July 22, 2008

Every two minutes, someone is raped in the United States. Every year, more than 200,000 rape victims, mostly women, report their rapes to police. Most consent to the creation of a rape kit, an invasive process for collecting physical evidence (including DNA material) of the assault that can take up to six hours. What most victims don't know is that in thousands of cases, that evidence sits untested in police evidence lockers.

The backlog of untested evidence gained national attention in 2001 when Debbie Smith, a rape victim, testified before Congress. The Debbie Smith DNA Backlog Grant Program was started in 2004 with the goal of processing the nearly 400,000 untested rape kits nationwide. But the program has been expanded to allow states to test backlogged DNA evidence from any crime. Even as the proportion of rape victims who report their assaults is increasing, the processing of rape evidence is still backlogged -- and the arrest rate of rapists is decreasing.

The House passed its reauthorization of the program last week, and the Senate is expected to do so soon. If Congress is serious about eliminating this backlog, lawmakers should amend the reauthorization bill to prioritize the testing of rape kits and remove controversial amendments that seek to create DNA profiles of all felons and certain arrestees who haven't been convicted of crimes.

Rape kits can help identify unknown assailants by matching DNA profiles obtained from evidence to profiles in the FBI's national DNA database. The kits can confirm the presence of a known suspect's DNA, corroborate a victim's version of events or exonerate innocent suspects.

Most states are not required to notify victims if their evidence has not been tested, so people usually have no idea whether their kits have been processed. Many victims assume that silence from the police means that their kit did not yield helpful information. A much-delayed National Institute of Justice report on the state of the rape-kit backlog is due to be submitted to Congress in the fall; experts on the crime expect it to show that a significant backlog remains.

States had long claimed that money was the obstacle to processing more rape kits. Over the past four years, Congress has allocated hundreds of millions of dollars for states to conduct DNA testing on evidence from rape crime scenes. Last year, 46 states, the District and Puerto Rico received grants totaling more than $43 million. But the backlog stems from more than a lack of money. The dynamics that contributed to the backlog, chiefly a failure to treat rape as seriously as other violent crimes, have been re-created in the way states spend the grants.

In reports to the Justice Department from 2005 to 2007, half the states receiving grants indicated that they were not spending all the money, and those that were did not indicate whether they were prioritizing backlogged rape kits. States are not required to specify how many rape kits they process, and most reports say only how much DNA evidence was tested with the funding, not the types of cases to which the DNA was connected. Thus, evidence from homicides and other violent nonsexual crimes is regularly processed, while rape kits remain untested.

With a few simple changes, however, lawmakers could ensure that this program fulfills its original mission. Congress should require states that receive grants to use at least 30 percent of the money to pay for testing backlogged rape kits. It should build in accountability by requiring that states report how many rape kits are tested annually. Lawmakers should also lift restrictions against states using the grants to pay private labs for DNA testing; crime lab directors across the country have cited this as a reason that they have not applied for or been able to fully spend their grant money.

The House version of the reauthorization risks diluting the program's effectiveness by requiring states to expand their DNA databases to include all felons and certain arrestees. Adding people who have not been convicted of any crime to DNA databases raises civil rights and civil liberties concerns, adding unnecessary controversy to the program. Such a practice could also contribute to the backlog by diverting money that could be used to pay for testing to instead cover the significant costs of collecting and developing these DNA profiles. Congress should remove this amendment.

In 2004, Congress saw the rape kit backlog for what it was: a symbol of the criminal justice system's continuing failure to take rape seriously. It is time to realize the promise of the Debbie Smith Act and amend the related grant program so that states prioritize the testing of rape-kit evidence. This is the least we can do for rape victims who submit to invasive exams in the hope of bringing their assailants to justice.