Summary and Recommendations

Human Rights Watch | March 2009

Photographs by Patricia Williams

TESTING JUSTICE

If people in Los Angeles hear about this rape kitbacklog, and it makes them not want to work withthe police in reporting their rape, then this backlogof ours would be tragic.—Marta Miyakawa, detective, Los Angeles Police Department,Cold Case Robbery and Homicide Division1

1 Human Rights Watch interview with Detective Marta Miyakawa,Los Angeles Police Department, Los Angeles, CA, August 11, 2008.

The rape kit includes numerous envelopespotentially containing DNA evidence.

The Police and Sheriff’s Departments are making progress inaddressing their rape kit backlogs. But the time it took bothagencies to acknowledge that untested rape kits sat in theirstorage facilities slowed their responses and may havedelayed apprehending violent offenders. The PoliceDepartment, in particular, has struggled to expeditiouslytackle its rape kit backlog, its efforts complicated by citypolitics, battles over crime lab funding, and changes ininternal leadership over the issue. It is essential that countyand city leaders, both within and outside of law enforcement,move quickly to test every rape kit in the county. Eliminatingdelays in rape kit testing is especially crucial to realizingjustice for rape victims in California, where the 10-year statuteof limitations (the maximum time period after a crime when adefendant may be prosecuted) for rape can be lifted if the

rape kit is tested within two years of the date of the crime anda DNA profile is found.

Rape is a crime that can affect its victims in physically andemotionally debilitating ways. The severity of the crimerequires a vigilant police response when a rape is reported. AsGail Abarbanel, director of the Rape Treatment Center at SantaMonica-UCLA Medical Center, told Human Rights Watch, thereare “tragic consequences of not opening rape kits in a timelyway,” and “this is one of the cases that made us aware of[these consequences]”:

Catherine was in her forties, living with her young son.She was awakened at midnight by a stranger who rapedher, sodomized her, and forced her to orally copulatehim—repeatedly. Thankfully, her child remained asleep.When it was over, the police brought her to the Rape

4 Testing Justice

Los Angeles County has the largest known rape kit backlog in the UnitedStates. At least 12,669 untested sexual assault kits (“rape kits”)—whichpotentially contain DNA and other evidence collected from rape victims’ bodiesand clothes immediately after the crime—are sitting in police storage facilitiesin the Los Angeles Police Department, the Los Angeles County Sheriff’sDepartment, and 47 independent police departments in Los Angeles County. Asmaller, but not inconsiderable, backlog resides at police crime labs. Testing arape kit can identify the assailant, confirm a suspect’s contact with a victim,corroborate the victim’s account of the sexual assault, and exonerate innocentdefendants. The untested rape kits in Los Angeles County represent lost justicefor the victims who reported their rape to the police, and consented to thefour-to-six hour rape kit collection process.

(right) A treatment center employeedemonstrates how evidence is collectedfrom a rape victim after an assault.

Treatment Center. Like all rape victims, her body wasone of the crime scenes. She consented to the collectionof evidence.

The detective was told by the crime lab that it would takeat least 8 months to analyze Catherine’s rape kit. Thedetective said he knew from the “MO” in this crime thatthe rapist was a repeat offender. Eight months was toolong to wait. He personally drove the kit to the statelab—where the kit still sat for months. When it wasprocessed, they got a “cold hit.” Catherine’s rapist wasidentified. He was in the offender database.

During the months Catherine’s kit sat on a shelf,unopened, the same rapist attacked at least two othervictims—one was a child.

SEXUAL VIOLENCEIN LOS ANGELES COUNTYAt least 1,474 individuals reported being raped in Los AngelesCounty in 2007, the last year for which Human Rights Watchcould obtain complete data—an average of more than fourrapes reported to the police every day. This number does notinclude sex crimes in which children are victims. Although LosAngeles is experiencing historically low crime rates, andreported rapes have decreased significantly in the pastdecade, arrest rates for rape have also declined from the late-1990s: fewer reported rapes lead to an arrest.

The low arrest rates for rape mean that a person who reportsto law enforcement that she was raped has about a one in fourchance of seeing someone arrested for the crime. The LosAngeles Police Department, which has law enforcement

Human Rights Watch | March 2009 5

jurisdiction over the City of Los Angeles, had a rape arrest rateof 25 percent of all reported cases in 2007, down from a highof 30 percent in 1999. The Los Angeles Sheriff’s Department,which polices 40 of Los Angeles County’s 88 cities, has seenits arrest rate decline from 33 percent of all reported rapes in1999 to 28 percent in 2007.

Given the low arrest rates for reported rapes, it is imperativethat law enforcement uses scientific investigative tools thatcan help solve these cases. The testing of rape kits canadvance this goal. A rape kit contains DNA and other evidencefrom the rape victim’s body and clothing. Test results from thekit can provide a DNA profile that can be compared to aknown suspect’s profile. Results can also be entered intolocal, state, and federal DNA databases to compare toindividual and crime scene DNA evidence from otherunsolved cases.

National studies have shown that cases in which a rape kitwas collected, tested, and contained DNA evidence of theoffender’s contact with a victim were significantly more likelyto move forward in the criminal justice system than cases inwhich there was no rape kit collected.

6 Testing Justice

(right) Evidence from a rape case waits for testing at theLos Angeles Sheriff’s Department crime laboratory.

(above) A Los Angeles Sheriff’s Department crime lab DNAanalysts signs-out evidence at the lab’s evidence storage facilityfrom a sexual assault case, which includes a rape kit and a bagof the victim’s clothing.

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Los Angeles Sheriff’s Department propertyfreezers, which store untested rape kits.

UNTESTED RAPE KITSThe rape kit backlog in Los Angeles County comprises twodistinct but related elements. The first exists in policeevidence storage facilities, where rape kits are booked intoevidence, but DNA analysis is not requested by a detective.The second backlog exists in police crime lab facilities whererape kits are submitted for testing, but are awaiting DNAanalysis and have not been tested in a timely manner.

Police storage facilitiesAs of February 2009 the estimated 12,669 untested rape kitsin Los Angeles County’s 88 cities comprised at least 5,193 inthe Los Angeles Police Department’s storage facility, 4,727 inthe Los Angeles Sheriff’s Department’s storage facility, and atleast 2,749 in storage facilities in the 47 cities in Los AngelesCounty that have their own police departments (but rely onthe Sheriff’s crime lab for rape kit testing).

The issue of untested rape kits in police storage in LosAngeles became public in 2002. Yet it was not until November2008 that the Sheriff’s Department counted the untested rapekits in its storage facilities. As of February 2009, afterpressure from Human Rights Watch and other advocacygroups, the Sheriff’s Department has counted and cataloguedits untested rape kits in more detail than any other policedepartment in the United States of which Human RightsWatch is aware. Having thus far catalogued 70 percent of the4,727 untested kits counted, officials were shocked to findthat over 800 kits belonged to cases in which the suspect wasnot known to the victim; over 300 were more than 10 years oldand therefore beyond the statute of limitations; and another100 were within six months of that deadline. The PoliceDepartment first disclosed figures for the untested kits it heldin 2007. Its latest figures, from an audit announced inFebruary 2009, show 188 kits past the statute of limitations,and over 400 belonging to cases where no suspects wereconnected to the cases. Police Department Deputy ChiefCharlie Beck told Human Rights Watch, “We are sobered bythe untested kits in suspect-less cases. There is no excuse forus not to be testing those kits.”

The large number of untested rape kits in Los Angeles County,and the delays between when the Police and Sheriff’sDepartments knew that there may be untested rape kits intheir storage facilities and when they took serious steps toaddress the issue, make it especially important that thePolice and Sheriff’s Departments’ current and ongoingresponses to their rape kit backlogs are part of a compre-hensive plan that is subject to monitoring and oversight. Animportant start is to enforce Police and Sheriff’s Departmentpolicies, adopted in recent months, that require detectives tosend every rape kit booked into evidence to their respectivecrime labs for testing.

10 Testing Justice

Human Rights Watch | March 2009 11

Untested sexual assault evidence at the Los AngelesSheriff’s Department central evidence storage facility.

Crime labsA number of untested rape kits are located at the Sheriff’s andPolice Departments’ crime laboratories, where testing delaysfrustrate investigations and postpone court cases. Through itsresearch, Human Rights Watch has found that the county andcity crime labs do not have the capacity to quickly analyzerape kits submitted for testing by detectives, nor do they havethe capacity and personnel to test every booked rape kit.According to police and prosecutors who spoke with HumanRights Watch, it can take as long as 12 months from the timerape kit testing is requested until test results are received bythe requesting law enforcement officer.

Enhancing the Police and Sheriff’s Departments’ crime labcapacity will require additional city and county resources. ThePolice and the Sheriff’s Departments must advocate for theseresources, and the County Board of Supervisors and CityCouncil should approve the funding necessary to eliminatethe rape kit backlog and delays in testing new kits. Californiais experiencing a significant financial crisis, but public safetypolicies that will help apprehend violent offenders andprevent future rapes are a necessary investment and a coregovernment responsibility.

Significant resources will certainly be needed to resolve therape kit backlog in Los Angeles. Achieving this goal willrequire not just political will to appropriate the necessaryfunding, but oversight to ensure that all funds and otherresources available are used effectively and efficiently towardthe testing of rape kits. An October 2008 audit of the LosAngeles city crime lab revealed that the number of untested

12 Testing Justice

A lab employee works to replicate the DNA taken from acrime scene, to create a bigger sample to analyze.

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Microscopic slides, with traces of semen taken from the victim’s vaginal and anal area, are contained in one of the rape kit envelopes.

A crime lab analyst applies chemicals to extract the DNA from a swab that was in the rape kit.

rape kits continued to grow in the years 2004 to 2008 despitenearly $4 million in federal grant money made available forDNA backlog reduction during the same period. Human RightsWatch’s own review of federal DNA funding grant reportsrevealed that as of December 2007 the Police Department hadnot yet used all funds it had been awarded in 2004, and hadused none of the available money from 2005 to 2007.2

CONSEQUENCES OF UNTESTED KITSSurvivors of sexual assault who have reported their rape andconsented to the extensive and invasive collection of a rapekit often are not informed by the authorities about the statusof their rape kit or of their case. It was difficult for HumanRights Watch to find rape victims who knew that their rape kitwas sitting untested in a police storage facility or crime lab inLos Angeles County. One reason may be the lack ofinformation available to victims regarding the status of theirrape kits. Under California law, the Police and Sheriff’sDepartments must notify victims in stranger rape cases if theirrape kits were not tested within two years of the crime. It isunclear whether the Sheriff’s and Police Departments have a

system in place to ensure compliance with this requirement,although the Sheriff’s Department has a policy requiringvictim notification in accordance with California law. Rapetreatment providers and advocates in the Los Angeles areacould not recall ever hearing of a victim being informed aboutthe testing status of her rape kit.

Many victims may assume their kit was tested. GailAbarbanel, director of the Rape Treatment Center at SantaMonica-UCLA Medical Center, told Human Rights Watch, “Thelast time many rape victims see their rape kit it is in the handsof a police officer. The assumption is that if the police havethe kit, it will be tested.” A sexual assault nurse examiner toldHuman Rights Watch, “My clients seem to assume that if theyhave not heard back from the police, it is not because testingwas not done; it was because testing was done but there wasno DNA in the kit. Not hearing from the police can contributeto the self-blame and doubt that victims are feeling about therape.”

To understand the dynamics and effects of the rape kitbacklog, Human Rights Watch spoke with rape treatmentproviders, sexual assault nurse examiners, and police officers

14 Testing Justice

A rape kit photographed at the Santa MonicaRape-UCLA Treatment Center.

about cases in which rape kits were not tested in a timelymanner, or not tested at all:

• A sexual assault nurse examiner told Human RightsWatch of treating a child who had been abducted andraped near a school bus stop. When the child describedthe attack, the details struck the provider as nearlyidentical to the story of another child who was abductedfrom the same bus stop and raped, and was treated atthe same clinic three months prior. The providerwondered if the assailant could be the sameman. Whenshe contacted the police officer in charge of the investi-gation to inquire about the results of the rape kit testfrom the earlier case, he informed her that it was stillwaiting for testing at the crime lab, and might not betested for another six months.

• An investigating officer told Human Rights Watch abouta case he was working on in which a college student wasraped as she tried to get into her car. The officerrequested testing for the rape kit, but eight months afterthe request still had not received test results. Asked ifhe had inquired with the lab about the status of thecase, he told Human Rights Watch, “You have to becareful about not getting on the lab’s bad side bybothering them, because you need them for your nextcase.”

• A rape treatment provider told Human Rights Watchabout a victim who was raped at a party: “The policeseemed to focus a lot of their attention on the fact thegirl was drinking, and not as much on the fact of herphysical injuries. She had tears inside her vagina,consistent with forced [penetration]. You could justsense that while they were interviewing the girl aboutthe case, they were not going to be taking this case thatfar. I called them a few months later, at the girl’srequest, to see if the kit was tested, and they told methey were going to wait and see whether to test it. I toldmy client, and she told me she didn’t want to be a partof the investigation anymore. She felt like the policedidn’t believe her anyway.”

• A rape treatment provider told Human Rights Watch ofseeing four sex workers come to her clinic in a nine-month period, all with similar descriptions of the manwho raped them: “I worked for months to get the policeto test these kits, to see if they could match the casestogether. The same things that made these womenvulnerable—their life on the streets—also made themsuspect to the officer, and he was convinced these weresimply cases where the sex worker didn’t get paid by her[customer], and they retaliated by reporting a rape. Myresponse was, ‘They retaliated by submitting to the

lengthy rape kit collection process?’ I think sometimesthe officers just don’t get rape.”

• A rape victims’ advocate had a client whose rape kit testresults came back more than a year after the rape hadoccurred. When an investigating officer told the victimthat the DNA profile in the kit matched an offender inthe DNA database, the victim no longer wanted toparticipate in the case. The advocate told Human RightsWatch, “She couldn’t go back to the nightmare of herrape. I think that if the detective had been able toidentify her rapist in the weeks and months after ithappened, she would have been able to cooperate. Butnow she just wants to put it behind her.”

In New York City, which eliminated its rape kit backlog in 2003,law enforcement and crime lab officials created a system toensure the testing of every booked rape kit. City officialscreated a policy that every booked rape kit would be sent tothe laboratory and placed in a queue for DNA testing. Thecrime lab built up its DNA testing capacity so that every rapekit would be tested within 30-60 days of its collection. Thecrime lab created a multi-agency cold hit system: every time aDNA profile from a rape kit matches a profile in the DNAdatabase, the crime lab, prosecutor’s office, and policedepartment are simultaneously informed of the hit. To dealwith the increase of investigative leads in rape cases due toDNA testing of every booked kit, the prosecutors and policecreated a special team to investigate rape kit DNA matches.Since 2003, New York has seen an increase in arrest andprosecution rates for rape.

International human rights law requires police to investigatereports of sexual violence and take steps to protectindividuals from sexual assault. Public officials must movequickly and decisively to eliminate untested rape kits in LosAngeles County. Given the large number of untested kits, therights of rape victims to access justice, the consequences ofdelayed or denied justice for rape victims, and the resourcesnecessary to complete the task, resolving the way Los Angelesdeals with booked rape kits will require the leadership not justof law enforcement, but of top elected officials in Los AngelesCounty and its constituent cities.

2 Fiscal Year 2004, Fiscal Year 2005, Fiscal Year 2006, and Fiscal Year 2007 ForensicCasework DNA Backlog Reduction Program Grant report overview for NationalInstitute of Justice (NIJ), Los Angeles Police Department, unpublished document onfile with Human Rights Watch. See also Memorandum from the Los Angeles PoliceDepartment (LAPD) and Los Angeles Sheriff’s Department (LASD) to CongressmanHoward Berman regarding his request for information on DNA, Forensic, and ColdCase grants awarded to the LAPD and the LASD.

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16 Testing Justice

For this report, Human Rights Watch conducted 130telephone or in-person interviews with: eight policeofficers, six chiefs of police or police executives,twelve crime lab personnel, eight crime lab directorsor officials, ten sexual assault forensic nurses, fiverape treatment providers, twenty-four electedofficials from the cities and County, three victims ofrape, one family member of a rape victim who hasbeen affected by the rape kit backlog, thirteen rapevictim advocates, nine state or city sexual assaultorganization directors or senior staff, fifteen nationalsexual assault or victim’s rights organizationdirectors or senior staff, three senior staff at the USDepartment of Justice Office of Justice Programs, fiveattorneys, four local newspaper reporters who havecovered the issue of rape kit backlogs extensively,eight statisticians from state and city criminal justicestatistics offices, and four senior staff at the ACLU ofSouthern California.

We conducted on-site visits to the Los Angeles PoliceDepartment and Los Angeles Sheriff’s Departmentcrime labs and evidence storage facilities.

We submitted requests under the California PublicRecords Act to the Police Department, the Sheriff’sDepartment, and all 47 police departments of thecities in Los Angeles County with independent policedepartments. We requested rape reporting, arrest,prosecution, conviction, and dismissal rates, anddocuments pertaining to the collection, processing,and backlog of rape kits.

We read 52 academic studies on the prevalence andincidence of rape in the US, the factors that lead tolow reporting, arrest, prosecution, and convictionrates for the crime of rape, and how rape kit evidenceaffects the likelihood that a case will move forwardin the criminal justice system. We also read fourstudies about the civil liberties and civil rightsimplications of local, state, and national DNAdatabanks.

We gave the Los Angeles Police and Sheriff’sDepartments a copy of the report to review. Thisreport is current as of March 2009.

METHODOLOGY

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• Create a Rape Kit Backlog Oversight Board toaddress the nature and scope of the rape kitbacklog, which will:

— Include representatives from public andprivate crime laboratories, criminalists, lawenforcement, prosecutor’s offices, publicdefenders and private defense lawyers,victims’ and nongovernmental organizationrepresentatives, and judges;

— Identify the nature and scope of currentcapacity problems, backlogs of unprocessedrape kit evidence, and systems issues thatimpede the utilization of DNA forensictechnology to its full potential in sexualviolence cases;

— Make recommendations for eliminatingcurrent backlogs and preventing futurebacklogs of unprocessed rape kit evidence inlocal public laboratories;

— Assess the impact of “cold hits” upon localinvestigative, prosecution, and defenseresources; and

— Report findings within six months of theboard’s creation, with updates every monththereafter.

• Enforce policy requiring every booked rape kit tobe both sent to the crime lab and tested.

• Identify the crime lab personnel resourcesnecessary to test every booked rape kit—boththose in the current backlog and those booked inthe future—in a timely manner.

• Identify the police department personnelresources necessary to pursue the investigativeleads generated from testing every booked rapekit.

• Prioritize funding for the resources necessary toeliminate the rape kit backlog, test every futurerape kit, and pursue investigative leads fromrape kit testing.

• Implement a system to inform sexual violencevictims of the status of their rape kit test,including:

— Hiring a victims’ advocate with expertise inconveying sensitive information to sexualassault victims; and

— Creating a policy to require law enforcementto, within six months of collection of theirrape kit, notify victims of its testing status.

• Preserve every booked rape kit until it is tested.

• Account for the number of untested rape kitsdestroyed in the past 10 years, and establish avictim notification system for those whose kitswere destroyed before testing.

• For untested rape kits in Los Angeles County’sindependent police departments’ storagefacilities, create a formal system to send thosekits to the county crime lab for testing.

• Create a law enforcement unit tasked withinvestigating cold hit leads from the eliminationof the rape kit backlog.

• Create a special sexual assault unit to handle allsex crimes investigations.

RECOMMENDATIONS

TO THE LOS ANGELES POLICE DEPARTMENTAND THE LOS ANGELES SHERIFF’S DEPARTMENT

TO THE LOS ANGELES COUNTY SHERIFF’S DEPARTMENT

18 Testing Justice

• Prioritize funding for the testing of rape kits inthe city budget.

• Require regular reporting from the PoliceDepartment on the status of the rape kit backlog.

TO THE MAYOR OF LOS ANGELES

• Hold full Council hearings on the scope andnature of the rape kit backlog.

• Approve funding in the city budget for the testingof rape kits.

• Require full Council regular reporting from thePolice Department on the progress of eliminatingthe backlog.

TO THE LOS ANGELES CITY COUNCIL

• Continue to hold hearings on the nature andscope of the rape kit backlog, and requireupdates on progress in its elimination.

• Prioritize and approve funding in the countybudget for the testing of rape kits.

TO THE LOS ANGELES COUNTY BOARD OF SUPERVISORS

• Continue to hold hearings on the nature and scope of the rape kit backlog, and require updates onprogress in its elimination.

TO THE LOS ANGELES POLICE COMMISSION

• Create better evidence tracking systems:

— Convert paper records to electronic recordsfor easier tracking;

— Establish a bar code tracking system thatallows every piece of evidence to be scannedand tracked from the moment it is bookedinto evidence until testing is complete;

— Create monthly reports on the number ofrape kits tested each month, and the time ittook for testing to be completed; and

— Establish a system for simultaneouselectronic notification of the crime lab, lawenforcement, and prosecutors when a DNAprofile matches a profile in CODIS(a “cold hit”).

• Address crime lab capacity concerns, includinghow to find the funding and space for the DNAanalysts required to test every booked rape kit ina timely manner.

• Pursue increasing the use of private crimelaboratories for rape kit testing.

• Prioritize federal DNA Casework and BacklogReduction Grant Program funds for the testing ofrape kits.

TO THE LOS ANGELES COUNTY AND CITY CRIME LABS

RECOMMENDATIONS

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• Implement a “cold hit” tracking program,which would track the outcomes of rape kittesting on rape investigations, arrests,charges, prosecutions, dismissals, convictions,and exonerations.

• Create a special unit tasked with pursuingprosecutions from investigative leads generatedfrom the testing of the rape kit backlog.

TO THE LOS ANGELES COUNTY DISTRICT ATTORNEY

• Amend the Sexual Assault Victims’ DNA Bill ofRights, Penal Code section 680, so that:

— It applies to all victims of sexual violence,whether or not the identity of the offender isin issue;

— Law enforcement is required to inform allvictims, within six months of the collectionof the rape kit, of the testing status of thekit; and

— Untested rape kits cannot be destroyed untilthey are tested.

TO THE CALIFORNIA LEGISLATURE

• Provide anyone who is considering or has undergone rape kit collection with a pamphlet about thesubsequent steps in the rape kit process, including expected timelines, responsible authorities, andinformation on how to follow the status of their rape kit, along with numbers of victims’ organizationsthat can help advocate on their behalf.

TO LOS ANGELES RAPE TREATMENT PROVIDERS (BOTH HOSPITALS AND CLINICS)

• Require law enforcement agencies to report tothe Department on the number of untested rapekits booked into police and crime lab storagefacilities.

• Create data and technical support systems toassist local and state law enforcement with thetracking of cold hit evidence.

TO THE CALIFORNIA DEPARTMENT OF JUSTICE