With great fanfare earlier this week, Houston mayor Annise Parker (at lectern above) and Harris County district attorney Devon Anderson (at far right) announced some early results stemming from the City of Houston’s processing of the 6,663 rape kits that had once languished in Houston evidence lockers, in some cases for decades.
The $6 million push to test the kits began in 2013 and was completed by August of that year. Of those 6,663 kits, the new evidence has resulted in 850 hits in the FBI’s national CODIS database of DNA belonging to alleged or convicted criminals. Twenty-nine charges have been filed, 6 of them so far resulting in convictions, which have yielded prison sentences ranging from 2 to 45 years. Of the CODIS hits, some proved that the right assailant had already been convicted, while others matched up with anonymous DNA profiles of unidentified serial rapists. None vindicated innocent parties.
Not all of the news was so positive. Anderson said that the DNA in storage included that of six people convicted of rapes after the rape kits were collected.
“It did happen unfortunately,” Anderson said. “We are eagerly looking forward to prosecuting those rapists, those repeat rapists.”
Some critics have jumped on Anderson’s poor choice of words—that passive “it did happen” sounds a lot like “mistakes were made,” and “unfortunately” was, well, unfortunate, especially if you were one of those victims.
It’s hard to imagine making excuses for this significant backlog, but some have blamed Houston’s sluggish testing time on the 2002 shutdown of the city’s then-notorious crime lab. Back then, state auditors closed the lab down, all but hanging a sign reading “shit show” on the door as they left: The roof leaked, ruining evidence; lab technicians were found to be incompetent (some even said corrupt); and DNA processing was suspended until 2008 (it was during that interim period that many of the kits stacked up).
But what excuse is there to explain what is happening in Dallas, where testing is only now in progress on the city’s 4,144 kits? Or San Antonio, with its 1,499 unprocessed kits? Or Fort Worth, where the 2013 number alone was 1,018? Or Austin, which as of last year has just now whittled its backlog of more than 3,000 down to about 700? And in Amarillo, a fraction the size of the Texas metropolises, which currently has a backlog of 700, some dating back to the nineties?
Some, like Sarah Tofte, who works for Joyful Heart Foundation, a nonprofit that works toward rape-kit reform, claim it’s a lack of will, that good ol’ boy cops write these cases off, or worse, put the victims on trial and stash the cases on the back burner. As she told the Texas Observer’s Emily DePrang:
“The real driver behind why some jurisdictions have accumulated such a large number of untested kits,” Tofte says, “is that, if you’re not serious about a case, you’re not going to have the rape kit tested. … When you’re getting to look at some of the case files that are connected to the backlogs, what you see is usually very dismissive attitudes by law enforcement. Usually, very little investigation is done. The case files consist of maybe one or two pages at most, and what they consist of is the initial interview by the detective with the victim and that’s it. … What you see is this incredible scrutiny on the victim’s credibility, the victim’s background, socioeconomic status. You see a lot of, ‘Hey, as a detective, do I believe this person? Do I think this person is really worth moving this case forward?”
And in the courtroom, DAs have long believed that DNA evidence is nonessential for conviction, at least in some cases. For example, if an alleged rapist admits to having sex but contends that the sex was consensual, the trial becomes about consent, not the act itself. Why spend the money (it costs $500 to $1,000 to test a kit) to establish a fact not at issue in the trial?
Those arguments miss the much more important point that having as much DNA evidence on file is of paramount importance, according to former New York sex crimes prosecutor Linda Fairstein, now a board member of Joyful Heart. She contends that most rapists assault mutliple victims, so it’s important to get their DNA included in a national database.
“By spending a significant amount of money, you are identifying the most violent offenders that we have and you’re preventing more crimes from occurring,” Fairstein said. “It’s really rare that you’re going to come up with the single-rapist event. You’ll find many of these guys in prison, you’ll find them across state lines.”
And then there’s the CSI effect:
Although prosecutors don’t necessarily need a kit to accept a sexual assault case, 47th District Attorney Randall Sims said DNA testing is essential to corroborate the victim’s story.
“If there’s a rape kit to be tested, we’re not going to go to trial until it’s tested, unless the person charged is willing to plead guilty,” Sims said.
Jurors place a high priority on forensic analysis. Prosecutors say the “CSI effect” can give people an unrealistic expectation of the use of such evidence.
“They’re all going to expect us either to provide scientific evidence to corroborate the other evidence or have a reasonable explanation for why it isn’t available in this particular case,” Randall County Criminal District Attorney James Farren said.
And then there’s the argument that following through on these kits should be a matter of principle. A newly traumatized rape victim who forgoes taking a shower and takes herself to a hospital and allows herself to be poked and prodded and put through a battery of invasive procedures deserves to have somebody examine the results.
That’s the firm belief of Mariska Hargitay of Law and Order: Special Victims Unit fame, and the founder and director of Joyful Heart. “The rape kit backlog sends two terrible messages: to victims, it says, you don’t matter. What happened to you doesn’t matter,” she said in a statement last November. “And to criminals, it says: what you did doesn’t matter. Testing the kits reverses those messages.”
Funding for testing frequently comes up as an issue, but it seems especially egregious that Houston, a city awash in oil money, allowed the backlog to pile up (it later negotiated a bulk rate of $400 per kit for its enormous caseload). Other cash-poor cities are struggling to fund testing for large backlogs (in Louisiana, victims are sometimes forced to pay for their own rape kits and other related medical bills). To that end, this year’s federal spending bill includes $41 million earmarked for rape kit tests around the country. The Manhattan district attorney Cyrus Vance Jr. has also pledged to turn over another $35 million in cash seized from French bank BNP Paribas, which was recently caught conducting business with blacklisted nations. Why is Vance sharing the Big Apple’s wealth with the rest of the country?
“Because rape is not a local crime,” Vance said recently, a statement echoed by Detroit prosecutor Kym Worthy, whose office found DNA from more than 100 serial rapists in her city’s backlog. “Rapists know no boundaries,” Worthy told Buzzfeed last year. “They could come to your city.”
The Justice Department estimates that there are 400,000 rape kits awaiting testing across America. Even if tested for $500 apiece, the total price tag would come to $200,000,000, so the $76 million pledged by the feds and Vance would only process about 38 percent of the kits.
But this would be much better than nothing, just as Houston’s clearing of its atrocious backlog is a case of better late than never.
(Photo: Houston Forensic Science Center via Facebook.)
