Under a new law that goes into effect September 1, 2017, the Texas Department of Public Safety will create a statewide database for all rape kits, enabling them to track each kit from collection to analysis. The law is a first step towards addressing the backlog of 20,000 or so untested rape kits across the state–each one representing an unprosecuted sexual assault.
Although the bill does not mandate the analysis of backlogged rape kits, it will enable rape survivors to track their DNA samples, and make it less likely that samples will get lost. The effect of the bill on the prosecution of sexual assault cases is unclear. Charges may be brought based on old rape kits, but defense attorneys may be able to challenge the admission of such evidence.
Why Does Texas Have Such a Large Backlog of Rape Kits?
When a person seeks treatment for sexual assault, a medical professional will collect fluid, clothing tissue, and hair samples to hopefully identify the perpetrator. The collected samples form what is colloquially known as a rape kit. But the number of rape kits collected far surpasses the state’s ability to analyze them, so many are simply stored away indefinitely. As a result, victims are often kept out of the loop, and prosecutors are left without the tools to build their cases.
According to Ilse Knecht, policy and advocacy director of the Joyful Heart Foundation (an advocacy group for rape survivors): “What we have seen across time is that jurisdictions, while they cite the lack of resources and personnel as the largest barrier to processing rape kits, there’s also been an unwillingness to prioritize sexual assault as the serious crime that it is.”
To send a clear message that Texas takes rape seriously, Representative Donna Howard of Austin wrote House Bill 281, which was unanimously approved in a rare example of bipartisan policy making. The bill allocates $1.6 million over the next two years towards the establishment of a statewide DNA evidence tracking system. A proposed law, House Bill 1729, would allow driver’s license applicants to donate $1 to help fund the cost tackling the state’s backlog of untested rape kits.
How Will Backlogged Rape Kits Affect Criminal Trials?
The analysis of backlogged rape kits may allow the authorities to pinpoint certain individuals as suspects, and bring charges against them. But that does not mean that those individuals will necessarily get convicted based on the evidence obtained from the rape kit.
When a rape kit sits in storage for a long time or changes hands as it passes from a hospital, to an analysis laboratory, to a prosecutor’s office, the higher the likelihood of a breach of protocol. This can give a defense attorney the ability to challenge the rape kit’s admissibility as evidence. Many rape kits–new and old–get suppressed because of possible tampering and a break in the chain of custody.
The proposed tracking system will help clarify the chain of custody of new rape kits. But as state bureaucrats add the backlogged rape kits into the system, it creates another step where a mistake or confusion can occur. This will give defense attorneys the opportunity to challenge the admissibility of some older rape kits.
Rape Cases Aren’t Just About DNA
Even if the DNA evidence of a properly collected, stored, and analyzed rape kit points to you as the suspect, a skilled Houston criminal defense attorney can help protect your own rights and will work to avoid a conviction. Sexual assault cases hinge on three issues: the identity of the suspect, whether sexual contact occurred, and consent.
So even if the DNA evidence conclusively proves that you had sexual contact with the alleged victim, the prosecutor will need to prove beyond a reasonable doubt that you acted without their consent. Simply put, proving the lack of consent can be extremely difficult, especially when an aggressive defense attorney stands in the way.
At the Law Offices of Ned Barnett, our goal is to achieve the best cases results possible for each and every client. Attorney Ned Barnett is a highly-skilled and respected Houston sex crimes attorney with decades of experience–some of it as a prosecutor.
If you are facing sexual assault charges, call us today at (713) 222-6767 for a confidential case consultation.