Every two minutes, someone in the United States is sexually assaulted.1 According to the Minnesota Coalition Against Sexual Assault, one in three Minnesota women have been sexually assaulted by mid-life.2 Almost two-thirds of all rapes are committed by someone who is known to the victim. If you know three women, it is likely that you know a survivor of sexual assault.
Despite the prevalence of sexual assault, experts estimate that there are hundreds of thousands of untested rape kits in police and crime lab storage facilities throughout the country.3 Unfortunately, there is no comprehensive, national data on the nature and scope of the rape kit backlog. Few state governments and no federal agencies track this data.
In 2015, Minnesota enacted a law requiring the Minnesota Bureau of Criminal Apprehension (BCA) to complete a one-time audit of untested rape kits.4 As a result, the BCA announced that 171 police agencies were holding a total of 3,482 untested rape kits.5
It’s possible that more evidence remains in untested rape kits located in Minnesota hospitals, because the 2015 inventory mandate only applied to rape kits from law enforcement agencies.6 Other reporting systems around the country capture hospitals that maintain the kits without testing. For example, the Grady Memorial Hospital in Atlanta had over 1,500 untested kits in storage; Children’s Healthcare of Atlanta had over 200 untested kits relating to sexual assaults of children.7
Minnesota is not alone. Other states have completed similar audits or are currently in the process of completing counts of their untested rape kits. In September 2016, Arizona reported 6,424 untested rape kits in law enforcement custody across the state. A preliminary audit in Pennsylvania revealed 3,044 untested rape kits and Montana found 1,310 untested rape kits across the state. Alaska, Georgia, Hawaii, and Maryland are also conducting audits.
Why the backlog?
A perfect storm of complacency and inaction are to blame for the backlog. While roughly one-third of the untested rape kits in Minnesota came from victims who did not want to report the sexual assault or pursue a case—thereby assuring that those rape kits would not be tested—this is not the case for the majority of untested rape kits in the backlog.8 Even where the victim does report the crime, untested rape kits pile up for myriad reasons.
Law enforcement and prosecutors may decline to test rape kit evidence after making a determination that a case is unfounded or in instances where the suspect claims that there was consent and there is not enough evidence to prove otherwise—so called “he-said she-said” cases. (Alternately, rape kit evidence may not be tested if the suspect is known to law enforcement and can be convicted of the crime without relying on DNA evidence, if the victim can identify the suspect, or if the suspect confesses.)
Moreover, public discourse about sexual assault has shifted in recent years. Historically, rape was thought to be random—a one-time, stranger-perpetrated crime. Thus, in the past, law enforcement may not have tested a rape kit because the likelihood of identifying the perpetrator was thought to be slim. But recent research pertaining to sexual assault suggests that these crimes are not isolated events and are not being perpetrated by strangers. Eight out of ten cases involve an assailant the victim knew.9 Consequently, testing a kit, even when the assailant is known, is important because the kit could solve other sexual assaults.10
A general lack of policies and protocols for rape kit testing is also to blame. Most jurisdictions lack clear, written policies for testing rape kits.11 As a result, decisions regarding the testing of rape kits are made on a case-by-case basis. Testing practices vary greatly throughout the state.
Law enforcement’s understanding of the process may also limit testing in some cases. The DNA Identification Act specifies that access to stored DNA samples and analyses is limited to law enforcement for identification purposes and, in judicial proceedings, for criminal defense purposes or for identification research, if the personally identifiable information is removed. Some law enforcement agencies have erroneously interpreted the Act to limit samples sent for analyses to those attached to criminal complaints.
Finally, cost is a major factor. DNA analysis costs, on average, between $1,000 and $1,500 per rape kit.12 Each law enforcement agency must independently decide if it will fund the testing of a rape kit. Lack of essential funding is often a prohibitive factor in rape kit testing.
Barriers to prosecution
The strongest predictor of sexual assault is a previous sexual assault, which makes rape a particularly crucial crime to prosecute.13 Over 60 percent of undetected male perpetrators are perpetrating multiple rapes.14 Because the vast majority of victims know their assailant, it can be difficult to prove that there was no consent. Victims still face often insurmountable hurdles to bring perpetrators of sexual violence to justice—including cultural bias, victim blaming, rape myth acceptance, and faulty expectations about victim behavior.
Studies indicate that perpetrators often exploit vulnerabilities such as a victim’s age, isolation from others, or credibility, making it difficult to establish proof that the victim did not consent.15 Some factors that may present challenges for prosecutors are:
- lack of witnesses;
- lack of physical injury;
- the victim’s use of drugs or alcohol;
- the victim’s criminal record or engagement in criminal activities at the time of the sexual assault;
- the victim’s activities prior to the sexual assault;
- or the common myth that victims often make false reports. Studies indicate people still believe myths about victim behavior.16
If victims do not behave the way some police officers expect (crying, expressing anger or fear, immediately reporting the crime to police) the officer might believe the victim is making a false report even though an analysis of 10 years of reported cases found that only 2 to 10 percent of reported rapes are false.17
Additionally, in the Minnesota Supreme Court case State v. Obeta, the Court determined that in criminal sexual conduct cases where a defendant argues the sexual conduct was consensual, the district court has discretion to admit expert opinion evidence to describe and explain typical victim behaviors such as delayed reporting, lack of physical injuries, and submissive conduct by sexual assault victims.18
Studies show that myths regarding cases of sexual assault are still widely embraced and that people, including jurors, who endorse such myths are less likely to believe a victim, more likely to hold the victim responsible, less likely to hold the perpetrator responsible, and less likely to convict a defendant.19 Further, “many wrongly believe that most sexual assault victims will forcefully resist their assailant, suffer severe physical injuries, and immediately report the attack.”20 In Obeta, the Court acknowledged that expert testimony may help the jury to understand and evaluate the evidence.
Bias against victims in the prosecution of sexual assault is pervasive. Recently, several egregious cases have been brought to light. In Santa Clara County, California, Brock Turner was convicted of brutally sexually assaulting an unconscious woman.21 The prosecutors argued for six years in prison; he received three months in jail. The judge cited Turner’s lack of criminal history and the impact that prison would have on him to justify the sentence, despite hearing a lengthy victim impact statement and Turner’s showing no remorse. Stories like this have happened all around the country, including Colorado and Massachusetts.22 Notably, these cases all involve white middle-class young men.
Why test rape kits?
Minnesota state law requires the county in which the assault occurred to pay for the costs of the rape kit examination and associated test.23 The statute does not, however, require the county to take any action based on the evidence collected. While testing presents an additional expense, the decision not to test could also be costly. According to Dr. Steven Miles, a University of Minnesota professor of bioethics, “The direct medical, personal, and police costs are about $100,000 per case, and these do not include the costs of longer criminal investigations, trials, and punishments.” Solving one sexual assault could prevent future costly sexual assaults.
DNA testing has the potential to solve cold cases. DNA entered into CODIS may identify an otherwise unknown assailant, or reveal serial offenders who have offended in multiple jurisdictions. In September 2016, for example, a Minnesota prison inmate was linked to a sexual assault that took place seven years earlier in Platteville, Wisconsin.24 A sexual assault kit was completed at a hospital and in August 2016, investigators learned that the DNA collected matched that of the Minnesota inmate.
DNA evidence can also be used to ensure that individuals are not wrongly accused or prosecuted for a rape they did not commit.25 In January 2016, for instance, a Twin Cities man who had been jailed for nearly two months on charges of raping a teen girl was cleared when DNA test results exonerated him.26
Testing rape kit evidence may also act as a deterrent for offenders. If DNA samples were consistently tested in every case, assailants may be less likely to offend. Miles suggests that testing rape kits prevents an assailant from admitting to one sexual assault to prevent the testing of his rape kit where the assailant is certain there will be DNA matches in other cases. Testing would eliminate that loophole.
Prioritizing rape kit testing would also help ensure that the expectations of survivors of sexual assault are being met. In many instances, survivors are unaware that that evidence collected and preserved in their rape kit has not been tested.27 In 2011, the Houston Police Department, in conjunction with a grant from the National Institute of Justice, developed a protocol for responding to victim of sexual assault whose rape kits were previously untested.28 The Houston Police Department reported that victims’ responses ranged from “shock, annoyance, fear, confusion, fright, depression, and anger to happiness and appreciation.”29 In some cases, women are discouraged from reporting sexual assault by the perception that nothing is being done to find the perpetrator.
Case in point
In 1989, 11-year-old Jacob Wetterling was abducted at gunpoint in rural St. Joseph, Minnesota. Danny Heinrich, who had been investigated months before Jacob’s disappearance in a similar sexual attack on a young boy, ultimately admitted in 2016 to assaulting and killing Jacob on the night he kidnapped him.30 In 2015, using evidence not available at the time, investigators tested clothes that had been collected as evidence in a separate 1989 assault and found Mr. Heinrich’s DNA.31 The discovery led authorities to search Heinrich’s home, where they found a large collection of child pornography, for which Heinrich was charged. In exchange for a full confession and the location of Jacob’s body, the prosecution struck a plea deal with Heinrich.32 Despite Heinrich’s confession, prosecutors were unable to pursue murder charges without Jacob’s body to link DNA evidence to the crime. Without the DNA link in CODIS, this case may have never been solved.
Other cases that have utilized DNA samples from untested kits have resulted in revived cold cases. In Portland, Oregon, DNA evidence from a previously untested rape kit was used to solve the rape and murder of 14 year-old Melissa Bittler, who was killed in 2001.33 Portland police had shelved two other rape kits from two separate sexual assaults that linked the three sexual assaults to one assailant. The kits sat on the shelves for four years before Portland police submitted them to the lab. In Memphis, a 12-year-old rape kit was used to convict Jacquet Moore, who was also convicted in three additional unsolved sexual assaults.34 In Cleveland, law enforcement solved five cold cases that implicated two assailants as a result of testing previously untested kits.35
A criminal act with a large impact
According to Miles, “rape is a neglected public health crisis.” Given the alarming prevalence of sexual assault globally, nationally, and locally, and in the absence of testing the rape kits, society is essentially providing free license for rapists to walk free and in some cases, continue their crimes unfettered. Many seemingly unrelated issues could be addressed through testing rape kits.
Sexual assault on college campuses is prevalent; nearly one in five women has been sexually assaulted while in college.36 Minnesota is no exception. 294 sexual assaults were reported on Minnesota college campuses in 2015.37 The University of Minnesota reported 47 sexual assaults, and Carleton College had 10 sexual assaults for every 1,000 students.
Congress attempted to address college sexual assault through the 2013 Campus Sexual Violence Elimination Act.38 However, even when sexual assault is reported to a college, the college often drops the case, citing lack of cooperation from the victim. Though 294 sexual assault were reported to Minnesota colleges in 2015, law enforcement was only made aware of 18 percent of those cases. Only one in four complaints resulted in disciplinary action from the college. Serial offenders, knowing that colleges perform their own investigations rather than handing it over to law enforcement, gain an advantage from the lack of coordination between the school and law enforcement. Requiring the kits to be tested would provide the school no opportunity to allow a sexual assault case to fall through the cracks.
Testing the kits could also provide solutions to combat human trafficking. The FBI has identified Minnesota as one of the nation’s 13 largest hubs for child prostitution.39 Testing rape kits could provide continuity in efforts to combat sex trafficking.
A number of states have begun to address their respective rape kit backlogs by passing legislation requiring reform. Like Minnesota, the states of Arkansas, Iowa, and Louisiana have required law enforcement agencies to inventory untested rape kits in their custody.
Other states are requiring that all rape kits be tested. For instance, in 2014, Ohio passed a law requiring enforcement agencies to submit previously untested rape kits for testing, and requiring kits to be sent for testing within 30 days. As of October 2016, 13,930 rape kits have been submitted for testing, and almost 12,000 of those tests have been completed, resulting in 4,257 hits in CODIS.40
In 2015 and 2016, the United States Department of Justice Bureau of Justice Assistance (BJA) awarded additional funding to the Cuyahoga County Prosecutor’s Office to investigate and prosecute cases, re-engage survivors, and expand their collection of DNA to help identify unknown offenders. As a direct result, more than 515 defendants have been indicted. The Cuyahoga County Prosecutor’s Office anticipates indicting over 1,000 defendants within the next five years; roughly one-third of that group are believed to be serial rapists. “Assuming Minnesota is like other states,” says Miles, “we could expect 15 to 140 prosecutable cases of rapists and serial rapists from testing the state’s backlog of 3,500 kits.”
Some states have included funding for rape kit testing in their budgets. Texas appropriated $10.8 million for processing untested rape kits for the 2014-2015 biennium.41 As of 2016, over 19,000 kits have been submitted for testing.42 In 2013, Michigan dedicated $4 million in state legal settlement funds toward clearing the backlog of untested rape kits in Wayne County, where the Wayne County Prosecutor’s Office discovered 11,341 untested rape kits in a Detroit Police Department storage facility in 2009.
Other states have enacted multiple types of reform to address their backlogs of untested rape kits. Colorado required an audit of all untested rape kits in 2013. The law also requires the testing of previously untested kits within 120 days and the testing of new kits within 21 days. The state legislature appropriated over $6 million in new funding to clear the state’s backlog.43 In 2016, Colorado finished processing all its rape kits, thereby clearing its backlog. That effort generated 1,556 DNA profiles and 691 matches to profiles of convicted felons or samples from other cases.
In Minnesota, efforts to correct the backlog have been largely initiated by the law enforcement agencies that house untested kits. In 2015, the Duluth Police Department was awarded a grant from the U.S. Department of Justice BJA to test its backlog, investigate and prosecute cases, and re-engage survivors.
An uncertain future
The backlog creates myriad issues that are not easy to solve overnight. Legislative reform could lead to improved outcomes for the health and safety of all Minnesotans and has the potential to save the taxpayers millions of dollars in subsequent investigations. What is clear is that a continued refusal to test the backlog creates a climate of impunity for serial rapists. Rape survivors are re-victimized by neglect, not by attention. Without action, the continued decision not to test rape kits may cost some Minnesotans their lives.
Background: Understanding rape kits
Victims of sexual assault may choose or be asked to undergo a sexual assault forensic examination and provide evidence of the sexual assault in a “rape kit.”44 Rape kits allow a victim to preserve possible DNA evidence.
Collecting evidence for a rape kit can be an hours-long process. While the actual contents of a rape kit will vary from state to state, they may include semen, hair, and skin cells from the attacker, all of which can be used to identify a suspect.45 In order to effectively preserve as much evidence from the sexual assault as possible, victims are typically discouraged from eating or drinking anything, using the restroom, changing clothes, or taking a shower.46
Rape is the single most under-reported crime.47 An estimated 63 percent of sexual assaults are not reported to the police. However, victims have the choice to complete a rape kit without reporting the crime to police.48 The process gives the victim the chance to safely preserve evidence should he or she decide to report the crime at a later time.
For those crimes that are reported, the evidence contained in a rape kit can be an essential prosecution tool. DNA evidence preserved in a rape kit may be the only physical evidence that exists in some cases. Minnesota law requires the law enforcement agency to preserve evidence related to a sexual assault until the expiration of the offender’s sentence.49
But collecting DNA evidence for a rape kit is only one part of the equation. The DNA evidence must then be analyzed or tested in order to effectively prosecute the perpetrator of the crime. After DNA evidence from a rape kit is analyzed, the DNA profile may be entered into the Combined DNA Index System (CODIS). CODIS is a national FBI database that enables law enforcement agencies across the country to exchange and compare DNA profiles electronically.50 Using CODIS to match DNA evidence from rape kits to known individuals who are already in the system, law enforcement can identify assailants and bring more perpetrators to justice by definitively linking them to these crimes.
DNA data is confidential.51 The FBI takes precautions to protect the identity of the DNA sample subject.52 CODIS does not contain names, social security numbers, criminal history or any other personal identifiers; it only contains the DNA profile, the identity of the law enforcement agency that submitted the profile and the Specimen Identification Number. Access to the database is restricted to law enforcement agencies that are authorized to use CODIS and approved by the FBI.
About the Authors
- Tara Kalar is a co-chair of the MSBA Human Rights Committee. She is an associate legal counsel at the Minnesota Department of Transportation.
- Elizabeth M. Meske is a member of the MSBA’s Human Rights Committee. Elizabeth works in education law, providing legal counsel and representation to public school districts throughout Minnesota.
- Alison Schmidt is a graduate of William Mitchell College of Law. She worked at a construction litigation firm in San Francisco before returning to Minneapolis and joining the internal audit team at U.S. Bancorp in 2016.
- Shirin Johnson is a 2L at the University of Minnesota Law School.
4 Minnesota Senate Bill 1081 viewable at https://www.revisor.mn.gov/bills/text.php?number=SF1081&version=1&session=ls89&session_year=2015&session_number=0
12 Supra notes 8 and 11.
13 Loh, C., Gidycz, C., Luthra, R. (2005). A Prospective Analysis of Sexual Assault Perpetration Risk Factors Related to Perpetrator Characteristics. Journal of Interpersonal Violence, 20(10), 1325-348.
14 “Sexual Violence Prevention Legislative Report”, Minnesota Department of Health, January 2015. www.health.state.mn.us/injury/pub/MDHSexualViolencePreventionLegislativeReport.pdf (citing Hall, G.C.N. et al. (2006)).
15 ”Critical Issues in Sexual Assault”, Wilder Foundation, July 2007. https://www.wilder.org/Wilder-Research/Publications/Studies/Crime%20Victims%20Services/Critical%20Issues%20in%20Sexual%20Assault.pdf
17 Lisak, D. Gardinier, L., Nicksa, S. C. & Cote, A.M. (2010). False allegation of sexual assault: An Analysis of ten years of reported cases. Violence Against Women, 16(12), 1318-1334.
18 State v. Obeta, 796 N.W.2d 282, 294
19 Id. at 285.
20 Id. at 293.
23 Minn. Stat. §609.35
38 Supra note 36.
46 Supra note 44.
48 Supra note 44.
49 Minn. Stat. §590.10
51 42 U.S.C. §14132