Law enforcement should get backlog of rape kits tested

By Kate Karpilow, Special to CalMatters | 

California legislators enacted half a dozen bills in the past five years that send an indisputable, bipartisan message to law enforcement: Identify and test the backlog of rape kits, known formally as sexual assault evidence kits, or SAE kits.  

“We’ve made it abundantly clear we want the backlog tested,” state Sen. Connie M. Leyva, a Democrat from Chino, said in a recent interview.

Not everyone in law enforcement is listening.

In 2018, Assemblymember David Chiu and Leyva co-authored Assembly Bill 3118, which required the California Department of Justice to conduct an “audit” of untested rape kits throughout the state. 

Facilities that receive, maintain, store or preserve SAE kits – including law enforcement agencies, medical facilities and crime labs – were to inventory kits in their possession and report their findings to the Department of Justice no later than July 1, 2019. 

The Department of Justice released its audit of untested rape kits last year in a little-noticed report that deserves renewed attention – through a legislative hearing – this April, designated as Sexual Assault Awareness Month

That’s because the audit’s findings – described as “disappointing” by Chiu and Leyva – are neither comprehensive nor conclusive. 

“Only 149 of 693 law enforcement agencies operating in California reported data for the audit, and no medical facilities in California responded,” according to Chiu’s office. 

How then could the audit’s statewide total of 13,929 untested rape kits be anything but a significant undercount? 

Law enforcement’s indifference to the backlog reporting requirement is stunning. An analysis based on reporting agencies listed in the audit shows:

  • 33 of 58 county sheriffs failed to report. 
  • Not one agency responded to the Department of Justice’s backlog request in 19 counties: Alpine, Amador, Calaveras, El Dorado, Glenn, Imperial, Inyo, Lassen, Mariposa, Merced, Modoc, Napa, Plumas, Sierra, Siskiyou, Sutter, Trinity, Tuolumne and Yuba. 
  • Of 17 public local crime labs that process sexual assault evidence kits, only 3 agencies identified as local crime labs responded.

“Survivors deserve justice. The lack of participation in this audit not only fails to deliver justice, but is also a violation of state law,” said Chiu, a Democrat from San Francisco.

Conducting a statewide audit of untested rape kits is one of six policy recommendations, or “pillars,” recommended by the Joyful Heart Foundation to “end the backlog.” The Joyful Heart Foundation was launched in 2004 by actress Mariska Hargitay, known to many as Olivia Benson in the long-running television series, “Law & Order: Sexual Victims Unit.”

 “Testing all kits should be a no-brainer,” Chiu said. 

Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation, amplified this point in legislative testimony. By testing kits for DNA evidence, “communities can identify serial perpetrators, take dangerous offenders off the streets, prevent future crimes, exonerate the wrongly convicted and help create a path to healing for survivors.”

April’s “Sexual Assault Awareness Month” offers the perfect opportunity for California legislators to hold indifferent law enforcement agencies accountable.

“It’s not a lack of ‘how to,’ it’s a lack of ‘will to,’” Leyva declared.

A legislative hearing could determine why so many local law enforcement agencies failed to participate in the rape kit audit, identify next steps to clear the backlog and ensure that sexual assault victims get justice. Legislators could also evaluate the thoroughness of the Department of Justice’s outreach to help local facilities meet the requirements of AB 3118. 

In 2021, two proposed bills continue the bipartisan drumbeat to test all rape kits.  

Leyva’s Senate Bill 215 would amp-up accountability by allowing rape survivors to anonymously and electronically monitor the status of their rape kits.

Assembly Bill 18, authored by Assemblymember Tom Lackey, a Republican from Palmdale, would require law enforcement agencies to submit any rape kit received prior to 2016 to a crime lab by Jan. 31, 2023. Previous Leyva legislation, Senate Bill 22, requires testing of all kits collected after January 2016.

Lackey tells it like it is, “Given the extreme violence and trauma associated with the crime of rape, it’s unconscionable that there hasn’t been the follow-up victims deserve.” 

It’s time for law enforcement to listen up: Identify and test the rape kits. 

Kate Karpilow writes on issues affecting women and families,  She previously directed the California Center for Research on Women and Families at the Public Health Institute.

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