#TesttheKits: Thousands of rape kits go untested

The woman was sitting in her car early one morning when a masked man approached and pointed a gun at her. The man took $3, raped her and left.

The victim did everything she should have: She called the police and allowed a sexual assault kit to be taken.

That kit, often referred to as a "rape kit," never saw the light of day until five years later, when it was found in a police storage facility along with about 11,000 others.

After the victim's kit was tested, Joshua Brooks was identified as the rapist.

In the five years it took to get the kit tested, Brooks had been arrested on a number of charges and was already serving a lengthy prison sentence.

This is not an isolated instance.

Across more than 800 law enforcement agencies nationwide, records obtained by USA TODAY and its TEGNA news partners show more than 70,000 sexual assault kits containing forensic evidence from rape, sexual battery and other crimes have never been sent to crime labs for testing.

Those figures, drawn from a small sample of 18,000 U.S. police agencies, indicate the nation's count of untested sexual assault kits likely reaches well into the hundreds of thousands.

The exact number isn't known. In most states, local law enforcement agencies are not required to inventory untested evidence kits in their custody to determine the scope of the problem, and many haven't done so on their own.

When tested, the DNA evidence inside the rape kits has proven to be an effective method to solve and prevent crimes. So why aren't they being tested?

In 1989, Debbie Smith and her police officer husband Rob were raising their two children in Williamsburg, Va.

"If there was the ideal family, I guess we had that life," Debbie told WVEC-TV. "There were no problems that we couldn't handle as a family."

That would be tested on March 3. Rob, who had just gotten off the midnight shift, was asleep upstairs. Debbie was busy checking off items on her to-do list. She ran out the door, leaving it unlocked for just a minute.

That decision would change her life forever. Within five minutes, a masked man dragged her out of her home and into the woods behind it. He raped her repeatedly for an hour, then let her go. She ran back home and woke up her husband.

"I just said, 'He got me, Rob. He got me,'" she recalled.

Rob called the police as she headed for the shower to try, like many victims do, to wash away what had happened to her— but her husband, the Williamsburg cop, knew they had to go to the hospital for a rape kit.

"He said, 'Honey you have to, you just have to. That's the only way we're going to find him. You need to do this,'" Debbie said.

It is a four-to-six-hour long exam, which Debbie says destroys what you have left of your self-esteem.

"But you do it because you know it will give you hope, that there's hope in them taking that evidence from your body," Debbie said.

For six long years, the Williamsburg mom said she lived in fear and always looked over her shoulder. But on July 26, 1995, the Smiths were told Debbie's kit had a cold hit.

Norman Jimmerson's DNA was collected when he was arrested for a different crime. A cross-check matched the sample to Debbie's rape kit. It was only the fourth cold hit in the entire nation.

"That was the day that I took a deliberate breath," Debbie remembered. "I really wanted to live again."

She says DNA gave her her life back.

Jimmerson will spend the rest of his life behind bars.

Debbie Smith became an advocate for the testing of rape kits -- and her advocacy became federal law. The "Debbie Smith Act" provides grants to local and state law enforcement to process their rape kit backlogs.

After a sexual assault or rape, a victim is asked to undergo an examination to collect any forensic evidence left behind from the assault. The examiner, usually a doctor or nurse, preserves the evidence in a medical kit.

The kits have proven to be successful in sexual assault investigations and prosecutions. The kits can also lead to new DNA matches in the criminal database and the identification of serial rapists. For example, the White House said that a testing of 2,000 kits in a pilot program resulted in 760 DNA matches, identified 188 serial offenders and led to 15 convictions.

According to the White House, the kit consists of swabs, tubes, glass slides, containers and plastic bags. Those items collect and preserve forensic evidence left behind by the perpetrator, including clothing fibers, hair, and bodily fluids. Those can be used to identify DNA and other evidence left behind by the attacker. After collection, the evidence is carefully packaged and labeled.

According to EndTheBacklog, a program from the non-profit group Joyful Heart Foundation, contents of the kits can vary by state. Most kits include:

• Detailed instructions for the examiner
• Forms for documenting the procedure and evidence gathered
• Tubes and containers for blood and urine samples
• Paper bags for collecting clothing and other physical evidence
• Swabs for biological evidence collection
• A large sheet of paper on which the victim undresses to collect hairs and fibers
• Dental floss and wooden sticks for fingernail scrapings
• Glass slides
• Sterile water and saline
• Envelopes, boxes and labels for each of the various stages of the exam

Under the Violence Against Women and Department of Justice Reauthorization Act of 2005, states must ensure that victims have access to the forensic medical exams free of charge (or with full reimbursement) -- even if the victim decides not to cooperate with law enforcement investigators, according to the Rape Abuse and Incest National Network.

The backlog exists for a number of reasons.

According to the National Institute of Justice, the demand for DNA analyses has increased without a corresponding growth in forensic lab capacity. In 2011, the NIJ estimated that about 350,000 rape and homicide cases awaited DNA testing. Many of those samples were in control of law enforcement agencies rather than in crime labs.

The NIJ's DNA task force says state and local crime labs lacked sufficient numbers of trained forensic scientists. Those governments lack the resources to hire trained scientists. Even when funds are available, the pool from which to hire scientists is often small. That shortage is due, in part, to college forensic science curriculums that lack the basic science courses for the job. Newly-hired scientists must often undergo significant training before they are able to conduct DNA analyses. Contributing to the shortage is the fact that public crime lab salaries are often below those offered in the private sector, according to the NIJ.

Additionally, most state and local crime labs lack the equipment needed to complete the task, according to the NIJ. They also lack the space to store that equipment even if they did have it.

Costs play a role in the backlog. It costs between $500 and $1,200 to test each kit, according to the National Center for Victims of Crime.

A USA TODAY investigation found that sexual assault kit testing practices are often arbitrary and inconsistent between law enforcement agencies -- and even within agencies themselves.

In most states and at most law enforcement agencies, there are no written guidelines for processing sexual assault kits. Testing decisions in each case are left to the discretion of investigating officers, leading to widespread inconsistencies in testing practices.

Despite the fact that adding the DNA information of an offender into state and national databases can help identify predators moving across jurisdictions, USA TODAY's investigation found that many police agencies treat sexual assault kits only in regards to individual cases.

In interviews with USA TODAY, officials said the most common reasons why kits are not tested are because there is not a prosecutable case, usually due to a lack of cooperation from sexual assault survivors.

Some law enforcement officials have even defended leaving the kits untested, citing the costs could deflect from other needs of the departments, and saying that testing all kits could slow down the process for those needing urgent testing.

In some cases, the sexual assault survivor's cooperation is not at issue. Records reviewed by USA TODAY show dozens of untested sexual assault kits come from cases involving children. Records from the Dallas Police Department show 43 of the agency's 4,140 untested sexual assault kits dating back to 1996 were collected from children, some as young as 12 years old.

[Mobile users: Click here to look up the number of sexual assault kits held by agencies in your state]

Forty-four states have no laws stipulating when police agencies should send kits for testing. In 34 states, no statewide inventory of untested kits has been conducted, the USA Today investigation found.

Many state oversight agencies and authorities have initiated efforts to count the number of untested sexual assault kits in their jurisdictions.

State laws requiring department-by-department audits or inventories of untested sexual assault kits have been enacted in recent years in Colorado, Hawaii, Illinois, Kansas, Louisiana, Michigan, Minnesota, Ohio, Tennessee, Texas and Virginia. Some of these audits have been complete, while others are ongoing.

Additionally, informal counts have been conducted, or are being conducted by agencies in Kansas, Massachusetts, New Mexico, Washington, Wisconsin and Wyoming — even though there is no official state legislation on the books requiring inventories or setting the parameters for them.

New York's Department of Criminal Justice Services conducted a limited, informal survey of 213 law enforcement agencies after receiving a request from USA TODAY for this report.

For the rest of the country, including Florida, Arizona, and North Carolina, the number of untested sexual assault kits isn't known.

Advocacy groups say an inventory in every state is one of the most important steps toward solving the nation's untested rape kit problem.

"The nation needs to know the extent of this problem," Mai Fernandez, executive director of the National Crime Victims Center, a Washington, D.C.-based non-profit told USA Today. "Otherwise we cannot put a plan together to really address it."

Hundreds of sexual assault kits remain untested in the metro Atlanta area, including 295 in Cobb County and 104 in Gwinnett County.

The Georgia Bureau of Investigation said it has a backlog of another 270. Some of those kits date back to the 1980s.

Georgia Rep. Scott Holcomb, along with Rep. Stacey Abrams, have introduced a bill that would require police to send kits to the GBI.

"Basically to do a statewide inventory," Holcomb said. "Let's identify the problem."

But it's not just police. Grady Hospital says it has nearly 1500 untested rape kits in storage. It says 70 percent of those were never picked up by police. The others were stored when victims decided they didn't want to prosecute.

"Some of them from Grady were even children," Holcomb said. "It's wrong. It needs to be addressed."

Fulton County District Attorney Paul Howard said his office has met with Grady officials to discuss the kits being stored at the hospital. The hospital has now given the district attorney's office permission to transport about half of the kits to the Georgia Bureau of Investigation for testing. As of July 16, about 100 kits have been taken to the GBI for testing.

Howard said his office and the hospital are working towards a final resolution of the remaining kits.

Holcomb believes every kit should be tested – not to identify the victim – but to track the offenders.

"There are high rates of repeat offense for those who are not caught," Holcomb said. "My sense is -- my very strong sense -- is we would find similar DNA samples among some of the kits that are out there."

Holcomb points to other cities that have recently made a commitment to clear their backlogs, including Houston; Cleveland, Oh. and Tacoma, Wash.

Cobb and Gwinnett police say they're working to clear their backlog.

The GBI acknowledges there's been a shift in thinking about untested sexual assault kits in Georgia this year. It says it's the only forensic lab in the state which does the testing.

With new attention being focused on the rape kit backlog, efforts are being mounted to tackle the problem.

President Obama's fiscal year 2015 budget proposed the creation of the Sexual Assault Kit Initiative, which secured $41 million to help state, local and tribal law enforcement and prosecutors' offices take action to reduce the backlog.

In June, the U.S. House approved included $45 million in the proposed fiscal year 2016 spending bill to address the backlog.

Many state legislatures have proposed or passed legislation requiring sexual assault kit audits or mandatory submission guidelines, according to EndTheBacklog.

In states where action has been taken, results have been seen, according to USA Today's investigation.

In Colorado, more than 150 cold hits have been found since the Bureau of Investigation began requiring local police to submit sexual assault kits for testing. Ohio Attorney General Mike DeWine's effort to collect and test the kits has resulted in 2,285 Combined DNA Index System (CODIS) hits as of November 2014. Testing in the Cleveland, Ohio area has linked more than 200 alleged serial rapists to 600 assaults, according to USA Today's investigation.

An effort to reduce the number of untested kits in Jacksonville, Fla. began last year. Before their remediation effort began, the Jacksonville Sheriff's Office had not tested 1,943 kits -- the fourth highest number of untested kits in the country. They've now tested 380 of those kits and had 32 DNA hits in the national database. The state attorney has now asked for a $2 million federal grant to try and clear all of their untested kits.

Still, there is much more to be done.

On July 16, TEGNA Media broadcast affiliates came together to raise attention to the issue. Thousands of tweets using#testthekits helped spread the word. Please continue to raise awareness by using the hashtag #testthekits.

Georgia residents, if you agree that there should be mandatory inventory of untested rape kits, show your support for Rep. Scott Holcomb and Rep. Stacey Abram's' House Bill 560 by signing below. (Mobile users click here to sign)

Contributing: Steve Reilly, USA Today (see the full report in USA Today's print edition on July 17); Rochelle Riley, Detroit Free Press; John Kelly, USA Today; Christine DiStado, KHOU-TV; Phillip Kish, WXIA-TV; Rebecca Lindstrom, WXIA-TV; Laura Geller, Charlie Hatfield, WVEC-TV; Additional material used from EndtheBacklog.org; WhiteHouse.Gov; National Criminal Justice Reference Service; Rape, Abuse&Incest National Network