Why Are More Than 100,000 Rape Kits Still Untested?

Out of every 1,000 sexual assaults, only five of the perpetrators will ever see the inside of a jail or prison cell.

Only about one in four rape victims come forward to make a police report, with the hope that the perpetrator will be caught and prosecuted. Of them, one in five of those cases will lead to an actual arrest, and of that group, one in five arrests are referred to prosecution. In the end, less than 0.5 percent of sexual assaults lead to justice for survivors.

As a society, we wave off these low conviction rates as cold cases, but often, the victim’s rape kit was never tested in the first place.

According to the Joyful Heart Foundation’s “End the Backlog” team, there is a backlog of untested rape kits in the hundreds of thousands that are sitting in police and crime lab storage facilities across the country.

An abandoned Detroit warehouse that was once used by the police department to store evidence provides a perfect example of the negligence that rape kits are treated with. In 2009, the deputy chief of the special victims unit in Detroit visited the property and discovered piles of black garbage bags and emptied oil drums filled with 11,341 abandoned rape kits, some of them dating back to rapes from the 1980s—all of them untested.

Though confounding, Detroit’s situation is hardly extraordinary. At present, there are at least 15 states with more than 1,000 kits backlogged and eight states that have more than 5,000 untested kits, according to “End the Backlog” data.

These numbers represent thousands of sexual assault survivors that went to authorities after being raped and endured an hours-long, invasive process of a rape kit exam—having their genitals, pubic hair, rectums, and mouths swabbed, combed, scraped and photographed—only for authorities to cast their cases aside to be forgotten.

Survivors experience post-traumatic stress and anxiety from sexual assault, which is often aggravated by the fact that the offender could hurt them again, or hurt someone else. Yet, their cases are treated as low priorities, or worse, disregarded completely.

We talked to Ilse Knecht, a nationally recognized expert on sexual assault victims’ rights, to understand why rape kits are neglected in so many states and why this practice must be stopped.

Meet the Expert: Ilse Knecht, Head of Policy and Advocacy at the Joyful Heart Foundation

Ilse Knecht, who has dedicated 20 years of her career to helping victims of sexual assault, is the head of policy and advocacy of the Joyful Heart Foundation. The organization’s “End The Backlog” campaign aims to eliminate the accumulation of untested rape kits across the U.S., change attitudes about sexual violence and abuse, educate the public, improve systems to lessen the trauma survivors experience, and ensure greater access to justice for survivors.

Before she joined the Joyful Heart Foundation, Knecht spent 15 years at the National Center for Victims of Crime (NCVC), where she led efforts to reform policies and practices related to testing rape kits and created the DNA Resource Center.

During her time at the NCVC, Knecht met a sexual assault survivor and advocate, Debbie Smith, whose rape kit went untested for five years after her assault in 1989.

The Debbie Smith Act, which Knecht worked on in collaboration with Smith, the Rape, Abuse & Incest National Network (RAINN), and other groups, was signed in 2004 and was most recently renewed in 2019. It provides federal government grants to eligible states and local governments to analyze backlogged DNA samples.

Prosecuting Rapists: Timing is Everything

“Originally when I met Debbie Smith, she was bringing up the issue that kits were sitting in labs and it sometimes took years to test because they were always falling to the bottom of the priority list,” Knecht said. “There wasn’t enough recognition of sexual assault as a violent crime or that this evidence is really useful.”

The story of one 19-year-old survivor, whose test kit sat on a shelf for more than 15 years, exemplifies this truth, (which Kym Worthy, the prosecutor of Wayne County, Michigan, recounts in her Ted Talk about Detroit’s backlog.)

During the interim between the survivor’s assault and the eventual testing of the kit, the perpetrator raped at least 10 more women, all of whom had rape kits performed which were stashed in the same warehouse.

When the perpetrator’s DNA was finally run through the federal DNA database for violent crimes (CODIS), he was immediately identified. He’s now serving a sentence in the Michigan Department of Corrections, which was a victorious moment, but had the kit been tested immediately, those 10 victims would have been spared.

Another reason to see that rape kits need to be tested with more immediacy is the fact that the prosecution of perpetrators runs against a ticking clock.

States’ statutes of limitations, which dictate the time period within which a legal proceeding must begin, may prevent the prosecution of a perpetrator despite DNA evidence linking him or her to a cold case.

A small handful of states have eliminated the statute of limitations for federal sex crimes, meaning offenders can be prosecuted any time in the future. Most still have a statute of limitations, but don’t start the clock until forensic evidence has been tested.

But then there are states with more strict timelines in which no exceptions are permitted, even if the kit was backlogged, so a perpetrator may get off scot-free thanks to law-enforcement negligence and state legislation.

Now that we’ve talked about why it’s important for rape kits to be tested as soon as possible, let’s address the reasons why this is happening in the first place.

The Slow Journey of a Rape Kit

Knecht says that ideally, after the rape kit has been collected at the hospital, “law enforcement should take that kit from the hospital within 24 hours and take it to their evidence room, log it in and within seven days it should be sent to the lab.” From there, it should be tested within a strict timeline so that DNA can be run through CODIS to see if the offender is already in the system and begin the process of prosecution.

But due to lack of communication between hospitals and police departments, it may be a while before rape kits are even transferred into police custody—let alone being sent to the lab for testing.

“What often happens is that the kits just sit at hospitals and law enforcement doesn’t pick them up. Or the hospital just doesn’t tell law enforcement that the kits exist. It’s a strange breakdown,” Knecht said.

“We saw that in a hospital in Atlanta where they had thousands of kits that were just sitting there and when they were discovered, people asked, ‘Why are these here?’ and they said, ‘Law enforcement never came and got them.’”

And once the rape kit finally makes it into police custody, “The vast majority of the time, it’s just going to sit on a shelf in an evidence room. I’ve found communities where 90 percent of the kits are just sitting,” Knecht said.

There is no mandatory order in which kits must be tested, so cases that are deemed to have greater importance get bumped to the top of the priority list while “lower priority” cases are pushed aside.

“The person has to kind of ‘mean something’ [in order to have their kit tested],” Knecht said. “We see often that women of color, or women who are disenfranchised or otherwise living on the margins of society, their kits just get put away or sometimes even destroyed.”

According to an investigation by CNN, between 2010 and 2018, 25 law enforcement agencies in 14 states destroyed rape kits in 400 cases before the statutes of limitations expired—usually to make space in evidence rooms.

“If it does get to the lab, it can sit for a long time there also,” Knecht said. “There are homicide cases that are a priority, but sexual assault tends to fall lower on that list.”

From examining the inefficient process of getting a rape kit tested, it’s clear that there is a lack of accountability and to some degree, as well as a lack of sufficient funding allocated toward the testing process.

But there’s a deeper element that Knecht and the “End the Backlog” team are also working to address.

Rape Culture in the Justice System

The normalization of societal attitudes about rape is “at the crux of the issue of why kits sit on shelves at law enforcement,” Knecht said. “It’s less about money, but more about priorities and taking it seriously.”

Remnants of our culture’s normalization of sexual assault are still present in state legislation—specifically, in the discord surrounding whether or not certain types of sexual assault classify as “violent crimes,” the definition of which varies, depending on the state.

Even in California—a state that most would regard as progressive—trafficking a child for prostitution, domestic violence, and rape of an unconscious person are considered non-violent crimes.

The internationally known 2016 case in which a Stanford University student, Brock Turner, was given a light six-month jail sentence after being caught assaulting an unconscious young woman in broad daylight exemplifies the importance of this classification. His action fell into the category of a “non-violent crime.”

Five months after the judge’s ruling in Turner’s case in June, California’s Proposition 57, which sought to lessen the sentences of non-violent offenders, was approved. Thousands of “non-violent” felons—including perpetrators of sexual assault—were released on parole. (Turner wasn’t incarcerated long enough to benefit from the proposition, as he only served three months of his sentence before being released.)

But it’s not just state legislation perpetuating the dismally low statistics of rape convictions. It’s the culture within law enforcement.

“When you don’t have a state law saying, ‘This is what has to happen with a rape kit,’ it’s up to one person sometimes. It’s terrible,” Knecht said.

In other words, if an officer doesn’t believe a victim’s story, they can simply choose not to push forward the testing of a kit because of a lack of rules or regulations mandating them to do so.

Rape survivors’ demeanors following assault vary from crying, entering a state of calm, or even laughing. When police interviews a victim about an assault, they may be unaware of the different human reactions and conclude that a survivor is lying.

“Law enforcement is often not trained on how to deal with sexual assault victims. You go into this kind of freeze or fight-or-flight mode. Hormones go through your brain and you don’t really encode memories in the way that you normally would… so the victim doesn’t act the way they would think a survivor would act,” Knecht said.

A combination of officers’ ignorance of trauma reactions and their unwarranted freedom to make judgment calls on victims’ believability can lead to a rape case going cold, or simply not being pursued at all.

“They start with this attitude that [the assault] probably didn’t happen, or they think, ‘this person’s probably lying,’ or ask questions like, ‘Are you sure this isn’t a consensual case gone bad?’”

Pursuing Justice For Rape Victims

The “End the Backlog” team is addressing these issues by changing legislation, organizing funding, and by providing educational training for police officers.

Within the last two years, over twenty states have passed laws requiring sexual assault kit audits or mandatory submission guidelines.

Since 2014, the U.S. Congress has approved between $41 and $45 million each year for the Sexual Assault Kit Initiative (SAKI) grant, “a unique Department of Justice program that provides communities with resources to test backlogged kits in their police storage facilities, create multi-disciplinary teams to investigate and prosecute cases connected to the backlog, and address the need for victim notification and re-engagement with the criminal justice system,” the Joyful Heart Foundation reports.

This work has led many states to shrink their backlogs down to nearly zero. Nine years after the rape kits inside the abandoned Detroit warehouse were discovered, all 11,341 kits have been tested, which lead to the identification of 861 serial rapists, as well as the development of a statewide digital kit tracking system.

Knecht has also dedicated time to educating police officers on the issue. She sees a shift among law enforcement’s attitude beginning to take place.

“You see that light bulb go off. I’ve done training and have people come up afterward and say, ‘I’ve been doing law enforcement for 25 years and I’ve been doing it all wrong. I feel terrible about some of the things that I have done and said but I didn’t know any better.’

“The other piece is just being human; be nice and listen. Start by believing the survivor’s story. And until you can prove it didn’t happen, you continue to go down the investigative path: believe. Investigate, but first, believe—not the other way around.”