U.S. Department of Justice 

Office of Justice Programs 

National Institute of Justice 

Special RepoRt

The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases 

MAY 2011 

www.nij.gov
U.S. Department of Justice 

Office of Justice Programs 

810 Seventh Street N.W. 

Washington, DC 20531 

Eric H. Holder, Jr. 

Attorney General 

Laurie O. Robinson 

Assistant Attorney General 

John H. Laub 

Director, National Institute of Justice 

This and other publications and products of the National Institute 

of Justice can be found at: 

National Institute of Justice 

www.nij.gov 

Office of Justice Programs 

Innovation • Partnerships • Safer Neighborhoods 

www.ojp.usdoj.gov 
 

 

may 2011 

The Road Ahead: Unanalyzed Evidence 

in Sexual Assault Cases 

Nancy Ritter 

NCJ 233279 
 

 

 

 

 

 

 

John H. Laub 

Director, National Institute of Justice 

Findings and conclusions of the research reported here are those of the author and do not 

necessarily reflect the official position or policies of the U.S. Department of Justice. 

The National Institute of Justice is a component of the Office of Justice Programs, which also 

includes the Bureau of Justice Assistance; the Bureau of Justice Statistics; the Community 

Capacity Development Office; the Office for Victims of Crime; the Office of Juvenile Justice and 

Delinquency Prevention; and the Office of Sex Offender Sentencing, Monitoring, Apprehending, 

Registering, and Tracking (SMART). 
About This Report 

Untested sexual assault evidence is being

discovered in police evidence rooms all 

across the country. In this report, the National Institute of Justice (NIJ) offers an ove

view of the issue. We look at a variety of 

ramifications for the police and crime laboratories, for the courts and for the victims. 

It is unknown how many unanalyzed sexual assault kits (SAKs) there are nationwide.

There are many reasons for this, but one 

is that tracking and counting SAKs is an 

antiquated process in many U.S. jurisdictions. Certainly, there may be legitimate 

reasons why some of the recently discovered unanalyzed SAKs were not sent to a 

lab. Not all evidence collected in an allege

sexual assault is going to be probative. Fo

example, in cases where “consent” is an 

issue (the suspect admits sexual contact 

but maintains it was consensual), detectives may consider that the SAK does not 

add any important information to the inves

tigation. That said, it is clear that we, as 

a nation, need to understand more about 

how law enforcement decides to submit 

a SAK to the crime lab for analysis (or 

not) and how cases are triaged for other 

investigation. 

rd 

r 

-

Should all newly discovered 

SAKs be analyzed? 

What should a jurisdiction do when a large 

number of untested SAKs are discovered? 

Should officials try to come up with the 

resources to test them all — even cases 

that may be 25 years old — or should they

establish a prioritization or “triage” process to determine which SAKs should be 

sent to the lab, and when? 

This report explores some of the reasons 

why the answers to these questions are 

not as straightforward as they may seem. 

Jurisdictions are using various approaches

to tackle the untested SAK problem. However, developing scientific evidence to 

determine which approaches are the most

effective — solving the most crimes with 

the greatest efficiency, considering curren

fiscal realities — will take time. 

t 

This report also explores some of the 

issues behind “stranger” and “acquaintance” rape; implications for police investigation and case prosecution, particularly 

with respect to statutes of limitations; and

the sensitive and multifaceted issue of vic

tim notification in older cases. 

-

As the nation grapples with the discovery 

of thousands of older sexual assault kits, 

it is crucial that we balance justice, public 

safety and the victims’ needs. The goal is 

to move beyond the “crisis management”

of the moment to the adoption of systematic practices, procedures and protocols 

that will prevent this situation from ever 

happening again. 

iii 
 

 

About the Author 

Nancy Ritter is a writer 

and editor at the National 

Institute of Justice. 

The Road Ahead: Unanalyzed 

Evidence in Sexual Assault Cases 

Nancy Ritter 

Lately it seems that, every few months, 

thousands of untested rape kits are 

discovered in another police evidence 

room around the country: 10,000 in Los 

Angeles, 12,000 in Dallas, 10,500 in 

Detroit. 

The road ahead for resource-strapped 

jurisdictions trying to deal with the discovery of older, unanalyzed sexual assault evidence is anything but straightforward. In 

fact, the repercussions are affecting every 

stakeholder in the nation’s criminal justice 

system: the police and crime laboratories; 

the courts; victim service agencies; policymakers at the federal, state and local levels; and, most significantly, the victims. 

A rape kit — more accurately called a 

sexual assault kit (SAK) — is a box or 

envelope used to collect and store biological evidence from the victim of an 

alleged sexual assault. Evidence in a SAK 

can include vaginal, oral or anal swabs 

that may yield the perpetrator’s DNA. 

Photographs, hair, fingerprints, fibers, 

bed sheets or clothing would be stored in 

bags, not in the SAK itself. (See sidebar, 

p. 2, “What Is a Sexual Assault Kit?”) 

Untested SAKs can be stored in a number 

of places: police department evidence 

rooms, crime labs, hospitals, clinics, rape 

crisis centers. It is unknown how many 

unanalyzed SAKs there are nationwide. 

There are many reasons for this, but one 

of the primary ones is that tracking and 

counting SAKs is an antiquated process in 

many U.S. jurisdictions. A recent National 

Institute of Justice (NIJ) survey found that 

four in 10 of the nation’s law enforcement 

agencies — 43 percent — do not have a 

computerized system for tracking forensic 

evidence, either in their inventory or after 

it is sent to the crime lab (see The 2007 

Survey of Law Enforcement Forensic 

Evidence Processing, available at http:// 

www.nij.gov/topics/law-enforcement/ 

handling-evidence/unanalyzed-evidence. 

htm). Just one example among many: The 

Los Angeles County Sheriff’s Department 

still uses handwritten evidence tags and 

log books. 

According to the NIJ survey (more than 

2,000 law enforcement agencies responded), 18 percent of unsolved alleged sexual

assaults that occurred from 2002 to 2007 

contained forensic evidence that was 

still in police custody (not submitted to a 

crime lab for analysis). (See sidebar, p. 3, 

“Untested Evidence in Law Enforcement 

Agencies.”) 

There may be legitimate reasons why 

some of the recently discovered unanalyzed SAKs were not sent to a lab. Not all 

evidence collected in an alleged sexual 

assault is going to be probative. In cases 

where “consent” is an issue (the suspect

admits sexual contact but maintains it 

was consensual), detectives may conside

that the SAK does not add any important 

information to the investigation. Evidence 

also may not be sent to a lab for analysis 

if charges against the alleged perpetrator 

have been dropped or the suspect has 

pled guilty. 

r 

On the other hand, the NIJ survey also 

revealed some concerns regarding why 

1 
2 

Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What Is a sexual assault KIt? 

Sexual assault kits (SAKs) — often called “rape 

kits” — were introduced in the 1960s as a tool to 

collect and store biological and trace evidence 

in cases of alleged sexual assault. SAKs may 

contain: 

■■Vaginal, anal and oral swabs. 

■■Pubic hair combings. 

■■Blood and urine specimens. 

■■Fingernail scrapings. 

The victim’s clothing, bedding and other physical 

evidence in a sexual assault may also be collected and submitted to a lab for analysis, but these 

are not technically considered part of the SAK. 

Unfortunately, the composition of SAKs can vary 

from jurisdiction to jurisdiction. For example, 

although the police and sheriff’s departments in 

Los Angeles County use the same SAK, the rest 

of California does not. This can affect consistent 

collection and processing procedures. 

In Illinois — where the state police are required 

to provide SAKs to every state agency — 

consistency and quality control issues are 

addressed through a single SAK coordinator, 

who provides feedback to medical professionals 

and others who collect evidence. 

However, collecting consistent and high-quality 

evidence can be a particular problem in nonurban jurisdictions. Nine hundred of the 1,350 

rape crisis centers in the U.S. are in rural areas, 

where turnover among hospital and clinic staff 

is high. Many people in rural America, including 

Indian Country, do not know how to obtain or 

use a SAK, and they have no access to a sexual 

assault nurse examiner (SANE). 

SANEs and sexual assault forensic examiners 

(SAFEs) are highly trained professionals who 

provide medical care to victims and ensure the 

consistency and quality of evidence collection. 

This is a balancing act. SANEs and SAFEs maintain that evidence collection should not trump 

health care. In fact, the first concerns for many 

women who have just been sexually assaulted 

are fear of HIV or other sexually transmitted diseases, pregnancy and the need for psychological counseling. A well-trained SANE or SAFE is 

crucial to simultaneously assuring the health of 

the victim and the collection of high-quality evidence for possible future criminal proceedings. 

untested evidence may not be sent to a 

crime lab for testing. Forty-four percent of 

the law enforcement agencies said that 

one of the reasons they did not send evidence to the lab was that a suspect had 

not been identified. Fifteen percent said 

that they did not submit evidence because 

analysis had not been requested by a 

prosecutor. These findings indicate that 

some law enforcement agencies may 

not fully understand the potential value of 

forensic evidence in developing new leads 

in a criminal investigation. 

That said, it is clear that we need to understand more about how law enforcement 

decides to submit a SAK to the crime lab 

for analysis (or not) and how cases are triaged for other investigation. To do that, we 

must examine the myriad issues surrounding the discovery of thousands of unanalyzed SAKs. 
3 

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untested evIdence In laW enforcement agencIes 

In 2009, the National Institute of Justice (NIJ) 

published the results of a nationwide survey of 

forensic evidence that had not been submitted by 

a police agency to the crime laboratory for analysis. More than 2,000 state and local law enforcement departments responded to the survey. 

The findings revealed that, during 2002-2007, 

police had not submitted forensic evidence — 

including DNA, fingerprints, firearms and toolmarks — to a crime lab in: 

■■18 percent of unsolved rapes. 

■■14 percent of unsolved homicides. 

■■23 percent of unsolved property crimes. 

Although there are reasons why police may not 

send forensic evidence to a lab — it may not 

be considered probative, the charges may have 

been dropped, or a guilty plea may already have 

been entered — the researchers at Research 

Triangle Institute, International, which conducted 

the survey, concluded that some police may not 

fully understand the value of evidence in developing new investigative leads. 

Forty-four percent of the responding police 

departments said one of the reasons they did not 

send evidence to the lab was because a suspect 

had not been identified. Fifteen percent said they 

did not submit evidence because analysis had 

not been requested by a prosecutor. Three in 10 

said they did not submit evidence because they 

were uncertain of its usefulness. 

These are important findings because evidence 

can potentially identify a suspect in a so-called 

“no suspect” case. For example, DNA can identify a possible perpetrator through the Combined 

DNA Index System (CODIS), the national DNA 

database, and latent prints can identify a possible perpetrator through databases such as 

the national Integrated Automated Fingerprint 

Identification System (IAFIS). 

The knowledge gap revealed in the NIJ survey 

— particularly among the nation’s small departments (less than 25 officers) — could be due to 

a lack of training. Specialized training in these 

cases may have been beneficial and could have 

led to a different outcome. Also, 

11 percent of the agencies that responded to the 

survey said that one reason they did not submit 

evidence was the lab’s inability to produce timely 

results, and 6 percent said that the lab was not 

accepting new evidence because of a backlog. 

When considering this knowledge gap, it is 

important to remember that CODIS did not 

become operational until the late 1990s and could 

still be considered relatively new. Whether some 

detectives do not forward evidence to the lab 

because they do not fully understand how a “no 

suspect” CODIS hit can aid their investigation — 

or because there are standing policies or other 

issues that prevent them from doing so — is an 

issue that merits further study. 

Finally, it is important to understand what the NIJ 

survey did not determine. For example, the survey 

did not reveal how many of the cases not sent to 

a lab would actually have benefitted from analysis. The survey also did not address the number 

of unsolved cases in which evidence had been 

analyzed in the past but now — with the benefit 

of larger offender databases and new forensic 

technologies — might be solved or yield investigative leads; for example, a latent print submitted 

to IAFIS several years ago with no successful 

match could yield a hit now. 

Some of the police departments noted that their 

survey responses were based on estimates. 

Larger agencies (including large county and 

state agencies) reported difficulty in providing 

information about sexual assaults because these 

records are not maintained in a centralized 

system. Property crimes in larger agencies are 

typically investigated at the precinct level (where 

the case information would be maintained), and 

Continued on page 4 

Forty-four percent 

of the police 

departments said 

one of the reasons 

they did not send 

evidence to the lab 

was because a suspect 

had not been identified. 
4 

Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

untested evIdence In laW enforcement agencIes (contInued) 

this may also be true for rape cases. Finally, it is 

important to note that the survey’s findings are 

based on self-reported information; there was no 

independent verification of the data. 

Despite these caveats, however, there is no 

doubt that the survey reveals problems with 

an ongoing lack of procedures and policies for 

collecting, processing and storing forensic evidence, including cases of alleged sexual assault. 

Policies and practices for evidence retention 

vary widely from jurisdiction to jurisdiction, with 

one in five agencies saying that they were not 

sure whether they had such policies. Less than 

half of the police departments, for example, said 

they had a policy regarding the preservation of 

biological evidence in cases where the defendant was found guilty. 

The researchers who performed the survey made 

a number of recommendations to address these 

issues, including: 

■■Training police on the benefits and use of 

forensic evidence, including protocols for 

sending cases to the lab for analysis. 

■■Creating (or improving) information management systems to track forensic evidence and 

enhance communication among the police, 

lab and prosecutor’s office. This could include 

connected evidence tracking systems, dedicated staff for case management and regular 

team meetings for case review. 

■■Providing more storage capacity for analyzed 

and unanalyzed forensic evidence, and standardized evidence-retention policies. 

■■Providing more research to determine what 

proportion of the open cases could benefit 

from forensic testing, and how such cases 

should be prioritized for testing. 

The full report, The 2007 Survey of Law 

Enforcement Forensic Evidence Processing, 

by Kevin J. Strom, Jeri Ropero-Miller, Shelton 

Jones, Nathan Sikes, Mark Pope and Nicole 

Horstmann, is available at http://www.nij.gov/ 

topics/law-enforcement/investigations/ 

handling-evidence/unanalyzed-evidence.htm. 

Should all newly discovered 

SAKs be analyzed? 

What should a jurisdiction do when a large 

number of untested SAKs are discovered? 

Should officials try to come up with the 

resources to test them all — even cases 

that may be 25 years old — or should they 

establish a prioritization or “triage” process 

to determine which SAKs should be sent 

to the lab, and when? Unfortunately, there 

has been little research in this area, and 

there are few evidence-based “best practices” to help jurisdictions handle the crisis 

management of the moment — and to prevent this problem from developing again in 

the future. 

In Dallas, for instance, evidence in 12,000 

cases of alleged sexual assault, which 

occurred from 1981 to 1995, was recently 

discovered in police custody; the evidence 

in many of these cases is not even a complete SAK — only swabs taken during the 

examination of the victim. Dallas officials 

determined that testing all of the evidence 

is not possible at current resource levels. 

As in most jurisdictions, “cold cases” in 

Dallas are a lower priority than new cases, 

and it can take up to two years to get DNA 

results back from their lab. Therefore, at 

this point, only unsolved stranger rapes are 

being tested; based on a preliminary analysis, this represents 20–25 percent — about 
5 

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3,000 cases — of the recently discovered 

evidence. 

In Los Angeles, the recently discovered 

SAKs were sent to private labs for analysis 

(a process called “outsourcing”) and paid 

for, in part, through NIJ’s DNA backlog 

reduction grant program. Although officials 

intended to have all of the SAKs tested, 

cases still had to be prioritized. Therefore, 

the Los Angeles Police Department 

(LAPD) established this order for testing: (1) stranger/unknown suspect sexual 

assaults and cases in which the alleged 

perpetrator was in a position of trust, 

(2) acquaintance rape, (3) cases previously 

rejected by the district attorney’s office, 

and (4) cases in which there was a question that a crime occurred. 

It is important to note that, even with a 

decision to outsource the analysis of evidence, crime labs in jurisdictions where 

large numbers of SAKs are discovered are 

still greatly affected. In the U.S., public 

labs must perform a technical or “peer” 

review of analyses done in a private lab. 

The LAPD crime lab, for example, has had 

to devote 10–15 analysts to managing 

the very time-consuming technical review 

for the recently discovered SAKs. In fact, 

this has led to what some refer to as the 

“new backlog” of cases awaiting technical 

review. This is not an insignificant issue, as 

current FBI rules require completion of a 

technical review before a DNA profile can 

be uploaded to the Combined DNA Index 

System (CODIS). (See sidebar, right, “The 

Challenges of Crime Lab Staffing.”) 

In Detroit — where 10,500 unprocessed, 

untested or improperly stored SAKs from 

1988 to 2006 were recently discovered — 

officials have randomly selected 400 cases 

to review, screen and test. (See sidebar, 

p. 6, “Detroit: One Jurisdiction Begins.”) 

the challenges of crIme lab 

staffIng 

Many of the nation’s state and local crime 

laboratories are facing significant challenges 

in hiring and retaining staff. Some forensic 

scientists leave to pursue careers at federal 

laboratories, in the private sector, or at other 

state and local labs that pay more. Just one 

example: In 2008, the Georgia Bureau of 

Investigation (GBI) lost 10 of their 22 trained 

professionals (four lab technicians and six 

DNA analysts); in 2009, GBI lost seven of their 

23 trained professionals (five DNA analysts, 

one Combined DNA Index System (CODIS) 

administrator and one lab tech). 

The challenge of ensuring a sufficient, welltrained staff in the crime lab also extends 

to funding sources. Continuing with GBI as 

an example, officials noted that 17 of the 32 

employees at headquarters are paid from 

federal grants administered by the National 

Institute of Justice (NIJ). Although federal 

grants are extremely useful, state and local 

officials point out that funding analyst positions from nonguaranteed grants makes it 

difficult to plan for the future. 

In a 2007 NIJ-funded survey of 148 public 

labs, nearly 90 percent said that they would 

not have sufficient funding to continue operations without federal grants and were falling behind in casework and not keeping up 

with new technologies. These findings emphasize the importance for state and local 

jurisdictions to engage in fiscal planning that 

allows them to sustain strong crime lab 

operations. (The full report, 2007 DNA 

Evidence and Offender Analysis Measurement: DNA Backlogs, Capacity and Funding, 

by Lisa Hurst and Kevin Lothridge, is available at http://www.ncjrs.gov/pdffiles1/nij/ 

grants/230328.pdf.) 

Although federal 

grants are extremely 

useful, state and 

local officials point 

out that funding 

analyst positions 

from nonguaranteed 

grants makes it 

difficult to plan 

for the future. 
6 

Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Developing 

scientific evidence 

to determine which 

approaches are the 

most effective — 

solving the most 

crimes with the 

greatest efficiency, 

considering fiscal 

realities — will 

take time. 

detroIt: one JurIsdIctIon begIns 

In Detroit, where 10,500 previously untested 

sexual assault kits (SAKs) were recently 

discovered in police storage, officials are 

performing a comprehensive audit of 400 

randomly selected cases. Evidence in the 

400 SAKs is being analyzed, including DNA 

testing; concurrently, the “400 Project” team 

— an independent investigator, an attorney 

and two victim advocates — are looking at 

the entire case, including a victim-centered, 

multidisciplinary follow-up investigation. 

Based on the outcomes of these 400 cases, 

researchers at Michigan State University 

will perform a statistical analysis to help 

determine the characteristics of the remaining 10,100 cases. This is expected to give 

officials valuable data upon which to base 

policies regarding: 

■■Notification of victims. 

■■Prioritization of evidence for lab analysis. 

■■The level of resources to meet increased 

demands on law enforcement, who will 

have to investigate cases where a DNA 

profile is revealed (whether or not there 

is a Combined DNA Index System (CODIS) 

hit), and increased demands on prosecutors, who may need to file more cases. 

Experts also point to another factor to 

keep in mind when a jurisdiction outsources lab testing. Last year, the U.S. 

Supreme Court upheld a ruling giving 

defendants a constitutional right to directly 

confront the analyst who performed tests 

on evidence used against them. This can 

be expensive for a jurisdiction that must 

pay for private lab scientists to go to court 

to testify. 

Certainly, the various approaches now 

being used to tackle the untested SAKs 

problem will yield important knowledge. 

However, developing scientific evidence 

to determine which approaches are the 

most effective — solving the most crimes 

with the greatest efficiency, considering 

current fiscal realities — will take time. 

The evidence itself 

Experts say that everyone — victims, 

police, politicians, forensic scientists, 

criminologists — must keep two crucial 

factors in mind when making smart SAKtesting decisions: the quality of the evidence and the facts of the alleged sexual 

assault. It is estimated that, on average, 

50–60 percent of SAKs test positive for 

biological material that does not belong to 

the victim; that percentage is much lower 

in some parts of the country. 

To shed more light on this issue, NIJ is 

currently funding researchers at California 

State University, Los Angeles, to study a 

random sample of the recently discovered 

cases in Los Angeles. The researchers are 

looking at specific case “outcomes,” such 

as the percentage of SAKs that yielded a 

DNA profile and the percentage that were 

uploaded to CODIS and resulted in a “hit” 

to other crimes or offenders. (See sidebar, 

p. 7, “Los Angeles’ Sexual Assault Kit 

Research Study.”) Results of the study are 

expected in 2011. 

NIJ is also funding an action research 

project to help jurisdictions tackle the 

problem of untested sexual assault kits 

that have been discovered in police evidence rooms; based on this research, the 

Institute expects to help develop protocols to prevent this from happening in the 

future. (See sidebar, p. 8, “NIJ’s Action 

Research Project to Address Untested SAK 

Evidence.”) 

Technological advancements in DNA 

analysis are also likely to play a major 

role in testing older SAKs. For example, 

the Georgia Bureau of Investigation (GBI) 

crime lab first tests evidence to determine 

if male DNA is present; rather than spending several hours looking at slides, trying 
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los angeles’ sexual assault KIt 

research study 

After the Los Angeles police and sheriff’s 

departments began testing a large number 

of previously unanalyzed sexual assault 

kits (SAKs), the National Institute of Justice 

(NIJ) funded researchers at California State 

University, Los Angeles, to randomly select 

20 percent of the cases for further study. 

The goal of the study is to provide information 

that will not only help jurisdictions efficiently 

test (or decide not to test) large numbers of 

unanalyzed SAKs but may also help prevent 

this situation from occurring again. 

Among the questions being addressed: 

■■What kind of evidence do the SAKs 

contain?
�

■■What kind of results are obtained from 

testing? For example, is semen identified? 

How many cases yield a DNA profile? 

■■How many profiles are uploaded to the 

Combined DNA Index System (CODIS), and 

what matches link these older, recently 

discovered sexual assault cases with 

other crimes or offenders? 

The researchers are also looking at police 

criteria for sending a SAK to the lab for 

analysis. It is also hoped that the study (findings expected in 2011) will help decisionmakers throughout the criminal justice 

system to craft procedures and protocols for 

investigating and solving sexual assaults in 

the future. 

to identify sperm, GBI analysts now use a 

DNA test that looks for male DNA found 

on the Y chromosome, using robots to test 

many cases at the same time. If no DNA 

is detected, it is not necessary to proceed 

with full analysis to try to develop a DNA 

profile. 

In Los Angeles, the police and sheriff’s 

departments are currently engaged in a 

project called “Fast Track Forensics.” In 

this pilot study, sexual assault cases with 

unknown offenders are processed as 

usual, while a few swabs are taken from 

the SAK and sent directly to the state 

Department of Justice laboratory for immediate analysis. Results are turned around 

in three days and uploaded into CODIS to 

search for a DNA match. To date, there 

have been a number of “hits,” with particularly good results from saliva testing. 

Stranger rape versus 

acquaintance rape 

When it comes to tackling the multidimensional problem of unanalyzed SAKs, victim 

advocates point to the proverbial elephant 

in the room: stranger rape versus so-called 

acquaintance rape. 

Although few would dispute the existence 

of a bias in the criminal justice system — a 

higher priority placed on arresting a stranger who attacks an unknown victim than 

on a college student who rapes an intoxicated date — this distinction is disturbing 

to some victim advocates, who argue that 

every rape is a stranger rape: to a victim, 

some say, an acquaintance becomes a 

“stranger” when he rapes her. Many victim 

advocates also maintain that not aggressively pursuing acquaintance rape may 

mean that other sexual assaults are not 

prevented — that same college student, 

they say, may continue assaulting women. 

As our nation focuses on the SAK backlog issue, we would be naïve to ignore 

other potential biases. Over the years, 

biases may have affected the decision 

to not send sexual assault evidence to 

the lab if, for example, the victim was a 

prostituted woman, a drug abuser or mentally ill. Therefore, some argue, testing all 

SAKs would reveal potential connections 

between stranger rapes and acquaintance 

rapes and would go a long way toward 

Over the years, 

biases may have 

affected the 

decision to not 

send sexual assault 

evidence to the 

lab if, for example, 

the victim was a 

prostituted woman, 

a drug abuser or 

mentally ill. 
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Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

nIJ’s actIon research ProJect to address untested saK evIdence 

On October 27, 2010, the National Institute of 

Justice (NIJ) issued a request for proposals 

to identify solutions to the nationwide problem 

of untested evidence in sexual assault cases. 

This solicitation seeks to better understand 

why so many sexual assault kits (SAKs) are not 

forwarded from police evidence rooms to crime 

labs for DNA testing and to develop innovative 

approaches to solve the problem. (See the 

White House announcement on a nationwide violence against women initiative at http://www. 

whitehouse.gov/blog/2010/10/05/endingviolence-against-women.) 

This spring, NIJ funded two jurisdictions — 

Wayne County, Mich., and the city of Houston 

— to explore the problem and come up with 

solutions. In phase I of these “action research” 

projects, each site will form a team to include 

a criminal justice researcher and representatives from the police department, crime lab, 

prosecutor’s office and a community-based 

victim services organization. The teams will first 

review and inventory cases in their jurisdiction 

to determine why the SAKs were not sent to the 

lab; they will then develop a plan to tackle the 

problem and evaluate the intervention strategies 

that were put in place. In phase II of the project, 

NIJ will award funds to help the sites implement 

their plans. 

To see the solicitation (applications were due 

January 18, 2011), go to http://www.ncjrs.gov/ 

pdffiles1/nij/sl000947.pdf. Follow this research 

project through NIJ’s website, http://www.nij. 

gov/topics/forensics/welcome.htm. 

Shortly after the solicitation was released, NIJ 

participated in a webinar, hosted by the Harvard 

University Kennedy School of Government. The 

two-hour discussion addressed various aspects 

of the solicitation, including the action research 

model through which NIJ hopes to develop innovative practices that other jurisdictions will also 

be able to use. Listen to the November 17, 2010, 

webinar for free at http://www.innovations. 

harvard.edu/xchat-transcript.html?chid=353. 

eliminating victim bias. Advocates of testing of all SAK cases also point out that 

uploading all profiles into CODIS may 

link crimes that otherwise would not

 have been linked. (See sidebar, p. 10, 

“One Woman’s Story.”) 

Finally, it is important to note that increased training and education may help officials 

and victims in cultures, including some 

American Indian tribes, where there are 

cultural taboos concerning a sexual assault 

examination. 

Victim notification 

Whether a jurisdiction facing a SAK backlog decides to test all cases or, as in 

Detroit, begins with a small number, notifying the victims is a crucial part of the process. However, determining best practices 

for doing this — let alone putting the right 

mechanisms in place — will not be easy. 

When, for example, should the victim be 

notified? When her unanalyzed SAK has 

been located after many years? When the 

kit is sent to the lab for analysis? When 

analysis reveals that there is no probative 

evidence — or only when a DNA profile is 

determined? 
9 

the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS 

 

What will the victim notification protocol 

be if the suspect is not in CODIS and a 

“John Doe” warrant is issued — or if 

the rapist’s identity is revealed through 

a CODIS hit and it appears that he raped 

other women before or after raping her? 

And how should victims be contacted — 

via letter, phone call, in person? 

At first blush, it may seem that there is no 

question that sexual assault victims should 

be notified at some point in the process. 

After all, why would a victim not want to 

know if DNA analysis of evidence from a 

rape when she was an 18-year-old college 

freshman had — 20 years later — revealed 

the rapist’s identity? 

Experts say there could be as many 

answers to that question as there are victims. For example, what if the victim, now 

38 years old, never told her husband or 

15-year-old daughter about the rape? What 

if she has had years of counseling and 

moved on? Beyond simply being notified 

at one step or another in the criminal justice process, does the victim get a say — 

or not — in whether her case moves from 

the police evidence room to the lab, from 

the prosecutor’s office to the courtroom? 

Not all victims want to enter the criminal 

justice process. For some, the primary 

concern after being raped is medical care: 

testing for HIV, STDs and pregnancy, or 

receiving mental health care. Victim advocates estimate that perhaps half of the 

victims of a long-ago rape would want to 

be told that evidence had been found in 

their case; they would want to be told the 

results of DNA analysis and be a part of 

any prosecution. The other half, they say, 

would just want to continue on with their 

lives. 

Beyond determining the best way to contact victims, the logistics of simply finding many of them is not likely to be easy. 

Many victims of sexual violence try to 

distance themselves from the crime, 

including moving away from where the 

assault happened. 

Current victim notification practices vary 

among jurisdictions that are dealing with 

large numbers of unanalyzed SAKs. In one 

city, an official-looking letter is sent, asking 

the victim to call regarding an unspecified 

matter. In Detroit, a team of four people 

(including a victim advocate and a former 

Detroit homicide detective) has begun inperson notification of the 400 victims in 

the cases where the SAKs are being tested. In Dallas, authorities initially placed a 

public service announcement in the newspaper and on TV in an effort to reach some 

of the victims. Although the notice ran for 

just one day, authorities say the response 

was good. At this point, however, Dallas 

officials have decided to minimize contact 

with victims unless they identify a suspect. 

Victim safety is a major concern during 

notification. Victim advocates warn that a 

victim of a long-ago rape could be currently 

living in a domestic violence situation and 

that contact by the police could act as a 

trigger for violence by her current partner. 

They also note that a victim who is suddenly told that the unsolved crime may 

now be investigated, including DNA analysis of the SAK, may suddenly feel in greater danger from the person who raped her. 

There is also the issue of counseling. 

Some people experience a host of problems after being sexually assaulted. 

Officials also should be aware that some 

of the victims among the thousands of 

recently discovered SAKs may be drug 

addicts, prostituted women, mentally ill 

or homeless. What counseling will they 

need? 

Clearly, with sufficient will and resources, 

we can decrease the backlog of SAKs and 

even identify suspects, but as we think 

about the best way to do this, it is crucial 

to consider how to support the victims. 

Victim advocates 

estimate that 

perhaps half of 

the victims of a 

long-ago rape 

would want to be 

told that evidence 

had been found in 

their case ... . The 

other half, they 

say, would just 

want to continue 

on with their lives. 
10 

Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There are real 

people behind every 

one of the sexual 

assault kits that 

remain untested. 

It will be difficult 

for each one, 

regardless if they 

welcome a renewed 

investigation or 

have tried to forget 

and move on in their 

lives, perhaps never 

telling their family 

of the assault. 

one Woman’s story 

by Kellie Greene 

On January 18, 1994, my life changed forever. I 

was 28 years old when I returned to my Orlando, 

Fla., apartment and was attacked by a man hiding in my kitchen. He hit me over the head with 

my tea kettle — then beat and raped me for 45 

minutes.
�

After the stranger fled, I immediately called 911. 

I was treated at the hospital, where doctors used 

seven staples to close the wound in my head. 

Although police found semen on my leggings, 

Florida, at that time, was only doing DNA testing 

in cases where a suspect was already identified. 

Therefore, evidence in my case was put on a 

shelf, where it became part of the “backlog.” 

I tried to move on, but I was haunted by the 

attack. I spent the next years studying every face 

in the grocery store, at work, even when I was 

driving down the road. Every few months, the 

detective and I talked to see if anything had been 

missed that might identify a suspect so that my 

evidence could be sent to the crime lab. 

Eventually, evidence in my case was sent to the 

crime lab because police believed there were 

similarities with another rape. Although testing 

revealed that the rapist in that case was not the 

man who raped me, at least the DNA profile was 

now in the state database. 

One day — three years after I was raped — the 

detective called to tell me that DNA testing of 

semen on my leggings had identified the man who 

raped me. It was the first time in three years that I 

felt safe. But my relief turned to anger when I was 

told that the man — David Shaw, a man with a 

history of burglary and theft — had raped another 

woman in December, six weeks before he raped 

me. Shaw was arrested for that earlier rape, but, 

sadly, the evidence in that case was not tested for 

two years. If it had been tested, this man would 

have been identified and caught and I would not 

have been raped and beaten.
�

Three days before the trial in my case, Shaw pled 

guilty and was sentenced to 22 years. However, 

he was already serving a 25-year sentence for 

the first rape — and it wasn’t for another three 

years that I would learn that he was allowed to 

serve the two sentences concurrently. He would 

spend no extra time in prison for beating and 

raping me. 

In 1999, I founded SOAR®, Speaking Out About 

Rape, Inc®. Through SOAR, I work on behalf of 

rape survivors. I have worked with one woman, 

for example, who was raped when she was 18 

years old. Twenty years later, she was notified 

by police that the rapist had been identified. 

By that time, she was 38, married, and had a 

15-year-old daughter. She had never told her 

family that she was raped 20 years earlier. Now, 

she had to. 

I have worked with a woman in Texas whose 

rapist was identified through DNA only after the 

statute of limitations had expired in her case. 

Her only option now — the only way she can 

help keep her rapist off the street — is to testify 

at his annual parole hearing, which means that, 

every year, she must re-live the rape. 

There are real people behind every one of the 

sexual assault kits that remain untested. It will 

be difficult for each one, regardless if they welcome a renewed investigation or have tried to 

forget and move on in their lives, perhaps never 

telling their family of the assault. As we move 

forward in solving the problem of untested evidence in sexual assault cases, I believe it is crucial that our criminal justice system be mindful of 

the unique issues these survivors will face. 

About the author: Kellie Greene is the founder 

of SOAR®, Speaking Out About Rape, Inc.®, 

http://www.soar99.org. In 2000, she lobbied for 

and helped write a law that bans concurrent 

sentencing of sex offenders and murderers in 

Florida. Greene was a member of the task force 

that the National Institute of Justice brought 

together in 2010 to talk about the issue of untested evidence in sexual assault cases. 
11 

the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS 

 

 

 

 

And, say the experts, one of the challenges 

will be to understand that every rape victim 

may, after so many years, have her or his 

own idea of what “justice” looks like. 

Posttesting: The 

domino effect 

Beyond the notification of victims and 

decisions regarding the forensic testing of 

recently discovered SAKs, there are major 

implications for “downstream” partners in 

the criminal justice system. (See sidebar, 

p.12, “Stakeholders Identify Priorities.”) 

Where, for example, will the resources and 

protocols come from, as already strapped 

police departments face demands for 

follow-up investigations? If an investigation 

results in the identification of a suspect, 

how will already overworked prosecutors 

and public defenders handle additional 

cases? 

Police investigations in older cold cases 

require a significant commitment of time, 

training and talent. If a DNA profile is 

developed from testing evidence in a 

SAK, previous investigative leads and past 

interviews will have to be re-examined, 

and all this work will have to be prioritized 

alongside current criminal investigations. 

What investigative protocols will a jurisdiction use, for example, when a DNA profile 

is developed from testing but does not 

match a profile in CODIS or a local database? Will a John Doe warrant be issued? 

Police agencies also must have a plan 

when a DNA profile from an older SAK 

does have a CODIS hit. What priorities 

and protocols will govern the often timeconsuming effort of tracking down the 

suspect and gathering a DNA confirmation 

sample? Can the victim be located and 

is she available for prosecution? It also 

should be noted that, in some jurisdictions, 

a request to send a SAK to the lab for DNA 

analysis is not approved until a sample 

from any potential consensual partner 

is obtained for “elimination” purposes; 

might this protocol have to be revisited if 

a jurisdiction faces a large backlog of older 

SAKs? 

The good news is that there are working 

models. The Phoenix Police Department, 

for example, has developed an internal 

database, called the Post Match Prioritization Model, for all of its sexual assault 

cases. If analysis of a SAK results in a 

CODIS hit, investigative priority is on suspects who are in prison but scheduled to 

be released soon. The second priority level 

is cases with a high likelihood of successful prosecution. Cases with suspects who 

are already in custody for 10 or more years 

receive the lowest priority for follow-up 

investigation after a CODIS hit. 

Another example of a protocol that seems 

to be working: New York City’s Office of 

the Chief Medical Examiner sends e-mails 

to district attorneys, DNA examiners and 

police when there is a CODIS hit based on 

the analysis of a SAK. This centralized system has helped detectives prioritize followup investigations. 

As jurisdictions grapple with these issues, 

it is important to consider the best way to 

communicate with the victim at the various 

stages in the process. Advocates point out 

that a sexual assault survivor who is told 

her SAK has been recently discovered and 

will now be analyzed is likely to start wondering about the next steps: Will a confirmation sample be collected, for example, 

and when will additional investigative interviews be conducted? Certainly, the impact 

on the victim must be considered, if evidence in her rape yields a DNA profile or 

a CODIS hit, but the police department is 

experiencing resources issues that would 

delay or prevent further investigation and 

possible prosecution. 

Where will 

the resources 

and protocols 

come from, as 

already strapped 

police departments 

face demands 

for follow-up 

investigations? 
12 

Special RepoRt / may 2011 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

staKeholders IdentIfy PrIorItIes 

In May 2010, the U.S. Department of Justice 

brought sexual assault nurse examiners, crime 

laboratory directors, cold case detectives, prosecutors and victim advocates to Washington, D.C., 

to discuss the challenges surrounding untested 

evidence in sexual assault kits (SAKs). A full 

report of the meeting is available at http://www. 

ovw.usdoj.gov/docs/rape-kit-roundtablesummary-10262010.pdf. 

Here are some of the priorities identified by the 

attendees: 

Victim Advocates 

■■ Increase the understanding of victim notification issues. 

■■Strive to eliminate bias in the criminal justice 

system against certain victims and types of 

sexual assault. 

■■Focus on long-term counseling and support 

to help victims return to normal life, including 

exploring innovative approaches outside the 

criminal justice system. 

■■Consider changes to laws related both to victim compensation and to reimbursement for the 

cost of sexual assault kits. 

Law Enforcement 

■■Create evidence-based practices for investigating sexual assault cases, including prioritizing before and after a CODIS hit. 

■■Develop information technology support for 

evidence and case tracking. 

■■ Improve training regarding the collection of 

evidence, what prosecutors need to build a 

case, prioritizing SAKs for lab analysis and 

assembling a case book. 

■■Develop protocols for notifying victims that 

their SAK is going to be tested and that the 

investigation of their case may be renewed. 

■■Reconsider funding streams in which law 

enforcement has to pay for lab analyses. 

Crime Laboratories 

■■Create a plan to handle work if large numbers 

of previously untested SAKs are suddenly sent 

to the crime lab. 

■■Address staff hiring and retention issues. 

■■ Increase implementation of high-throughput 

analysis procedures. 

■■Perform research to make DNA analysis faster, better and cheaper, and improve storage 

capacity for SAKs. 

Sexual Assault Nurse Examiners 

■■ Improve the integration of evidence collection 

into a broader continuum of medical care. 

■■ Improve the quality review/peer review process of SAK collection. 

■■Update the curricula for Web-based and 

onsite training, and increase technical 

assistance. 

Prosecutors 

■■ Implement meetings among prosecutors, lead 

investigators and lab scientists to improve 

decision making regarding evidence that does 

and does not need to be analyzed in the lab. 

■■ Improve training on case management, handling cold cases, crime lab techniques and 

issues, and the use of forensic evidence at 

trial. 

■■Create information systems for case management that will automatically notify laboratories 

to stop working a case if there is a judicial 

determination (for example, a plea) or it is 

otherwise not moving forward. 
13 

the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS 

 

 

 

 

 

 

 

 

 

 

Statutes of limitations 

Jurisdictions facing the discovery of older 

SAKs must consider what their testing policy will be if the statute of limitations (SOL) 

in a case has passed. The SOL for sexual 

assault depends on the type of assault and 

varies across jurisdictions. In Los Angeles, 

for example, there is a 10-year SOL on 

sexual assault, but a recent law tolls the 

SOL (stops the clock) if a DNA profile of a 

suspect is determined within two years of 

the assault. 

In Dallas, where they recently discovered 

evidence in thousands of alleged sexual 

assaults as far back as the 1980s, the SOL 

situation is complicated. During the 1980s 

and 1990s, the SOL for sexual assault 

cases was 5 years. In 2001, however, the 

law was changed: Now, there is no SOL 

in sexual assault cases if suspect DNA is 

present; if there is no DNA evidence, the 

SOL is 10 years. Although the statutory 

change allows Dallas officials to go back to 

September 1, 1996, without running into 

SOL problems, most of the recently discovered evidence in that jurisdiction is in 

sexual assaults that occurred before 1996. 

If a case cannot be prosecuted because 

the deadline for filing has passed, is it a 

wise use of resources to have the SAK 

evidence tested? The answer is not as 

obvious as it may seem. 

Some proponents of testing all SAKs argue 

that, even if a case cannot be prosecuted 

— or the victim does not want to move forward — the evidence should nonetheless 

be tested to determine if the rapist might 

have committed other rapes. Evidence of 

prior, unadjudicated sexual assaults may 

also be considered in the sentencing of a 

rapist. 

Some argue that cases should be pursued, 

even if the SOL has passed, as a way to 

provide some resolution to the victims. It 

goes without saying that decisions in these 

various scenarios will likely be influenced 

by resources. 

State legislatures respond 

As we struggle as a nation to deal with 

the ramifications of the discovery of thousands of unanalyzed SAKs, some states 

are responding legislatively. Texas, for 

example, recently passed a law creating a 

new database — accessible only to local 

law enforcement — that contains the DNA 

profiles of alleged rapists. If DNA testing 

reveals a profile, it goes into the database, 

even if the case is not filed and prosecuted. 

How might such data be used? Information 

regarding an unadjudicated past rape can 

be used in the parole hearing of a convicted offender, for example. Prosecutors 

also note that evidence of past criminal 

behavior — even criminal behavior that 

was unadjudicated, if the court deems it is 

directly relevant to the case at hand — can 

be used under Federal Rule of Evidence 

404(b). 

Often simply referred to as “404(b),” this 

rule allows evidence regarding a defendant’s character or prior criminal conduct 

into a trial under certain circumstances. 

Some proponents of analyzing all older 

SAKs argue that, even when the statute of 

limitations has passed, it could be important to have 404(b) evidence of a past 

rape if the person is on trial for another 

rape. Prosecutors point out that, especially 

in cases of so-called acquaintance rape, 

the ability to present 404(b) evidence can 

effectively turn a “he-said, she-said” case 

into a case of “he-said, she-said, she-said.” 

Illinois recently passed a new law that 

requires the SAK in every alleged sexual 

assault to be sent to the lab for analysis. 

Before this law went into effect, the state 

police crime lab received approximately 

Some proponents 

of analyzing all 

older SAKs argue 

that, even when 

the statute of 

limitations has 

passed, it could 

be important to 

have “404(b) 

evidence” of a 

past rape if the 

person is on trial 

for another rape. 
 

 

 

 

 

Special RepoRt / may 2011 

Delays 

in evidence being 

sent to a lab — 

as well as delays 

in analyzing 

evidence — 

result in delays 

in justice. 

1,500 SAKs for analysis every year. Add 

to that the SAKs that were never sent to 

the lab — an informal survey found 4,000 

unanalyzed SAKs in only 82 of the state’s 

1,200 law enforcement agencies as of 

May 2010 — and the current (and future) 

backlog of SAKs in the Illinois State Police 

crime lab begins to look daunting. 

For more on DNA backlogs nationwide, 

see the NIJ special report, Making Sense 

of DNA Backlogs, 2010: Myths vs. Reality, 

available at http://www.ncjrs.gov/pdffiles1/ 

nij/232197.pdf. 

The road ahead 

Ultimately, at the heart of this latest challenge for our criminal justice system are 

the victims. Delays in evidence being sent 

to a lab — as well as delays in analyzing 

evidence — result in delays in justice. 

In worst-case scenarios, this can lead to 

additional victimization by serial offenders 

or the incarceration of people wrongly convicted of a crime. (See http://www.nij.gov/ 

journals/262/postconviction.htm for the 

story, in the NIJ Journal, of one recently 

exonerated man.) 

As the nation grapples with the discovery 

of thousands of older sexual assault kits, 

it is crucial that we balance justice, public 

safety and the victims’ needs. The goal, of 

course, is to move beyond the “crisis management” of the moment to the adoption 

of systematic practices, procedures and 

protocols that will prevent this situation 

from ever happening again. 

14 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

About the National Institute of Justice 

The National Institute of Justice — the research, development and 

evaluation agency of the Department of Justice — is dedicated 

to improving our knowledge and understanding of crime and justice 

issues through science. NIJ provides objective and independent 

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