Why New Move On Rape Kit Backlog Is Needed
By Susan Rose
Special to Calbuzz
At a time when sexual assault is a growing national concern, legislation crucial to victims of rape has moved forward in Sacramento.
The measure, by East Bay Democrat Nancy Skinner, would require law enforcement agencies to “specify timelines for the testing of rape kits and for entering the information into a national database.” Rape kits are used to collect evidence from victims to held convict assailant.
The Assembly passed Skinner’s AB1517 late last month among increasing evidence of the dimension of the problem: the number of rapes reported at four-year colleges and universities “increased 49 percent between 2008 and 2012,” according to NPR, while congressional recently held hearings on rape in the military as the Pentagon reported that 26,000 cases of “unwanted sexual contact” occurred in 2012.
“Sending rape kits to the lab quickly tells the survivor we care, helps law enforcement solve this and other crimes and makes us all safer,” Skinner said.
The measure, expected to be acted upon by the senate over the summer after passing the Assembly 68-to-0, encourages the submission of forensic evidence to crime labs as soon as possible, but “no later than ten days after being booked into evidence.”
Within 60 days of submission to a law enforcement agency, the crime lab must “process evidence, create DNA profiles” and upload them into CODIS, the acronym for Combined DNA Index System, a national computerized data base for DNA samples.
A political win for survivors: The legislation represents a victory for women’s organizations and victims’ advocates, who have been fighting to end the backlog of rape kits since 2008.
In California the issue began to emerge in 2008, when Sarah Tofte a researcher for Human Rights Watch (HRW) began to investigate the status of untested rape kits in the City and County of Los Angeles. Local police and sheriffs departments denied there was a problem, but were unable to quantify the number of untested kits.
The 2009 Human Rights Watch research showed, however, that 12,000 kits remained untested in City and County police storage units.
L.A. media responded with articles and editorials on the backlog and elected officials soon agreed to fund the additional technicians needed to test all kits in storage.
In 2011, the City of Los Angles issued a statement that all kits in storage had been tested. In the process, 753 matches to perpetrators were obtained through CODIS.
Cold cases: The rape kit backlog first came to national attention in 1999, when New York City uncovered 17,000 untested kits in storage. In the course of four years, the backlog was cleared with all kits analyzed.
Today, New York is a model for effective processing of rape kits. Most importantly rape victims are receiving fair and timely treatment in N.Y.C.
“The policy (of testing all kits) is a no-brainer given all the rapes we have been able to solve and prosecute,” a deputy district attorney in the New York City sex crimes unit told Human Rights Watch in 2008.
A special cold-case unit was established in New York to pursue new investigations when matches were found. According to the 2009 HRW report, two thousand hits occurred in CODIS, resulting in 200 cases that were pursued by the special unit. At the time of the report’s publication, New York City’s arrest rate for rape had increased “dramatically from 40 percent to 70 percent.”
New California protocols: In 2011, the California Bureau of Forensic Services, a division of the California Department of Justice, issued a protocol to all state run laboratories. It mandated an immediate delivery to the labs of three evidence samples collected by a sexual assault response team. The program is called rapid DNA service or RADS.
The remaining evidence then goes to the police or sheriff’s department to be held, if needed, for future adjudication of the case. Previously, local law departments determined if and when the kits were to be sent to labs to be tested.
Another factor expediting lab work is the growing use of robots to analyze multiple samples in kits. The use of robots has improved turn around times for processing rape kits.
The California Constitution requires the state to reimburse local agencies for the costs of mandated programs. As these programs are to be paid for by the state, the local cost of the recently implemented protocol for DNA analysis in state-run labs is covered.
While some progress for victims of rape has occurred, however, the California protocol only applies to laboratories run by the state. These facilities cover 46 out of 58 counties, but they represent only 25 % of California’s population. Most large cities don’t use state labs and are not subject to the new protocol.
AB 1517 would fill the gap left by the new protocol that does not cover three quarters of the state’s population.
Failed Legislation: In 2009, Governor Schwarzenegger vetoed a bill (AB 1017) that would have required local jurisdictions to report the number of kits in storage and whether they have been tested. The governor’s veto message expressed his concern about the cost to implement the legislation, a greater priority for him than just rape victims.
In 2011, Governor Brown vetoed additional legislation to create a pilot project to test and analyze kits in ten counties (AB 322), objecting to counties being required to participate in programs they opposed.
Among advocates, there is an urgency and impatience for Skinner’s bill to pass.
A new urgency on AB1517: A 2013 CNN report estimates the number of untested kits nationally may be as high as 400,000.
“Our efforts must address the backlog throughout the State and Nation,” said Alameda County District Attorney Nancy O’Malley, “and this legislation serves as a vital step toward that goal.”
The real cost to society has been the loss of justice for thousands of survivors of rape in California, whose voices have not been heard while they have waited for years for resolution of their cases.
With neither financial resources nor technical expertise now a policy problem, Brown is likely to have the opportunity to begin to fix the problem and to send a powerful message to other states: rape victims are a priority in the California justice system.
Susan Rose served for eight years on the Santa Barbara County Board of Supervisors and is the former executive director of the Los Angeles City Commission on the Status of Women. She is active with Human Rights Watch.
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