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

Published date01 March 2018
Date01 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)
C2018 Law and Society Association. All rights reserved.
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

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