Justice Delayed

09.23.14 9:45 AM ET

How the U.S. Ended Up With 400,000 Untested Rape Kits

Memphis just discovered hundreds of untested rape kits—adding to its backlog of more than 12,000 kits collecting dust on police shelves. And the city is hardly alone.

The history of crime solving can be divided into two periods: Before DNA and After DNA. The introduction of forensic evidence in the mid-1980s completely changed the way we solve crimes. Matching crime scene evidence with potential perpetrators at a 99 percent success rate, DNA testing is regularly used to convict murderers and get the wrongly accused out from behind bars.

And perhaps no crime is better suited to DNA testing than sexual assault, as perpetrators leave behind a host of biological material—skin, hair, bodily fluids—on victims’ bodies. Yet while forensic examinations, during which evidence is collected using a sexual assault evidence collection kit—or rape kit—are available to all rape survivors in the U.S. free of charge, only 3 percent of rapists will ever serve a day in prison.

The recent discovery of 200 untested rape kits in Memphis, Tennessee, adding to the city’s backlog of over 12,000, is indicative of why it’s so rare that rapists get convicted.

Memphis’ backlog makes up only a fraction of the estimated 400,000 untested rape kits collecting dust in police evidence warehouses across the country. As local law enforcement agencies scramble to test the long-ignored boxes of evidence, and lawmakers work to figure out how to prevent future backlogs, one must ask why so many rape kits managed to end up on the shelf in the first place.

Scott Berkowitz, founder and president of the Rape, Abuse, & Incest National Network, or RAINN, says that the national rape kit crisis has several causes. First, the Combined DNA Index System, or CODIS, the FBI’s criminal forensic database, did not exist until the mid-1990s. The rape kits that date back to the late ’70s and ’80s may not have been tested at the time if the victim could not identify a suspect. And by the time police started regularly matching up forensic evidence from rape kits to the DNA of previously convicted criminals, many police departments already had a massive backlog.

More recently, however, because testing one rape kit costs between $500 and $1,500, police departments don’t test every rape kit that comes their way.

“Some only pursue the ones they have the best chance of solving,” Berkowitz said. “Others only test if the alleged rapist is a stranger.”

The rationale in those cases, he said, is that DNA should be used to identify the assailant. If the victim already knows the attacker, the issue isn’t identity but consent.

“That might make some sense, but the reality these days is you have to have DNA if you’re going to prosecute a case,” Berkowitz said. “DNA can point to inconsistencies or lies in a suspect’s story. Often they’ll say they didn’t have sex at all. DNA can prove that is a lie and the investigation becomes easier.”

A spokesperson for the Memphis police department did not return requests for comment on this story. But the Memphis Flyer, the city’s alt-weekly, reported that, at a City Council meeting last week, Police Department Director Toney Armstrong said, “I want every piece of evidence in our possession to [be] searched and researched to make sure we are doing our due diligence to clear up this rape kit backlog.”

It’s an expensive undertaking, one that’s projected to cost the city $6.5 million. But the benefits are already evident. According to The Guardian, Memphis’ efforts to conquer the backlog have already produced 162 new investigations, 22 indictments, and identified 16 people previously convicted of rape.

Memphis is hardly the only city that has started tackling the backlog. After 11,000 untested rape kits were discovered in a Detroit police storage facility in 2009, 1,600 have been tested and about 100 serial rapists have been identified—with 10 of them already convicted. Meanwhile, Cleveland police have cleared their backlog, sending the last of 3,985 rape kits discovered in 2009 for DNA testing this summer. So far, about 170 men have been indicted thanks to the forensic evidence.

Natasha Alexenko is both a victim of rape and of a rape kit backlog. Sexually assaulted at gunpoint in New York City in 1993, Alexenko resisted the urge to shower and cleanse her body of the horrifying experience, and submitted to a rape kit—which she described as a “very invasive gynecological exam.” She assumed that the police were handling her case and would let her know if they found anything. Unbeknownst to her, however, her rape kit sat in a Manhattan storage facility for 9½ years, never even submitted to the lab for testing.

In 2003, mere months before the 10-year statute of limitations on Alexenko’s case was set to expire, she received a phone call from the Manhattan District Attorney’s office, notifying her that her kit had finally been tested along with 17,000 that had been backlogged in New York City. To stop the clock on the statute of limitations, the DA’s office filed what’s known as a “John Doe indictment”—indicting the DNA of Alexenko’s rapist.

“We didn’t know the man, but we were confident that he would be caught because rapists are serial criminals,” Alexenko said. And he was. In 2007, Victor Rondon was arrested in Las Vegas and extradited to New York where he was wanted on various parole violations. There, the NYPD took a swab of Rondon’s cheek—"far less invasive than a rape kit,” Alexenko says—uploaded it to CODIS and matched it to the DNA in Alexenko’s rape kit. Fifteen years after she was raped, Alexenko saw her attacker sentenced to 44 to 107 years in prison on eight counts of violent assault, including sexual abuse, rape, and robbery.

In 2011, Alexenko founded Natasha’s Justice Project, a nonprofit focused on eliminating the national rape kit backlog. Though Alexenko describes her experience with the NYPD as largely positive, she acknowledges that not all survivors of sexual assault can say the same of the police officers who’ve handled their cases. She offers a much starker explanation than Berkowitz for why backlogs like the one in Memphis, and the one that almost let her attacker walk free, exist.

“Part of the reason rape kits aren’t tested is because rape isn’t taken seriously,” Alexenko told The Daily Beast. “There’s not enough of us willing to come forward and say, we were sexually assaulted. It’s time to get rid of the stigma. It’s time to stop acting like this is too sensitive a topic for people because it is a crime. As long as a rapist is free, it’s a public safety issue. The more we talk about it, the more we can ensure that the stigma is removed and then it will become commonplace for law enforcement to test every rape kit.”