DPS records obtained by the Observer show that as of January 23—three months after the deadline—just 86 of the state’s 2,647 law enforcement agencies had reported their backlogs.Though they haven't yet turned in their data, SB 1636's bill analysis included an estimate for Dallas: In Dallas, of the estimated 7,000 to 9,000 rape kits collected from 1996 to 2010, about 40 percent have been or will be submitted for testing." And in Houston, between 6-7,000 untested rape kits, according to a recent audit. So by the time the data is fully collected, it wouldn't surprise me to see the total statewide rise to 25,000 or more.
The 86 include some of Texas’ largest police departments, like San Antonio (2,077 untested rape kits) and El Paso (56). But DPS records don’t show that Dallas, Houston or Fort Worth police have reported their totals to the state. The Texas Department of Criminal Justice reported 16 untested kits from alleged prison rapes.
In all, DPS records account for 5,686 untested kits in active investigations—and that number will only increase.
One element of the bill threatens to overwhelm crime labs if there were actually enough resources to comply with it (there are not) - a new requirement that all rape kits must be submitted for testing and cross-checked with the SCOTUS database:
Cassie Carradine, DNA supervisor at the Austin PD crime lab, says the city is caught up with all the kits it needs to test. All that’s left are kits that aren’t necessary for testing for a particular crime.
“The problem is that the definition of ‘active’ in the law is not a realistic definition of ‘active.’ The law says everything is active unless the statute of limitations has expired or it [the rape complaint] was a lie,” Carradine says. Carradine says it costs between $1,200 and $1,500 to test a single kit.
“The sex crimes detectives do not consider those ‘active’ cases. They're not active, and it’s not something that the police department is pursuing,“ she says. “I think it's unfortunate that the law has taken any police work out of this.”
Amarillo Police Lt. Martin Birkenfeld has a similar view. His department reported 950 untested kits—the second-largest total reported to the state so far—but he says the kits that haven’t been submitted are ones detectives haven’t needed to pursue.
“I realize that we're not perfect and I'm sure we've missed some over the years. But those that are of evidentiary value—historically, we've sent those because we want to get the results.”
“Well now according to the new guidelines, we're just sending everything. ... To me it's just not worth the cost, because it's not going to change what's been done in the investigation.”
It’s something of a moot point for now, anyway, because Birkenfeld says their local DPS lab in Lubbock told them to wait until they’re told to turn in their kits. Birkenfeld says that hasn’t happened yet, days after the deadline S.B. 1636 set for turning in all untested evidence. Davis, the law’s author, hasn’t been available to comment, but it looks like both DPS and local agencies have blown the few deadlines left in this unfunded law.Before the new law passed, wait times for DNA testing at DPS ran around eight months, according to published reports, and this will only increase such delays.
There are a lot of reasons rape kits aren't tested. In some cases, for example, the suspect admits having sex with the victim and the question is whether there was consent. Identity isn't an issue there and DNA testing wouldn't help the case. OTOH, in the past, often kits weren't tested because police had no suspect to whom they could try to match it. With the existence of the ever-growing CODIS DNA database, some of those cases might be solved if the evidence were tested. Also, testing may not have been done in cases where a conviction was obtained based on eyewitness ID, so it's possible more than a few new innocence cases might arise if the backlog were comprehensively assessed.
Houston PD has been analyzing their backlog as part of a federally funded study to determine the various reasons DNA kits go untested, and when that work is complete it may be possible to develop more nuanced, standardized protocols for when rape kits may or may not need to be processed.