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After Clearing Backlog, Rape Kit Testing Takes Seven Months — Or Longer

J. Tyler Franklin

More than a year after a deadline has passed to process all rape kits within 90 days, the Kentucky State Police forensic laboratory is averaging a wait of 215 days.

That number has diminished only slightly since the end of 2018, when rape kits were taking an average of 220 days to process. Advocates and researchers say it is unlikely the lab will meet next summer’s legislature-imposed benchmark requiring all rape kits to be processed within 60 days. 

A KSP spokesperson declined to make the director of the lab available for an interview. But in an emailed statement, news stories and public reports, agency officials have blamed the delays on a number of factors. 

Among them: rape kit submissions have increased nearly 100 percent since a 2016 state law required police to submit them if the victim wants to report. Low salaries are causing high lab employee turnover rates. And analysts have been pulled into reviewing data from 5,000 kits that were tested at a Utah lab that was later found to have been contaminated.  

“Despite these challenges, we’ve made a great deal of progress,” KSP Sgt. Josh Lawson wrote in an email. “While it’s too early to predict what the landscape will look like a year from now, we are certainly trending in the right direction.”

But for victims, the reason is less important than the impact, said Eileen Recktenwald, the executive director of the Kentucky Association of Sexual Assault Programs. 

“Their lives are postponed,” Recktenwald said. “I’ve heard victims say that while waiting for justice, they feel that their lives are on hold. If they have some understanding that something is happening [with their kit], they start healing quicker.”

Forensic sexual assault exams document injuries and gather DNA evidence in a rape kit, and all hospital emergency rooms are required to offer them. The evidence from a rape kit can confirm a known suspect, identify an unknown suspect and connect an alleged assailant to other crimes. 

A 2015 audit found a backlog of more than 3,000 untested rape kits sitting untested at the forensic lab and in evidence rooms of law enforcement agencies around Kentucky.

In 2016, the legislature passed the Sexual Assault Forensic Exam (SAFE) Act, which was intended to prevent a similar backlog from developing in the future. Under the new law, if a victim wants to report to the police, law enforcement must submit the kit to the KSP lab within 30 days. A recent report by the state Sexual Assault Response Team Advisory Committee found that nearly 75 percent of kits are submitted within that window. 

Through grant funding, Kentucky tested the backlog of rape kits and announced the effort was complete in 2018. 

Today, once the kit is in the hands of the lab, law enforcement and victims must wait an average of seven months for results.

Lawson said that figure takes into account 200 kits that had been submitted to the lab for testing at least 18 months prior. Those kits were waiting for funding to be outsourced, but were recently folded into the current queue at the KSP lab instead. Lawson said those cases are skewing the average processing time. 

But the effect on more recent cases is clear: the testing is complete in less than half of the rape kits from 2018 offenses that were submitted that same year. 

End the Backlog, a national non-profit founded by actress Mariska Hargitay, defines a backlog as any kits not tested within 30 days of receipt. Recktenwald said she’s concerned that the delay in testing last year’s rape kits could mean a new backlog is developing in Kentucky. 

Recktenwald, whose organization publishes the Sexual Assault Response Team Advisory Committee’s report on behalf of the state, said lab officials have assured her that all of the kits will be tested as soon as possible. 

“But it does worry me,” she said. 

University of Louisville researcher Brad Campbell, the principal researcher of the SAFE Kit Backlog Research Project, said he is encouraged that testing time is faster than before the SAFE Act even as more kits are being turned in. But he says a lack of funding for necessary staff could prevent the lab from making more progress.

“The crime lab is still under-resourced, and still needs more people to go in and handle the testing of the kits,” he said.

A 2018 report from Kentucky Association of Sexual Assault Programs found that Kentucky’s entry-level lab salary was the lowest of the seven states that surround Kentucky. Lab director Laura Sudkamp asked the legislature in 2018 for an additional $2 million a year to raise salaries to retain experienced analysts, according to the Lexington Herald-Leader.

Though the 2018-2020 budget allocated an additional $1 million each year for salary increases, the lab is anticipating that turnover will remain high, according to the advisory committee’s report. 

The deadlines in the law are contingent on sufficient funding, and it prescribes no penalties if the lab doesn’t meet them.  

The high rates of turnover slow down testing, the report said, because new employees need nine months of training on serology and two years training in DNA testing. Analysts have to be pulled off of actively testing kits in order to train new employees, the report noted.

And a group of analysts also had to be pulled off of testing new cases to review data from the 5,000 kits tested by Sorensen Laboratory before contamination was discovered there, according to Lawson. 

Despite these hurdles, the lab worked more DNA cases than it received for the first time in over a decade; analysts tested nearly as many kits in the first six months of 2019 as they did in all of 2018, according to Lawson. 

But lawyers and advocates say the delays can still be felt across the system.

“Any sort of unnecessary delay, because of staffing issues or financial issues, when we’re dealing with people’s constitutional rights is obviously a problem,” said Louisville defense attorney Karen Faulkner, who has represented people accused of sexual offenses. “Getting evidence timely and quickly could make it possible to ask for a different bond. It could resolve the case or allow the justice system to play out with a fast and speedy trial.”

And for victims, long delays can extend an already arduous process, according to Campbell, the UK researcher. 

“Shooting for that 90-day goal, we’re showing victims that if they’re going to come forward and report, the state’s going to do their due diligence to try to seek justice for them,” he said.

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