Editors’ note: the following story contains some graphic information that may not be suitable for younger readers.
Update (February 11, 2015): Rebecca Campbell, a psychologist at Michigan State University in East Lansing, who was interviewed for this story, clarified her statements after the story was published. She said that between the years of 1980 and 2009, the Detroit Police Department did not test most sexual assault forensics kits. We have updated the text to reflect this information. Campbell said Detroit now has a policy to test all kits. The Detroit Police Department did not accept multiple requests for an interview during the reporting of this story.
(Inside Science) -- It was early March in 1989 and Debbie Smith was standing on the deck behind her house in Williamsburg, Virginia. Before heading back inside, she noticed a man who she assumed to be a gardener in her neighbor’s yard looking at her.
The man later put on a mask, broke in and forcibly hauled her into the woods at the end of the garden. He blindfolded her and raped her.
“When he eventually allowed me to go, he told me not to run or he’d kill me, but once I had passed the clearing and left the woods I ran home,” recalled Smith.
Smith’s husband, a policeman working night shifts, was sleeping upstairs.
“I was screaming at him to let me get in the shower, but he understood the importance of protecting whatever evidence I had on me,” she said.
Her husband wasn’t necessarily thinking about DNA evidence back in the late 1980s, but he knew that they might be able to match up the blood type if they ever caught her attacker. So they went to the station forgoing a shower and Smith submitted a sample for a sexual assault kit.
The rapist had threatened Smith to keep quiet.
“He told me he’d come back for me if I told anyone and he obviously knew where I lived,” she said, “If he read the newspapers he must have known that I went to the police.”
It took over six years before DNA from her test kit identified the man who raped her.
“Living in fear literally paralyzed me,” she said, “What held my test up was that it wasn’t compared to other samples in the system … even with my husband being an active police officer.”
Federal Power To Local Backlogs
A new partnership between the FBI and the National Institute of Justice was announced in August 2014. It has a mandate to add the staffing, forensic expertise and technological superiority on the federal level to help local police forces across the country deal with the masses of untested rape kits in their jurisdictions.
The FBI says the aim of the program is twofold. The partnership hopes to provide justice for crimes committed as long as decades ago and to recommend best practices for local police departments to follow when they process rape kits.
“The [FBI] partnership with NIJ is an unprecedented opportunity to solve crimes while simultaneously contributing valuable information that can be used to enhance future sexual assault kit collection and processing,” FBI spokesperson, special agent Ann Todd, wrote in an email to Inside Science.
Sexual assault kits usually involve vaginal, oral or anal swabs, depending on the nature of the attack. Police can also collect DNA from fingernail clippings if the victim scratched the rapist's skin.
“If the suspect ejaculated then there’s a better chance of recovering evidence,” said Gerald LaPorte, the director of the NIJ’s office of investigative and forensic sciences. “There are a large number of kits that come back negative because the suspect used a condom,” he added.
How Rape Kits Work
When a swab arrives at a lab, it is likely to contain both sperm cells and non-sperm cells. The swab is placed in a saline solution, which causes the non-sperm cells to burst.
“Sperm cells have a much stronger cell wall, so they’ll stay intact,” said Lisa Calandro from Thermo Fisher Scientific, one of the companies that produce equipment used to test sexual assault kits.
The sperm cells are separated from the non-sperm cells. A second solution is then added to the two samples to fully break the cell walls and allow access to the DNA.
There are several ways to extract the DNA from these samples. Thermo Fisher Scientific uses a technique widely practiced elsewhere that involves tiny magnetic beads coated with a substance that binds to DNA. The beads, now with DNA attached, can then be extracted from the sample with a magnet.
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Experts estimate that there are perhaps hundreds of thousands of sexual assault kits taken from women and men after a rape that have never been submitted to a laboratory for testing in the U.S. However, there is no official statistic of how many kits remain untested — and that’s part of the problem, said Rebecca Campbell, a psychologist at Michigan State University in East Lansing, who studies the issue using Detroit as a case study.
Most states don’t require their police forces to track and count untested kits. The jurisdictions that have some degree of legal obligation to either count or test kits include California, Colorado, Illinois, Louisiana, Massachusetts, Michigan, Ohio, Tennessee, Texas, and Virginia.
But that number is growing. Ilse Knecht, the director of the DNA Resource Center at the National Center for Victims of Crime in Washington D.C, said she is working with an initiative called the Rape Kit Action Project to support legislators in 15 states that may introduce various measures this year to address untested kits.
She added that without legislation it is unlikely for states to voluntarily take action.
“The only way to do it is to require it by law,” said Knecht. Until all states require it, we’re unlikely to know exactly how many kits haven’t been sent to the lab, she added.
Campbell said Detroit, for example, did not submit rape kits most of the time from 1980-2009. She estimates they have between 8,300 and 10,000 untested kits.
“That’s just from looking at a standalone Excel sheet collected by a particularly diligent individual in the Detroit crime lab,” said Campbell.
Contrast this to New Orleans, which says it has 500 untested kits, according to Knecht.
“I would say Detroit is a bad example; there’s a lot of dysfunction for rape victims to deal with there,” said Knecht. She added that Detroit isn’t the only city with high numbers of untested kits, and others may possibly be even worse.
Police departments aren’t typically forthcoming when it comes to tallying up and telling people how many kits are left sitting on their shelves.
“No one wants to be known as the next Detroit,” said Campbell.
The sexual crimes unit at the Detroit Police Department did not accept numerous requests for an interview.
What Took So Long?
Experts say there are genuine scientific reasons that rape kits were not submitted for testing decades ago, but sometimes it also came down to a lack of financial resources — a problem that persists to this day.
The cost of testing a kit varies, depending on the nature of the assault and whether the victim had consensual sex with someone else up to five days before the attack. The number of kits that need testing also impacts price.
“It’s between $500 and $1,500,” said Knecht, “I’d say most of the time it’s closer to $1,500.”
“Back in the day, labs would only accept the test kit if there was a suspect,” explained LaPorte. If you didn’t have a DNA sample from the suspect to cross-check, there was no reason to spend the money to extract the DNA from the rape test kit. After all, the lab wouldn’t have been able to provide the investigation with any additional information.
It wasn’t until 1994 that a law authorized The Combined DNA Index System (CODIS). This empowered law enforcement to collect and keep DNA samples from crime scenes and convicted criminals.
Once CODIS was running, it provided an opportunity to check the results against anyone in the database. In short, a rape kit could be tested to identify a perpetrator already in the database rather than merely confirm a pre-existing suspect.
That said, police departments didn’t flip a switch in the mid-1990s and suddenly start sending every rape kit to the lab. As with most things, adoption of the technology took time.
“They didn’t always submit them without a suspect because the database still wasn’t that big,” said LaPorte, “Even just five years ago we didn’t have every convict in the system.”
But LaPorte doesn’t think this means fingers should be pointed.
“Nobody should be criticized for this; it’s just that the technology has taken us so far so fast,” he said, “But I don’t know if there’s a good excuse for [not submitting kits] today.”
It means the buildup of untested kits continued past the advent of CODIS, creating daunting numbers to deal with. That’s why the partnership between the FBI and NIJ is so important, said LaPorte.
“Sexual assault kits have become a news topic in recent years and we share those concerns,” said LaPorte.
Through the partnership between the FBI and NIJ, local law authorities can contact the NIJ to ask for help with their accumulations of untested kits. The NIJ will then prepare the samples to send them to the FBI’s forensic labs. The kits must be at least one year old to submit, but there is no age limit on untested kits.
"We’ve had kits coming in from the 1970s,” said LaPorte.
Just how quickly a tested kit could bring about prosecution depends greatly on particular details of the case itself, but Knecht said she wouldn’t be surprised to see results from the partnership in the very near future.
There is little concern that evidence collected from samples collected decades ago might be less compelling in court, said LaPorte.
Other experts agree. Calandro said that the swabs samples in rape kits are dried and frozen when they are stored before being tested, which prevents degradation.
“DNA may degrade when a body has been buried for many years underground, but sexual assault evidence doesn’t have this problem because the sperm DNA is well protected," said Calandro.
“Memories fade, but DNA doesn’t,” said Knecht.
The Houston Police Department in Texas, which has previously received funding from the NIJ but is not involved with the current partnership, is perhaps an example of what other cities like Detroit could one day achieve.
Houston is said to have no untested rape kits.
“We started 2014 with a clean slate,” said assistant chief Mary Lentschke, of the Houston Police Department.
In 2013 there was a push from the mayor with support from the police chief to deal with over 6,000 rape kits that they had not been sent to a laboratory. The oldest one dated back to 1982.
“It cost $4.4 million to do it, but once it was determined to be the right thing, the funding was found,” said Lentschke.
Most states have unlimited time to prosecute for sexual assault crimes if the victim was a minor when they were attacked, but the statute of limitations regarding the assault of an adult is more variable. It can be indefinite or as little as three years, depending on the jurisdiction.
But in many states, the introduction of DNA evidence can extend the statute of limitations. This means some of the kits, which date from decades ago, could still result in fresh prosecutions if a match is found.
In the states where DNA evidence has no impact on the statute of limitations, it doesn’t mean the evidence from old kits can’t be used at all.
It may not result in a new case, but the evidence can be used to keep an attacker in jail longer if they’re already there for another crime.
Delayed Justice in Virginia
This was the case with Smith’s attacker in Virginia. He was in jail for robbing elderly women, but could have been released had he not been matched to Smith’s 6-year-old kit.
The partnership between the FBI and NIJ will undoubtedly bring belated justice to countless survivors like Smith, but that’s not the only aim. They also want to make sure they learn what police departments are doing right and replicate that success nationwide. LaPorte says it’s too soon to say exactly what “best practices” they’ll recommend, but a report scheduled for release in the coming year will outline exactly what they’ve learned.
Benjamin Plackett is a science journalist based in New York City. He tweets at @BenjPlackett.