Backlogging the Backlog

Law enforcement isn’t rushing to comply with a new law meant to clear backlogs of untested rape evidence.


Patrick Michels

A version of this story ran in the April 2012 issue.

Over the past three years, a series of investigations into major police departments in Texas revealed a shockingly large backlog of untested rape kits—the collections of swabs, hair, fibers and clothing typically collected from a woman or a man who reports having been sexually assaulted.

Backlogs of thousands of untested kits have made headlines in Houston, San Antonio, Fort Worth and Dallas, prompting efforts in those cities to finally test the evidence. Last year, the Texas Legislature passed a law—Senate Bill 1636, authored by Democratic Sen. Wendy Davis of Fort Worth—to mandate examination of evidence from rape cases statewide, requiring even the smallest law enforcement agencies to report how many rape kits they’ve left untested, then submit them to a crime lab.

These being lean times in Texas, the Legislature passed the bill without allocating new funding to the cause. It’s up to crime labs and police departments to raise money to test the old evidence.“One of the solutions offered by 1636 is that we’d get a complete picture,” says Torie Camp, deputy director of the Texas Association Against Sexual Assault. Law enforcement agencies were required to report their rape kit backlogs to the Department of Public Safety (DPS) by mid-October of last year.

That hasn’t happened.

DPS records obtained by the Observer show that as of January 23—three months after the deadline—just 86 of the state’s 2,647 law enforcement agencies had reported their backlogs.

The 86 include some of Texas’ largest police departments, like San Antonio (2,077 untested rape kits) and El Paso (56). But DPS records don’t show that Dallas, Houston or Fort Worth police have reported their totals to the state. The Texas Department of Criminal Justice reported 16 untested kits from alleged prison rapes.

In all, DPS records account for 5,686 untested kits in active investigations—and that number will only increase.
“I think the lack of reporting to the state is certainly a problem—I can hope that it’s just a lack of awareness of this requirement,” Camp says. In emails to local law enforcement, though, officials at regional DPS crime labs described, step by step, just how agencies should comply with the new law, right down to putting the words “SB 1636 OLD CASE” on their submission forms.

Before the law passed last year, it drew opposition from some police officials who said there’s no reason to test all the old kits. It’s expensive, crime labs are swamped, and in many cases, victims already know the person who raped them.

Austin PD is one of the agencies that did report its total to DPS—but while they told the state they’ve got 407 untested kits, Cassie Carradine, DNA supervisor at the Austin PD crime lab, says the city is caught up with all the kits it needs to test. All that’s left are kits that aren’t necessary for testing for a particular crime.

“The problem is that the definition of ‘active’ in the law is not a realistic definition of ‘active.’ The law says everything is active unless the statute of limitations has expired or it [the rape complaint] was a lie,” Carradine says. Carradine says it costs between $1,200 and $1,500 to test a single kit.

“The sex crimes detectives do not consider those ‘active’ cases. They’re not active, and it’s not something that the police department is pursuing,“ she says. “I think it’s unfortunate that the law has taken any police work out of this.”

Amarillo Police Lt. Martin Birkenfeld has a similar view. His department reported 950 untested kits—the second-largest total reported to the state so far—but he says the kits that haven’t been submitted are ones detectives haven’t needed to pursue.

“I realize that we’re not perfect and I’m sure we’ve missed some over the years. But those that are of evidentiary value—historically, we’ve sent those because we want to get the results.”

“Well now according to the new guidelines, we’re just sending everything. … To me it’s just not worth the cost, because it’s not going to change what’s been done in the investigation.”

It’s something of a moot point for now, anyway, because Birkenfeld says their local DPS lab in Lubbock told them to wait until they’re told to turn in their kits. Birkenfeld says that hasn’t happened yet, days after the deadline S.B. 1636 set for turning in all untested evidence. Davis, the law’s author, hasn’t been available to comment, but it looks like both DPS and local agencies have blown the few deadlines left in this unfunded law.

“I understand there’s an advocacy issue that there are probably some crimes that will be solved because of this. I guess if it’s of great enough value to the taxpayers, then I would agree with it. But I would say we ‘re going a long ways back for cases that probably will not be investigated anyway.

But that attitude is exactly what the law’s advocates hoped it might correct. For a victim who’s just been raped, having their lips, cheeks, vagina or anus swabbed for evidence is no small ordeal—they do it because they believe it will help bring their rapist to justice. And even if a victim can identify the rapist, there’s a benefit to running the offender’s DNA through law enforcement databases.

“I think there are a lot of repeat sex offenders out there,” Camp says. “But because the kits have not been tested, for a variety of reasons, we don’t know they’re out there.”