Testing Houston PDs rape kit backlog: Rest of state should follow suit

The Texas Observer's Emily DePrang last month had a thoughtful, lengthy article (Oct. 8) about Houston PD's effort to test thousands of backlogged rape kits and assessing related efforts in other jurisdictions. Here are a few notable excerpts:

In 2011, lawmakers passed a bill by state Sen. Wendy Davis requiring every law enforcement agency to tally and report its untested sexual assault kits. The bill also mandated that law enforcement agencies submit kits to a crime lab within 30 days. At the time, the Department of Public Safety (DPS) estimated up to 20,000 kits like Pearl’s might be warehoused all over the state. Now, that number is looking low. As of July, only 146 of Texas’s 2,647 law enforcement agencies had reported their totals, but the statewide count of untested rape kits was already nearly 19,000. 

That includes the major cities—Dallas (4,144), San Antonio (2,077), Fort Worth (1,018) and Austin (407). Houston alone contributed almost one-third of the outstanding kits. But seven of the 20 biggest cities in Texas, including Arlington, Laredo, Plano, Irving and Brownsville, have yet to report. Their tallies—along with those of the 2,500 other missing agencies of assorted sizes—will likely boost the state’s total beyond the estimated 20,000. ...

DNA testing in many places continued to outstrip growth in crime-lab capacity. Backlogs, once cleared, would quickly form again. In 2009, a CBS News investigation found that rape kits in Alabama and Illinois took, on average, six months to process. In Missouri, the wait was almost a year. 

These kits—the ones submitted by law enforcement to crime labs for analysis but not returned for more than 30 days—are what the National Institute of Justice, the research arm of the Department of Justice, considers “backlogged.”

But that’s not what happened in Texas.

Rather, most of the 19,000 kits reported (so far) never saw the inside of a lab because a sexual assault investigator made the decision not to have them tested. Victims who endure DNA collection may understandably assume it will be analyzed as part of the investigative process, but until recently, law enforcement officers could choose whether to test a kit. Often, they chose not to.

This was by no means limited to Texas. A 2011 survey by the National Institute of Justice found that, on average, nearly one in five recent unsolved rape cases nationally contain forensic evidence for which police never requested analysis.

And here's a summation of the results from Houston's testing:

All of HPD’s old rape kits have now been tested and, as of mid-August, almost 2,500 eligible DNA samples had been uploaded to CODIS. Staggeringly, 933 of those—more than one-third—were “hits,” meaning they matched a known offender already in the database.

That doesn’t mean these were all serial rapists. Authorities are required to collect DNA samples from all felons, meaning many people have CODIS offender profiles because of drug convictions or other nonviolent crimes. Also, Texas and 29 other states take DNA from anyone formally charged with—or, in some cases, merely arrested for—certain felonies, so not everyone in CODIS has been convicted of a crime. Finally, a rape kit going untested doesn’t mean the rapist went free. If police declined to test the kit because the attacker’s identity was known, a CODIS hit may just confirm they got the right guy. As of June, 83 of the CODIS hits in Houston were such arrest confirmations. HPD has also stated that none of the results suggests a wrongful conviction. 

Another 34 kits had what are called case-to-case matches. That means the DNA found in the rape kit matched DNA already uploaded from evidence taken in a different unsolved crime—another rape kit, perhaps, or blood from a break-in—but for which there’s no suspect yet. If the offender is later convicted of any felony, his DNA will link him to the previous crimes.

That said, Houston’s recently tested kits have certainly delivered forensic evidence that could have been used sooner, as demonstrated by the 20 new arrests. Some hits have resulted in new charges but not a new arrest because the suspect was already incarcerated for a different crime