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There are untested rape kits mounting in the Louisville police department.(Photo: WHAS)
Over the past decade alone, Congress has approved enough money to reduce the nation's backlog of DNA evidence testing to have tested more than 1 million sexual assault evidence kits.
So far, however, despite evidence that the number of untested rape kits could number into the hundreds of thousands coast to coast, the vast majority of the money is not reaching local and state police authorities where the abandoned rape evidence could be tested and the problem reduced.
A USA TODAY Media Network investigation found that the U.S. Department of Justice has failed to comply with laws enacted by Congress aimed at paying for testing and reducing the backlog of untested rape kits — despite the power of the kits to provide evidence that can identify unknown assailants, exonerate wrongly accused suspects, and confirm the accounts of survivors.
USA TODAY
Tens of thousands of rape kits go untested across USA
The examination across all 50 states identified at least 70,000 sexual assault kits at more than 1,000 law enforcement agencies nationwide — likely only a small fraction of the national accumulation that likely reaches into the hundreds of thousands across the nation's 18,000 law enforcement agencies.
"If we're able to test these rape kits, more crimes would be solved, more rapes would be avoided," Vice President Biden said in March, announcingan additional $41 million in grant funding as part of a White House initiative to address the problem.
Notwithstanding the funding and the attention of policymakers, the effort to quantify and reduce the number of untested sexual assault kits is not anywhere close to complete.
Scott Berkowitz, president of the Rape, Abuse and Incest National Network, said the issue is not the amount of the funding, but the fact that it isn't reaching its intended target.
"There's ample money there," he said. "But to date, only about 51% of that has gone towards casework and making sure labs have the capacity to do the testing."
The $1.2 billion allocated over the past decade toward addressing the nation's DNA testing needs, including taking inventory and testing sexual assault kits, has often been spent on more general DNA testing improvements.
Some of the funding has gone toward administrative expenses or been siphoned off for apparently unrelated purposes. A 2012 congressional report found some of the money set aside for rape kit testing was instead going to polling firms and toward the purchase of cellphone equipment and payments to "entities of uncertain mission that employ heads of influential forensics policy advisory groups."
USA TODAY
Rape Kit lookup - USA TODAY
In an effort to focus the use of the federal funding and to address inconsistent sexual assault kit testing policies, Congress in 2013 enacted the Sexual Assault Forensic Evidence Reporting Act, or SAFER Act.
The SAFER Act established benchmarks requiring that at least three-quarters of the funding for sexual assault kits is actually used for testing or taking inventory of the kits.
The SAFER Act also established a grant program to fund inventories of untested sexual assault kits by state and local agencies. However, the Department of Justice has so far not awarded any grants under the law. At about $1,000 per kit, testing sexual assault kits is not free and the USA TODAY count of untested kits indicates that many smaller departments — those least able to afford to pay — have piled up hundreds of untested kits.
Gerald LaPorte, director of the Office of Investigative and Forensic Sciences for the U.S. Department of Justice's National Institute of Justice, blamed the agency's failure to issue grants on a lack of devoted funding to implement the law.
Sexual assault survivors and advocates including Debbie Smith of Williamsburg, Va. — who is the namesake of federal DNA testing legislation — say they are frustrated by bureaucratic delays.
"The administrators of the grant have not done what they were supposed to do," said Smith, who lived for six years in fear that her attacker would follow through on his threat to return and kill her, until he was identified through a DNA match. "They closed some of the loopholes, but the administrators of the grant continue to find more and more loopholes."
Decisions about whether sexual assault kits should be tested should not be based on funding, said Mai Fernandez, executive director of the National Center for Victims of Crime. Instead, there should be criteria in place to guide police decisions about whether the kits should be tested.
"It can't just be at the discretion of whoever is at the police station that day," sdevhe said.
The SAFER Act endeavored to address that issue by establishing national standards for sexual assault kit processing. The law required the Department of Justice, by no later than Sept. 7, 2014, to develop and publish "a description of protocols and practices … for the accurate, timely, and effective collection and processing of DNA evidence, including protocols and practices specific to sexual assault cases."
Yet the nation's top law enforcement agency failed to comply with the law. The national set of protocols for processing DNA evidence still has not been developed.
Sen. John Cornyn, R-Texas, who authored the SAFER Act, called it "completely unconscionable" that the Department of Justice has not complied with the SAFER Act.
"Victims of sexual assault deserve better than to have critical evidence that could help find their attacker left to sit on a shelf because the Obama Administration refuses to fully implement this law," he said in a statement to USA TODAY.
In a December 2014 letter to Cornyn, responding to an inquiry about why DOJ had not complied with the SAFER Act, Assistant Attorney General Peter Kadzik said developing the protocols required by the law "has presented many challenges," but indicated no plans to comply with the law in the future.
"After thoughtful deliberation, the steering committee came to consensus on the need to identify best practices, protocols, statute and policies currently in existence throughout the country," Kadzik wrote last year. The committee has not met in more than 16 months.
In response to questions to USA TODAY, LaPorte, of the National Institute of Justice, said a 42-person "steering committee of stakeholders" was formed to develop the protocols and met once in March 2014.
"The National Institute of Justice's goal is to have a final document prepared for Department (of Justice) review in the summer of 2016," he said, "with a release date around December 2016."
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