Academic journal article Law & Society Review

Why Police "Couldn't or Wouldn't" Submit Sexual Assault Kits for Forensic DNA Testing: A Focal Concerns Theory Analysis of Untested Rape Kits

Academic journal article Law & Society Review

Why Police "Couldn't or Wouldn't" Submit Sexual Assault Kits for Forensic DNA Testing: A Focal Concerns Theory Analysis of Untested Rape Kits

Article excerpt

In jurisdictions throughout the United States, police frequently do not submit sexual assault kits (SAKs) for forensic DNA testing, and, instead, kits are shelved in police property, unprocessed, and ignored for years (Campbell et al. 2017a, 2017b,; Pinchevsky forthcoming). A SAK (also termed a "rape kit") is typically collected within 24-72 hours after a sexual assault in order to obtain biological evidence from victims' bodies (e.g., semen, blood, saliva; Department of Justice 2013). This evidence can be analyzed for DNA and compared against other criminal reference DNA samples in Combined DNA Index System (CODIS), the federal DNA database, which can be which can be instrumental in solving crimes and prosecuting rapists (Campbell et al. 2017a, 2017b,; Murphy et al. 2013; Strom & Hickman 2010). However, conservative estimates indicate there are at least 200,000 untested SAKs in U.S. police departments, and large stockpiles of kits have been documented in over five dozen jurisdictions, sometimes totaling more than 10,000 untested SAKs in a single city (Campbell et al. 2017a, 2017b,). The growing national problem of untested rape kits has garnered the attention of Human Rights Watch (2009: 7) because "international human rights laws require police to investigate reports of sexual violence and take steps to protect individuals from sexual assault." Likewise, the Department of Justice's (2015) report, Gender Bias in Law Enforcement Response to Sexual Assault, specifically highlighted the problem of untested rape kits as an example of biased and discriminatory police practices.

Ultimately, it is the responsibility of the police to submit SAKs for forensic DNA testing, and law enforcement personnel have tremendous discretion in what actions they do and do not take in sexual assault investigations (Department of Justice 2016; Human Rights Watch 2013). Focal concerns theory offers a useful framework for examining discretionary decision making in the criminal justice system (Spohn et al. 2014). Briefly, this theory stipulates that criminal justice system personnel (police, prosecutors, judges) define as particularly salient certain aspects of a crime/ case, given their specific roles and responsibilities in the system (Steffensmeier et al. 1998). A common focal concern across all sectors of the criminal justice system is protecting public safety (Steffensmeier et al. 1998); as such, actions that can help solve crimes and prevent future attacks would be expected to be key priorities. In the context of sexual assault cases, rape kit testing may help protect public safety via DNA identification of unknown offenders, confirmation of offender identities, and the discovery of serial perpetrators by DNA matches across crimes (Campbell et al. 2017a, 2017b,; Human Rights Watch 2009, 2010; Strom & Hickman 2010). And, yet, there is growing evidence that police do not test rape kits as a matter of routine law enforcement practice, so this contradiction suggests that other focal concerns may be taking precedence. Why then are police not submitting SAKs for forensic DNA testing?

In this article, we take up this question by examining why one city-Detroit, Michigan-had thousands of untested SAKs in police custody. In August 2009, approximately 11,000 rape kits were discovered in a Detroit police storage facility, the vast majority of these rape kits had never been submitted for forensic DNA testing. Our goal in this study was to understand why SAKs were not routinely tested in sexual assault cases that were reported by victims to the police from 1980 to 2009. Prior studies using focal concerns theory to understand the criminal justice response to sexual assault have been between case analyses to identify what differentiates cases in which an offender was arrested versus not arrested, cases that were prosecuted versus not prosecuted. However, focal concerns theory can also be a useful framework for indepth study across cases that were not pursued by the criminal justice system to identify common patterns. …

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