Houston gets DOJ grant to analyze why old rape kits went untested

According to this press release, the US Department of Justice has approved grants to fund studies of rape-kit testing backlogs in Houston and Wayne County, Michigan.

The Department of Justice today announced the first research grants awarded to address untested sexual assault kits (SAK), also known as rape kits.  Wayne County, Mich., was awarded $200,000 and the City of Houston, Texas, received $176,000 in Fiscal Year (FY) 2010 funding.  The funding enables researchers and practitioners to collaboratively review and inventory SAKs to determine why they were not sent to the lab.

These two grants, to be administered by the National Institute of Justice (NIJ), are part one of a planned two-phase project to identify underlying reasons why SAK evidence is not tested and to develop practices to improve the criminal justice response to sexual assault.

"These research projects will enable us to better understand what happens to sexual assault evidence, why it might not be analyzed, and what we need to do to fix the problem.  When sexual assault kits go untested, it can result in significant and unnecessary delays in justice for sexual assault victims," said NIJ Director John Laub.

In Phase I, for which this FY 2010 funding was awarded, researchers will team up with representatives from the police department, crime lab, prosecutor's office and community-based victim services organizations in Wayne County and Houston.  The teams will develop a strategy to tackle their problems, with special emphasis on how and when to notify victims when their SAK (which may be years old) is going to be tested.

In Phase II of the project, NIJ seeks to provide additional funds to help the two jurisdictions implement their strategies and evaluate their effectiveness.  NIJ anticipates that these two projects will produce transportable lessons and strategies for other jurisdictions experiencing similar problems.

This is potentially quite significant research with important, practical applications, providing (one hopes) heretofore hidden insight into the types of cases that make up rape-kit backlogs which are now so prevalent in large jurisdictions. Last year the Texas Department of Public Safety received $2.4 million in federal grants to eliminate its backlog of untested rape kits, a project for which Tarrant County also received funds in 2010. As I read this press release, though, Phase One of the newly announced grant will simply catalog and analyze why rape kits weren't tested.

That should provide missing data to help inform recent debates about how jurisdictions like Houston, San Antonio and others should handle large backlogs of untested rape kits. The problem is no-doubt a national one. According to this report from NIJ (pdf) published in February, "A nationwide sample of more than 2,000 agencies found that in 2007, 14 percent of unsolved homicide cases (an estimated 3,975 cases) and 18 percent of unsolved rape cases (an estimated 27,595 cases) contained forensic evidence that was not submitted by law enforcement agencies to a crime laboratory for analysis." The issue is even worse looking beyond violent crimes: "Results also indicated that 23 percent of all unsolved property crimes (an estimated 5,126,719 cases) contained unanalyzed forensic evidence."

Some prosecutors argue there's little need for testing old rape kits. For example, former sex-crimes prosecutor Wendy Murphy writing on February 9 in Women's E-News made the controversial claim that "as many as 90 percent of the kits contain evidence that is, at most, irrelevant." She also said subjecting rape kits to DNA testing may violate victims' privacy (though the violations seems minimal compared to the process of actually taking the sample, which of course requires consent). Calling Murphy's view "completely irresponsible," another former sex-crimes prosecutor, Linda Farstein, fired back in The Daily Beast to argue that the growing backlog contributes to a "cold case crisis," and that testing every rape kit would catch serial rapists who couldn't otherwise be identified. Another rebuttal to Murphy's piece criticized backlogs from the perspective of victims for whom the process of rape examination is invasive and victims shouldn't be subjected to it for no reason. Further, added foundation analyst Sarah Tofte, testing "rape-kit evidence in non-stranger rape cases can identify serial rapists, including serial acquaintance rapists, affirm a victim's version of events, discredit the assailant and exonerate innocent defendants."

Either way, testing everything would be incredibly expensive. According to the February NIJ report, the federal government spent more than $394 million from 2004-10 to reduce rape kit backlogs at state and local crime labs, funding testing for 172,761 rape kits at a gross cost of $2,285 per kit. At that rate, and in the current budget environment given competing priorities, testing every old kit in every jurisdiction while keeping up with ongoing demand may simply not be practical.

In Dallas, District Attorney Craig Watkins famously teamed up with the Innocence Project of Texas to vet old cases where biological evidence was available for testing, usually from a rape kit, a process which cleared innocent people but also resulted in the identification and prosecution of guilty people who thought they'd gotten away with their crimes. Watkins' approach has the benefit of evaluating every case where old DNA evidence exists - both for possible innocence cases and to seek convictions (or at least, in very old cases, to identify the culprit) where the science of the day was inadequate to do so. I've always thought that was a particularly clever model, evaluating each case on the merits but avoiding the extra expense and problems associated with testing everything, every time.

For now, though, such debates remain largely speculative because, in truth, nobody really knows what the results might be if every rape kit were tested, why they weren't tested, or whether the results would be probative if they were. The NIJ report from February cited above found that "More research is needed to completely understand how law enforcement agencies decide to submit or not submit evidence to a laboratory, what proportion of open cases could benefit from forensic testing and how cases should be prioritized for testing." One hopes that's something this research in Houston and Michigan will help determine, filling in many of the blanks for the first time with data instead of supposition. And I'm glad to hear they're funding the project in H-Town, whose long-troubled crime labs could use all the outside help they can get.