If Rape is a Crime, Why Can’t the U.S. Tackle the Rape Kit Backlog?

If Rape is a Crime, Why Can't the U.S. Tackle the Rape Kit Backlog?
Is rape a crime? Michelle Bowdler sets out to answer this deceptively complex question in her new book.

The question in the title of my bookIs rape a crime?—is a serious one. We can all nod our heads yes, but it was the issue of whether the justice system in this country treats rape as a crime, as a serious, life-altering violent felony that has reached epidemic proportions, that I wanted to investigate.

Rape remains the most underreported felony. When someone, usually a woman, does make the difficult decision to report a rape to law enforcement, she risks not only being treated as if she is unreliable but also having her complaint classified as “unfounded” and pushed aside or closed without an investigation.

Fewer than 1 percent of rapes lead to felony conviction—a statistic that stands in stark contrast to its impact on victims. 

Years after a violent home invasion that changed my life forever, I began to wonder why I had never heard from the police after a single interview. My interest had been prompted by articles about the number of untested rape kits “discovered” in warehouses and crime labs across the nation, including one in my hometown paper uncovering untested DNA evidence that was “of crisis proportions” in the state crime lab.

As I began to seek answers in my own cold case, I became involved in national advocacy work to address what was then referred to as “the rape kit backlog.” As cities across the country reported thousands of untested rape kits going back decades, public safety officials chalked it up to inadequate funding and overwhelmed crime labs, failing to acknowledge that the untested kits were part of a larger problem: falling short of fully investigating rape complaints. It was only after the disregard was made public that we began to hear the justification of this neglect. 

The excerpt below highlights some of the issues important to an event I attended in 2012 alongside other rape victims held by the Department of Justice to help Detroit and other cities unravel how they were going to explain to rape victims that once they started testing “old” rape kits, their perpetrator had been discovered by a DNA match—sometimes up to 20 years after the attack occurred. 

A decaying warehouse sat somewhere in Detroit. Birds flew in and out of open windows, the floor littered with stray feathers and rat droppings. Long ago, its thermostat had broken, and what lay stored inside became subject to temperatures that sweltered past one hundred degrees in summer and dropped below freezing in the cold Michigan winter.

Inside the building in 2009 boxes sat stacked from floor to ceiling, filled with forensic evidence: more than eleven thousand untested rape kits. For the eleven thousand human beings each one of those uninvestigated cases represented, no call ever came.

Worse still, when the city finally began to go through the evidence kits, they found matches to serial rapes that might have been prevented had they been tested sooner. In fact, 817 serial rapists were identified and 50 of them each had 10–15 “hits” among the evidence tested.

In human terms, hundreds of individuals in Detroit would have to be told the news that the person who hurt them committed the same violent assault over and over and over and over again and that their DNA had sat in a crumbling structure holding a secret that could have changed their and other victims’ lives had the serial perpetrators been identified sooner. 

What happened in Detroit was no anomaly; human rights groups identified cities that ignored rape evidence for decades: Dallas, Los Angeles, Cleveland, Memphis, Las Vegas, Houston, Milwaukee and dozens more. Estimates of how many evidence kits in the country had never been tested were as high as 400,000. The kits were abandoned, the stories tied to them left behind.

Those responsible would argue that the numbers of cases were overwhelming, that these “backlogs” weren’t due to disregard of the crime of rape, and that inadequate funding existed for testing them all. In truth, though, the piles upon piles of kits found in U.S. cities were not awaiting funding for testing; many were swept aside before any investigations had happened.

As one law professor wrote:

A backlog “implies that the untested rape kits were in a queue awaiting testing by overburdened labs. That does not reflect the reality across the United States. In fact, untested rape kits were often simply discarded in warehouses, trash depositories, or storage closets with no intention to ever test the contents of the kits.”

The juxtaposition of the inaction with the circumstances of how those kits came to be, gathered from the private folds and spaces of victims whose bodies had been transformed into crime scenes, defies understanding. The hundreds of thousands of untested rape kits existed because hundreds of thousands of individual victims agreed to submit to an exam consisting of head and pubic hair combing; vaginal, anal and oral swabbing; retrieval of saliva, blood, and fingernail clippings—evidence taken carefully under the bright light of an emergency room by strangers following a violation that defines vulnerability. The victims endured this examination for a reason; they wanted justice.

Instead, their bodies and the evidence taken from them were treated like useless trash. When multiple cities began attending to their untested evidence kits, many rapists were identified, but often the statute of limitations had expired and prosecution was no longer possible.

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District Attorney Kym Worthy had to start a fund-raising campaign a few years after the massive numbers of rape kits were found, when the monies given to Detroit ran out and there were still rape kits needing attention. Crowdsourcing funding for investigations into murder, burglaries, arson, or home invasion is nonexistent. Rape appears to be the only crime requiring this outrageous funding mechanism. 

In 2004 a major piece of federal legislation was passed. The Debbie Smith Act, part of the Justice for All Act, provided money to states to reduce their large numbers of untested rape kits. It was named after survivor Debbie Smith, whose story illustrated the life-altering impact of using DNA in investigating crimes of rape. The woman who lent her name to the legislation had been abducted from her home while her husband, Robert, a police officer, slept upstairs after his night shift. The attacker threatened to come back and kill her family if she reported the crime. When she made her way back to her home after the attack, she and her husband first went to the hospital and then to the police department. 

Over the next few years, Debbie became severely depressed, fearing harm would befall her family because she’d reported the attack. Only when the DNA from her rape kit was tested six years later did she learn that her rapist had been in jail for the last five years for another crime. Had the match been discovered sooner, she could have been spared years of torment.

This very personal and painful lesson set Debbie on a mission to ensure that every single rape kit would be tested so that no victim would be denied the peace she had been given when her rape kit was processed and a match found.

Since passed, the Debbie Smith Act has distributed over one billion dollars to test rape evidence, but loopholes in the wording of the initial legislation gave law enforcement discretion to use the funds more broadly than originally intended.

As Sofia Resnick writes in “Rape Kits: A Decade and a Billion Dollars Later, Why Can’t We Fix the Backlog?” the act as first drafted:

“did not specify that only rape kits could be tested. … Rather, grants could be used to test backlogged DNA samples from a variety of offenders and crime scenes, including crimes unrelated to sexual assault, such as homicide and property crimes.” 

According to a 2019 Washington Post article, “Nearly 200,000 DNA matches have been made … because of the Debbie Smith DNA Backlog Grant Program.” This is a remarkable number and should not be taken lightly or minimized.

Debbie and Robert Smith have spent years advocating for public awareness of untested kits and for resources for testing them, which deserves respect. Yet, even with this landmark act and the additional monies sent to crime labs and police departments around the country, the problem of untested rape kits and uninvestigated sex crimes continued—some cities still have vast amounts of untested evidence going back decades.

Lack of funding was not the only reason this evidence was ignored—a larger systemic problem was at play. There are so many ways in which investigating officers have leeway to decline to investigate rape cases.

Referring to hundreds of thousands of untested rape kits as a “backlog” of evidence is a misnomer if there was never intent to test them in the first place. 

From “Is Rape a Crime?: A Memoir, an Investigation and a Manifesto” by Michelle Bowdler. Copyright (c) 2020 by the author and reprinted by permission of Flatiron Books.


Michelle Bowdler is the executive director of health and wellness at Tufts University and a graduate of the Harvard School of Public Health. Her writing has been published in the New York Times and has been nominated for two Pushcart Prizes. "Is Rape a Crime?" is her first book.