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Unfortunately, it is common to read or hear about heinous crimes in the news. What may be more shocking, though, is how frequently stories announce that the offenders’ DNA was later found in untested rape kits, sitting on shelves in warehouses, or police evidence rooms for years, or even decades. When these kits go untested there are severe consequences, as I will discuss.
Take the case of Eliza Fletcher, the Tennessee woman whose abduction and murder last year shocked the nation. The day following the abduction, police officers took Cleotha Abston-Henderson into custody. Shortly thereafter, we learned that a year prior to Fletcher’s disappearance, another Tennessee woman reported to the police that Abston-Henderson had raped her, and she underwent a sexual assault forensic examination. The results, however, came too late, as law enforcement did not get the results of the exam until several days after Fletcher’s disappearance. Had the results come sooner, there would have been a hit on Abston-Henderson’s DNA because he was previously incarcerated for similarly violent crimes, and Eliza Fletcher would likely still be alive today.
But this case is no anomaly. For example, in 2011, the Ohio Attorney General launched an initiative to test all untested rape kits. By the time the testing was completed, in Cuyahoga County alone there were 826 indictments and 511 serial rapists identified from the untested kits. Similarly, an effort in Wayne County, Michigan, to test all untested kits led to 2,616 DNA matches and the identification of 840 serial rapists. While promptly testing all kits would not have stopped every serial perpetrator, it almost certainly would have stopped some.
Surely, it would be reasonable to assume that there must be a “good reason” for the abject failure of governments to test these kits. One might assume that resources are limited and thus must be put to other uses. Even though it is hard to imagine there being many more important uses of funding than testing these kits, the argument fails on its face. It’s true that kits cost approximately $1641 to test. This adds up, especially when you consider that a sexual assault occurs approximately once a minute in this country. However, the data show that testing kits actually saves money. Testing each kit can save over $130,000, on average. This number is calculated using the probability of an offender match, multiplied by the average number of rapes averted, multiplied by the aggregate costs associated with the crime (victim costs, justice costs, etc.) For example, in the Cuyahoga County, Ohio backlog clearing process discussed above, it is estimated that the county saved approximately $38 million by processing the kits. The Department of Justice has provided over $1.3 billion since 2011 to help states clear their backlogs. Despite this, it is estimated that tens of thousands (or more) of rape kits are still untested.
So, what should be done? Firstly, it is important that victims aren’t discouraged from having a kit performed. Unfortunately, despite the Violence Against Women Act requiring states to bear the cost of performing the exams, victims are often times charged for the exams. Not only does this alert assailants when charges on victims’ insurance Explanation of Benefits, but victims may also be charged out-of-pocket for “additional” services like STI and pregnancy testing. In Ohio, for example, some victims have had to pay for transportation several counties over to get an exam. States should not only comply with the Violence Against Women Act, but they should cover all costs incurred in the hospital visit, as well as ancillary costs like travel, so that costs are not a deterrence to anyone wishing to get help.
States should also implement systems like that in Tennessee, allowing victims to track their kits through the testing process, to empower them and to hold law enforcement accountable. Victims should not have to resort to filing class action lawsuits to have kits tested. There have also been many instances of police destroying rape kits before the kits have ever been tested at all, sometimes even before statutes of limitations have run. In Maryland, kits have even been destroyed despite state law prohibiting police from doing so. States should pass, and enforce, laws prohibiting the destruction of kits before statutes of limitations have run. In cities like Springfield, Missouri, individual officers are given the discretion to destroy kits without even testing them. Missouri law forbids the destruction in some cases in which kits were destroyed, but there are no sanctions for violating the law. Given that these types of laws are not always complied with, departments should be sanctioned, perhaps by losing funding, for violating the law.
The problem of untested kits still plagues this country. States must utilize the money they have been given by the federal government to properly allocate resources in staffing, facilities and whatever else is needed to make sure every kid is tested. As previously discussed, if the issue is left up to police departments, the backlog may never disappear. States need to step up and enact clear legislation and policy to fix this problem once and for all.
Suggested Citation: Jared Feltman, Time to End the Backlog, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 20, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/time-to-end-the-backlog/.
