Testing Previously Unsubmitted Sexual Assault Kits

• Author: William Wells,Seth Fallik
• DOI: 10.1177/0887403414528001
• Published date: 01 August 2015
• Date: 01 August 2015
• Subject Matter: Articles

Criminal Justice Policy Review

2015, Vol. 26(6) 598 –619

© 2014 SAGE Publications

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DOI: 10.1177/0887403414528001

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Article

Testing Previously

Unsubmitted Sexual

Assault Kits: What Are the

Investigative Results?

Seth Fallik1 and William Wells1

Abstract

Studies and local police jurisdictions have documented the existence of potentially

valuable forensic evidence that have never been submitted to a crime laboratory for

examination. The failure to analyze evidence is concerning because this may have

prohibited case advancement in the criminal justice system. This study examines this

possibility by describing investigative activities that occur after forensic screening of

evidence that was not submitted for testing at the time of the original investigation.

The study examines only sexual assault cases and finds that testing has a minimal

impact in this sample.

Keywords

sexual assault investigations, sexual assault kit, DNA

Introduction

Evidence that is submitted to a crime laboratory for testing but remains unexamined in

excess of 30 days is generally considered to be backlogged (Durose, 2008). For sev-

eral years, the nations’ consciousness about the existence of backlogged evidence has

caused many to fear that possible investigative leads are being ignored. Some forensic

evidence1 in property storage facilities has never been submitted to a crime laboratory

for analysis (Pratt, Gaffney, Lovrich, & Johnson, 2006; Strom et al., 2009). This

unsubmitted evidence is not included in backlog estimates because testing was never

requested.

Research suggests that the existence of unsubmitted evidence is not necessarily a

rare event. Data collected in 2002 and 2003 from 120 state and local crime laboratories

1Sam Houston State University, Huntsville, TX, USA

Corresponding Author:

Seth Fallik, Sam Houston State University, 816 17th Street, Huntsville, TX 77340, USA.

Email: swf003@shsu.edu

528001CJPXXX10.1177/0887403414528001Criminal Justice Policy ReviewFallik and Wells

research-article2014

Fallik and Wells 599

and more than 1,600 police departments showed that there were approximately

169,000 rape cases, nationally, with potentially valuable biological evidence that was

never sent to a crime laboratory for analysis (Pratt et al., 2006). A survey of approxi-

mately 2,300 police agencies in 2007 showed that forensic evidence existed but was

never submitted for analysis in about 14% of unsolved homicides, 18% of unsolved

rape cases, and 23% of unsolved property crimes (Strom et al., 2009). While these

results imply that the criminal justice system may have failed because valuable evi-

dence was not analyzed, little information exists about the nature of these cases and

how forensic analysis may affect case outcomes (Police Executive Research Forum,

2012). It may be the case that forensic evidence would not make a significant differ-

ence in many instances.

The current study examines investigative activities following biological evidence

screening in sexual assault cases. In this sample, forensic analysis was not requested

at the time of the original investigation. Rather, the evidence remained in storage and

was not considered part of a backlog until it was uncovered following a property room

evidence audit. Results contribute knowledge about the expected outcomes when large

numbers of unsubmitted pieces of evidence are examined and provide indirect infor-

mation about the potential reasons why evidence may not have been submitted during

the initial investigation.

The Potential of DNA Evidence in Sexual Assaults

Following a sexual assault, victims are often encouraged by law enforcement and

medical professionals to seek post-assault medical care and a forensic medical exami-

nation. During the course of an examination, forensic evidence including vaginal,

anal, and oral swabs, pubic hair combings, blood and urine specimens, and fingernail

scrapings are collected by trained sexual assault nurse examiners as part of a sexual

assault kit (SAK; Ritter, 2011). Once a SAK is completed, it is transferred into the

custody of law enforcement and held in controlled storage until it is submitted to a

crime laboratory for analysis. SAKs may contain probative evidence in the form of

DNA foreign to the victim, which can be used during a sexual assault investigation in

several ways.

First, DNA evidence can establish that a crime has occurred by confirming sexual

contact. This is most evident in juvenile and statutory cases where the presence of

foreign DNA sufficiently demonstrates that a crime has taken place. Similarly, DNA

may be helpful in cases where the suspect has denied all sexual contact (Bradbury &

Feist, 2005; Gaensslen & Lee, 2001) and when the victim was unconscious (e.g.,

drugged or passed out) at the time of the sexual assault (Patterson & Campbell, 2012).

In addition, the presence of biological evidence may encourage victim participation

and cooperation during an investigation. Patterson and Campbell (2012) reported that

positive test results provide validation to the victim and make them “feel more confi-

dent about the prosecution of the case” (p. 2269). Because many victims believe that

forensic analysis is in their cases’ best interest, its absence may diminish victim par-

ticipation or cooperation during the criminal justice process (Spohn, Beichner, &

Davis-Frenzel, 2001).