Recognizing Our Failures:
Repairing the Rape Kit Backlog in Delaware
Defining the rape kit backlog
Rape is a crime that affects millions of people across the world, and within our country an American is sexually assaulted every two minutes (RAINN, 2016). In the United States, we utilize forensic evidence collection tools called rape kits, or sexual assault kits (SAKs), which help find the perpetrator’s biological samples and thus convict him or her, or to acquit innocent suspects. In Delaware, however, there are over one thousand untested kits in police or court custody throughout the state, which equates to over one thousand victims without justice. Sexual assault does not discriminate; it happens to men and women (disproportionately, however, as evidenced in the inset graph), old and young, of any religion, race, or ethnicity.
People who experience sexual assault are changed for life, often suffering from indelible emotional and physical trauma. When federal and state governments enact legislation to provide rights to sexual assault survivors, it is to mend some of this damage. They are patching up not only the victims, but the families and communities of the victims who deal with the pain, guilt, and anger associated with an attack on their loved ones, a mission explored by Elizabeth Spelman in Repair. Delaware’s steps in this initiative include taking inventory of backlogged kits to calculate a definitive number, as well as drafting grant proposals to secure federal funding from the Bureau of Justice Assistance (BJA). Unfortunately, the state lacks any comprehensive legislation for kit tracking, funding plans, or enforcement of future procedures for police and the courts. Thus, my goal is to explore possible solutions, analyze currently attempted or implemented solutions, and discuss, using Spelman’s concepts of repair, why the auditing of kits is a vital type of justice for our community.
To understand the damage caused by a dearth of reform, one must understand the central root of the problem, the SAK backlog. The rape kit/SAK backlog refers to the thousands of kits in police custody that have never been analyzed for DNA data, or often never even submitted into evidence. They are then classified as “untested” or “unsubmitted,” stored indefinitely, and never used in trial or to identify a perpetrator and confirm or deny the guilt of a suspect (EndTheBacklog, 2004). I do not believe that Delaware has made enough progress in resolving this issue, an issue that has augmented over years of injustice and legal malpractice. This is completely unacceptable, especially in America’s “War on Crime,” an era of strict law enforcement designed to eliminate such damaging acts. Additionally, the lack of advances made in rape kit legislation seem unexpected when put into the clean-streets context; rape is a prevailing problem, and yet Delaware’s government has enacted barely any combative strategies. To explore this seemingly contradictory practice, I analyzed Senate and Criminal Justice Council documents, compared other states’ initiatives to our own, and interviewed democratic State Representative Paul Baumbach to gain insight on the sluggish state legislature and possible explanations for that pace. Overall, the state seems ready and willing to take on rape kit reform, but not everyone can agree on how and when to do so. I suggest we begin now, because the backlog will only continue to increase and the repair will only be harder from here.
How long has this been happening, and what has Delaware done?
Some of the SAKs have been in storage for years — “some kits in New Castle County’s inventory date back to 1995,” and the “Wilmington Police Department has kits reaching as far back as 1997” (Horn, 2016) — while rapists continues to roam the streets, possibly as serial offenders. Although this is an unnecessary risk to public safety, SAKs are often left to collect dust, a “serious conflict,” Spelman writes, that creates “tears in the social fabric” (p. 55) of communities when unaddressed. These kits’ untimely demise has also cost victims any sort of closure; once past the statute of limitations — the regulated period of time for the bringing of legal action — the kit is considered useless and later incinerated (Kingkade, 2016). Does this indicate that the statute needs to be lifted or eliminated for sexual assault cases?
Representative Baumbach (left) weighed in, calling it “bad form” to retroactively “move the goal post,” and stressing that it would be best to move the statute, if we did, “proactively, so that all assaults from the day of the legislation forward have no statute, and then you can look at the backlog” (personal communication, November 1, 2016) and evaluate those kits. He suggests that Delaware test kits near the current statute first, but focus on newer kits and cases to provide justice for more recent victims. The CJC has a similar perspective, contributing the notion in Senate Joint Resolution 1 that “the state should explore developing an evidence retention statute” to determine if and when a SAK can be destroyed (Criminal Justice Council, 2016). In Delaware, the statute for a Class A Felony, under which rape is usually classified, is three years after the act has been committed and the evidence has been collected. Despite the seemingly lengthy period, rape kits are still shelved, but Delaware’s awareness about the statute obstacle is a good indication of progress.
This shelving problem persists, however, because often entire communities remain quiet about rape, quiet about dealing with sexual assault, and Delaware is no exception. Baumbach admits that SAK reform is “new territory” (personal communication, November 1, 2016) for Delaware. In her book, Repair: The Impulse to Restore in a Fragile World, Spelman laments:
There is not enough attention to the range of injuries victims have endured… there may not be just the physical harm done to her…but the resulting fear and anxiety over the victim’s loss of a sense of control over her life; victims not infrequently are stigmatized, especially in cases such as rape (p. 55).
This loss of control is easily paralleled to the lack of control sexual assault victims have over their kits being tested in an appropriate amount of time. This “range of injuries” refers not only to physical harm, but also to the emotional impact of being violated and feeling helpless and hated by members of the community who blame victims for their plight. The testing process for a rape kit is an invasive four-to-six hour forensic evidence collection, so I cannot fathom why our legal system allows the contents of these kits from such traumatized men and women, people who relive their harrowing experience daily, to be set on the shelf, unless it is because of persistent stigmatization. Victims often live in constant fear of another attack, or the attack of a friend, because the indisputable evidence in their kits has been apathetically tucked away. Delaware officials seem to share my outraged sentiment and are therefore attempting to implement a process for effectively managing these kits and bringing safety to communities before this unconscionable pattern of inaction continues.
What else can the state do?
Although not ideal, exploring what action can be taken for less money means more time to collect other funds and develop the state’s resources for addressing this important issue. Additional costs for the reform involve staff involved in operation and testing; for example, the budget must account for Sexual Assault Nurse Examiners (SANEs) to be stationed at hospitals in order to administer the forensic exam. Sexual Assault Response Teams and police officers have to receive proper training, because the physical evidence that comprises a SAK can only be collected up to 120 hours following the assault (EndTheBackLog, 2004). Forensic units and crime labs must have clean, modern facilities and adequate equipment; even now, Delaware’s “medical examiner’s office has been revamped after some serious controversies in the past three years” (Paul Baumbach, personal communication, November 1, 2016), which incurred substantial costs. There are ways to reduce this reform budget; Baumbach proposed that old kits past their statute be “destroyed, following the protocol, and that can limit the cost and therefore can increase the implementation. Or this is something to…do it overtime, spread the costs to have it be more digestible” (personal communication, November 1, 2016). Others oppose this strategy, arguing for the testing of every single kit, regardless of financial practicality, making it crucial to look for existing resources and any outside federal grants. Although repair finds its place in “the halls of justice,” these dichotomous ideals evidence how “that…has met with strong resistance” (p. 52) when reform is halted because it fails to be “perfect” for every single party. So comprehensive rape kit legislation is multi-faceted and extensive, and relies a great deal on money that Delaware does not yet have. It will take years to implement, even with grants, but Baumbach is confident that the 2017 legislative session will take up these initiatives and introduce, as well as pass, lasting reform, because it has the backing of enough congressional and senatorial leadership to find the necessary funds.
Besides all of the monetary and technical aspects, Baumbach and many other reformers share a primary concern over victim-centered programs, and think any laws should reflect that important concern. If a survivor consented to a forensic kit examination, he or she should have the right to know the status of their kit and the identity of the perpetrator as long as “such a disclosure would not impede or compromise an ongoing investigation” (Shaheen, 2016).
These notification rights are outlined in the groundbreaking legislation, Sexual Assault Survivors’ Rights Act written by Jeanne Shaheen and signed by President Barack Obama in 2016. This bill contributes new, specific rules to Title 18 of the current United States Code to amend the rights given to sexual assault survivors, and victim notification is an integral part of it. After notification, mental health counseling can be pursued in a number of ways (RAINN, 2016), even where the victim uses his/her right to face the perpetrator and attempts at apologies and forgiveness are made. Spelman suggests that “there is a kind of repair of humans that restores them to a state of basic functioning” (p. 36), and this is the legal system’s repair for survivors. Any “state of basic functioning,” though, has no flawless definition or complete support. Is it when the survivor can move on, accept the attack, and find strength in living through it? Or is there a specific concern with retribution and legal justice that could restore the survivors’ control, and the community’s conscience, because they can send an assailant to prison with SAK evidence and testimonies?
Retribution versus restoration
A pervasive problem with no clear answer is what type of justice is necessary or “right” for sexual assault perpetrators, though some form is obviously vital to keep American communities safe. Spelman names two models legal systems use to deal with human conflict. Campaigners of the restorative justice model, which puts the “repair of victims, offenders, and the communities of which they are a part at the center of justice,” (p. 51) ask for reconciliation, apologies, therapy, and rehabilitation. Individuals and institutions, Spelman writes, can then “work together to most effectively and thoroughly repair the multiple harms” (p. 64) associated with the assault. The goal is to cohesively and fully restore and revitalize each involved person to a functioning member of society who does not dwell on past harms or deeds. It is the basic success story of a convict being rehabilitated and released back to the community as an apologetic, compassionate, self-reflecting citizen. Yet proponents of model two, retributive justice, often argue that rape is a horrific crime befitting of life sentences or capital punishment, citing the victim’s loss of control and inability to function as he or she once did. The emotional trauma essentially “killed” the person he or she once was, so the punishment must match that crime. Restorative justice, they feel, becomes a process where “the aim is to repair her situation… the aim is to fix him” (p. 73). The survivor is essentially another statistic that is buried under the need to reform all sexual assault justice, but the perpetrator must be assisted in becoming a stable, law-abiding individual. Delaware’s and America’s current legislation surrounding sexual assault, especially with the addition of the Survivor’s Rights Act, takes a more restorative stance in reparations for the victim, but it is continually contested. There is no “correct” solution that satisfies every emotional, legal, ideological, or political need, but a solution must be selected before SAK legislation can truly make an impact on sexual assault cases.
There is, of course, a correct solution in rape kit reform, and that starts with mandatory testing of backlogged and future kits in as fast a time frame as possible. For guaranteed implementation of such procedures, Delaware needs a strong, unified bill, likely one that follows the recommendations of Senate Joint Resolution 1 and can be implemented by a capable Criminal Justice Council. Our state has the ability and enterprise to execute that step. Since the counting process has been completed, those 1,033 kits are due for testing, and sexual assault response legislation is the necessary next phase. Applications and audits are already enormous leaps toward actual change, and the federal acts and state initiatives are predicted to catalyze a positive result in the fight for rape kit reform. The simple fact that we are moving forward as a state and nation (see the below map, which shows eight states with passed reform and eight states with proposed reform) to mend this momentous tragedy is outstanding, because, as Spelman explains, “to think about repair is to recognize our own failures and imperfections” (p. 138). This reform reaches into the past to restore those harms — harms of our own making — while also looking to the future to determine how this problem can be contained and amended. This is a monumental reparation, one that cannot be undertaken lightly, and though the process will likely last for years to come, it is a process I am confident will make Delaware a greater state upon completion.
I would like to acknowledge the evaluations and recommendations given to me by my group members, who helped make this essay less technical and thus more heartfelt and accessible. Thank you to my mother and sister for reviewing my essay and helping me strengthen my work through every draft. They have been vital presences throughout my academic life; mom, you have made me the writer I am today. I also want to thank Professor Harris and my TA, Megan, for taking the time to meet with me about this piece, giving me invaluable advice, and pushing me to create my best work. Finally, my sincerest gratitude goes to Representative Paul Baumbach and CJC official Kathleen D. Kelley for taking time from their busy schedules to be interviewed. This essay would not have been possible without the contributions of these instrumental individuals.
Baumbach, Paul. November 1, 2016. Personal Communication.
Criminal Justice Council. 2016. “Final Report, Senate Joint Resolution 1, Untested Rape Kits.” Delaware Criminal Justice Council (11): 87.
Delaware Code. N.D. “Crimes and Criminal Procedure” Delaware Criminal Code (11): 205.
Delaware News. 2015. “Criminal Justice Council Receives Award to Address Untested Rape Kits.” News.Delaware.Gov.
EndTheBackLog. 2004–2015. “Delaware.” Endthebacklog.org.
Horn, B. 2016. “More than 1,000 untested rape kits in Delaware.” Delaware News Journal Online.
Kelley, K. D. November 2, 2016. Personal Communication.
Kingkade, T. 2016. “Some States Throw Untested Rape Kits In The Trash. These Survivors Want To Change That.” The Huffington Post.
RAAIN. 2016. “Crime Victim Compensation.” Raain.org.
Shaheen, J. 2016. “Sexual Assault Survivors’ Rights Act.” United States Senate.
Spelman, Elizabeth V. 2002. Repair: The Impulse to Restore in a Fragile World. Boston: Beacon.
Vorenberg, J. 1972. “The War on Crime: The First Five Years.” The Atlantic Monthly.