Testing the Evidence

When rape victims come into D’An Anders’ office, they are traumatized and emotional. After enduring a devastating assault, they have also spent hours being prodded and swabbed in a hospital emergency room, providing evidence that they hope will help track down their attacker. Anders, a specialist with the Texas Advocacy Project, which provides free legal services to victims of sexual assault and domestic abuse, is often the first to give them shocking news: the DNA from the rape kit they just spent hours providing may not be tested — ever.

In police departments across Texas, tens of thousands of rape kits have been sitting on the shelves of property storage rooms for years, the result of strained budgets, overworked crime labs and a law enforcement philosophy that rape kits are primarily useful as evidence if a stranger committed the assault. Victims’ rights advocates and some lawmakers say they will work to pass legislation this year to take all of that evidence out of storage and create a DNA database that would help track rapists and perhaps even identify those who have been wrongly convicted. State Sen. Wendy Davis, D-Fort Worth, is preparing a bill that would require police departments to test all rape kits in their possession and every one they get in the future. “I think we owe it to every person who has been raped,” Davis said.

Officials at big-city police departments say they are working to reduce the backlog of rape kits in their evidence rooms and to test evidence from unsolved cases. But processing each of the tens of thousands of rape kits from as far back as the 1980s — the total number is not known — is, they say, unrealistic. Also, testing the hundreds of kits that each metropolitan police department receives every year would take much more money, equipment and staff than is currently available. (Davis has not established a price tag for her proposed legislation.) Nor is it clear, some police officials say, that DNA evidence in all cases would be useful to prosecutors. “It’s not reasonable, and it’s not an effective use of their investigators’ time or their labs’ time,” said Sgt. Elizabeth Donegan, who runs the sex crimes unit at the Austin Police Department.

In Houston, about 16,000 rape kits, some dating back decades, sit in the police department’s property room, said Irma Rios, assistant director of the department's crime lab. Rios could not say how many had been tested. “There’s a portion that are never tested,” she said. “We don’t have the resources right now to test every single” rape kit that comes into the department.

The decision whether to test the DNA in a rape kit typically rests with the investigator. In most rapes, the victim knows her attacker, and the DNA evidence often goes untested. Generally, the question in those cases, Rios said, is not whether a sex act occurred but whether it was consensual. In those instances, the DNA is not helpful for the prosecution — it can only confirm that two people had sexual contact.

The Houston police have identified about 4,200 old rape kits that meet the testing criteria, and Rios said the department was using a federal grant of about $1.14 million to hire more lab staff members and test biological material in about 2,300 of those cases before the statute of limitations expires.

“Our property room is very full — very, very full,” said Lt. Eno U. Fite of the special investigations unit at the Dallas Police Department. Fite estimated that 17,000 to 21,000 rape kits filled the room. At least half were collected before 1996, from what are now considered cold cases, she said. Of those, only about 25 percent would fit the department’s criteria for DNA testing. The department is working to get money to test some of those cold-case kits, she said.

Of the estimated 7,000 to 9,000 rape kits collected from 1996 to 2010, about 40 percent have been or will be submitted for DNA testing. It takes about a year to get the results of a full DNA test, which costs $750 to $1,000 a test. “The backlog is bad,” Fite said.

Rape victims would not endure the humiliation of a post-assault exam if they understood that the evidence might not be tested and that they did not have the right to decide whether the kit was tested, said Victoria Camp, deputy director of the Texas Association Against Sexual Assault. “All of the kits need to be tested,” Camp said. “That costs money, and I know it takes time, but I think we should prioritize the kits and start working on that backlog until they are all tested.”

Testing the DNA from rape kits in all assaults, Camp said, would give the police a better chance of finding serial rapists.The same perpetrator could attack both someone he knew and a stranger. But if the police test only the DNA in the stranger case, they may not be able to determine that the same person has assaulted someone else.

The testing could do more than help sexual assault victims, advocates say. It could exonerate wrongly convicted prisoners. Earlier this month, Cornelius Dupree Jr. became the latest Texan to be released from prison after DNA evidence proved he did not commit the rape he was convicted of in 1980.

APD's Donegan agreed that more testing ought to be done. In 2004, she established one of the most aggressive rape kit testing policies in the state. The Austin department tests each rape kit for which the investigator determines that analysis is warranted, whether the assault was committed by a stranger or someone known to the victim.

But, she said, requiring DNA analysis for all rape kits also has the potential to do more harm than good. There are many cases, Donegan said, where that evidence will not help, and often the victims decide not to prosecute. Forcing all those kits into the lab, she said, would clog the system without helping the police catch more perpetrators. “It’s incredible what we ask” of rape victims, she said, “and to me, the kit is just a piece of it you should be testing.”