intensive process…For several years now, I have been calling on the FBI to evaluate this rule in light of the evidence that it is unnecessary and burdensome on overstretched public labs.”

Dr. Christian Hassell, assistant director of the Laboratory Division at the Federal Bureau of Investigation (FBI), said, “Clearly, one of the reasons for the offender and forensic DNA backlogs that exist today is the fact that states may have implemented legislation such as that described above covering a larger number of offenders than could be accommodated by their laboratory. Federal grant programs administered by the Office of Justice Programs within the Department of Justice have helped by providing funding for states to analyze their samples in-house or to contract out the analysis of these samples, but there are still efficiencies that can be gained if we re-examine this issue from every angle. In order to enhance the efficiency of the nation’s DNA database, the FBI has established an ongoing dialogue with various groups to gain a broader perspective and better understand the needs of the entire law enforcement community…The FBI is committed to seeking common ground in the interest of protecting the public, reducing backlogs, ensuring privacy, and maintaining the integrity of NDIS. The FBI Laboratory is currently performing a review to determine what improvements can be made to facilitate more efficient and timely uploading of DNA data into NDIS. No changes have been made to any procedures or standards to date. The review includes a working group which is receiving input from state and local agencies to determine what changes need to be made to NDIS procedures and/or the Federal Quality Assurance Standards to improve operational efficiency. The FBI considers this review to be a regular, healthy activity resulting from improvements in technology and lessons learned from almost twelve years of experience in the operation of NDIS. As the administrator of this national database, the FBI has an obligation to perform this procedural review to ensure that law enforcement agencies are not hindered by procedural limitations, thus limiting the number of samples added to NDIS and decreasing the efficacy of NDIS in solving crime. At the same time, the FBI is obligated to ensure that the quality of the data in NDIS is not endangered by lack of oversight and procedural integrity, which would also serve to decrease the utility of NDIS in solving crime.”

Valerie Neuman, a rape survivor and victim advocate, described the frustration she experienced after reporting her rape: “Unfortunately, after I gave my statement, I didn’t hear from the police again for a very long time. I had to fight to get any information. I started by calling every other day, then once a week, every other week, once a month, etc. Many phone calls were never returned. It was exhausting to be my own advocate. It took a year for the detective to send the case to the prosecuting attorney’s office; six months after that the prosecuting attorney told me they wouldn’t be trying my case, because they had decided it was unwinnable, given that I had been drinking the night of my rape and it was an acquaintance rape. I tried to explain that I had not even known the man’s name until the police told it to me, but the prosecutor had seemed to make up his mind. Case closed. What was perhaps hardest is that my case was closed without my rape kit being tested. Right after I went to the police, the suspect had gotten a lawyer. He issued a statement through his lawyer that he had had no sexual contact with me that night. The SANE [Sexual Assault Nurse Examiner] nurse told me that she had found semen in numerous places on my body. If they had tested my rape kit, the semen they found could have been matched to that of the suspect. It would have validated my claim that I was raped, and discredited his claim that he never had contact with me at all. When I later called the prosecutor’s office to ask why my rape kit hadn’t been tested a representative from the Kentucky prosecuting attorney’s office left a voicemail on my cell phone stating they didn’t have the funds to test kits in a case like mine. It has now been three years, five months, and four days since the night I was raped and my kit remains untested.”

Mariska Hargitay, actor and founder of the Joyful Heart Foundation, said, “Last year, newspapers reported that Los Angeles had 12,000 untested rape kits in crime labs and law enforcement storage facilities. Houston has 4,000. 10,000 in Detroit. 5,000 in Illinois. 2,500 in San Diego. And these are just the backlogs we know about. Experts estimate that there are hundreds of thousands – hundreds of thousands – of untested rape kits in police and crime lab storage facilities throughout the country. We have real-world examples that testing all rape kits brings results. More than a decade ago, New York City tested 16,000 kits and eliminated its backlog. The city implemented a new policy of testing every booked rape kit. The arrest rate for rape skyrocketed from 40 percent to 70 percent of reported cases – the highest rate in the nation. Yet the benefit of testing rape kits goes beyond providing prosecutors with investigative tools to bring offenders to justice. It goes beyond introducing the clarity of DNA evidence into the arena of rape and sexual assault, the crimes with the lowest reporting, arrest, and prosecution rates in the United States. These kits represent human beings who have suffered greatly. Testing their rape kits sends victims the fundamental and crucial message that they and their cases matter. Nicholas Kristof quoted Polly Poskin, executive director of the Illinois Coalition Against Sexual Assault, in a 2009 New York Times editorial about the rape kit backlog: ‘If you’ve got stacks of physical evidence of a crime, and you’re not doing everything you can with the evidence, then you must be making a decision that this isn’t a very serious crime.’ That decision has the power to traumatize rape victims further as they are seeking recovery and healing.”

Peter Marone, director of the Virginia Department of Forensic Science, said, “For some labs, the pressure has caused them to outsource the analysis of rape kits as part of their prioritization and deadlines to process kits. This has caused problems in some states with quality and timeliness of the work. Private labs state they have the capacity to work a significant number of cases relatively inexpensively and much more quickly than the public labs. But the figures given do not include the issues of the initial analysis that I indicated earlier. When a laboratory outsources a case, it must identify the samples to be tested and forwarded for outsourcing. That process often is the more time consuming part of the analysis. Performing DNA testing on a specific set of selected samples requires fewer resources…The other issue of what actually occurs when outsourced cases eventually go to trial has not been addressed. I know of several instances where outsourcing has resulted in logistical problems with scheduling an expert’s testimony in a time frame that meets the court docket. Additionally, there are questions regarding who pays for the expert testimony and travel costs, as well as for the pretrial consultation and document preparation for subpoenas and discovery motions.” Mr. Marone added, “So how do we resolve this problem? We need to increase the capacity of the labs to meet the workload that is coming into them. Meeting the need for analysis of sexual assault cases is primarily accomplished through effective resource allocation. During that same time period that I mentioned earlier, laboratories have acquired and validated new, more efficient equipment, added personnel, begun utilizing robotics for some operations and continue to add more automated applications. They have also started using smart systems for some of the data review.”

Reps. Anthony Weiner (D-NY) and Jerrold Nadler (D-NY); Kym Worthy, Wayne County, Michigan prosecutor; and Jeffrey Boschwitz, vice president of North American Sales and Marketing for Orchid Cellmark, Inc. in New Jersey, also testified.

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