Progress Ahead as More States Consider Proactive Rape Kit Reforms

As states across the country have opened their legislative sessions since the start of the new year, ENDTHEBACKLOG has been watching closely for rape kit reforms. Starting in 2010, the legislatures in lllinois, Texas and Colorado blazed the trail for mandating the testing of all rape kits booked into police evidence. Other states are beginning to follow their lead to varying degrees. 

In California, Assembly Member Nancy Skinner introduced legislation on January 15 that would amend the “Sexual Assault Victims’ DNA Bill of Rights” to prevent future backlogs. The bill encourages law enforcement agencies to submit newly collected rape kits for testing as soon as possible, but no later than five days after being booked into evidence. The bill also instructs the crime lab to process rape kit evidence as soon as possible, but no later than 30 days after law enforcement submits it. The bill does not address previously untested kits. 

Regarding victim notification, the legislation would amend the Bill of Rights to require law enforcement agencies to inform survivors, whether or not the identity of the perpetrator is known, if the agency elects not to analyze the DNA evidence within certain time limits. Currently, such notification is required only in cases where the identity of the perpetrator is unknown.

On January 6, Tennessee State Representative Antonio Parkinson introduced legislation that would require all law enforcement agencies to submit an inventory of the previously untested rape kits in their custody to the Tennessee Bureau of Investigation (TBI) by July 1, 2015. Within 180 days of the bill’s effective date, the agencies must make arrangements to ensure that the kits listed in the inventory are submitted for analysis. 

As to newly collected rape kits, law enforcement agencies would be required to send them to the TBI crime lab or another approved lab for testing within 10 business days of receipt. The crime lab would then have six months to process that evidence if sufficient staffing and resources are available. The bill would also require TBI to submit a plan, by January 1, 2016, to various state officials and the legislature for analyzing the evidence submitted pursuant to the bill. 

If the language of Tennessee’s bill looks familiar, that’s because it largely replicates Illinois’s legislation, which was the first in the country. Officials in Illinois announced in December 2013 that their backlog of an estimated 4,100 untested kits—some dating back decades—was cleared. The State Police sent all results back to local police departments to follow up and investigate. 

As the Chicago Tribune pointed out recently, while Illinois’s rape kit legislation was successful in clearing the backlog, it is not without its flaws. For example, the law does not include repercussions for non-compliant law enforcement agencies, essentially making its provisions voluntary. Additionally, the crime lab can be exempted from the prescribed timeline based on availability of staffing and resources. Finally, the legislation did not provide for additional funding to cover testing the influx of rape kit evidence at the crime lab.

Texas and Colorado based their rape kit legislation largely on the Illinois model as well. In Texas, however, law enforcement is to submit newly received kits to a crime lab within 30 days of receipt, and the crime lab is to analyze that evidence “as soon as practicable,” “if sufficient personnel and resources are available.” 

Colorado’s law instructs the Executive Director of the State Division of Criminal Justice to establish standards for exactly what rape kit evidence must be submitted for testing. It states that once the backlog is resolved, law enforcement must submit newly received kits that fit the criteria for mandatory submission within 21 days of receipt. The legislation also charges the Executive Director with developing a plan for testing newly collected kits once the backlog is resolved, and does not mandate a particular timeframe for testing. 

For backlogged kits, the Texas legislature replicated Illinois’s prescribed timeframes: law enforcement agencies had 45 days to submit an inventory of previously untested rape kits and approximately six months to send those kits for testing, subject to available space at the crime lab. The Texas Department of Public Safety (DPS) had approximately 6 months to submit a plan for processing the evidence to the governor and legislature. The Texas law went a step further than Illinois’s in giving DPS a three-year deadline for testing all of the backlogged kits, provided that the necessary funding is available. 

Legislators in Colorado gave law enforcement agencies 90 days to submit an inventory of the untested kits in their custody and, subject to available space at the crime lab, 120 days to submit those kits. The Colorado Bureau of Investigation had 120 days to submit a plan to the governor and legislature for analyzing that evidence “as soon as practicable.” 

Regarding funding, Texas’s law states that the legislature is to “determine and appropriate the necessary amount from the criminal justice planning account to the criminal justice division of the governor’s office for reimbursement in the form of grants to [DPS] and other law enforcement agencies for expenses incurred in performing duties imposed” by the law. In fact, the legislature later included $10.8 million for processing untested rape kits in its budget for fiscal years 2014 and 2015. 

Colorado’s legislature included funding directly in its legislation. The law appropriated $6,351,002 to the Colorado Bureau of Investigation for testing backlogged kits. 

In the weeks ahead, New Jersey and Oklahoma legislatures are likely to introduce legislation that also closely mirrors that of Illinois. While these bills will likely not include provisions for additional funding, we hope that state legislatures will commit to investing fully in holding law enforcement accountable for rape kit testing, follow-up investigations and efforts to re-engage survivors. Clearing a backlog is just the first step in providing survivors with greater access to justice. 

- By Elizabeth Swavola, January 31, 2014

ENDTHEBACKLOG is a program of the Joyful Heart Foundation to shine a light on the backlog of untested rape kits throughout the United States. Our goal is to end this injustice by conducting groundbreaking research identifying the extent of the nation’s backlog and best practices for eliminating it, expanding the national dialogue on rape kit testing through increased public awareness, engaging communities and government agencies and officials and advocating for comprehensive rape kit reform legislation and policies at the local, state and federal levels. We urge you to learn more about the backlog, where it exists and why it matters. We invite you to take action and support efforts to test rape kits. Help us send the message that we must take rape seriously.

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