The Los Angeles backlog of DNA evidence from sexual assaults drew national attention and spurred lawmakers toward action, but little is known about other jurisdictions throughout the state

After a Sept. 2008 city audit of the Los Angeles Police Department uncovered a backlog of 7,000 untested rape kits, the issue drew national media attention – and a good deal of criticism for the department’s perceived ineptitude and inaction in handling the problem.

A rape kit is the physical evidence of a sexual assault, which often includes DNA, collected from a woman’s body after the crime. In cases involving repeat offenders, timely analysis of this evidence is crucial in identifying and convicting the perpetrator before he assaults another victim; in many cases, it is the only way to positively i.d. a criminal or exonerate someone who has been falsely accused.

Following the Los Angeles audit, the independent advocacy organization Human Rights Watch (HRW) reported that an additional 5,000 or so untested kits were waiting in surrounding departments, for an estimated total of more than 12,000 in L.A. County.

As of mid-May, the LAPD reported just less than 4,500 untested kits, and pledges to clear the backlog by summer 2010.

On Monday, as part of the Los Angeles City budget for the upcoming fiscal year, the City Council approved the funding for an additional 26 employees for the city’s crime lab DNA section and for using private crime laboratories for outsourcing. This funding is a major step forward toward reducing the rape kit evidence backlog in Los Angeles.

Meanwhile, with the LAPD under a microscope, rights advocates are seizing the opportunity to make an example of its poor handling of this sensitive issue and bring it to a national stage.

“We decided to focus on LA because of the extent of the backlog [the biggest we know about in the U.S.] and the fact that nothing had been done about it, says Tiffany Siart, Southern California director for HRW, “but we’re also looking at this issue nationally.”

And the push to raise awareness has paid off, she says: “Local and national coverage has been extensive. This was a good example.”

The L.A. case has drawn attention to underlying issues – such as poor administration, lack of funding, and the subsequent failure or inability of law enforcement agencies to prioritize DNA testing in rape cases.

Currently, there are no reliable statistics when it comes to a statewide or national count. But with the added pressure of budget constraints hitting hard across the country, there is concern that other cities might be experiencing similar problems.

Los Angeles, a good bad example

The audit that uncovered 7,000 untested kits in the LAPD’s freezer also found that more than 200 hundred of them had been sitting there for more than 10 years, thus exceeding the statue of limitations for use in prosecution.

The office of former controller Laura Chick, which led the city audit, also found that the LAPD had failed to comply with a state law requiring the department to notify victims if their kits were not tested within a two-year period. This was the case in more than 5,000 of the unopened rape kits.

About 400 of the nearly 5,000 untested rape kits were “stranger rapes,” in which DNA evidence is normally made a priority because it is the most conclusive and often the only means of determining a suspect; in L.A. County, more than 800 of the recently discovered untested kits were “stranger rapes.”

Police officials said they lacked sufficient funds and personnel to process the evidence in a timely manner. However, Chick’s audit also revealed that the department had received nearly $4 million in federal grants in recent years to address the problem – half-a-million of which was subsequently rescinded due to mismanagement.  

In the wake of the Los Angeles scandal, media reports have also dug up backlogs in other cities across the country. According to a PBS investigative report, Houston currently has a backlog of 4,000 kits; while the Chicago Tribune reported that a backlog persists in the city several years after former Illinois governor Rod Blagojevich declared the problem was eliminated.

The LAPD’s backlog is still the largest known in the U.S. – but it pales in comparison to the one New York City boasted only a decade ago. However, that city was quick to acknowledge and address the problem.

In 1996, New York City Police Department had more than 17,000 untested kits, and were working on a capacity of about 100 to 150 kits per year, while about 1600 new kits came in each year. However, the city acted swiftly to rectify the problem, setting the example for other jurisdictions across the country. It took about four years, but when they tested nearly 18,000 backlogged rape kits in 1999, about 2,000 were “cold hits” or DNA matches, which led the department to solve 154 cold rape cases.

In April of this year, DNA analysis led Los Angeles police to a serial rape/murder suspect that they’d been hunting since the 1970s. Due to the backlog of cases, the suspect, a registered sex offender, wasn’t called in for a routine DNA sample until last fall. Rape kits from two of the primary cases the suspect was linked to were collected more than 30 years ago – but only sent to a crime lab for analysis within the last five to seven years, the local press reported.

The advantages of DNA testing in law enforcement – and particularly in rape cases, where DNA evidence is sometimes the only way to prove guilt – seem painfully obvious.

So why the hold up?

A question of resources: Beyond Los Angeles

Like Los Angeles, many cities are likely to have trouble with either access to funds or proper distribution of resources. In the current economic environment, when budgets and personnel are being cut, testing DNA evidence can become a lower priority for departments.

In the case of Los Angeles, a reported lack of personnel and mismanagement of funding specially allocated for the work led to the delay and backup.

HRW’s Tiffany Siart says that the organization is looking into other California cities, “but [we] don’t have any numbers yet.”

The approach Sacramento takes – in which kits are only sent for screening at the request of law enforcement or if there is no known suspect – might be indicative of how other jurisdictions approach the problem.

Albert Locher, assistant district attorney for the city of Sacramento, points out that it can be difficult to give a simple quantitative answer to the question, ‘how many?’

“How do you define backlog? There are different ways one can look at that question,” says Locher, noting that “a certain percentage of kits are neither screened nor analyzed unless they meet certain criteria.”

In Sacramento, where the crime lab is under authority of the D.A.’s office, the police department must get approval twice – for screening (to see if there is indeed material to analyze), and then analysis.

If there is no known suspect in the case, or if there has been a special request to analyze the evidence (from either the police agency or D.A. handling the case), says Locher, then the kit goes to screening, and, if relevant, it gets analyzed.

A Public Information Officer from the Sacramento Police Department also indicated that the department generally prioritizes ‘random rapes,’ saying, “When we have high priority stranger rape, or think it might be connected to the ‘NorCal rapist,” we’ve always had quick analysis.”

In many ‘acquaintance’ rapes (wherein the victim knows the suspect) – which generally far outnumber reported ‘stranger’ rapes in a given community, DNA is irrelevant (at least in cases where both parties acknowledge the act but dispute a basis for criminality).

In 2008, the Sacramento D.A.’s office had 372 sexual assault evidence kits submitted to the crime lab. Of those, says Lochan, 92 were put in for screening, of which 90% were completed. Of the ones that tested positive, 88 percent underwent analysis in 2008 – a number Lochan suspects would be higher by now.

The other 280 kits were never touched (by the end of 2008).

Similar information requests by Public CEO to the San Francisco Police Department were not answered.

In the end, says Lochan, “it becomes a question of allocation of resources.

“The principal value of DNA evidence is identification; if there is a known suspect, there’s not a need in that case to do DNA analysis to id a suspect. For that reason, in terms of allocation of resources, those cases don’t take precedence…. Certainly if we had more resources available, we would do more.”

The total cost of a analyzing a rape kit is about $1,000. In some states – notably, Alaska – this cost has been billed to the victim. All states have passed laws implementing the federal Violence Against Women, which prohibits states from charging victims. However, implementation and enforcement is further inhibited by interpretation at the various levels of administration charged with processing the evidence.

Lochan adds that his office actively seeks grants, and will eligible for another soon that will help fund DNA testing. However, budget cuts are looming in the coming fiscal year – as are potential layoffs, including criminologists.

New laws, allocations

Currently, two California state bills directly address some of the underlying issues brought up by the LAPD backlog.

Introduced by California State Assembly Member Anthony Portantino, AB 1017 will require all local law enforcement agencies in the state to test every rape kit. The law will also require agencies to report untested and unanalyzed kits to the Department of Justice. These annual reports would cover the past five years, and also include a tally of the total number of sexual assault crimes reported if conviction would lead to the perpetrator being registered as a sex offender. Additionally, the bill would give sexual assault victims legal standing to demand compliance with these provisions, and “delete language that subjects certain victim rights to the commitment of sufficient resources to respond to requests,” according to the Legislative Counsel’s Digest. The law would also require law enforcement agencies to notify a victim if they fail to analyze their kit within six months of obtaining the evidence.  

At the same time, AB 383 is also making its way through the legislature. Introduced by Assembly Member Ted W. Lieu and supported by a recent L.A. City Council measure, 383 would extend the time law enforcement agencies are given to analyze biological evidence collected in sex crimes – from two to five years.

Both bills are currently in Appropriations.

In Los Angeles, the city finance budget is currently under review from the city council. If approved, new funds will be allocated specifically to increase capacity for testing rape kits.

But, says Siart, it’s not enough to clear the backlog – just enough to make sure the Department stays current. “They’ll need to make use of federal funds. We need to make sure the council oversees this process of making sure those funds also go towards the backlog,” she says.

Human Rights Watch officers have met with New York City officials “to understand how they solved their problems, and really hold it up as a role model for other cities and jurisdictions,” says Siart, stressing that it takes a lot of effort to clear up a backlog.

“Not just money and people and time, but a number of facets” are important to turn around an administration’s approach, including trained personnel for testing, prosecution, and victim notification.

Time – and further investigation by the media, Human Rights Watch and other organizations – will tell if other jurisdictions are sitting on their own backlogs. If they are, the recent attention, activism and legislative action should give officials a sense of urgency in addressing the problem.

To read more on the Los Angeles rape kit backlog.