When the public first heard stories of scores of untested rape kits in police evidence rooms around the country, stacked high and gathering dust, the news was met with outrage. Heaped atop the barbarism of sexual violence was the tragedy of knowing evidence with the power to put a rapist behind bars was languishing, ignored.

The uproar led to calls to test every kit, promises of funding sources and sweeping changes in sexual assault legislation. Increased public awareness led to backlog reduction across the nation. While this focus has brought needed closure to many sexual assault victims, it also has the potential to go too far.

Sexual assault kit analysis has more legal and moral complexities than are apparent at first glance. The crime of sexual assault is intensely personal, often unreported, deeply troubling and can leave victims feeling powerless and traumatized. Legislative objectives should allow victims to take back power by giving them control of their cases during the criminal justice process.

This includes ensuring victims have access to forensic examinations and results, have full control over decisions about reporting the crime and starting the investigative process and have options when it comes to going forward with a trial — or not going forward at all.

Lawmakers who simply say, “End the backlog! Test every kit!” may score political points.

When we test samples from a kit, it is possible the samples may contain a mixture of DNA, from both the attacker and from a consensual partner — or partners. In such cases, lab technicians are required to test “reference samples” to rule out the innocent. This means the victim must supply identifying information about those consensual partners, so samples from them can be collected. The victim is essentially being required to hand over to police investigators data about every recent intimate encounter he or she has had, how many, and with whom.

On the surface, this might seem like a simple choice to make, because it is undertaken in the interest of bringing a rapist to justice. But it’s a gross oversimplification to presume a person should, or even must, want to sacrifice that level of privacy under every set of circumstances.

Further, testing a kit and extracting DNA does not lead to solving the crime unless the DNA can be compared to that of a known suspect, or entered into a database of known offenders. But not all DNA profiles are eligible to be uploaded into a DNA database. This leads to some confusion about the value of testing “all kits.”

There are specific state and federal rules that govern DNA databases. In order to put an unidentified DNA profile into a database, there are three prerequisite criteria: 1) a crime must have occurred, 2) the evidence must be collected from a crime scene (the victim’s body is considered a crime scene) and 3) the evidence must likely belong to the perpetrator. If all three of these conditions cannot be met, DNA collected from the kits is ineligible for upload.

When a victim chooses not to file a police report, it is difficult for law enforcement to meet the first criteria of ensuring a crime has occurred. The mere existence of a kit does not meet the spirit of this rule. There are also situations when a victim is uncertain if a crime occurred and wants to have the exam completed yet not go forward with the criminal justice process. Again, this scenario would not fulfill the first requirement for DNA database upload.

Victims may decide they do not want to be questioned about their consensual partners by investigators. Without that information, laboratories run afoul of the requirement the DNA must likely be from the perpetrator.

Many kits sitting in property rooms across the country are from cases in which the victim declined to pursue an investigation. Victims have been assured for years the choice to move forward on evidence testing, investigations and a trial belongs to them alone. How then must these victims feel when new legislation mandates going forward, with or without their consent, on evidence submission and testing of kits that may be years or decades old?

The push to test every kit also puts crime laboratory personnel in the difficult position of being unable to legitimately upload unknown DNA profiles from sexual assault kits to the database if they do not meet the criteria, while being lawfully required to perform the testing anyway. Such “dead end” testing, just to say they did, drains resources.

As states continue to grapple with sexual assault kit backlogs, special care should be taken to ensure victims’ rights are prioritized, rights of all individuals are considered and we solve the problem in a way that does not revictimize those we intended to help.

Jennifer Shen currently serves as the crime laboratory manager for the Chula Vista Police Department. Previously, she served as Commanding Officer of the San Diego Police Department Crime Laboratory.


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