Five Ways the Media-Driven Rape Kit ‘Backlog’ Narrative Gets it Wrong

Across the country, police departments have chronically failed to investigate rape cases, leaving rape kits — the physical evidence collected from a rape victim’s body — untested. Unfortunately, a false narrative has taken hold around the concept of a rape kit backlog.

Promoted by advocacy groups like the Joyful Heart Foundation (founded by actress Mariska Hargitay, who plays Detective Olivia Benson on Law & Order: SVU), this narrative presents law enforcement as victims of an overall lack of resources (faulty technology, overburdened labs, understaffed units) rather than perpetrators of a failure to investigate violent crimes.

Beyond dominating national and local headlines, the rape kit “backlog” has even become an element of pop culture, with former Vice President Joe Biden appearing as himself on Law & Order: SVU to commend Detective Benson on her work to “end the backlog.” Hargitay, a fictional sex crimes detective on a show that glorifies law enforcement, is a perfect spokesperson for a narrative that glosses over police failings.

The backlog narrative doesn’t only ignore law enforcement’s unwillingness to take responsibility — it enables it. That’s because it obscures the actual criminal justice policies and practices, like broken-windows policing and other “tough-on-crime” measures, that led law enforcement to de-prioritize violent crime.

The term “backlog”

Moving beyond the word “backlog” is the first step in understanding how law enforcement disregarded so many rape kits. While there are actual backlogs at some crime labs, “backlog” is an inappropriate word for the thousands of rape kits that police departments never submitted to a lab for testing in the first place.

Backlog “implies that the untested rape kits were in a queue awaiting testing by overburdened labs,” University of Kansas law professor Corey Rayburn Yung has argued. “That does not reflect the reality across the United States. In fact, untested rape kits were often simply discarded in warehouses, trash depositories, or storage closets with no intention to ever test the contents of the kits.”

The National Institute of Justice (NIJ) defines a rape kit as “backlogged” if it has been sent to a lab and has not been tested for at least 30 days after a request for testing was made. There is no justification for conflating this scenario with cases in which police never submitted rape kits to a lab in the first place.

The word “backlog” also re-frames law enforcement’s belated attention to neglected rape cases as heroic and redemptive. Never mind that in cases with unsubmitted rape kits, police also failed to do other investigative work.

While it’s easy to understand why law enforcement would embrace a narrative that denies its own role in creating the problem, it’s shameful that victim advocacy and news media continue to peddle this fiction.

A lack of resources caused rapes kits to remain untested.

In response to public criticism, law enforcement and victim advocates have blamed untested rape kits on a lack of funding, and media outlets have often reported their claims uncritically.

Wayne County Prosecutor Kym Worthy has publicly sought donations to test Detroit’s rape kits and prosecute the neglected cases. In Texas, State Representative Victoria Neave spearheaded new legislation allowing drivers license applicants to donate money to test rape kits. In California, lawmakers passed a measure creating a voluntary contribution checkbox on the state income tax form for those wishing to donate to rape kit testing.

But the funding to test rape kits already exists. In 2004, Congress passed the Debbie Smith Act, named after a Williamsburg, Virginia woman who was raped in 1989. The act was intended to address untested rape kits through grants to states and local agencies to conduct DNA analysis of untested samples collected from victims of crime and criminal offenders. Since 2004, the federal government has granted over a billion dollars to states and local agencies under this program.

Yet, it’s hard to know how that money is being spent. The NIJ, for instance, which oversees the Debbie Smith grant program, cannot provide basic statistics regarding the number of rape kits awaiting analysis or whether the funding was even used to test rape kits. Nor can it explain its criteria for awarding DNA testing-related grants or show proof that grant recipients satisfied the requirements outlined in their grant applications.

Given this lack of transparency, it is troubling that additional law enforcement funding continues to be advanced as a solution to untested rape kits. For instance, an additional $79 million is available under a partnership between Manhattan District Attorney Cy Vance and the Bureau of Justice Assistance’s Sexual Assault Kit Initiative. While these funds also require grantees to do certain things, like form “multidisciplinary working groups,” it’s unclear how the program will be monitored to avoid waste, dysfunction, and abuse.

It’s also been argued that labs lack capacity and staff. Yet, federal funding, including grants disbursed under the Debbie Smith Act, has been used to expand labs’ capacity and staff, increasing their ability to process DNA.

Because a lack of money is not the reason police failed to investigate rape cases, increased funding alone won’t solve the problem.

It’s a problem of “rape culture.”

High-profile advocates often attribute law enforcement’s poor record on rape investigations to attitudes toward rape in society at large.

“The rape kit backlog is just a perfect microcosm for how women and these crimes are regarded, and so through excavating and digging, you really see those victim-blaming attitudes,” Hargitay noted at a recent screening of her documentary I Am Evidence, which she produced and stars in. Discussing Detroit’s untested rape kits, Kym Worthy, who co-stars in the film, offered, “We have a problem in this country with rape culture.”

But that broad framing shifts the focus away from police culture, and the specific policies and practices that led to the problem.

The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases.

Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed. And in 2015, news media exposed that the department, again, had “vastly underreported” rape numbers to the FBI.

Meanwhile, the war on drugs still incentivizes law enforcement to focus resources on drug enforcement at the expense of solving violent crimes. Police departments have pushed ineffective stop-and-frisks while making complaints of real crimes disappear for the purpose of creating annual crime reductions.

Despite the myriad legislative efforts to test rape kits, police across the country are solving fewer rapes than they did in the past. Nationwide, the clearance for rape has declined sharply in the past decade, from 51% in 1995 to approximately 40%, where it has remained stable since 2005. In some cities, the clearance rate for rape is in the single digits.

A lack of training or technology led to the problem

Another popular notion advanced by the media is that inadequate technology prevented police from processing rape kits. “It started really in the late ’90s and early 2000s,” Rebecca O’Connor of the Rape Abuse and Incest National Network told NPR, “as we saw advancements in the science itself around DNA technology and as people started to literally open up the evidence rooms and warehouses across the country and discover these troves of kits in different jurisdictions.”

O’Connor echoed the talking points of former Memphis Mayor A C Wharton, who said in 2014 of his city’s 12,000+ untested rape kits, “Unfortunately, there were no processes in place to systematically test the older kits as DNA technology evolved to do so.”

But advances in technology did not unearth this discarded evidence, and law enforcement continued to disregard rape evidence after the advent of modern DNA technology.

Ohio Public Defender Tim Young, whose office is appealing convictions based on Cleveland’s neglected rape kit evidence (including the Demetrius Jones case), has criticized the narrative that DNA technology didn’t exist to solve rapes until recently, and is now miraculously solving cases.

“We’ve had DNA testing since the mid-1990s. They [law enforcement] were dilatory in not using it. It’s a continuation of broken police culture that places the police first, not the victims, the defendants — or justice.”

This excuse is even more flimsy considering that law enforcement has long used DNA to investigate and prosecute homicide cases.

Testing rape kits will solve the problem

While DNA testing is one step in investigating a case, it does not, in itself, represent a solution to unsolved sex crimes. After suffering the bad publicity of having large numbers of untested rape kits, police departments in cities like Memphis and Detroit have been eager to ship rape kits off for testing and report to the public on how many kits have been tested so far. But that doesn’t always mean they’ve made policy changes. In Detroit, the police department developed a “second backlog” of rape kits, never revealed to the public, that accumulated after the 2009 disclosures and promises of reforms.

Further, rape kit testing alone does not solve cases. The DNA results have to be put into CODIS, the national database run by the FBI which holds DNA samples. These cases still must be investigated and prosecuted. In some cases, the police and DA are unwilling or unable to do that work. In others, victims of decades-old crimes no longer want to pursue charges, have moved, or have died.

And even in cities that have tested old rape kits, convictions are rare. A Michigan State University study of Detroit’s rape kit testing efforts concluded that few of Detroit’s neglected cases were properly handled — even after rape kits were tested.