Many of the more than 2,000 rape kits left to languish in police departments around Virginia should have been submitted for testing but weren’t, according to an audit released this month.
The report, ordered up by the Virginia General Assembly, does not specify how many kits warranted testing. But if tested, they could yield DNA evidence that could identify rapists and solve crimes that have been unsolved for years.
These kits “clearly should have been submitted to [the Department of Forensic Science] for analysis,” the report said.
The number of untested kits and reasons given for letting them go untested underscore the challenge in prosecuting rape, which studies find is often not reported and, even when it is, can be difficult to win a conviction. Because there are no national requirements to test or catalogue rape kits, exact numbers are scarce. National estimates of untested kits range from 100,000 to four times that number.
Several states, like Virginia, have required a thorough documentation of the problem. Others are further ahead. In Ohio, more than 7,500 of 10,000 untested kits have been analyzed, leading to more than 100 indictments.
Virginia’s state laboratory does not have a backlog of kits waiting for testing, said Katya Herndon, the DFS chief deputy director. Kits submitted to the department are tested, on average, in 72 days. The kits that went untested in Virginia were never submitted to the lab by local law enforcement agencies.
In more than one-fourth of the 2,369 cases documented by the report, the victim chose not to participate. In nearly 600 cases, police deemed the kit unnecessary. In 444, prosecutors declined to pursue the case. In about 250 cases, police said the complaint was false or unfounded.
One reason police gave for finding testing to be unnecessary was that a suspect had acknowledged sexual intercourse occurred — so there was no need to prove the act. But advocates said that reasoning was insufficient, because rape kits test for more than DNA evidence. Nurses who perform them also take photos and collect other possible evidence, such as indicators of forced sex.
“We would never treat a murder case this way,” said Debbie Smith, an advocate for better DNA testing nationwide. “We always test the evidence. We continue to go full force. And this is a murder of a soul to me, because a woman’s life changes after this; it changes in how she feels about herself, how she feels about others.”
In 1989, Smith was raped by a masked man who abducted her from her home in Williamsburg, Va., while her husband, a police officer, slept upstairs. It took six years for DNA testing to identify her attacker. She has since become an activist for kit testing, and a federal grant program is named after her.
Whether Virginia’s kits will now be tested is a question of funding. Lawmakers demanded last year that the state catalogue the number of untested kits, but nothing in the law requires action on that information.
“Our agency does not have the capacity to absorb and test the volume of kits,” Herndon said.
The state has applied for a $1.5 million grant from Manhattan’s district attorney, who has pledged $35 million to help eliminate the backlog of rape kits nationwide; a response is expected in August. The FBI could also test a small number of kits.
State Sen. Richard H. Black (R-Loudoun), who led the push for the audit, said he will ask Gov. Terry McAuliffe (D) to include funding for testing in his next budget.
Black, a former judge advocate general for the Army, said testing could help link crimes by serial rapists. He recalled a case that he prosecuted involving a soldier who met women in clubs and raped them while walking them home. Once several women came forward with similar stories, he was able to obtain a conviction.
“They don’t test [the kit] and then the guy goes on and rapes again,” Black said. “If we can get these untested rape test kits tested and we can bank that DNA, then what we can do is we can begin to link together a series of these weaker cases . . . and build one strong case.”
Natasha Alexenko, founder of the Rape Kit Action Project, said that “it’s very unusual” for lawmakers and officials to be as proactive as they have been in Virginia.
“The wonderful thing is . . . they’re addressing the issue. They’re not keeping this secret. They’re aware of the issue and they’re moving forward. . . . It’s inspiring.”
Advocates would also like to see legislation that would take the decision on whether to test out of the hands of local law enforcement.
“Why should this be a matter of police discretion, about what can and cannot be shelved?” asked Marj Signer, legislative vice president of the Virginia chapter of the National Organization for Women.
But given the eye-popping numbers from other parts of the country, Signer and other activists said they were surprised there weren’t more untested kits in the state.
“We thought it would be much higher,” she said.
In Virginia, the kits date back to 1989, although most were collected in the past decade.
Fairfax County has the most untested kits, at 347, followed by Richmond. Alexandria has 91 untested kits, Arlington 85, Prince William 67 and Loudoun County 38.
The audit was conducted by the state Department of Forensic Science. Advocates credited the agency for pressuring police departments that missed the Feb. 1 deadline or provided incomplete information. Only two small departments in the state failed to report their numbers.