DNA technology has emerged as one of law enforcement’s most remarkable breakthroughs. The ability to identify perpetrators of sexual violence and other crimes has advanced the field of law enforcement immensely. Conversely, many innocent individuals have been exonerated through the application of DNA technology. While the development of this investigative tool is viewed as a major step forward in enhancing law enforcement’s ability to identify offenders, anti-rape activists must tread carefully in our support of its use. There is a long and documented history of racism, racial profiling and other police abuse targeting people of color and other marginalized communities. Law Enforcement officers both white and black still hold many racist myths and assumptions that result in the abuse and misuse of power and the tools to wield it. Armed with yet another tool, there is concern that DNA may provide another means of racial profiling and disproportionate enforcement of laws against blacks and other people of color.
With the implementation of new laws that expand the use of DNA, policies that must also be expanded to protect against abuse and misuse. The policies should include guidelines including, from who it is appropriate to collect samples; proper collection and disposal, both of victims DNA and that of those eliminated as suspects; and guidelines that ensure that DNA dragnets or other improper practices that result in racial profiling are discouraged.
As anti-rape advocates invested in justice, it is the responsibility of the NAESV and others in the movement to be speak to this concern as we would to any issue facing survivors. When tools are used in ways that are abusive in the name of justice and anti-rape, we become co-conspirators with the very powers that we seek to change.
In most of the United States, forensic evidence kits that have been performed on sexual assault victims are sitting on shelves in law enforcement agencies, prosecutor offices, hospitals and forensic labs, unprocessed and untested. The number of these kits is unclear due to different definition of backlog and unprocessed kits. There is no requirement that states keep logs of kits waiting to be processed. As a result, victims have trouble gaining information about the fate of evidence from their assault and often believe that the information is being used to pursue their case, when in fact it may never be opened. Information that could be helpful to law enforcement on serial offenders has never been entered into databases.
The issue of a forensic evidence kit backlog is a complex and difficult problem with no easy solutions. Definitions of a backlog vary, procedures dictating how and when kits are processed are different in every state, and resources for forensic testing are limited.
In some states, evidence is not processed until prosecutors are ready to go forward with the case. Those states may not consider themselves to have a backlog of DNA kits as kits that are processed are completed within a reasonable amount of time. However, in these cases unprocessed kits may be held by individual local law enforcement agencies, in effect creating a “backlog” that is very difficult to document. Other states process all kits and have a substantial backlog of cases to process, which ties up forensic staff when they attempt to clear the backlog. Still other states process only kits that are deemed stranger rape cases, where the victim cannot otherwise identify the perpetrator. The inconsistency among state policies leads to incomplete information for law enforcement as well as lack of knowledge on the part of survivors, whose expectations for evidence collected in their cases does not always match up with reality.
NAESV supports state and federal policies and legislation which would require that all forensic exam kits in reported sexual assault cases to be processed for DNA and other evidence in a reasonable amount of time and the results included in state and national databases. A consistent policy of processing all kits would increase public safety and assist law enforcement in gaining knowledge about serial offenders, who may be known to some survivors but not all. Survivors who report a sexual assault would then have a clear understanding of what will happen to the evidence collected. In anonymous reporting cases, where the survivor has a forensic kit completed but does not formally report the case, the evidence should not be processed until and unless the survivor makes a formal report.
NAESV believes it is critical for related issues to be addressed in legislation and policy addressing the backlog. Victims need the support of trained advocates, both at the time of the assault and at later dates if kits are processed and progress is made in a case. Policies on the notification of DNA “hits” on older cases should be carefully considered and protocols developed that are victim centered and sensitive to the impact the contact may have on a rape survivor after many years. Multidisciplinary training for law enforcement and forensic staff needs to occur on topics such as CODIS, evidence collection, and investigating acquaintance sexual assault. Adequate funding for all of these efforts as well as for SANE programs and trainings needs to be provided.
NAESV understands that many states with significant backlogs of kits or with limited forensic capacity could have trouble testing all kits in a reasonable amount of time. NAESV therefore further supports the use of incentives to encourage law enforcement agencies overseeing forensic labs to test all sexual assault forensic kits in a timely manner, to modernize tracking systems for evidence kits, and to evaluate the extent of the backlog. The Debbie Smith Reauthorization Act of 2008, which provides funding to states to address DNA evidence backlogs, is an excellent example of federal legislation providing an incentive to law enforcement. In addition to providing funding for forensic analysis, the Debbie Smith Act also allows states to use funding for the crucial trainings that promote victim-centered policies.