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

• DOI: http://doi.org/10.1111/lasr.12310
• Published date: 01 March 2018
• Date: 01 March 2018

Why Police “Couldn’t or Wouldn’t” Submit Sexual

Assault Kits for Forensic DNA Testing: A Focal

Concerns Theory Analysis of Untested Rape Kits

Rebecca Campbell Giannina Fehler-Cabral

In jurisdictions throughout United States, thousands of sexual assault kits

(SAKs) (also termed “rape kits”) have not been submitted by the police for

forensic DNA testing. DNA evidence may be helpful to sexual assault investi-

gations and prosecutions by identifying offenders, revealing serial offenders

through DNA matches across cases, and exonerating those who have been

wrongly accused, so it is important to understand why police are not utilizing

this evidence. In this study, we applied focal concerns theory to understand

discretionary practices in rape kit testing. We conducted a three-year ethnog-

raphy in one city that had large numbers of untested SAKs—Detroit, Michi-

gan—to understand why thousands of SAKs collected between 1980 and 2009

were never submitted by the police for forensic DNA testing. Drawing upon

observational, interview, and archival data, we foundthat while practical con-

cerns regarding resources available for forensic analysis were clearly a factor,

as Detroit did not have the funding or staffing to test all SAKs and investigate

all reported rapes, focal concerns regarding victim credibility and victim coop-

eration were more influential in explaining why rape kits were not tested.

Implications for the criminal justice system response to sexual assault and

rape kit testing legislation are examined.

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 col-

lected 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

The action research project described in this paper was supported by a grant from the

National Institute of Justice (2011-DN-BX-0001). The opinions or points of view expressed

in this document are solely those of the authors and do not reflect the official positions of

any participating organization or the U.S. Department of Justice. The authors thank the

members of the action research project and academic colleagues who provided feedback

on prior drafts of this manuscript. We also thank Rachael Goodman-Williams for her assis-

tance with the revisions of this paper.

Please direct all correspondence to Rebecca Campbell, Department of Psychology,

Michigan State University, 127 Psychology Building, 316 Physics Road, East Lansing, MI

48824; email: rmc@msu.edu.

Law & Society Review, Volume 52, Number 1 (2018)

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C2018 Law and Society Association. All rights reserved.

73

analyzed for DNA and compared against other criminal reference

DNA samples in Combined DNA Index System (CODIS), the fed-

eral 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 total-

ing 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 Justi-

ce’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 frame-

work 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 major-

ity of these rape kits had never been submitted for forensic DNA

74 Untested Rape Kits

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 dif-

ferentiates cases in which an offender was arrested versus not

arrested, cases that were prosecuted versus not prosecuted. How-

ever, focal concerns theory can also be a useful framework for in-

depth study across cases that were not pursued by the criminal jus-

tice system to identify common patterns. What focal concerns did

the police attune to in their decisions regarding rape kit testing?

What other features of the case were more salient to the police

than the potential evidentiary value of the SAK? Because DNA

evidence can be instrumental in protecting public safety, it is

important to understand why this resource is not being routinely

utilized in sexual assault investigations.

Understanding Why Police Do Not Submit SAKs for

Forensic DNA Testing

To set the stage for this study, we draw upon two distinct lines

of inquiry that can inform our understanding of how police make

decisions regarding SAK forensic testing. First, a small but grow-

ing are of research examines why police submit crime scene evi-

dence for forensic testing, including sexual assault crimes. This

body of work frames forensic testing as a specific choice-point in

police practice in which law enforcement personnel consider the

potential utility of testing to the investigation and whether there

are resources available for such testing. Second, a large multidis-

ciplinary literature examines discretionary decision making in

sexual assault investigations. These studies cast a wider lens to

consider why police invest investigational effort in some reported

rape cases but not others, and how victim credibility is often

more salient than evidentiary concerns. Taken together, these lit-

eratures help us understand the use of forensic testing as a spe-

cific investigational tool within the broader context of how police

typically approach sexual assault investigations.

Police Practices for Forensic Testing of Crime Scene Evidence

In two national-scale surveys of law enforcement agencies’

forensic evidence testing practices in unsolved homicides, rapes,

and property crimes from 1982 to 2007 (Lovrich et al. 2004;

Strom & Hickman 2010), the most commonly cited reason for

not submitting evidence for DNA testing was that the police did

not have an identified suspect in the case. This finding may seem

Campbell & Fehler-Cabral 75