Why Are Unknown Number of Sexual-Assault Exam Kits Going Untested in NJ?

Colleen O'Dea | December 5, 2018 | Social
Up to 1,500 kits are collected in New Jersey every year. Fears of a testing backlog due to lack of manpower or funding appear to be unfounded but lawmakers want to make sure

Rape kit
An unknown number of sexual-assault exam kits are being held throughout New Jersey, left untested by law enforcement officials. State legislators want to know why.

A backlog of untested “rape kits” sitting on shelves of cities and state law enforcement agencies has become a national scandal, but no one seems to know whether this is problem in New Jersey. Although kits have gone untested here, how many is not known. Some officials believe it is primarily due to victims deciding not to pursue a case. On the other hand, a lack of manpower or funds has been given as the excuse by many agencies around the country for not obtaining results in a timely manner.

Legislators want the state attorney general’s office to conduct a survey to find out the number of kits being retained in New Jersey, why they were not tested, and whether officials should take further actions to ensure that victims of sexual assault get justice.

A bill (A-2370|/ https://www.njleg.state.nj.us/2018/Bills/S1500/1216_S3.PDF|S-1216) requiring such a survey of every law enforcement agency in the state was unanimously advanced by the Assembly Law and Public Safety Committee on Monday. Assemblywoman Valerie Vainieri Huttle (D-Bergen), who is co-sponsoring the measure, said understanding the processes involved will help law enforcement and legislators to best help victims who may be reluctant to push forward with their cases.

Assemblywoman Valerie Vainieri Huttle (D-Bergen)
Huttle said the state needs a code of best practices to deal with the kits. She said it is concerning that women go through a forensic sexual-assault exam, which includes the collection of samples of saliva, semen, blood, hair and other evidence that could link a perpetrator to the assault, but then decide not to have their kits processed and proceed with prosecuting assailants.

Just a ‘data gap’ in NJ?

Patricia Teffenhart, executive director of the NJ Coalition Against Sexual Assault, said the legislation is meant to “get to the heart” of why kits are not tested.

“There are lots of unanswered questions,” she said. “There is a lot of pressure from national organizations, in particular, to introduce and pass legislation, to make it seem like all across the country we have a rape kit backlog issue. All the data we have available to us in New Jersey doesn’t affirm that is an issue we have. In fact, though, what we have is just a data gap.”

Teffenhart said that officials in New Jersey collect between 1,300 and 1,500 kits every year, but beyond that, the attorney general’s office does not know how many of those are sent to labs for DNA or serology testing and why some were tested while others were not. Some cases may still be pending. Others may not be proceeding at the request of the victim, and Teffenhart said a kit should not be tested against the will of a victim. Other cases may have moved forward without the kit, as that is only one part of a case against a perpetrator.

“The reality is that we don’t need to place all of our confidence in a rape kit in and of itself,” Teffenhart said, adding that at least three-quarters of survivors of rape know their assailant. “It just affirms exchange of bodily fluids. It doesn’t help us in courtroom when we’re nullifying a consent argument. A lot of prosecutors feel they don’t need the rape kit.”

One organization that has questioned the status of rape kits in New Jersey is the Joyful Heart Foundation, which has launched the End the Backlog campaign. Its website estimates that “hundreds of thousands” of untested kits are stored in police and crime lab facilities nationwide but there is no way to track the true scope of the issue. For New Jersey, the site states that the size of a testing backlog in the state is unknown and New Jersey has no system for tracking rape kits.

Kits are preserved for at least five years

Credit: EndTheBacklog
Rape kits
“I don’t want to use the word backlog … because New Jersey is doing better than most states,” Vainieri Huttle said. “Originally when we started on this bill, I was under the impression that there was a backlog but when we delved into it further … there really isn’t a backlog. These kits are there but they are untested for various reasons and I think that’s the intent of the bill the way it has evolved, to get to those reasons.”

Teffenhart said law enforcement used to destroy rape kits within 90 days, but NJCASA worked with the attorney general’s office to expand that and now kits are preserved for at least five years. Longer retention of kits is proper, given there is no statute of limitations on sexual assault.

“We look forward to establishing some benchmark data that would allow us to decide where do we have to create policy moving forward that might affirm survivors willingness to move forward and hold more perpetrators accountable,” she said.

In addition to asking for detailed information about kits currently in agencies’ possession, the survey required by the bill would ask about agency policies and procedures governing the submission of sexual-assault examination kits to an approved forensic laboratory for testing, including specific submission criteria and timelines and victim notification. It would also seek to find out about agency policies and procedures for logging, tracking and storing the kits. The attorney general would prepare a report for the governor and the Legislature summarizing the information learned from the survey.

“This survey can help identify any issues and resources that may be needed to ensure that victims are less reluctant to report these crimes to law enforcement,” said Assemblywoman Nancy Pinkin (D-Middlesex), another co-sponsor. “We must do everything in our ability to make victims feel safe and to bring justice for the heinous crimes committed against them.”

Seeking facts, not speculation

Teffenhart said that the survey data, coupled with the directive Attorney General Gurbir Grewal issued last week designed to give sexual-assault victims greater respect from law enforcement and to better track how cases are being handled, should help policymakers determine what other steps may be needed to further help victims and prevent future assaults.

“Where do we have training gaps; where do we have resource gaps?” she said. “Are we finding that it’s just a matter of survivors maybe not feeling they want to move their kit forward in a criminal prosecution so what can we do to shore up a system where survivors feel comfortable moving forward? Is it that prosecutors feel they should only move forward with cases that are slam dunks? There’s lots of speculation that we could put forward, but I think this will allow us to figure out what exactly we could do that could be most impactful most quickly.”