[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
RAPE KIT BACKLOGS: FAILING THE TEST OF PROVIDING JUSTICE TO SEXUAL
ASSAULT SURVIVORS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MAY 20, 2010
__________
Serial No. 111-115
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
56-523 WASHINGTON : 2010
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
MIKE QUIGLEY, Illinois
TED DEUTCH, Florida
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
----------
MAY 20, 2010
Page
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 6
WITNESSES
The Honorable Carolyn B. Maloney, a Representative in Congress
from the State of New York
Oral Testimony................................................. 16
Prepared Statement............................................. 18
The Honorable Anthony D. Weiner, a Representative in Congress
from the State of New York
Oral Testimony................................................. 20
Prepared Statement............................................. 23
The Honorable Adam B. Schiff, a Representative in Congress from
the State of California
Oral Testimony................................................. 25
Prepared Statement............................................. 29
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York
Oral Testimony................................................. 34
Prepared Statement............................................. 36
Kym L. Worthy, Esq., Wayne County Prosecutor, Detroit, MI
Oral Testimony................................................. 41
Ms. Valerie Neumann, Sexual Assault Survivor, Cincinnati, OH
Oral Testimony................................................. 43
Prepared Statement............................................. 46
Ms. Mariska Hargitay, Joyful Heart Foundation, New York, NY
Oral Testimony................................................. 50
Prepared Statement............................................. 52
Christian Hassell, Ph.D., Assistant Director, Laboratory
Division, FBI, U.S. Department of Justice, Washington, DC
Oral Testimony................................................. 63
Prepared Statement............................................. 71
Mr. Jeffrey S. Boschwitz, Ph.D., Vice President, North American
Sales and Marketing, Orchid Cellmark, Inc., Princeton, NJ
Oral Testimony................................................. 77
Prepared Statement............................................. 80
Mr. Peter Marone, Director, Virginia Department of Forensic
Science, Richmond, VA
Oral Testimony................................................. 88
Prepared Statement............................................. 91
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Louie Gohmert, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Crime, Terrorism, and Homeland Security 3
Prepared Statement of the Honorable Richard Shelby, a U.S.
Senator from the State of Alabama.............................. 8
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 13
Letter to the Honorable Robert S. Mueller, Director, Federal
Bureau of Investigation, submitted by the Honorable Anthony D.
Weiner, a Representative in Congress from the State of New York 27
Prepared Statement from the Office of Justice Programs, U.S.
Department of Justice.......................................... 64
Report from Human Rights Watch, submitted by the Honorable Robert
C. ``Bobby'' Scott, a Representative in Congress from the State
of Virginia, and Chairman, Subcommittee on Crime, Terrorism,
and Homeland Security.......................................... 107
APPENDIX
Material Submitted for the Hearing Record........................ 175
RAPE KIT BACKLOGS: FAILING THE TEST OF PROVIDING JUSTICE TO SEXUAL
ASSAULT SURVIVORS
----------
THURSDAY, MAY 20, 2010
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:10 a.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Conyers, Nadler, Cohen,
Weiner, Quigley, Gohmert, Poe, and Goodlatte.
Staff Present: (Majority) Bobby Vassar, Subcommittee Chief
Counsel; Jesselyn McCurdy, Counsel; Veronica Eligan,
Professional Staff Member; (Minority) Caroline Lynch, Counsel;
Art Baker, FBI Detailee; and Kelsey Whitlock, Staff Assistant.
Mr. Scott. The Subcommittee will come to order.
I am pleased to welcome you to today's hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security
entitled ``Rape Kit Backlogs: Failing the Test of Providing
Justice to Sexual Assault Survivors.''
When a person is raped and reports the crime to police or
goes to the hospital, he or she will be asked to submit to the
collection of a rape kit. A rape kit is a collection of any
physical evidence the attacker may have left behind, and the
process of collecting the evidence can take anywhere from 4 to
6 hours.
When the police officer takes the rape kit and books it
into police evidence, victims may assume that the kit is sent
to the crime lab for testing. Actually, many rape kits remain
in police evidence storage facilities for years after they are
collected and are never tested. Even when kits are submitted to
the crime lab for testing, it can take months for the crime lab
to get the results back to the requesting police officers.
Although most victims who report being raped consent to the
very invasive and time-consuming process of having evidence
collected for a rape kit, many of these kits are never tested.
Studies have shown that when a rape kit is collected,
tested, and contains offender DNA, it is significantly more
likely that the case will be prosecuted than cases where no
rape kit is collected. Also, research shows that evidence such
as a rape kit is important to prosecutors when deciding whether
to bring the charge in the first place. There is growing
evidence that juries have come to expect DNA evidence in order
to convict a defendant. These findings show how important the
rape kit collection and testing is in solving crimes and
convicting rapists.
Crime labs across the country are flooded with requests for
DNA testing. A recent report found that public crime labs saw
their DNA backlog double in 2005. Research also concluded that
public crime labs across the country would need to increase
their DNA analyst staff by 73 percent to keep up with DNA
testing needs and requests.
In some jurisdictions, these staff shortages and increasing
numbers of requests for DNA testing have led to backlogs in
processing rape kits. The rape kit backlogs originate at two
points in the criminal justice process: First is when the rape
kit is booked into evidence in storage facilities but
detectives do not request a DNA test of the kit. Other backlogs
exist in police crime labs where kits are submitted for DNA
testing and the testing does not take place in a timely manner.
These massive backlogs of untested rape kits are allowing
offenders to perpetrate crimes that would not otherwise having
been committed had these rape kits been tested.
In 2004, Congress recognized the problem of rape kit
backlogs in crime labs and passed the Debbie Smith Act, named
after a sexual assault survivor whose attacker could have been
caught 6 years sooner had her rape kit been processed in a
timely manner. The Debbie Smith Act provides grant money to
States for any type of DNA testing, including testing of rape
kits. Although States are receiving Debbie Smith funds to
eliminate DNA backlogs, some of the money is going unspent
because of State and local laws that prohibit using money to
hire crime lab staff.
During today's hearing, Representatives Carolyn Maloney and
Anthony Weiner will testify about bills each have introduced to
specifically address the rape kit backlog problem.
Representatives Adam Schiff and Jerry Nadler will also testify
about their work in Los Angeles and New York City,
respectively, to address backlogs in those cities. Our other
witnesses will discuss why testing rape kits is so important to
victims of sexual assault and how public and private labs can
use their resources to reduce and avoid backlogs.
It is now my pleasure to recognize the esteemed Ranking
Member of this Subcommittee, the gentleman from Texas, Judge
Gohmert.
Mr. Gohmert. Thank you, Chairman Scott.
And I thank each of our witnesses for appearing here, with
my apologies for being late.
And out of deference to them, I would ask that my written
statement be submitted for the record so that we can go
straight to their testimony.
[The prepared statement of Mr. Gohmert follows:]
__________
Mr. Scott. Thank you. Without objection.
Does the Chairman of the Committee, Mr. Conyers, have a
statement?
Mr. Conyers. Well, I only wanted to point out that it may
be accidental that all of our distinguished Members of Congress
are from New York, save one, Adam Schiff, who is from
California. And the question is, what does that mean, since we
have more than two States in the Union?
And what I am thinking that it means is that New York is
doing--and I will be listening to their testimony--they are
doing a good job, but they just need far more resources. But
they have a huge backlog. And the question that brings us here
today is, how do we get rid of the backlog? Do we give public
labs more money? Or do we give them more money to hire people
to get rid of the backlog? And I think we are going to hear
this come out in the testimony from our Members, three of which
are from the Committee itself.
And we are very proud, Chairman Scott, that you have put
this focal point on an issue that is really something that can
be addressed and remedied. And I also appreciate the bipartisan
nature of the work. I particularly praise Judge Louie Gohmert
for his work in this effort, as well.
Mr. Gohmert. Will the gentleman yield?
With regard to the bipartisan nature, we had two witnesses
that were scheduled to be here--Representative Peter King, also
from New York, but also Senator Shelby--who were both unable to
get here this morning. But they were scheduled to make this a
very bipartisan panel but were not able to make it.
Mr. Conyers. Well, thank you, Louie. We will put their
statements in the record, if necessary.
Mr. Gohmert. Thank you.
[The prepared statement of Mr. Shelby follows:]
__________
Mr. Conyers. As well as Sheila Jackson Lee, who has worked
on this extensively and, because of her mother's passing, will
not, of course, be here. I ask unanimous consent that she be
able to insert her statement into the record, if necessary.
And I yield back my time, Chairman Scott.
Mr. Scott. Thank you.
And, without objection, in view of the time constraints we
are under, other Members will be asked to include opening
statements for the record at this point.
[The prepared statement of Mr. Conyers follows:]
__________
Mr. Scott. We have two panels of distinguished witnesses
today to help us consider this important issue. Our first panel
consists of four Members of Congress.
The first witness is Congresswoman Carolyn Maloney, who
represents the 14th District of New York. She is recognized as
a national leader in financial services, national security, the
economy, and women's issues. As a senior Member of the
Financial Services Committee and Oversight and Government
Reform Committee, Representative Maloney is known as a champion
for domestic and international women's issues. She is the
original sponsor of H.R. 4114, the ``Justice for Survivors of
Sexual Assault Act of 2009,'' which she will testify about
today.
Our second witness will be Congressman Anthony Weiner, who
represents the Ninth District of New York. He currently sits on
the Energy and Commerce Committee, Judiciary Committee, and is
a member of the Democratic leadership team. He is the original
sponsor of H.R. 2157, the ``DNA Expansion and Improvement Act
of 2009.''
The third witness is Congressman Adam Schiff, who
represents California's 29th Congressional District. He is a
Member of the Appropriations and Judiciary Committees and the
Permanent Select Committee on Intelligence. As a former
prosecutor, he brings expertise to the Judiciary Committee on
issues such as intellectual property theft and piracy of
copyrighted materials.
And our final witness on the panel is Congressman Jerry
Nadler, who represents New York's Eighth District.
Representative Nadler is Chair of the Judiciary Committee's
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties. He is also a Member of the Transportation and
Infrastructure Committee and is an assistant Democratic whip.
As has been pointed out, other Members wanted to be here
but couldn't, particularly Sheila Jackson Lee, who was
instrumental in calling this hearing today.
Our Members are familiar with the lighting system, so we
would ask you to begin your testimony now, with Congresswoman
Maloney.
TESTIMONY OF THE HONORABLE CAROLYN B. MALONEY, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
Mrs. Maloney. Thank you so much, Chairman Scott and Ranking
Member Gohmert, for holding this hearing on a critically
important issue, the DNA rape kit backlog.
Rape kits, if they are processed in a timely manner, can
protect innocent victims and get rapists off the streets.
I have been working on this issue since 2001 when I
organized a hearing on the use of DNA to both convict and
exonerate. And coming out of that hearing was the Debbie Smith
Act, a block grant program funding SANE nurses. Over $550
million has gone into this program to process the backlog; $150
million is in this year's budget. And it goes into the CODIS,
the centralized national database of the FBI.
Although many localities have received these moneys, not
all of them are processing it. And I wanted to say one brief
New York story that tells why it is so important.
A woman named Catherine Ham was raped in New York City in
roughly 1975. Her rapist was apprehended by the police. They
thought they had a cut-and-dry case. She went to court. They
turned her into someone mad at her pimp. He got free. Thirty
years later, because of this bill and the attention of the New
York City Police Department and prosecutors, they processed her
clothing, they made a connection. The man was now in jail, and
he had raped 27 additional women.
Most rapists are serial. And each rape kit that is not
processed represents a life of a victim and the possibility
that this criminal will rape many more. So, by just processing
that kit and making the connection, you not only relieve the
victim's fear of an additional assault from the rapist, but
also prevent rape with many other people.
The problem is that there is no accountability. And the
bill that I have put forward, the ``Survivors of Sexual Assault
Act,'' H.R. 4114, will build more accountability into the
system. It will require a reporting system so that we can
really track what the backlog is. No one really knows what it
is now.
And it will require the jurisdictions applying for Debbie
Smith funds to send all rape kits to crime labs and implement
plans to have the rape kit backlogs handled in a 2-year period.
It also provides incentives, monetary incentives, for
jurisdictions to reduce their rape kit backlog and promptly
process them.
And it requires the States to be responsible for the full
up-front cost of rape kit examinations. Victims should not have
to pay for their rape kits.
And it also, very importantly, funds the sexual assault
nurse examiners, the so-called SANE nurses. The police tell me
that if they have a rape kit that is processed by a SANE nurse,
they can always get a conviction. It is important to have this
professional attention to it.
My bill has a companion bill, S. 2736, introduced by
Franken and Grassley, and we hope that we will be able to pass
it this year. And this bill aims to help build that capacity,
tackling only rape kits and, importantly, requiring the
reporting and the backlog information.
I want to thank the Subcommittee for inviting me to
testify. The Debbie Smith Act has helped save lives. And I just
want to conclude by saying that DNA evidence from rape cases
not only helps police identify rapists in existing unsolved
cases, but also prevents future assaults and spares potential
new victims by bringing a rapist to justice early in their
criminal careers. And, undeniably, prosecuting rapists early on
is the single most effective rape prevention tool that we have
available.
The Debbie Smith bill has been called by many advocates as
the most effective anti-rape legislation ever enacted into law.
The bill that we have authored this year would make that bill
stronger, would bring accountability into the system, and put
the rapists behind bars, where they belong. It is really
unconscionable that so many hundreds of thousands of rape kits
are on the shelves, unprocessed. Each one represents a life
destroyed and the ability to prevent future rapes.
So I just want to thank all of you for being here today,
and I hope we will be able to move this bill forward. Thank
you.
[The prepared statement of Mrs. Maloney follows:]
Prepared Statement of the Honorable Carolyn B. Maloney,
a Representative in Congress from the State of New York
__________
Mr. Scott. Thank you.
Mr. Weiner?
TESTIMONY OF THE HONORABLE ANTHONY D. WEINER, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW YORK
Mr. Weiner. Thank you, Chairman Scott and Ranking Member
Gohmert, for the opportunity to testify on the importance of
reducing the rape kit backlog and the progress that has been
made on this issue.
I look forward to hearing the testimony of the witnesses,
including that of Valerie Neumann, who will share her very
powerful story, and Mariska Hargitay at the Joyful Heart
Foundation, who has used her considerable fame to bring light
to this problem and also to try to find solutions.
I have been an advocate for promptly testing DNA kits for
some time. The significance of testing all rape kits can't be
overstated. Every untested rape kit is a victim waiting for
justice, a sexual predator unpunished, and perhaps more crimes
waiting to happen.
In 1999, in my first year in Congress, as a Member of this
Committee, I authored the ``DNA Backlog Elimination Act'' that
required the Department of Justice to establish a program to
assist State and local governments with their DNA backlog.
In 2000, I worked with our former colleague Bill McCollum
to pass the ``DNA Analysis Backlog Elimination Act of 2000,''
which provided Federal funding to State and local governments
to test DNA samples. That was the first time that Federal
resources had been brought to bear on that problem.
Then, in 2004, my ``DNA Sexual Assault Justice Act'' was
included in part of the ``Justice for All Act.'' This
legislation did a number of things, including increasing grants
to State and local governments for DNA testing, requiring State
and local government crime labs to undergo accreditation for
the first time and auditing every 2 years, and also providing
grants for law enforcement and medical personnel to be trained
on the collection and preservation of DNA.
Since then, I was honored to work with my colleagues to
help pass the ``Debbie Smith Reauthorization Act of 2008.'' And
I want to take a moment to highlight the work of Carolyn
Maloney on that issue. As a Member of this Judiciary Committee,
she never let me forget for a moment how important this issue
was. That law would not be a law were it not for Carolyn
Maloney, and no one should forget that.
Since 1999, there has been considerable progress across the
country in understanding the power of DNA testing. Simply put,
DNA evidence breathes life into old cases, solving hundreds in
New York City alone, and can be a lifesaver for the wrongly
accused. Testing rape kits provides much-needed information and
peace of mind for rape victims, brings rapists to justice, and
frees the wrongly convicted.
And I want to stress that final point. You know, this is
seen by many, myself included, as a very important criminal
justice tool to get the people who did crimes in jail. But it
is also a tool to make sure that we don't make mistakes. And
more and more often, we read in newspapers that DNA evidence
has been used to free the wrongly convicted. No matter what
lens you look at this issue through, whether it is a criminal
justice issue or a civil rights issue or a civil justice issue,
DNA rape kit testing is very important.
In addition to requiring all convicted felons to provide
DNA samples, during our consideration of the Debbie Smith Act I
testified about a woman being raped in 1998. For 7 years, that
case went unsolved until the State of Pennsylvania passed its
own law requiring anyone convicted of a felony to submit their
DNA to the State database. It turns out there was a DNA hit
from a man who had been convicted of forgery. This is just one
of a number of cases where DNA is bringing criminals to justice
for previously unsolved cold cases.
My hometown of New York City has been one of the success
stories. New York City, at one time, had a backlog of 17,000
rape kits. However, through a significant infusion of funding
and a commitment to justice by the Federal Government and local
leaders, New York City processed all of these rape kits, tested
each rape kit, and now does not have a backlog, Mr. Conyers.
The result of this has been at least 2,000 cold hits on
rape kits, and the arrest rate for reported cases of rape in
New York City rose from 40 percent to 70 percent, according to
Human Rights Watch. Additionally, New York City tests kits
quickly. In fact, the average for all DNA cases in New York
City's Office of Medical Examiners is 75 days. Even better is
the average turnaround for sexual assault cases, which stands
at 40 days.
However, there have been longstanding challenges in other
parts of the country. A disturbing trend has been the
difficulty for labs, the Department of Justice, and
policymakers to get a true picture of how many untested rape
kits are sitting in police storage facilities. Understandably,
local law enforcement has been reluctant to say, ``We've got
thousands of kits sitting around,'' so they are simply not
sharing the information.
In 2003, a National Institute of Justice study found that
there were over 542,000 criminal cases with possible biological
evidence sitting in local police storage facilities or forensic
labs. Additionally, this study found that the average
turnaround in the United States is--get this--between 24 and 30
weeks, compared to 30 days in England.
More troubling was that over 50 percent of local law
enforcement agencies said that forensic DNA was not considered
a tool for criminal investigations. Let me say that again: More
than 50 percent of enforcement agencies said that forensic DNA
was not considered a tool for criminal investigations.
A similar study published last year found that State and
local law enforcement agencies did not submit thousands of
unsolved homicide cases, 3,975, and rape cases, 27,595, to a
criminal laboratory at all. Over 12,000, or 40 percent, of
these unsolved homicides and rape cases contained DNA evidence.
Even more troubling was that, despite the great awareness of
the power of DNA, nearly half the law enforcement officials in
the study, as I said, said they did not even use it as evidence
in a case.
Lastly, approximately 60 percent of enforcement agencies
reported not having a computerized information system in place
capable of tracking forensic evidence. That means basically
these were boxes, rape kits on walls, with pads of paper, that
even if you had a sense that someone might have had evidence
that could solve another crime, they were unable to match those
two things together.
Finally, for these reasons, I have introduced the ``DNA
Expansion Improvement Act of 2009.'' This legislation would
increase funding to State and local governments for testing
rape kits and DNA samples; establish two new $50 million grant
programs, one for public labs to purchase or upgrade technology
and a second for testing of property crimes.
Additionally, the bill would require that all States
collect DNA from felons in prison and for all felony crimes in
the future or lose the opportunity for funding. This is
critical for States that still do not require all felons to
submit their DNA. And those two States that remain are Idaho
and New Hampshire.
As the Committee moves forward on this important issue, I
believe one of the most important aspects we need to focus on
is to get a true picture of the national backlog. And I hope
Dr. Hassell with the FBI will be able to shed some light on
this subject. Recent studies that I mentioned vary greatly, and
we need to ensure that, no matter in what city or State a crime
is committed, the rape kits are tested in a timely manner and
rapist are taken off the streets.
And I thank you, Ranking Member Gohmert and Chairman Scott.
[The prepared statement of Mr. Weiner follows:]
Prepared Statement of the Honorable Anthony D. Weiner,
a Representative in Congress from the State of New York
__________
Mr. Scott. Thank you.
Mr. Schiff?
TESTIMONY OF THE HONORABLE ADAM B. SCHIFF, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Schiff. Mr. Chairman, Ranking Member, Mr. Chairman, and
Members of the Committee, thank you for calling this important
hearing and inviting me to participate.
As my colleague Mr. Weiner pointed out, there is no
reliable accounting for the number of sexual assault kits that
are backlogged around the country or even a consensus as to
what constitutes a backlogged kit. But we do know that sexual
assault kits are sitting on shelves for months and years and
that crime labs around the Nation are struggling to do more
with less. And we know that, as a result, rapists are walking
the streets and justice for their victims is being denied.
I am sorry to say that Los Angeles knows only too well
about rape kit backlogs. In 2008, a full accounting of rape
kits sitting in storage for more than 30 days revealed that the
backlog stood at over 13,000 kits between the city and county
labs. A breakdown of that backlog revealed that over 200 kits
in the county alone were older than 10 years and, therefore,
beyond the statute of limitations for a rape case even if a
positive hit was discovered.
Los Angeles is far from alone. Many other cities have these
backlogs, whether their citizens know it or not.
When I started working to address the Los Angeles backlog,
I found that it was not as simple as putting more money into
the crime lab. New forensic scientists have to be hired,
trained, and then they have to have the lab space and resources
to do their jobs. The process from hiring and training a
scientist to the point where he or she can process a rape kit
can take years to accomplish.
To make an immediate dent in the backlog, the city and
county both employed the capacity of private labs that had the
manpower and expertise to process these kits immediately. Both
the city and county have outsourced thousands of kits. Were it
not for that option, closing the backlog would have taken years
longer, if it was possible at all.
There is a simple step that could immediately take action
to speed the processing of sexual assault evidence and improve
the efficiency of public labs. The National DNA Index System
rules govern what can be uploaded into the national database.
The rules require that any crime scene evidence outsourced by a
private lab must undergo a technical review by the public lab,
which is a manual rechecking of the private lab's work.
The technical review of each kit is a time-intensive
process. In fact, the Federal Government assisted the city of
Los Angeles with half a million dollars this year that will go
entirely toward paying the overtime for forensic scientists who
are conducting the technical reviews. For several years now, I
have been calling on the FBI to evaluate this rule in light of
the evidence that it is an unnecessary and burdensome
requirement on overstretched public labs.
There have been some suggestions that the call to look at
the technical review standards are being driven by private
labs. It is simply not the case. If you don't believe me, go to
Los Angeles and talk to Mayor Villaraigosa or Chief Charlie
Beck or Sheriff Lee Baca and ask them about the impact of
technical review on their budgets and the turnaround time for
backlogged rape kits.
Let me be clear: This is not about private labs versus
public labs. I come from a law enforcement background as a
former Federal prosecutor and have no desire to remove law
enforcement functions from public crime labs. I strongly
support building the capacity and efficiency of public labs so
they can quickly process DNA. I am opposed to opening up CODIS
to any private entity, but an overbroad and cumbersome
technical review requirement is hampering law enforcement's
ability to take dangerous people off the street.
I am pleased that, in March of this year, the FBI announced
that they were looking at a technical review rule change and
studying possible alterations. There are a range of options on
the table for the 100 percent manual review that preserve the
integrity of CODIS. Among these are expert systems that can
automate the technical review process. We can also require a
high degree of accreditation for private labs and require them
to undergo regular audits.
I believe, though, the best option would be to require the
technical review after a hit in CODIS. What we should not do is
continue to hamstring public labs that need immediate capacity
or law enforcement that needs to know whether a profile that
has been gathered from a rape kit matches a suspect already in
CODIS.
As eager as I am to hear more about the intention of the
FBI and the NDIS board to modify the existing rules, I am
concerned that the timing will do little to relieve the
immediate problem faced by Los Angeles. The LAPD has over 2,000
evidence kits that have been returned from the private labs
that are still waiting to be uploaded into CODIS because of the
several hours it takes the lab technician to perform the
technical review. This is despite the fact that, in the
thousands of kits in which the technical review has already
been performed, they haven't located a single error that
impacted the integrity of the database or would have resulted
in a false match.
For that reason, last week I sent a letter to FBI Director
Robert Mueller and Attorney General Holder asking them to
consider immediate steps to ease the technical review burden on
the LAPD. The FBI is considering options for pilot programs to
test the efficacy of alternatives to the 100 percent manual
technical review requirement, and I believe that L.A. Is a
perfect venue for a pilot project. Nine other members of the
Los Angeles congressional delegation have joined me in writing.
In requesting this pilot, we believe that Los Angeles can prove
the concept of a new technical review regime while speeding the
day that the L.A. Backlog is truly closed.
[The information referred to follows:]
__________
Mr. Schiff. In closing, Mr. Chairman, if we are able to
accelerate the uploading of these samples that have already
been reviewed in Los Angeles, these thousands of kits,
statistically we know we will take people off the street that,
if we wait, may go on to commit other rapes and murders. That
is the cost of delay.
And I want to thank you again for holding this hearing. I
hope it is the beginning of powerful action to modify the
technical review requirement and accelerate the processing of
DNA rape kits.
And I yield back.
[The prepared statement of Mr. Schiff follows:]
Prepared Statement of the Honorable Adam B. Schiff,
a Representative in Congress from the State of California
__________
Mr. Scott. Thank you.
Before we get to Mr. Nadler, I just want to recognize the
gentleman from Virginia, Mr. Goodlatte, and the gentleman from
Illinois, Mr. Quigley, who are with us today.
Mr. Nadler?
TESTIMONY OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Nadler. Thank you, Mr. Chairman.
I thank you, Mr. Chairman, for holding this hearing. And
good morning, Chairman Scott. I see now Ranking Member
Goodlatte and Mr. Chairman Conyers and fellow Members of the
Subcommittee. Thank you will for allowing me to testify today
on this critical issue of the continuing rape kit backlog.
248,288 is the number of rapes and sexual assaults that
occurred in 2007, as reported by the Department of Justice.
That is more than 679 rapes and sexual assaults every day; 28
every hour of every day. That is an unconscionable number of
people, almost all of them women and girls, victimized in the
United States on a daily basis in the most horrible way.
Rape and sexual assault are horrible crimes which can
destroy the lives of the victims and their families. They are
terrors which no one should have suffer and which it is our
duty to make sure that as few as possible suffer from.
Modern science has thankfully provided a way for us to
combat this scourge: DNA testing. By testing the DNA evidence
left at the scene of a rape or sexual assault, we can with near
certainty identify the perpetrator or perpetrators involved.
Such evidence makes it much more likely these individuals will
be captured and punished. This, in turn, allows victims to
obtain justice and society to take violent criminals off the
streets. It also allows us definitively to exonerate the often
falsely accused innocent.
Every part of this sequence is important. Tragically,
however, we continue to fail at a key step in the process: the
collection and testing of evidence. Compounding the terrible
crime itself is the crime that tens of thousands of rape kits
which hold the key to justice and to prevention are not being
analyzed in a timely manner. That there is any rape kit backlog
at all is simply wrong and intolerable, and that we have known
about it for as long as we have and have not done that much
about it is also wrong and intolerable.
For many years, this Committee has worked to end the rape
kit backlog. Back in 2002, I introduced the ``Rape Kit DNA
Analysis Backlog Elimination Act,'' which authorized $250
million to help police departments finance testing rape kits,
thereby reducing their backlog. Working with my colleagues and
with outside organizations, we kept up the pressure to deal
with the problem.
Finally, in 2004, I was an original cosponsor of the
``Justice for All Act,'' introduced by the then-chairman of
this Committee, Representative Jim Sensenbrenner. That bill
included many of the provisions of my 2002 bill and of
Congressman Weiner's earlier bill.
Title II of that bill, known as the Debbie Smith Act, which
was Congresswoman Maloney's title, authorized hundreds of
millions of dollars for DNA testing and strengthened the
ability of State and local law enforcement specifically to test
rape kits.
Last year, the Appropriations Committee proposed a fiscal
year 2010 appropriation for this program of $146 million, less
than authorized and less even than the prior year, for fiscal
year 2010. This was unacceptable. The lives and wellbeing of
too many women across the country was at stake. So I moved an
amendment to the budget last year, joined in that effort by
Representatives Maloney and Mike Michaud of Maine, to increase
funding to the fully authorized amount. The amendment was
adopted by a vote of 411 to 1, which shows the feeling in this
House on this subject when properly mobilized. So we got the
full funding.
Despite this, the rape kit backlog continues to be a major
problem, and progress is extremely uneven across the country.
As already mentioned, we don't even know a lot of the data. For
example, we know that there remain 5,000 untested rape kits in
Illinois and 4,000 in the city of Houston alone. At the same
time, New York City has eliminated its backlog, as Congressman
Weiner mentioned. Because of this unevenness and the lack even
of adequate data at to the scope of the problem nationwide and
as to the nature of the problem in many areas, we really need a
nationwide solution.
I am grateful the Committee is holding this hearing on this
continuing crisis, because a crisis it is. The Committee has
assembled an excellent group of witnesses. I wish to thank my
colleagues on this panel for their hard work on this issue.
I look forward to the testimony of the witnesses on the
next panel, in particular, to help us determine what changes to
the current law are necessary--there are a number of bills
already in; there may be more--and how much more in the way of
resources we need, as well as changes in law, to ends the rape
kit backlog once and for all and to bring finality and justice
to this issue.
Thank you again for allowing me the opportunity to testify.
And I expect to go to the other side of the table soon to
listen to the testimony of our next panel. I thank you again.
[The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler,
a Representative in Congress from the State of New York
__________
Mr. Scott. Thank you.
I don't have questions; the Ranking Member doesn't have
questions. I recognize the Chairman of the full Committee.
Mr. Conyers. Mr. Chairman, I just wanted to thank these
four Members of Congress for their incredible tenacity and
understanding and evaluation of the problem.
I think, with Eric Holder over there at DOJ, we are going
to get some movement on this in the 111th Congress. And I thank
you for holding the hearing.
Mr. Scott. Thank you.
And I thank our witnesses.
If our next panel will come forward?
As the next panel is coming forward, I will begin the
introductions.
Our first witness is Kym Worthy, the Wayne County,
Michigan, prosecutor. She began her legal career at the Wayne
County Prosecutor's Office and, in 1994, was elected to the
Detroit Recorder's Court. Her career came full circle in 2004
when she returned to the Prosecutor's Office as the Wayne
County prosecutor, the first African American and the first
female to hold that position.
Our second witness is Valerie Neumann. She was sexually
assaulted by a man she met while celebrating her 21st birthday.
Over the next year, she followed up with the police to see if
her rape kit had been tested and later found out that her rape
kit had not been sent to the crime lab for testing. Eventually,
the prosecutor in her case declined to prosecute, and her rape
kit was never tested. Valerie is currently in school in
Wilmington College in Cincinnati, Ohio, working on her master's
degree in business management.
Our third witness is Mariska Hargitay. She founded the
Joyful Heart Foundation after hearing stories of sexual assault
survivors who contacted her about their cases after seeing her
in her role as Detective Olivia Benson in ``Law and Order:
Special Victims Unit.'' The foundation's mission is to heal and
educate and empower survivors of sexual assault, domestic
violence, and child abuse and to shed light on the darkness
that surrounds these issues. And, as Representative Weiner
indicated, she is using her considerable fame and a lot of time
to help victims of sexual assault.
Our next witness is Christian Hassell, assistant director
of the FBI Lab Division. He came to the FBI from Oklahoma State
University Multispectral Laboratories, where he led research,
development, testing, and evaluation. He earned his Bachelor of
Science degree in chemistry from Brigham Young University and
Ph.D. in analytical chemistry from the University of Texas at
Austin.
Our fifth witness is Jeffrey Boschwitz, vice president of
Orchid Cellmark, Incorporated. Orchid Cellmark invented some of
the technology used for forensic DNA testing today and is one
of the largest private labs providing forensic human identity
testing. He earned a Ph.D. In immunology from Cornell and
completed his post-doctoral work at Stanford.
And today's last witness is Peter Marone, director of the
Virginia Department of Forensic Science. He began his forensic
career at the Allegheny County Crime Lab in Pittsburgh until he
accepted a position at the Virginia Bureau of Forensic Science.
For many years, the Virginia Bureau has been in the forefront
of DNA testing. The bureau was responsible for some of the
earliest DNA convictions and is, in fact, an inspiration of
Patricia Cornwell's book series featuring Dr. Kay Scarpetta and
her detective sidekick, Pete Marino. In 2007, Mr. Marone was
appointed director of the Virginia Department of Forensic
Science. He has a bachelor of science and a master of science
in chemistry from the University of Pittsburgh.
Now, each of our witnesses' written statements will be
entered into the record in its entirety, and I ask each witness
to summarize your testimony in 5 minutes or less. And to help
you stay within that time, there is a timing device at the
table that will begin with green, turn orange when there is 1
minute remaining and red when the 5 minutes have expired.
We will begin with Ms. Worthy.
TESTIMONY OF KYM L. WORTHY, ESQ.,
WAYNE COUNTY PROSECUTOR, DETROIT, MI
Ms. Worthy. Thank you. Thank you to all of you for having
me in to talk about this issue.
In 2008, there were almost 15,000 murders in the United
States, according to FBI statistics. Contrast that with, in
September of 2009, last year, 12,000 untested rape kits were
discovered in the Detroit Police Department property room
annex. We now believe the real number is 15,000 and climbing.
This is one city in one county in one State.
This represents 15,000 rape victims whose lives are now
sitting on a shelf, abandoned, forgotten, and ignored. How old
some of these tests are I do not know. Victims who thought
their cases were being investigated and paid attention to.
I want to just take you through very briefly, although I
cannot describe the horror, of what a victim goes through in
going through a rape kit test. They can last for hours and
hours. And it is done under an ultraviolet light, and every
crack and crevice of their bodies are literally examined,
prodded, poked. Every orifice is scrutinized for semen, hair,
fibers, anything that can lead to evidence and a prosecution.
Again, I cannot adequately describe how horrific this exam is.
Then, to have all of this packaged up and transferred to a
local police department, only to sit on the shelf for years. We
believe that some of these rape kits in the city of Detroit are
over 10 years old. So they are victimized again.
Rape cases are among the hardest to prosecute, short only
probably of child molesting cases. As you have indicated, I am
the elected prosecutor for the county of Wayne. Some of your
jurisdictions call us district attorneys. Wayne County is in
Michigan, the largest county in the State. I am responsible for
43 cities, townships, and municipalities. Detroit, obviously,
is the largest city, and Wayne County is the 13th largest
county in the Nation.
As you stated, I was a previous assistant prosecutor, where
I personally prosecuted thousands and thousands of cases. I was
also a sitting judge on the circuit court, where I personally
presided over 5,000 cases. My office, the Wayne County
Prosecutor's Office, prosecutes 80,000 cases a year; 30,000 of
those are felonies. And we do it with only 150 assistant
prosecuting attorneys.
And I am saying this for a reason. Three thousand cases, on
average, of rape are reported in Wayne County. And it is
important to note that these are the people that come forward
and report it. As we know, in this crime, most people do not
report it. Approximately 2,500 of those are in the city of
Detroit, and 500 of those are in my other 42 cities.
Now, this is astounding. That means that our closure rate
is under 30 percent. Over 70 percent of the rapists in Wayne
County go unprosecuted and they do not get arrested. And that
means those rapists are free to rape again. Fifteen thousand
untested rape kits means 15,000 cases that are not in CODIS,
the DNA database, as you know. And can you imagine if those
cases were in the database? Our closure rate wouldn't be under
30 percent.
I can give you case after case after case and much
anecdotal evidence about cases that we have found that were not
in CODIS before. I want to give you two quick examples.
One is we had an East side rapist in the city of Detroit
that had raped nine women. When finally we got the hit, we
found out that this was a person that had raped four or five
other women previous to that. And if those rape kits had been
tested, the nine following women would not have been raped.
We have one more case I want to fell you about because this
involved a child. We had a CODIS hit that was not put in
properly. The rape kit wasn't done until it was found later. We
got the CODIS hit, and we found out there had been a woman that
had been raped previous under that test. And there were two 13-
year-old girls that were then raped after that that would not
have been raped if that rape kit had been properly processed.
Detroit's problem is a little unique. It is not really a
backlog; it is really even worse. These are cases that were
just thrown into an annex property room, in a corner, some in
barrels, some out, some not properly preserved, in a corner
doing nothing. A backlog presumes that you are actually working
on the case and you are just behind. But what we had in the
city of Detroit is, on these boxes and barrels, they were not
even touched and tested.
Let me tell you why that is problem. As I indicated, I was
an assistant prosecutor for almost 12 years and on the bench
for 9, the trial court, the circuit court in Wayne County. I am
used to that work; I am used to the pace. We do 80,000 a year.
Our judges are constantly telling us to push, push, push, get
cases done.
And that means oftentimes when I was an assistant I had to
prosecute many rape cases without the rape kit. We were told by
the police department that often they were lost, they couldn't
find them, they were denigrated--all kinds of things. And now
we find out where they are and where they were after all these
years.
So the horror of that is, though, as a prosecutor, I could
possibly have prosecuted people that the rape kit would clear
them and exonerate them. And, as a prosecutor, one person
wrongfully convicted is one too many. So it is not only that we
have victims that are being ignored and their rape kits aren't
being tested, we could possibly have defendants serving long
periods of time that could be exonerated by the rape kit.
When you are a busy urban courtroom, I cannot tell you the
madness of trying to get these cases done. And, again, you have
to rush everything through, and certainly if we don't have all
the available evidence, then sometimes justice is not done.
That is important because prosecutors have dual responsibility.
Our role is not only to prosecute zealously, but it is also to
protect due process rights of each and every defendant.
Now, I don't know how much time I have, so I wouldn't
detail the audit process that we have to go through right now.
But we have picked 400 cases. This has been done through
Michigan State University, who has given us a statistical
analysis of how many cases we have to look at and test to
determine what we have in this 15,000. We don't know how many
defendants are dead. We don't know how many victims are dead.
We don't know how much the evidence has been compromised. We
don't know how many cases want to go forward. And that is what
this audit is going to tell us, and I will send you some
written evidence about that.
This bill is extremely important. What I am most interested
in as a prosecutor, besides what I have described, is
accountability. The police departments in my area and across
this country have gotten millions and millions of dollars'
worth of stimulus funds and other funds as well. And cops on
the street are very important, to be sure, especially in a city
like I have to deal with, where we have monumental issues
besides just our crime problem.
But, at some point in time, police officers have to be told
that they have to be accountable for these rape kits, as well,
a problem that they caused. And some of these funds need to be
used, as well, to straighten out the problem in our
overburdened crime lab and getting these rape kits tested. We
are told that, to test these 15,000 rape kits, it is going to
cost us between $40 million and $50 million.
So, again, just to summarize, the most significant items of
this bill: the backlog reduction; prompt, new universal
testing; backlog measurement; and, certainly, rape kit billing
fix. No victim should ever have to pay for their rape kit to be
done.
I thank you so much.
__________
Mr. Scott. Thank you.
Ms. Neumann?
TESTIMONY OF VALERIE NEUMANN,
SEXUAL ASSAULT SURVIVOR, CINCINNATI, OH
Ms. Neumann. Good morning, and thank you for giving me the
opportunity to speak in front of you today. It means a lot to
me that you have invited me to tell my story.
I would like to start by telling you a little bit about
myself. My name is Valerie Neumann. I live in Cincinnati, Ohio.
I am currently getting my bachelor's degree in business
management, and I also work full-time for Procter & Gamble.
This past December was my birthday and the 3-year
anniversary of when I was raped. For my birthday in 2006, a
friend of mine took me out to dinner. After dinner, she asked
if I wanted to join her boyfriend and his friends, most of
which I had never met, for drinks at a bar nearby.
When we arrived, one particular man, an acquaintance of my
coworker's boyfriend, immediately started buying me drinks. The
drinks made me very sick. The nurse at the hospital would later
describe what I began to feel similar to what a date-rape drug
feels like. And so my friend took me to her home. Some people
from the bar decided to go over to her house, too.
When we got there, my friend helped me upstairs and made me
comfortable in the bathroom. Later that evening, my friend was
yelling at her boyfriend to make sure all the guests were out
of the house before she went to bed. The two of them went to
bed.
Everyone but the man who bought me drinks at the bar had
left. He had other plans. At some point later that night, he
came into the bathroom and laid down behind me. He kept asking
me if I wanted to go down to the couch with him. I was so sick,
but I was able to tell him ``no.'' When I refused, he tried
sliding his hands down my pants and up my shirt. I remember
telling him over and over again, ``No, no, I don't feel good.''
I thought I had eventually gotten him to leave me alone. I
was wrong. When I woke up the next morning, my pants and
underwear were around my ankles and my bra was unfastened. I
knew something was very wrong, but at the time I was so sick,
confused, and scared that the pieces weren't coming together.
It wasn't until I got home and undressed to take a shower
that the reality really sank in. I found a large friction burn
on the back of my neck, bruises of finger indentations around
each of my wrists, and scratches on my back.
I went to show a good friend of mine the marks and asked
her opinion. She told me I needed to go to the hospital. I
realize it is silly now, but at the time I just wanted to
forget anything that happened that night. I was scared to face
reality. I had just started a great job. I had plans to go back
to school. I had so many things to look forward to. The last
thing I needed was this.
Although I wanted to pretend nothing had happened, I knew
what I needed to do. I called my parents, and they met me
outside of our house. I told them that I thought I had been
raped. We immediately headed for the hospital.
The police officers and social workers at the hospital said
I needed to have a rape kit taken. I gave a statement to the
police officers while waiting for a SANE nurse to arrive at
hospital.
The collection of a rape kit is a 4- to 6-hour process of
pulling hairs, swabbing, and taking pictures. It took longer
than I expected, and it was really hard to go through. My only
consolation was that the exam could be used to put my rapist
behind bars.
The SANE nurse put in her report that she found evidence of
forced sexual penetration. I had lots of redness and a tear
around my vaginal area.
The police officers took my statement at the hospital and
asked me about the person who had raped me. I didn't know his
name, only his nickname. But when I gave them a physical
description of him, they told me and my father that they knew
the guy I was talking about. He had done this sort of thing
before. The police officers called their detective, and he went
to my friend's house that night with a warrant to collect
evidence.
The next morning, I had to go to the police station to give
an official statement to the detective. Unfortunately, after I
gave my statement, I didn't hear from the police again for a
very long time. I had to fight to get any information. I
started calling every other day, then once a week, every other
week, once a month, et cetera. Many phone calls were never
returned. It was exhausting to be my own advocate.
It took a year for the detective to send my case to the
prosecuting attorney's office. And then 6 months later, the
prosecuting attorney told me they wouldn't be trying my case
because they decided it was unwinnable given the fact I had
been drinking the night of my rape and it was an acquaintance
rape. I tried to explain that I had not even known the man's
name until the police told it to me, but the prosecutor had
seemed to make up his mind: Case closed.
What was perhaps the hardest was that my case was closed
without my rape kit being tested. Right after I went to the
police, the suspect had gotten a lawyer. He issued a statement
through his lawyer that he had no sexual contact with me that
night.
The same nurse told me she had found semen in numerous
places on my body. If they had tested my rape kit, the semen
they found could have matched back to the suspect. It would
have validated my claim that I was raped and discredited his
claim that he had no contact with me at all.
When I later called the prosecutor's office to ask why my
rape kit hadn't been tested, a representative from the
Kentucky's prosecuting attorney's office left a voicemail on my
cell phone stating they didn't have the funds to test a kit in
a case like mine. It has now been 3 years, 5 months, and 4 days
since the night I was raped, and my kit remains untested.
In recent months, with the help of news networks and
nonprofit organizations, such as CBS Evening News, RAINN, and
Human Rights Watch, a spotlight has been put on the rape kit
backlog. The fact is, many States have no idea how many
untested rape kits they have in their procession.
Testing a rape kit is so important because it can identify
an assailant; confirm a suspect's contact with a victim;
corroborate a victim's account of the crime, especially useful
on acquaintance rapes; and connect apparently unrelated crimes
and exonerate innocent suspects.
A law enforcement decision to test a rape kit is an
indication of commitment to build a strong investigation.
National studies have shown that cases in which a rape kit was
collected, tested, and found to contain DNA evidence are more
likely to move forward in the criminal justice system.
Conversely, untested rape kits typically represent lost justice
for victims, and it often means a rape investigation was cut
short before the offender could be brought to justice.
The unfortunate truth is our justice system doesn't work as
smoothly as it appears on TV shows like ``CSI.'' I used to
believe in our justice system, but after my experience, I have
lost faith. I can honestly say that if I were raped again, I
don't know that I would choose to go to the hospital and be put
through a rape kit again. We ask so much of victims right after
they have been raped but don't follow through in the end.
The hearing on the rape kit backlog means so much to me for
many different reasons. I believe we need Federal leadership on
the rape kit backlog, and I am so inspired that you are here to
provide that leadership.
I personally have made peace that my assailant will never
be brought to justice, as the prosecuting attorney has made it
very clear they will not go back and test my rape kit. I am now
turning my energy toward advocating for every rape victim whose
kit remains sitting on a shelf untested.
This has been a liberating experience for me. I have been
able to confront my fears about speaking out as a rape victim
through the opportunities I have been given as a RAINN Speakers
Bureau member and have grown stronger in the process. Although
I feel justice wasn't served for me, I am comforted by the fact
that I am part of making change for the future. It is my hope
that rape victims won't have to experience the frustrations and
disappointments that victims like myself and so many others
have. Rape is traumatic enough; the rape kit exam and stuff
thereafter shouldn't add to that trauma.
Thank you for your time today. I am so grateful for you
listening to my sorry. I want to especially thank Congresswoman
Jackson Lee for submitting a letter to Chairman Scott on my
behalf requesting the hearing and to Chairman Scott for asking
me to testify.
[The prepared statement of Ms. Neumann follows:]
Prepared Statement of Valerie Neumann
__________
Mr. Scott. Thank you.
Ms. Hargitay?
TESTIMONY OF MARISKA HARGITAY,
JOYFUL HEART FOUNDATION, NEW YORK, NY
Ms. Hargitay. Chairman Conyers, Chairman Scott, Ranking
Member Goodlatte, and distinguished Members of the
Subcommittee, you have honored me deeply by inviting me to
stand with you and among you in our common cause.
I am especially honored to be here in the year of the 15th
anniversary of the ``Violence Against Women Act.'' I honor the
stand you have taken, because you have the power to help
survivors heal and reclaim their lives.
For the past 11 years, I have played a sex crimes detective
on ``Law and Order: Special Victims Unit.'' The show is indeed
fiction, but the fiction is based on horrific facts--like the
fact that, in the time it will take us to conduct this hearing
this morning, 60 individuals in the United States will be
sexually assaulted.
But it wasn't only the statistics that pressed the tragedy
and the pervasiveness of these acts into my consciousness. It
was also the letters and e-mails I began receiving from victims
of abuse, sharing their stories, and many for the very first
time. I remember--I am sorry. I remember my breath going out of
me for the very first time when the first letter came, and I
have gotten thousands like it since.
I responded by starting the Joyful Heart Foundation in
2004. Our mission is to heal, educate, and empower survivors of
sexual assault, domestic violence, and child abuse and to shed
light into the darkness that surrounds these issues. I am proud
to be part of this movement that will change the way we respond
to these epidemics.
I have been invited here today to talk to you about the
crucial piece of that response, eliminating the backlog of
untested kits in the United States. While I am not an expert, I
am indeed an advocate in the literal sense of the word, one who
calls out to you, on behalf of the thousands of survivors whose
voices, courage, and hope for justice I am honored to bring
with me into this room.
Every year in the United States, more than 200,000
individuals take the courageous step of reporting their rape to
police. And because of what those individuals have suffered,
their bodies are crime scenes--living, breathing, feeling crime
scenes--from which we collect a rape kit.
Experts estimate that there are hundreds of thousands--
hundreds of thousands--of untested rape kits in police and
crime lab storage throughout the country, as Ms. Worthy said.
The benefit of testing rape kits goes beyond introducing
the clarity of DNA evidence in the arena of rape and sexual
assault, the crimes with the lowest reported arrest and
prosecution rates in the United States. These kits represent
human beings who have suffered greatly. Testing their rape kits
sends a fundamental and crucial message to victims that they
and their cases matter. Not testing the rape kits sends the
opposite message.
Take the example of a survivor that we worked with at
Joyful Heart, a woman named Helena from Los Angeles. When
Helena was 17, she was abducted at knifepoint from a car wash
and raped repeatedly. Afterwards at the hospital she submitted
a rape kit, and for the next 13 years was unable to ascertain
the status of her kit.
Helena lived every day of those 13 years in fear of the
rapist, who had vowed to kill her family if she reported the
crime, who had vowed to return and take her as his own.
When the rape kit was finally tested, the results revealed
that her rapist was serving a 25-year sentence in Ohio. He was
known to have raped two other women while Helena's kit sat
untested. The statute of limitations of her rape had run out,
but prosecutors are currently pursuing a life sentence for the
abduction charge.
Helena said, ``Finally, my nightmares have stopped almost
altogether. I have a sense of security that I haven't felt in
over a decade. My home is my own. My family is safe.''
We must urge law enforcement, after a victim has given her
consent, to send in the rape kits for testing. We must provide
law enforcement and prosecutors with training and tools to
investigate and prosecute sexual assault cases. We must provide
our inundated crime labs with funding to build their capacity.
We need better technology to document the number of rape
kits in storage facilities. We need public awareness to address
bias against rape victims. And, most importantly, we must keep
the victim at the center of the reforms. And that means
ensuring the victims can receive information about the status
of their cases, creating protocols for victim notification with
rape kit results and testing decisions, and providing short-
term and long-term supportive services.
At Joyful Heart, we envision a community that says to a
survivor, ``We are not impervious to your suffering. We will
give you our ears if you wish to speak your anguish. We will
lends you our voices if you cannot find yours. You have
suffered enough, and your healing is our priority.''
You here today are all a shining example of a community
that can strengthen the possibility of healing survivors,
because you are acknowledging, responding to, and taking action
to end suffering. You have my fierce commitment to use my
voice, to commit my resources, and do whatever it takes to
bring safety, compassion, healing, and justice to victims and
survivors of sexual assault.
Thank you for this honor to be here today.
[The prepared statement of Ms. Hargitay follows:]
Prepared Statement of Marishka Hargitay
__________
Mr. Scott. Thank you.
Dr. Hassell?
TESTIMONY OF CHRISTIAN HASSELL, Ph.D., ASSISTANT DIRECTOR,
LABORATORY DIVISION, FBI, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Hassell. Thank you.
Chairman Scott, Ranking Member Goodlatte, Chairman Conyers,
and Members of the Subcommittee, I thank you for inviting the
FBI to provide an update on our activities that are related to
the Combined DNA Index System, or CODIS, which supports our
national DNA database.
While I will be discussing several issues today, I will not
be addressing the activities of other components within the
Department of Justice, which have included the administration
of hundreds of millions of dollars in grant funding. The
Department will be submitting a statement for the record that
fully details those activities.
[The information referred to follows:]
__________
Mr. Hassell. CODIS refers to the entire program of DNA
indices that includes both the offender index and the forensic
casework index. It integrates this information at three levels;
that is the national, State, and local level.
The acronym ``NDIS'' stands for the National DNA Index
System. And for our general discussions today, we can just
consider that CODIS and NDIS are going to be used synonymously.
One of the underlying concepts behind the development of
CODIS was to create a database of a State's offender profiles
and use it to solve crimes for which there are no suspects. For
example, a DNA profile may be developed from a sexual assault
evidence kit.
If there is no suspect to match that profile with, then
NDIS can be then utilized in two ways.
First the profiles can be searched against the offender
daily index to possibly link that kit to a particular offender
already in the database. Second, if there is no match in the
offender index, the DNA profile is searched against other
crime-scene DNA profiles contained in the forensic index. If
there is a match here, that means that two or more crimes can
be linked, and the law enforcement agencies involved in the
separate cases were able to exchange information to help
identify the perpetrator.
There are currently over 8 million offender DNA profiles
and 300,000 forensic profiles contained within NDIS. Since its
inception in 1990, the system has assisted in over 112,000
investigations at the national, State, local and tribal levels
by either identifying the perpetrator or by linking crimes.
Let me state clearly, we recognize there is a real person
behind each of these numbers. And we further recognize that we
have an obligation to serve those victims by ensuring that the
system is as efficient as possible, while maintaining the
integrity that is associated with forensic DNA analysis.
Because of limited capacity, Federal, State and local
laboratories are often forced to prioritize their cases based
on court dates and whether or not a suspect has been
identified. This often leaves those cases in which there is no
suspect--that is, those cases for which CODIS was specifically
designed--they remained unanalyzed in evidence storage.
To help relieve this backlog, some Federal, State, and
local crime labs utilize private commercial labs to analyze DNA
samples, and thus these vendors play an important role in the
overall NDIS process.
Approximately half of the DNA offender records in NDIS were
analyzed by private laboratories operating under contract to
government agencies. The FBI laboratory is currently performing
a review to determine what improvements can be made to
facilitate more timely uploading of DNA records into NDIS. This
includes reevaluation of existing policies, standards, and
protocols that guide the use of private laboratories in law
enforcement DNA analysis.
This review was only initiated recently and no changes have
yet been made to any procedures or standards that are
associated with NDIS. The review includes the FBI's engagement
with many stakeholders, including State and local law
enforcement, their associated laboratories, and various
scientific and accrediting organization.
As the administrator of NDIS, the FBI has an obligation to
perform this review to ensure that law enforcement agencies are
not hindered by excessive procedural requirements, thus
limiting the quantity of samples that are added to NDIS. At the
same time, we have an obligation to ensure that the quality of
the data is not endangered by lack of oversight and procedural
integrity.
NDIS has proven to be invaluable for the law enforcement
community and ultimately to crime victims and their families.
Since more crimes are solved, as more records are placed in the
database, enhancing the operational procedures is imperative
for optimal efficiency.
Since its inception, the field forensic DNA analysis has
relied on scientific validation as the basis for decisions. And
indeed the 2009 National Academy of Sciences Report on the
Current State of Forensic Science notes a need for scientific
validation and for data-driven conclusions for all disciplines
citing DNA as a model. This evaluation, as I described, is no
different and it will be validated and data-driven. At the same
time, the FBI is committing considerable resources to ensure
that it is carried out as quickly as possible.
Thank you again for allowing the FBI to explain its
position on this important issue.
Mr. Scott. Thank you.
[The prepared statement of Mr. Hassell follows:]
Prepared Statement of Christian Hassell
__________
Mr. Scott. Mr. Boschwitz.
TESTIMONY OF JEFFREY S. BOSCHWITZ, Ph.D., VICE PRESIDENT, NORTH
AMERICAN SALES AND MARKETING, ORCHID CELLMARK, INC., PRINCETON,
NJ
Mr. Boschwitz. My name is Dr. Jeff Boschwitz. I am vice
president and executive officer of Orchid Cellmark, one the
largest worldwide providers of forensic DNA testing. On behalf
of the company, I would like to thank the Committee and
Chairman Scott for the opportunity to provide testimony on this
important subject.
Cellmark was one of the originators of the technology used
today for forensic DNA testing. And as the only private lab
with significant presence in both the U.S. and the U.K., it is
uniquely positioned to share insights on the rape kit testing
backlog issue with the Committee.
The NIJ's most recent estimate of the Nation's DNA testing
backlog shows that it actually tripled between 2005 and 2008 to
70,000 cases, despite the hundreds of millions of dollars
invested to eliminate it. This does not even count the hundreds
of thousands of rape kits that are in police storage and have
never been submitted to the crime lab for testing.
One of the concerns raised about testing these rape cases
is there is not sufficient financial resources to meet this
incremental testing demand. While incremental funding would
certainly be of benefit.
We also want to make the Committee aware, as Congressman
Schiff has, that specific regulatory changes can be made to
increase the available testing resources without incremental
spending by eliminating some of the obstacles with more
effective public-private partnerships, as Dr. Hassell just
referred to.
Under the current quality assurance standards developed by
the FBI, public and private labs must meet the exact same
accreditation and quality standards for day-to-day generate to
be eligible for upload in the CODIS. As part of these
standards, both public and private labs must perform two
technical reviews of data. When the public lab has completed
that second review, standard 17 of the quality assurance
standards dictates--I'm sorry. When the public lab concluded
that second review, the data can then be uploaded in the CODIS.
When the private labs completed that second review,
standard 17 dictates that the data must be sent to a public lab
for a third review of each case by a public lab employee before
the result can be uploaded in the CODIS, as Congressman Schiff
alluded to. The direct impact of this rule is an additional 90
minutes to 4 hours of public lab labor per case, which can add
as much as 25 percent to the cost of testing; more, if overtime
is used, which is often the case. And Congressman Schiff
referred to use of overtime in L.A.
On top of this cost, standard 17 also requires that public
labs perform at least one site visit to each private lab it
utilizes, even though these labs are audited by the accrediting
agencies. These rules exist today despite an absence of any
published empirical evidence that we are aware of by a third
party showing differences in public and private lab data
quality. And in the face of statements from Marsh private lab
users like LAPD, as Congressman Schiff mentioned, do not find
errors in these reviews. It is not to say the private labs have
not made mistakes in the past.
There are also, of course, numerous examples of public lab
errors, as the Committee is aware. And new evidence that the
incremental burden being placed on public labs for this review
is benefiting victims in law enforcement.
On the other hand, the negative impact of these rules on
victims and law enforcement is significant. As Congressman
Schiff mentioned, because the analysts must perform these
reviews on top of their existing caseload, it can take months
for the reviews to be completed and the data to be uploaded in
the CODIS. The time it takes to clear the second backlog
results in an even greater period of time for a serial criminal
to remain free and commit additional crimes.
Finally, because the public labs don't have the extra
resources to perform these reviews, many don't consider public-
private partnerships to be a viable option at all, even when
the alternative approach may take longer and ultimately cost
more money.
As an example, the recent CBS news report, ``The Rape Kit
Backlog,'' there was a 500-case stranger rape backlog
identified in Oakland which they said would take at least 2
years to complete, even though working with a private lab would
lead to backlog completion less than 6 months. That is up to 18
more months that rapists could have been caught, that they will
be free to commit additional crimes.
The impact of the rules on the efficient use of existing
funding to test rape kits for DNA is also significant. Private
labs, because they compete for contracts on costs and quality,
and have dedicated IT and R&D resources focused on innovation
and continuous improvement can be at much as 25 or 50 percent
more cost-efficient than public labs. In fact, cost differences
are greater when you consider Federal grants, since Federal
grant money can only be used for overtime when not used for
private labs or equipment.
The negative impact on the regulations is also great when
you consider how they are actually preventing law enforcement
from funding DNA testing out of their discretionary budgets.
There are several examples, particularly in States like
Texas, where local law enforcement has been told by their local
lab that they cannot contract out for testing, specifically
because of the incremental burden placed on the lab by standard
17. So even when there is money to complete additional DNA
testing, the testing is not performed in crimes, including
rapes, which otherwise could have been prevented can be
committed.
The case study for the benefits of modifying standard 17 is
well-established in the U.K., where public labs and private
labs have had to meet the exact same quality of standards and
accreditation requirements for several years. This has enabled
the U.K. To take advantage of the power of competition to
increase service and quality and decrease costs. Results have
been compelling. Not only has the backlog in the U.K. Been
eliminated, but the cost of testing has dropped significantly
at the same time, and contract turnaround time for testing has
been greatly shortened. In fact, in some cases contract
turnaround time for no suspect rape cases is just 10 days. For
property crime it is just 3 days. For convicted offenders'
samples, it is just 2 days.
So why not modify standard 17? We have spoken with over 20
public labs for input on this matter and I have identified
several important concerns and some misperceptions that we
believe can be mitigated, addressed, or clarified. In the
interest of time, we have left the detail addressing these
concerns in our written testimony.
Thank you, Chairman Scott, and the Committee, for your
attention.
Mr. Scott. Thank you.
[The prepared statement of Mr. Boschwitz follows:]
Prepared Statement of Jeffrey S. Boschwitz
__________
Mr. Scott. Mr. Marone.
TESTIMONY OF PETER MARONE, DIRECTOR, VIRGINIA DEPARTMENT OF
FORENSIC SCIENCE, RICHMOND, VA
Mr. Marone. Thank you, Chairman Scott, Ranking Member Poe,
Chairman Conyers. I thank you for inviting me to testify today.
I am testifying as the director of the Virginia Department of
Forensic Science. Today we have heard about the horrible crimes
that were inflicted upon innocent victims. Like you, I struggle
to understand the victim's fear, anguish and anger, but we
can't really possibly understand the suffering endured by
sexual assault victims. All we can do is work tirelessly to
bring the justice they serve.
And, by the way, thank you, Chairman, for not mentioning
that I started this work career, if you will, in 1971. The idea
that sexual assault evidence can sit stagnant is difficult to
comprehend and even harder to explain. It is the result of
capacity not keeping up with demand.
Mr. Chairman, in the past you have asked me before what it
would take to fix things; and just as I answered before, I give
you the same answer. It is not a--just a simple answer. It is
not only about getting rid of backlogs. Backlogs are not the
disease, they are the symptom.
The cure comes from increasing capacity of crime labs to
handle the number of cases coming in the door. According to the
Department of Justice, over the period covering the funding
over the Debbie Smith Act, the capacity to process DNA cases
has increased nationally by threefold. During that same time,
however, the demand for testing has also increased threefold.
Ironically, the increase in backlogs does not come from an
increase in crime; rather, it comes from an increase in
knowledge, an increase in the types of cases to analyze that
are available, and the sensitivity of the methodologies that we
have been using.
Crime laboratories as a whole don't treat cases on the
basis of bulk numbers but, rather, by crime type and the
circumstances of a particular case. Each case is evaluated
separately. Each case is different.
We understand the value of analyzing sexual assault
evidence. Investigation of sexual assaults and the prosecution
of sexual predators is very complex, involving many parties in
the criminal justice system, and a lot of collaboration.
Through the testing of physical evidence associated with
sexual assault, the Nation's crime labs brought out a critical
investigative tool for the prosecutorial tool and defense tool.
Though DNA has received the most attention when discussing the
investigation of physical evidence associated with sexual
assault, several other forensic sciences provide invaluable
investigative information.
In Virginia I know, for example, that 25 percent of the
cases that we worked that come in with a named suspect, that
individual is eliminated as being the perpetrator in DNA.
Latent prints are collected and can be used to identify
suspects. Trace evidence such as fibers and shoe prints, can be
used to associate a suspect or crime to a scene or a victim,
and toxicology tests of the victim's blood or urine can be used
to identify drugs that may have been used to subdue the victim.
My point is, the issue at hand is much more than just rape
kits. And all morning we have been speaking about rape kits.
There is a significant amount of more evidence than just a kit.
Many of those cases come in with clothing and bedding and all
sorts of other types of evidence. In Virginia, I know for
example, that 15 to 20 percent of the sexual assault cases
involve forensic examinations other than DNA. These additional
examinations are not necessarily requestedat the time of the
submission. Many of them occur during the examination process,
since the examiners are specifically and constantly looking for
that next piece of evidence that might help solve the case.
For some labs the pressure has caused them to outsource the
analysis of rape kits as part of their prioritization in
deadlines to process kits. This has caused some issues in
States with timeliness of work. Private labs state they have
the capacity to work a significant number of cases relatively
inexpensively and much more quickly than public labs. The
figures often given often do not include the issues of the
initial analysis that I spoke of; that is, the preparatory work
before you get to perform the DNA.
When a laboratory outsources a case, they must identify the
samples to be tested and forward it for outsourcing. If not,
that contract has to include, with a private lab, that type of
analysis. And the cost of those figures are not the same as
just working DNA. The process is often more time-consuming.
That initial analysis is more time-consuming for the analysis.
Performing DNA testing on a specific set of selective
samples requires much fewer resources. Individuals who were
performing initial screening of cases for the purpose of
identifying those cases that are to be outsourced are
consequently not available for actually working the cases. They
are just inventorying them and getting them ready to go out the
door. Yet the value of the research often isn't figured into
the projected cost of the outsourcing analysis.
The other issue of what actually occurs when outsourced
cases eventually go to trial has really not been adequately
addressed. I know of instances where outsourcing has resulted
in logistical problems in scheduling expert witnesses when it
comes time for the court docket and the schedulers.
Additionally, there are questions regarding who pays for the
expert testimony and travel costs.
I know if you look at it from a broad picture, there is
probably only 5 or so percent of those cases that go to court;
but for Virginia, working 300 cases a month as we do, that is
16 cases a month that we go to court on. And that could be
$32,000 that somebody has to cough up to pay for that
testimony, not just a simple 5 percent increment.
So how do we resolve the problem? We need to increase the
capacity of labs to meet the workload that is coming into them.
Meeting the needs for the analysis of sexual assault cases is
primarily accomplished through effective resource allocation.
During that time period that I spoke of before, funding
from the Debbie Smith Act, laboratories have acquired and
validated new, more efficient equipment, added personnel, begun
utilizing robotics for some operations, and continue to add
more automated applications. They have also started using
SmartSystems for some of the data reviewed.
I am seeing more and more statements by laboratories that
they are reducing their backlogs or are on the verge of being
current. For Virginia, between 2004 and 2010, because of a
number of issues such as turnover and some budget reductions
and so forth, as well as difficulty recruiting fully qualified
individuals, the DNA staff has actually decreased by 10
percent. During that same time period, because of the addition
of more equipment and automation, the backlog has decreased 50
percent. And if trends continue as they are now, we can reduce
that backlog at a rate of about 100 cases per month. So
sometime by the end of this year, the beginning of next year,
maybe this time next year we will be current. And that figure
doesn't include the six additional grant-funded, fully-funded
positions. So it is not just done on overtime. You can have
restricted grant-funded positions that are full-time working.
Grants should focus on building long-term capacity, not
only on eliminating backlogs. To do otherwise will cause a
cycle to continue to repeat. Backlog increases, cases are
outsourced, and while that is happening more cases build up.
The labs will be where they started from and so will the
victims. Thank you very much.
Mr. Scott. Thank you.
[The prepared statement of Mr. Marone follows:]
Prepared Statement of Peter Marone
__________
Mr. Scott. We will begin questions on the 5-minute rule.
The Chairman of the full Committee Mr. Conyers.
Mr. Conyers. Thanks, Chairman Scott. This is an incredibly
important panel of witnesses that follow up with our colleagues
that testified earlier. I am grateful to you all, especially
Prosecutor Kym Worthy who went way out of her way and off her
schedule to be with us here today. All of you are doing a great
job.
There has been a lot of description about the problem,
especially from the last three witnesses. But what do you mean,
Marone, there are no solutions? You sound like the typical
bureaucrats that come into government and start giving us a
one-on-one lecture about how difficult this all is.
Look, the police don't even recognize that this is
evidentiary work that we are on. That is the first thing. So
what I think, Kym Worthy, we ought to do--and I have been
talking with Chairman Scott about it--is that we ought to get
some recommendations from all of you, including Maloney and
Weiner and Nadler, and go over to Eric Holder and let's get
this on with. I mean, we are talking about lives being wrecked
in huge numbers.
And there may be a problem with the DOJ burdens, Boschwitz,
but, look, they are the ones that prosecute these things. I
don't know whether they are burdensome as you suggest or imply,
or not. But I would like to take Worthy over there with us when
we meet.
And the next thing, Chairman, I would like us to consider--
these are all considerations--what about the Association of
Police Chiefs? Half the cops don't even treat the kits
seriously. What do you think, Kym?
Ms. Worthy. They don't treat it seriously because, as you
know, when this problem happened we discovered the problem.
Last September I wrote a letter to the chief of police. He
ignored me. It wasn't until someone from his office leaked the
letter. I would admit if I leaked it, but I didn't. It is not
that I wouldn't, but I didn't. And it was in the paper, and
then the journalists started getting upset about it, and
finally they started to listen. But that was 6 months later.
And I can't tell you the outrage that we feel.
It is incredibly hard to get your hands around those
issues. It is incredibly difficult to get the funds you need to
do it. It is more difficult to tell our rape victims that these
tests haven't been completed. We have had people call our
office and I have had to tell them, I don't know if your rape
kit is among those because of the way that they were labeled
and the way it was done.
We are trying to fix that now. And we have obtained some
funding from the State to have this audit, to get a snapshot of
what we have.
Mr. Conyers. Well, if it hadn't been for you, we wouldn't
even have known what our situation was, and it never would have
been brought up. There are plenty of counties and jurisdictions
where they don't know what the rape kit situation is, because
there is no Kym Worthy or someone like her demanding that we
make a stab at this; that we go looking for them and find them
in closets and basements and so forth.
Ms. Hargitay, we are so happy that you are here. What kind
of recommendations would you meet the Judiciary Committee with?
Ms. Hargitay. Well, first, if I can just add something to
what Ms. Worthy said, Nicholas Kristoff quoted Polly Poskin,
the executive director of the Illinois Coalition Against Sexual
Assault, 2009 New York Times editorial about the rape kit
backlog. If you have got stacks of physical evidence of a crime
and you are not doing anything--everything you can with the
evidence, then you must be making the decision that this isn't
a very serious crime. So that decision has the power to
traumatize rape victims further, because they are seeking
recovery and healing. So I think that by not testing the rape
kits that is what we are saying, is that it is not a serious
crime. That is what I understand from the quote.
As I said in my testimony, I feel that my role here is to
use my voice to bring many voices forward, advocates in the
field and survivors. So I would like to consult them in
answering your question. I want to make sure that I am
representing their needs and their concerns best. I am an
advocate, but certainly not an expert, and I am sitting among
experts.
Mr. Conyers. Well, Ms. Neumann, the thing that you said
that really leads me to have to talk with our colleagues more
is that you said, I don't think--I don't know if I would really
go through that rape kit business again. I just hope that we
can find some way that it is less intrusive and painful and
traumatic. I mean, you have trauma and then you have got
another, and that leaves me not feeling so good about this. I
don't know what the medical picture is, if it can be improved
or not.
Ms. Newmann. I think it would be one thing to go through it
and know it gets used; but to go through it, and for it to sit
on a shelf is a completely different thing.
Mr. Conyers. I see your point. Why go through it if the
chances are just as high that it will be put in a closet
somewhere?
Ms. Newmann. Right.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Scott. Thank you. Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman. Thank you all for being
here.
Before I got to come to Congress I was a judge in Houston
and tried felony cases for 22 years. And before that I was a
prosecutor, Kym, Ms. Worthy, and those were the best days. I
think all prosecutors look back upon the days when they
prosecuted as the most rewarding of their careers. I have been
around so long I remember when there were no rape kits. If you
had to prosecute a case it was the victim and the defendant and
a swearing match.
We have come a long way since then. Not far enough, but we
have come a long way. We have come so far that juries now
expect forensic evidence. Right or wrong, they expect it.
Thanks to shows like Law & Order, Special Victims Unit, and all
of that and the technology, juries expect it.
So without forensic evidence, still in the real world in
jury trials, juries question the case. They question the
prosecution, even though it may exist. And juries never
understand why a rape kit was performed. A case is tried and
that evidence is not in the courtroom. You cannot explain that
to a jury.
So we know the problem, but we have to cut to the chase and
solve the issue to make rape kits accurate, the results
accurate, and we have to get the results. And I think we ought
to use government agents in those labs; we ought to use private
labs; have a protocol, have it simple but perfect; and that we
get the right result and then solve these cases. It will cost
money, but so what? I mean, that is the responsibility of
government to protect citizens like Ms. Neumann.
There are a lot of crimes, but when you get to the crime of
sexual assault, that is the worst crime in my opinion, because
of what the perpetrator tries to do to the victim's spirit. And
we as a culture need to recognize that; that those are special
victims and they should be treated special in our court system.
Their cases need to be heard first.
That is one good thing about the Texas law. Sexual assault
cases, you go to the front of the line. You get tried first, as
they should be, because victims in the system continue to be
victimized by the system. And we have to end that and make sure
that the same Constitution that protects defendants, protects
victims of crime as well.
So I appreciate all of you being here, but I think we need
to solve the problem. Backlogs have to be dealt with. There
should be no backlog.
My question to you--any of you can answer this--at about
the storage? Do we know how many rape kits are being stored
throughout the country, and are they being stored adequately so
that that evidence can be used down the road?
Dr. Hassell, you want to give me a short answer to that?
Mr. Hassell. Most of our focus has been on when it hits the
laboratory door.
Mr. Poe. So you don't know what happens to it from the time
it is taken from the hospital, the police get it, then
eventually you see it; you don't know where it is during that
gap?
Mr. Hassell. No, sir. But we do recognize, though, if there
are any inefficiencies when it does hit the front door of any
laboratory, if there are any operational inefficiencies there,
that will slow down the process. That will affect whether or
not people will submit.
Mr. Poe. Do you have any percentage you can give me about
blood rape kits that had been stored, they come to you and
because of some problem in the storage, they are not adequate
to get a result from?
Mr. Hassell. I don't have that for you today. I can check
back with my colleagues at the Department.
Mr. Poe. Ms. Worthy, do you want to comment?
Ms. Worthy. Yes. I have to give you even more of a horror
story, Judge. When this happened, I wrote a letter to all of
the hospitals in the tricounty area of Detroit. We found out we
had an innumerable number of rape kits that had not even been
picked up from the hospital after the rape kits were done. So
the answer--short answer is no, we have no idea how many.
Mr. Poe. So we need a protocol from when the rape kit is
performed by the hospital, what happens to it.
Ms. Worthy. Now we are making sure we are putting measures
in place. It is supposed to be picked from the hospital by the
police agency. You have to establish a chain of custody to make
sure that there is----
Mr. Poe. That is right.
Ms. Worthy. You know that. And then it goes to--we
thought--the property room, and then--that is where it ended
up. But it is supposed to go to the testing agency, to the
laboratory.
Mr. Poe. So technically you think the lab ought to store
the rape kits?
Ms. Worthy. They will kill me for saying that.
Mr. Poe. Yeah. Well, I think they should. I will say it,
they can try.
Ms. Worthy. But the director of MSP, Michigan State Police,
say all the time they don't have the room. He doesn't like me
saying that, but that is where it should be.
Mr. Poe. Well, we need to focus finances on that problem. I
mean some places still give the rape kit to the victim.
Ms. Worthy. That is right, and the bottom line is--I call
you Judge because you are an ex-judge. At the end of the day,
the judges and the prosecutors and the other witnesses and the
police go home. But the rape victim or the child molestation
victim lives with it for the rest of their lives.
Mr. Poe. That is exactly correct.
Ms. Worthy. We go home at the end of day. And so I think
that kind of says it all. So we have to do more of our part
collectively.
Mr. Poe. Thank you all for being here. Thank you
especially, Ms. Neumann, for your story.
Mr. Scott. Gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Let me begin by thanking all of our witnesses here for
their role in combating the scourge of rape and the problem
with rape kits. And let me express my condolences to Ms.
Neumann for what you went through.
Let me begin by asking Ms. Hargitay the following question.
You testify about the usefulness of the SANE programs and how
useful they are, and how only 500 SANE programs exist across
the country. We should continue funding for the training
programs as well as commitment to create new programs.
Do you think it would be worthwhile if the Federal
Government and legislation were to require that every county or
every city had a SANE program?
Ms. Hargitay. I do. I just participated in a video that was
made that actually taught medical personnel how to perform the
kit, because oftentimes the rape victim is going through her
test and she is lying on the table, traumatized, and she has
got the nurse or the doctor actually reading the rape kit's
directions of how to perform the rape kit while the woman or
man is lying on the table.
Mr. Nadler. So obviously the SANE programs are very useful.
Ms. Hargitay. Yes.
Mr. Nadler. And do you think it would be useful if the
Federal Government required that every major locality have
them?
Ms. Hargitay. Again, as I said before, I am not an expert.
I would really need to check with my----
Mr. Nadler. We will follow up on that.
Ms. Hargitay. Thank you.
Mr. Nadler. Ms. Neumann, you said in your case, which was
the accused said that he had--that there was no sexual contact.
He didn't say that there was sexual contact, but that it was
consensual. He said there was no sexual contact, something
readily apparent or falsifiable from the rape kit. You had the
rape kit; had it been checked it would have shown that he was
lying and it would have destroyed the credibility of what he
was saying. The policeman said that this fellow had done the
same thing to other victims, and yet the prosecutor told you--
the prosecutors, attorneys, made it clear they would not go
back and test your rape kit.
Ms. Newmann. That is correct.
Mr. Nadler. Ms. Worthy, is that prosecutor doing his job?
Ms. Worthy. No.
Mr. Nadler. Is he violating his oath?
Ms. Worthy. I think so. Let me just give a caveat, though.
In some cases, not a case like this, as a prosecutor you can't
turn away cases because a person may have been drinking, a
person may have been using drugs, a person may be a prostitute.
The nine cases--the case I talked about with the serial
rapist, all nine of them were prostitutes that were known--I
don't like the word ``crackheads''----
Mr. Nadler. So the prosecutors didn't think they were
important people, in other words.
Ms. Worthy. Your oath says we represent the people of the
State of Michigan. We don't just represent the people of the
cases we need to try, we don't just represent the people who--
--
Mr. Nadler. But in Ms. Neumann's case, it is an open-and-
shut case if they----
Ms. Worthy. No case is ever open and shut.
Mr. Nadler. Of course. But as much as any ever is, it
sounds like an open-and-shut case as much as any ever is if
they do the kit.
Ms. Worthy. It sounds like a case that we wouldn't have
turned away.
Mr. Nadler. And they shouldn't turn it away.
Do you think it might be useful if we subpoenaed that
prosecutor and asked him what his criteria for deciding on
cases what might be.
Ms. Worthy. I can't answer that.
Mr. Nadler. Okay, I will just let the idea hang in the air.
Let me ask you a different question. Does a judge in a rape
case in Michigan have the authority to order the police to
produce the result of a rape kit testing if it hasn't been
tested?
Ms. Worthy. Yes, the judge has the authority.
Mr. Nadler. The judge has that authority. Does he usually
exercise it?
Ms. Worthy. The reality is in a jurisdiction like ours
where we have--that is why I said how many cases we do, we
don't have the jail space to keep the defendant in jail. We
don't have--what are they going to get tested? In our case we
have a Detroit Police Department crime lab shutdown and those
are the real issues. So the judge usually won't do it because
they realize the defendant would have to be held for a very
long time until they get tested, because they don't have the
facilities to test them all.
Mr. Nadler. Why would the defendant have to be held if he
is out on bail? He is not even accused at this point.
Ms. Worthy. Well, if he is on bond, that would be a
different story.
Mr. Nadler. Or he may not even have been indicted.
Now, should we--if the judges exercise their authority more
often, would the prosecutor, knowing that, be more likely to
bring the case in the first place?
Ms. Worthy. I am sorry; I didn't hear the rest of the
question.
Mr. Nadler. If it were the case that judges exercised that
authority to order these rape kits tested, would prosecutors be
more likely to bring these cases that they don't bring now?
Ms. Worthy. Well, prosecutors are going to do what a judge
orders them to do, yes.
Mr. Nadler. That wasn't my--well, who has the rape kit, the
prosecutor or the police; the police do?
Ms. Worthy. Yes.
Mr. Nadler. So if the judge more often ordered the police
to test the kits, would the prosecutors be more likely to A,
request the judge do so; and B, to bring the case in the first
place?
Ms. Worthy. Yes.
Mr. Nadler. Is there anything the Federal Government can do
that we can do by legislation to encourage that.
Ms. Worthy. I am not sure that is legislatively corrected.
I think it is corrected by judges, who are qualified, taking
the bench. I mean----
Mr. Nadler. I hear that. But let me ask you one other
question on this. We have a lot of victims rights legislation
that goes through here from time to time, much of which I don't
like because it plays havoc with the civil liberties of
accused. But what if we had a bill that said something like the
State must test the rape kit within 90 days, at the request of
the victim.
Ms. Worthy. I think that would be great as long as there
was companion resources to be done.
Mr. Nadler. As long we provided resources.
Ms. Worthy. Yes.
Mr. Nadler. In other words, in our next bill if we provide
resources we should also give the victim the right to demand
and the mandate of that demand be followed.
Ms. Worthy. I am not sure I like that, because the victim
often doesn't know or understand there may be legal reasons we
can't go forward.
Mr. Nadler. Okay.
Ms. Worthy. So we have to make that determination.
Mr. Nadler. Well, what about giving her that right,
provided certain conditions that we could put in the
legislation, certain basic conditions?
Ms. Worthy. I would agree with that in theory, yes.
Mr. Nadler. And we could work with you on drafting such.
Ms. Worthy. Yes, in theory. Yes.
Mr. Nadler. My last question is to Mr. Hassell. Aside from
adding funds and some of the ideas we have been talking about,
do you have any other specific recommendations of what we can
do?
Mr. Hassell. No, sir, not at this time. But one of the
things we are doing in this review, though, is seeing what we
can come forward with, and we are engaging many people.
Mr. Nadler. And when do you think that review will be
complete so you can make recommendations to us?
Mr. Hassell. The entire time frame of the review will be no
longer than 1 year.
Mr. Nadler. One year from when.
Mr. Hassell. From when we kicked it up, which was the end
of April.
Mr. Nadler. Which was recently.
Mr. Hassell. The spring of 2011. Along the way, we will be
publishing some findings and results of our working group
meetings, the first working group meeting that should come out
the end of this month. We will make that available on our Web
site and we will engage and see if there is anything we can
bring forth.
Mr. Nadler. Thank you very much. I yield back. My time has
expired.
Mr. Scott. Gentleman from New York, Mr. Weiner.
Mr. Weiner. Thank you. I don't think we can solve every
injustice here, but we are going to try to solve yours. If you
can tell me, Ms. Neumann, just so I understand this and it is
crystal clear, the prosecutor has said we have this rape kit
and we are refusing to test it because we lack the funds?
Ms. Neumann. Two things. Funds--and he also deemed it
unwinnable, in his mind, because I had been drinking.
Mr. Weiner. Well, but even if this person's evidence is
only taken to see if it hits another rape, it should be taken.
Ms. Neumann. Right.
Mr. Weiner. The second part is the cost. Dr. Boschwitz,
your company does DNA tests on rape kits?
Mr. Boschwitz. That is right.
Mr. Weiner. Give me the range, whatever it would cost to
test a rape kit.
Mr. Boschwitz. Nine hundred to $1,000.
Mr. Weiner. Can I ask you, Dr. Boschwitz--and I don't want
to put you in an untenable position, and feel free to answer
no--would you test this particular case free of charge?
Okay, if you'd rather not say so, here is what I will say I
will do. I will pay for it. I will raise the money to pay for
that kit, and I say here to the prosecutor in Kentucky there is
no statute of limitations on this case. If the only thing
separating that--is it a he or a she?
Ms. Neumann. He.
Mr. Weiner [continuing]. That prosecutor is his apparent
unwillingness to try, because he thinks he is going to lose, or
for want of a thousand bucks. The first thing I think means he
should be removed, if he doesn't think he can win the case with
a witness, a rape kit, then I don't know how you make yourself
a prosecutor. And secondly, if it is for want of a thousand
bucks, I think among my colleagues here on this panel, we will
raise the money. Maybe Dr. Boschwitz can offer us a deal.
Mr. Boschwitz. Sounds good.
Mr. Weiner. I just--it is beyond--one of the reasons that
you deserve an enormous amount of credit is that you are
standing here, putting a face on what could potentially be
thousands of women who are not as courageous as you, who are
not as willing to speak publicly before Congress and before the
cameras. And maybe if we take this one case and we shine the
bright light on it and we make it clear that for want of a few
dollars and the courage and intestinal fortitude of someone to
do his job, you are being denied justice.
Let's see what happens. Maybe prosecutors around this
country will say, You know what? I don't want to have this
light turned up on me.
Many prosecutors in this country are elected. They have to
stand before voters and say, This is what I have done this year
and what I have done every 2 years. So I want to thank you for
doing that. And that offer stands.
And I don't know if the prosecutor of Kentucky, you know,
is at all interested in this subject, but I want to make sure
he is aware of your testimony, my offer, and I really do
believe that my colleagues here will join me in this. And even
if not, I will pay for it personally.
Mr. Nadler. Will the gentleman yield?
Mr. Weiner. I will certainly yield.
Mr. Nadler. I think that is an excellent idea. I think it
will be unnecessary after we subpoena him here first.
Mr. Weiner. Look, I think one of the things that we need to
understand here is that people like Ms. Neumann are not typical
of rape victims. The level of courage that she is showing in
keeping the tension on this, it makes her hopefully a
spokesperson for many others. And I think that one of the
things that we can do here is take this case and shine light on
it. And you may think that--how many years and days has it been
since this incident took place?
Ms. Neumann. Three years, 5 months and 4 days.
Mr. Weiner. Three years, 5 months and 4 days. Three years,
5 months and 4 days since this act took place, but there is no
longer, on 3 years, 4 months, and 6 days any excuse for the
prosecutor to continue wallowing in his ineptitude.
But I want to just point out--and Judge Poe asked a very
good question, and he wasn't here for the opening statements.
So let me reiterate it. We don't know how many Valerie Neumanns
there are in the country. We don't. Despite the fact that we
are now providing millions of dollars of taxpayer funds to help
legislatures to pass laws to be able to deal with the backlash,
we don't know.
I have got to tell you I bet there are a lot of prosecutors
like that in Kentucky, and sheriffs and law enforcement
officials who are a little bit embarrassed who--and that's why
my legislation would change it. If you want access to these
Federal dollars for law enforcement, you have got to tell us.
And if it means that you have got to have a story in the
newspaper that your local State or county has hundreds of
untested rape kits, then so be it. But if you want the help
from the Federal Government in order to deal with law
enforcement--and just about every law enforcement agency is
knocking on our door saying give us help--at the very least,
you should come clean about this. And this is not the end.
I think that I can say, without fear of any contradiction
from my Republican friends or anyone on this, we are going to
make sure that there is no excuse for this prosecutor in
Kentucky not following up on this case. Win, lose, or draw, we
are going to make sure he does his job. Even if it means we
take that kit and we help you subpoena to get it back from the
law enforcement and we test it ourselves with the help of--we
are not going to test it; the professionals are going to do it.
If we have to every single day hand him the results, then that
is what we are going to go do. But I really do want to thank
you for testifying today.
Ms. Newmann. Thank you.
Mr. Scott. Thank you. Gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Dr. Hassell--is it Hassell or Hassell?
Mr. Hassell. Hassell.
Mr. Goodlatte. Thank you for joining us today. Can you tell
us how you justify the FBI proposed review of procedures, since
this review seems to defy the positions of many State and local
crime lab directors and CODIS administrators, as well as
organizations such as the American Society of Crime Lab
Directors and the Scientific Working Group on DNA Analysis
Methods.
Mr. Hassell. One of the things we have done is we brought
them into the fold to actually do this review. So that is why
these first working groups, we involved those very people. So
the American Society for Crime Lab Directors, they sat with us
when we had our first working meeting at the end of April. We
will be meeting with more groups as we go forward. But everyone
is engaged in this that you mentioned there.
Mr. Goodlatte. Are the majority of backlog samples awaiting
review attributed to a small number of public labs?
Mr. Hassell. Part is--a lot of the answers I am giving are
the fact that we just started this review. Part of that was
doing a survey. We just got the data back. Just yesterday is
when I saw it. So we are in the process of compiling that. And
we will make it available, so I will be able to answer your
question very shortly.
Mr. Goodlatte. I guess the question that I would like you
follow up with the Committee on as you review that data is, if
that is the case, why not focus on helping those labs rather
than changing the whole system?
Mr. Hassell. We could follow up on that once we see the
survey results and that sort of thing.
Mr. Goodlatte. All right. One of the issues that I
understood--and I apologize for having to step out to attend
another meeting, and perhaps Chairman Scott covered this,
because I know he and I were discussing it earlier--but the
issue seems to be whether or not a test given by a private lab
has to be retested by a public lab in all cases, or does it
just have to be retested in a case where there is a positive
match?
Mr. Hassell. It is reviewed, it is not retested. So there
is a third review. It is done at the law enforcement agency
that does contracting with the private lab. It is a review of
the profile, the actual data they get back. It also is looking
at the eligibility of that sample for upload.
Mr. Goodlatte. And am I correct in that a test done by a
private lab can go directly into the database?
Mr. Hassell. No, sir. It has to go through that review.
Mr. Goodlatte. Why is that? Since it has to be reviewed
again anyway to be used as criminal evidence in a case, or
perhaps even retested, why would there not be a desirability to
get that information into the database for future use as
quickly as possible?
Mr. Hassell. That is one of the very issues we are looking
at in the whole review, is to get our stakeholders together to
answer that question.
Mr. Goodlatte. Do you think it is a good idea?
Mr. Hassell. It could be done if the private laboratories
are held to the same standard of oversight. There is a
difference in oversight and monitoring of private and public
laboratories. The accreditation is there, but it is matter of
oversight. So if that is harmonized, then it could be possible.
Mr. Goodlatte. Thank you.
Ms. Hargitay, do you hear from victims of sexual assault
that their treatment by the criminal justice system has been
something less than the care and compassion that is afforded to
the victims by the detective you play on television? Is the
real world as people see it on television?
Ms. Hargitay. No, it is not. And I think that is why my
character has become so possible. I get a lot of fan mail
saying, I wish the detective who handled my case was like you.
I think one of the reasons I started the Joyful Heart
Foundation was to truly shed a light on something that people
for some reason don't want to talk about. Sexual assault is a
very scary thing to talk about. People don't--are afraid of it.
They don't have the language to talk about it. They are scared
of what it will be. It will rip apart families, it ruins lives.
And these women have shame on them that they don't know how to
relieve themselves of. And so many times the shame is with the
victim as opposed to the perpetrator.
And so I think where Joyful Heart is about the courage to
heal, as Mr. Weiner said, the courage; it is about the courage.
It takes so much for a survivor to come forward and to muster
that courage, to come forward. And to then have nothing done
about it, what are we saying? What are we telling? Who are we
protecting? We are saying, You don't matter.
Lives are ruined because of it. People think nobody cares
about me. I don't matter. If this happens to me and people are
going, You know what, sweetie, you don't matter.
That is what we are saying. I think that is why--and if New
York can do what it has done and get rid of the of the backlog,
I feel that we can do it.
There are so many components that obviously we have to take
in and this is why we are here today. I am so grateful to have
all these minds together to figure out truly what can we do.
But I think it is desperate. If we want to create the next
generation of respectful, kind people that are not criminals,
we need to educate them and shine a light on sexual assault and
say what is acceptable, what is not.
If you perform this crime, these are the ramifications.
They must be tested. We are letting--we are consciously letting
criminals walk again. We are saying it is okay, you can do it
again. We are letting criminals go and saying there are no
consequences. Do it again, nine times, one time, two times,
three times. Thirteen years if a rape victim can't get the
status of her DNA, of her rape kit? Thirteen years? Three
years? It is unacceptable. It is unacceptable.
Mr. Goodlatte. Well, thank you and thank you to all of you
for the efforts you are making to educate us, educate the
public about the nature of this problem and what can be done to
solve it. Thank you Mr. Chairman.
Ms. Hargitay. Thank you. Thank you so much.
Mr. Scott. And we are going to have to adjourn the hearing.
I think Mr. Cohen wanted to make a very brief statement.
Mr. Cohen. Thank you, Mr. Chairman. I just want to thank
you for having this hearing and for the witnesses that are
here. This is so important of a subject. My city is,
unfortunately, at the bottom of the ladder as far as caring in
the past. Under the previous city administration we had in
Memphis, the Memphis Sexual Assault Resource Center that had
opportunities to care for women and interview them and have
them tested had to close down because they had inadequate,
incompetent people staffing it. And the rape kits there have
been piled up and not tested for years and years and years.
Fortunately, we have a new mayor who took it over when he
was county mayor, but it was horrendous. And this should not
happen. It is an assault against all women and it is wrong. And
I thank you for the hearing and the witnesses for testifying.
I yield back the balance of my time.
Mr. Scott. Thank you. I would like to thank all of our
witnesses for their testimony today. This has been extremely
helpful. And I would ask you to review the bills before us, if
you have specific recommendations to make those
recommendations. Particularly one question was, who was tested
and whether we are overtesting. But if you could review the
bill and provide that information to us. Members may have
additional written questions which will be forwarded to you,
and we ask that you answer them as promptly as you can in order
that answers may be made a part of record.
Without objection, I have a report by the Human Rights
Watch, entitled ``Testing Justice'' that I would like entered
into the record. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Scott. The hearing record will remain open for 1 week
for submission of additional materials.
Without objection, and thanking the witnesses again, the
Subcommittee stands adjourned.
[Whereupon, at 11:01 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record