CBS News reports that there are over 6,000 rape kits from active investigations of sex crimes that remain untested throughout the country. The New York Times reports significantly more. The reports indicate the kits are from reported sexual assault cases that have not been prosecuted. The kits typically contain body fluid, hair and fiber evidence taken from complaining witnesses to sexual assault. The evidence is collected in order to identify the assailant. Thousands of kits remain untested in Los Angeles alone. The CBS report implies that the San Diego Police crime lab is attempting to clear their backlog only to avoid adverse publicity while both reports lament an inexcusable failing of law enforcement to conduct DNA testing in every case. A bipartisan bill is before the Unites States Senate to fund clearing the backlog of untested kits.
The existence of numerous untested kits is hardly a surprise to anyone in the criminal justice system. The reality is that the existence of untested rape kits does not mean that law enforcement is failing the public in every single case. Many of the kits remain untested because the results will make no difference in how the case is handled. Not every case of reported sexual assault is legitimate, many alleged victims falsely claim assault, and many others simply change their story. Of course, many legitimate assaults are accurately reported, but the reality is that many, many cases will not be prosecuted no matter what the lab results. Not every kit should be tested.
As acriminal defense attorney, I believe that the real problem is what should be done with kits where testing may lead to prosecution or exoneration. The results of testing these kits will make a difference to the innocent accused, as well as the culpable, and justice demands that these kits be afforded extra care. These kits should obviously not be rushed through a forensic examination without strict protocols ensuring the accuracy, completeness and reliability of DNA results. Moreover, a responsible decision must be made on how much testing should be afforded each kit. For example, rape kits contain hair, fiber, and bodily fluid evidence. Other evidence, such as clothing and bedding may be impounded in evidence with the kit. Ideally, each item including the kit should be examined for DNA and other trace evidence, and then be tested. But as crime lab budgets are tight, this clearly will not happen.
The crime labs may need to do much more than the minimal DNA work on a kit, depending on the case. As crime analysts take their cue from law enforcement on what to test, sex crime detectives will need to examine each particular case to decide how much testing to afford not only to the kit to but to the rest of the evidence in the case. The decision on what to test must be guided by consideration whether the results may corroborate the claim made by the complaining witness and whether the results may refute the claim. At this early stage in the prosecution, the sex crimes detective is the only person with access and authority over the evidence. The detective is best situated to evaluate the strengths and weaknesses of the claim, and therefore is best situated to decide what to test. Unfortunately, many in law enforcement feel that the government is not in the business of gathering evidence exonerating to the accused. Experienced criminal defense lawyers know that innocent persons are prosecuted when police selectively test some evidence while ignoring other items of crucial evidentiary value. Ignoring evidence that will impeach a claim does a disservice to the entire justice system. In the end, with every single kit submitted to a lab for testing, law enforcement will be making a judgment call that should aim to protect the innocent while also bringing the culpable to justice. Decisions on what to test must be made with the goal not only of prosecuting the true offender, but of protecting the innocent.