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The Rape Kit Backlog and What’s Being Done about It

Published for NC Criminal Law on February 05, 2018.

In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog.

What’s a rape kit? It’s a set of biological evidence collected from a sexual assault victim during an extensive, invasive, multi-hour examination. More details are available here.

What’s the rape kit backlog? The backlog is comprised of the rape kits that are sitting untested at law enforcement agencies around the country.

How big is the backlog? We don’t know. In 2015, the White House estimated that it includes 400,000 kits. Several states have conducted inventories and have found backlogs like 20,000 in Texas, 4,000 in Illinois, and 10,000 in Ohio. A number of major cities have found substantial backlogs as described here. Where backlogs have been documented, efforts have been made to reduce them, so it is not possible to say precisely how many untested kits remain.

Why aren’t the kits tested? The reasons vary. Some agencies don’t test rape kits when the victim knows the suspect and the suspect has admitted to sexual contact, on the theory that the identity of the assailant will not be at issue in the case. Some agencies don’t test rape kits when the victim recants, on the theory that the results are unlikely to be useful in a prosecution. Some agencies didn’t test older rape kits because then-existing technology was unlikely to produce meaningful results. Some agencies have acknowledged that some kits went untested because of “victim blaming” or skepticism about the veracity of sexual assault victims. Cost is a factor, too, as testing costs between $500 and $1500 per kit.

Some of these reasons are more legitimate than others and one could argue that when an agency has made a conscious decision not test a kit, that kit should not be viewed as part of a backlog – it is out of the queue, so to speak. Yet advocates argue that every kit should be tested, to show victims that they are being taken seriously and because even a test that doesn’t contribute directly to a prosecution could connect one crime to another. A report by California’s State Auditor regarding untested kits sets out and evaluates these competing arguments.

Is there a backlog in North Carolina? Yes. Agencies in major cities like Charlotte and Fayetteville have acknowledged a backlog and it is likely that other agencies have them as well.

What’s being done about it? In North Carolina, steps have been taken at several levels to address the backlog.

At the state level:

  • In 2009, the General Assembly passed what is now S. 15A-268, which provides in part that “[b]iological evidence collected as part of a criminal investigation of any homicide or rape, in which no charges are filed, shall be preserved for the period of time that the crime remains unsolved.” That should prevent kits from being destroyed simply because no suspect has been identified.
  • In 2017, the General Assembly passed L. 2017-57 § 17.7, part of the budget, which provides that “[e]ach local law enforcement agency [in the state] shall conduct an inventory of Sexual Assault Evidence Collection Kits . . . in its custody or control and report its findings [including how many kits have not been tested] to the . . . State Crime Laboratory, no later than January 1, 2018. The State Crime Laboratory shall compile the information and report its findings to the Joint Legislative Oversight Committee on Justice and Public Safety no later than March 1, 2018.” That may give us statewide numbers about the backlog.

At the local level:

  • In Charlotte, the cold case unit is looking at old sexual assaults. Its ability to do so has been enhanced by several grants that the city has obtained to help reduce the backlog of untested kits. As of late 2017, the city was hoping to be caught up by this month.
  • In Fayetteville, officers investigated the backlog and determined that 333 rape kits were destroyed. The department has changed its policies to be more “victim-centered” and officers have called victims whose rape kits were discarded to explain what happened and to apologize. The department currently has no backlog.

If readers are aware of other significant efforts to assess or to remedy the backlog, please weigh in.

The post The Rape Kit Backlog and What’s Being Done about It appeared first on North Carolina Criminal Law.