Compliance Case Studies

In April 2020, the California attorney general released the one-time statewide audit mandated by AB3118. The law states that “each law enforcement agency, medical, forensic laboratory, and any other facility that receives, maintains, stores, or preserves sexual assault evidence kits shall conduct an audit of all untested sexual assault kits in their possession” and shall participate in the statewide audit. However, the report shows that only 149 law enforcement agencies and crime labs actually participated in the audit, while there are over 500 police agencies in the state. The report also notes that no medical facilities provided information for this report, a clear instance of noncompliance. Thus, while the audit yielded a total of 13,929 untested kits in California, we know that this number is likely to represent only a fraction of the true total number of untested kits in the state, due to noncompliance with the law.

In New York, the state comptroller released a report in May 2020 that documented noncompliance by the state’s crime labs. The report indicated that labs were not testing either newly collected or backlogged rape kits within the 90-day time period established by the law (A10760, 2016). Also in New York, many law enforcement agencies did not comply with the state statute established through SB980 (2018), which requires agencies to report, on a quarterly basis, the number of untested kits in their possession. Failure to comply with inventories keeps the public in the dark about the state of the backlog and makes it difficult to create a plan of action.

Similar instances of noncompliance have occurred in Texas. In 2019, the state passed the Lavinia Masters Act (HB8), which mandated law enforcement to carry out a one-time inventory of untested rape kits in their possession. Again, participation in this audit was incomplete: the Dallas Sheriff’s Department, Fort Worth Police Department, Houston Police Department, San Antonio Police Department, and Tarrant County Sheriff’s Department were among the many law enforcement agencies that did not participate in the mandated inventory. Due to this noncompliance and the resulting incomplete inventory, Texas does not know the true extent of its backlog and cannot fully allocate the necessary resources to combat it.

In 2018, Massachusetts legislators enacted S2371 which mandates the submission of all backlogged kits and calls for statewide inventory of unsubmitted rape kits with a report due annually on or before September 1st, among other things. However, the language of the legislation unintentionally excluded the vast majority of untested kits from S2371’s requirements, as we uncovered after sending public records requests to the state lab.

In 2019, the state Executive Office of Public Safety and Security reported finding 387 untested rape kits across Massachusetts, with only 87 out of more than 400 law enforcement agencies reporting. Due to the lack of participation, and a suspiciously low number of reported kits, Joyful Heart issued public records requests to 15 police departments in the largest cities in the state and the State Police Crime Laboratory. Only seven of these jurisdictions responded to our public records requests with data. The lab provided reports showing numerous cases of untested kits, without stating the exact number of kits or reasons as to why these kits were untested.

In 2020, local investigative journalists from WCVB, inspired by our actions, also sent a public records request to the state lab, uncovering more than 6,300 untested kits sitting at the crime lab. These kits had been submitted to the lab by law enforcement, but the lab did not test them; because the inventory called for by S2371 referred to only previously unsubmitted kits, these kits were excluded from the statewide inventory. This discovery was quickly followed by action by Joyful Heart to get these kits tested. Today, the lab has promised to test all of them.

After public outrage and some back and forth between Joyful Heart, legislators, and the governor, Massachusetts presented a legislative solution to the problem. In 2021, the state passed HB4013. This is a comprehensive piece of legislation which mandates the testing of previously untested kits within 180 days of enactment. The law also includes an inventory mandate, which requires a report on the number of untested kits in the lab’s possession, the year each kit was collected, the year each kit was tested, and the date the information was updated into the FBI’s Combined DNA Index System.