Enacting legislation and policies to end the rape kit backlog is an important step toward giving survivors greater access to justice. It is not clear, however, whether much of the legislation currently in place is enforceable because as written, the laws do not include consequences for agencies that fail to comply. The language of these laws also creates a potential loophole that requires testing only if staffing and resources are available. Few of the laws have included the additional funding necessary to make compliance possible.
For example, while Illinois served as a national model in passing rape kit legislation, the state’s law provides that all rape kits must be tested "if sufficient staffing and resources are available." When law enforcement agencies fail to submit kits within the mandated number of days, the law only says, “failure...shall in no way alter the authority of the law enforcement agency to submit the evidence.” This language avoids consequences for non-compliant agencies and can actually provide an excuse for law enforcement not to test rape kits if funds are not available.
Without means for accountability and the allocation of the necessary resources, it is easy for good-intentioned legislation to be swept aside and for agencies to prioritize other competing demands above compliance.
To learn more about whether your state has rape kit reforms in place, view our backlog map here.
Victims’ Bill of Rights
Every state has a codified set of legal rights for crime victims, often called a “victims’ bill of rights,” which typically includes the right to be notified of court proceedings and the status of the defendant, to be present at certain proceedings, to make a statement at sentencing and to restitution. Many states also include the right to be consulted before a case is dismissed or a plea agreement is entered, the right to a speedy trial and the right to have one’s contact information remain confidential. In general, however, it is difficult for survivors to hold law enforcement agencies accountable for failing to test rape kit evidence, even when a state’s victim bill of rights expressly addresses DNA evidence.
Most states—with the exception of California and Texas—stop short of extending their victims’ bill of rights to address DNA evidence. In California, the Sexual Assault Victims’ DNA Bill of Rights, recognizes that "[l]aw enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases." Upon the request of the survivor, law enforcement agencies investigating the sexual assault may inform the survivor of the status of the DNA testing. Specifically, the California DNA Bill of Rights provides that subject to sufficient resources to respond to requests, survivors have a right to be informed whether or not the assailant’s DNA profile was developed from the rape kit evidence, whether or not that profile was uploaded to the DNA database and whether or not a hit resulted from the upload.
California’s DNA Bill of Rights also requires a law enforcement agency to notify the survivor if the agency does not test the DNA evidence within two years of the rape, but only when the case is from 2004—the year in which the legislation was enacted—or later and the identity of the perpetrator is unknown. The DNA Bill of Rights does not include an enforcement mechanism for cases in which agencies do not comply in notifying the survivor.
Similarly, in Texas, the state legislature recently added to the state’s victim bill of rights that if requested, a survivor has the right to information regarding the status of any testing of her/his rape kit. That information includes submission of the kit to a crime lab, comparison of evidence with profiles in a DNA database and results of the comparison, unless the disclosure will interfere with the investigation of the assault.
While the Colorado Victims’ Rights Act does not expressly address DNA evidence, the law does classify an unsolved felony as a "cold case" after one year. In such cases, the law enforcement agency must notify the survivor of any change in the status of the case. Upon the survivor’s request, the agency must also provide an update at least annually regarding the status of the case.
Despite these laws, courts in many jurisdictions have ruled that survivors do not have legally enforceable rights regarding the prosecution's evidence in a criminal case or the investigation. On the other hand, many of the state laws that require rape kit testing have not been in effect for more than a few years and have not yet been tested in court.
To learn more about victims' rights laws that may be in effect in your state, visit the National Center for Victims of Crime here.