All rape kits should be tested, new rules set for federal funds, says former New York DA
Cyrus Vance Jr. launched the country's first grant program to clear rape kit backlogs nationwide. Now, he says the federal program it inspired should consider reforming its standards.
Despite a federal program designed to clear backlogs of DNA evidence from rape cases, state and local officials around the country chose – again – not to test about 20% of kits and secured few convictions from those that were analyzed, according to a Paste BN investigation.
Those results fall short of the hopes former Manhattan District Attorney Cyrus Vance, Jr. had when he launched the first grant program to fund testing for long-ignored rape kits. That effort inspired federal leaders to create the Sexual Assault Kit Initiative, which has awarded more than $350 million in grants to 90 state and local agencies since 2015.
Although even a single conviction is significant, Vance said, he believes federal officials made a mistake when they didn’t require grantees to test all backlogged kits. He also said it’s time to set new standards for outcomes after testing, such as conviction rates.
“The whole reason we got to where we were was that law enforcement was making discretionary decisions on whether they were being tested or not,” he said of the kits. “If you’re given discretion over what case is more important than another case, you’re going to make judgments. And, in our view, that was the wrong approach.”
Paste BN’s investigation focused on 14 law enforcement agencies that received their first federal grants at least eight years ago, giving them time to prosecute cases. Of the roughly 47,000 backlogged rape kits identified, 38,000 were sent for testing and prosecutors have secured 750 convictions. But more than half of those came from two jurisdictions, with the rest disbursed among the remaining 12.
While experts estimate that about 9% of rapes reported today result in a felony conviction, Paste BN found that the majority of the agencies it examined reported conviction rates of less than 1% among the kits tested from their backlogs.
Austin, Texas, for example, has achieved just one conviction from its more than 4,000 tested kits despite receiving $2 million from the testing program Vance instituted and $3 million from the federal one, which also provides technical support for investigations, victim notifications and prosecutions.
City leaders have promised to do better and say they have applied for a third round of federal funding. Their conviction rate won’t disqualify them since the program doesn’t require convictions to continue receiving funding.
Officials from the federal justice department’s Bureau of Justice Assistance, which administers the grant, have repeatedly declined interview requests from Paste BN about its findings. In a statement, they said testing all kits is not required because the causes and effects of the backlog vary by jurisdiction. Grant administrators and a nonprofit contractor help recipients “develop an approach that best serves their communities, addresses underlying causes of unsubmitted kits, and aids in the implementation of best practices going forward,” the statement said.
Angela Williamson, who left her post as head of the federal initiative this fall, previously told reporters that it’s too soon to judge its results, even though the newspaper’s analysis included only jurisdictions that received grants in the program’s early years.
Vance disagreed.
He acknowledged the first few years of any effort will have uncertain results. But it’s time, he said, to reflect on what’s worked and what hasn’t.
“Public money needs to be linked to some historical rate of success,” Vance said. “If you're now looking forward another decade, it's more than just about testing rape kits. It's really about looking at the policies of the departments that are collecting these kits and receiving this funding.”
Lessons from New York
By working through its own backlog, New York City realized the value of testing every kit – a practice later recommended by the National Institute of Justice. But the standard wasn’t adopted by the Justice Department officials who oversee the federal grant program.
Although untested rape kits were a problem across the country, New York was among the first places in the nation to publicly acknowledge that thousands of them had piled up for decades even though survivors had submitted to hours-long physical examinations to have evidence collected from their bodies.
Linda Fairstein is best known, and most criticized, for standing by the rape and assault convictions of the Central Park Five, who were freed after DNA evidence and a confession pointed instead to a convicted serial offender. But before that, the veteran prosecutor gained prominence for using DNA to successfully prosecute years-old rape cases.
At the suggestion of the police commissioner, Fairstein’s team in 1999 began cataloguing the untested rape kits shelved in New York Police Department evidence storage, ultimately tallying 17,000. They sent those for DNA testing to upload suspect profiles to a new state database that was being linked to the Federal Bureau of Investigation’s new federal DNA database.
DNA matches from those tests offered important lessons, Fairstein said, which would later spur nationwide efforts to re-examine how police and prosecutors had handled rape cases in the past.
“We got these striking hits,” she said, remembering crimes they never would have otherwise solved. “A guy would move to Illinois, would go visit his family in Texas, and, boom, you could get these hits from another location.”
Even within New York City, DNA from previously untested rape kits connected isolated cases across the boroughs, revealing serial offenders investigators missed or prosecutors dismissed as one-off attackers.
Cases that were once hard to charge because it came down to “he said, she said,” became easier to present to juries as rape when the evidence became “he said, she said, she said, she said, she said.”
From New York and other pioneering cities like Detroit, criminal justice professionals learned that serial rapists were more common that previously understood, and that they attacked both people they knew and strangers. They also learned that rapists tended to commit other violent crimes. It soon became clear that testing could be valuable even if a victim knew their attacker or if a particular case was unlikely to be prosecuted.
In 2015, Vance set up a program that used asset-forfeiture money to fund $38 million in grants to 32 law enforcement agencies in 20 states to help them clear their rape kit backlogs.
Soon after Vance started his program, officials from the federal Bureau of Justice Assistance launched their own, offering funding not only for testing, but also for notifying victims of the test results, investigating the cold cases and prosecuting the crimes. But there was no requirement to test every kit – and no benchmark for the number of convictions that would constitute success.
Still untested and unsolved
The federal government does not track the specific reasons why thousands of rape kits tallied by Paste BN were left untested a second time.
Common reasons uncovered by reporters included previous testing with less sophisticated technology, original investigations labeled “unfounded” because a detective didn’t believe a crime occurred, and cases that had already resulted in convictions without the rape kit results.
The Wisconsin Department of Justice is among the grant sites that has made its reasons publicly available. The agency has received almost $2 million from the program launched by Vance and, so far, another $9.4 million from the federal program.
In Wisconsin, about 2,300 of 6,800 backlogged kits were not sent for testing. Of those, 710 were excluded because there was already a conviction. An even larger number – 986 – were not tested because the victim did not explicitly consent to testing.
Speaking on public radio earlier this year, Wisconsin Attorney General Josh Kaul blamed his predecessor for excluding kits without explicit victim consent. Kaul suggested that evidence could still be tested if a victim came forward to authorize it.
Another 63 Wisconsin kits were not tested because the initial detective labeled the cases “unfounded,” a label often misapplied when an investigator doesn’t believe a victim.
Former Manhattan Deputy District Attorney Karen Agnifilo, who helped launch the New York program, said she was frustrated that some police investigators and prosecutors hold outdated views that some women are unrapable, such as sex workers, or can’t be believed, like drug users.
“Is the victim telling the truth? … Does anyone say that about, you know, a robbery or a burglary?” she asked. “Sexual assault is treated different than every other case.”
Wisconsin has received about 600 DNA matches as a result of backlog testing that started in 2015. Prosecutors there have so far secured 10 convictions, which is 0.2% of those sent for testing.
That’s far lower than the prosecutor’s office in Cleveland, Ohio, which had a conviction rate of almost 8% among the backlogged rape kits sent for testing by the end of 2020. That program reports securing hundreds of convictions since its first federal grant in 2015, a tally that continues to grow by dozens a year.
Fairstein sees no reason why other jurisdictions can’t be equally successful, especially with the benefit of the training and financial assistance provided by the federal grant.
“I just can't imagine not tying the grant money to some kind of obligation to move forward with cases beyond the testing of them,” Fairstein said. “Why aren't these victims getting a day in court?”
Contributing: Gina Barton and Nick Penzenstadler, Paste BN
Jayme Fraser is an investigative data reporter at Paste BN. She can be reached on Signal or WhatsApp at (541) 362-1393 or by emailing jfraser@gannett.com.