[Congressional Record Volume 155, Number 164 (Thursday, November 5, 2009)]
[Senate]
[Pages S11213-S11215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FRANKEN (for himself, Mr. Grassley, Mrs. Feinstein, and 
        Mr. Hatch):
  S. 2736. A bill to reduce the rape kit backlog and for other 
purposes; to the Committee on the Judiciary.
  Mr. FRANKEN. Mr. President, sexual assault is a heinous crime. It is 
also a startlingly common one. Last year, 90,000 people were raped. We 
as a Nation have an obligation to help the survivors of sexual 
assault--by providing them prompt medical attention, and by bringing 
their assailants to justice.
  Thanks to modern technology, we have an unparalleled tool to bring 
sexual predators to justice: forensic DNA analysis. Using the DNA 
evidence collected in a rape kit, a police department can conclusively 
identify an assailant--even when the survivor cannot visually identify 
her attacker. When DNA collected in rape kits matches existing DNA 
records, police can quickly capture habitual rapists before they strike 
again. Rape kit DNA evidence is survivors' best bet for justice. It is 
also communities' best bet for public safety.
  Unfortunately, we have failed to make adequate use of DNA analysis. 
In 1999, a study commissioned by the National Institute of Justice 
estimated that there was a backlog of over 180,000 untested rape kits. 
In 2004, responding to studies like this one, then-Senator Biden, 
Chairman Leahy and others worked to pass the Debbie Smith Act, a law 
named after a rape survivor whose backlogged rape kit was tested six 
years after her assault. That act provided federal funding for the 
testing of backlogged DNA evidence. Unfortunately, it did not require 
those funds to test DNA evidence in rape kits.
  Because of this loophole--and because many States and localities 
simply did not use the Debbie Smith funds they were allocated--the 
promise of the Debbie Smith Act remains unfulfilled. Since 2004, the 
federal government has distributed about $500 millions in Debbie Smith 
grants to law enforcement agencies around the country. Local figures 
suggest that these funds have not had their intended effect. In March 
2009, Los Angeles County had 12,500 untested rape kits in police 
storage. L.A. County is not alone. This fall, the Houston Police 
Department found at least 4,000 untested rape kits in storage, and 
Detroit reported a backlog of possibly 10,000 kits.
  Those are just three cities. This means that potentially hundreds of 
thousands of rape kits are sitting, untested, in police departments and 
crime labs around the country. That is hundreds of thousands of women 
who have not seen justice. That is countless assailants still free and 
countless new assaults that have occurred because of this. The New York 
Times recently highlighted a case which occurred years after the 
passage of The Debbie Smith Act where a rapist struck twice while the 
rape kit for one of his earlier victims sat unprocessed at a State 
crime lab. Sadly, that lab's four month processing delay was one of the 
shortest in the state.
  When rape kits are not tested, rapists are not caught. When rape kits 
are not tested, more women are raped. Having a backlog of thousands of 
kits endangers our communities and sends a clear message to 
perpetrators and survivors of sexual violence: that cases of sexual 
assault are not a priority. Unfortunately, because our Nation lacks any 
mechanism to track rape kit backlogs, we have no way of knowing the 
full scope of this rape kit backlog and the national tragedy that it 
causes.
  The Justice for Survivors of Sexual Assault Act of 2009, which I am 
introducing today with Senator Grassley, Senator Feinstein, and Senator 
Hatch, addresses the national rape kit backlog and several other 
problems that work to deny justice to survivors of sexual assault. 
These include the denial of free rape kits to survivors of sexual 
assault, and the shortage of trained health professionals capable of 
administering rape kit exams.
  First, this bill will create strong financial incentives for states 
to clear their rape kit backlogs once and for all. This bill will 
reward states who make progress in clearing up their rape kit backlog 
and start processing their incoming rape kits in a timely manner. It 
will penalize those that don't, while allowing them the opportunity to 
regain any lost funds. Having a backlog is not an impossible situation 
to remedy. In just a few years, the city of New York cleaned up their 
rape kit backlog, and as a result, saw its arrest rate for rapes jump 
from 40 to 70 percent.
  Second, this bill will put measures in place to track progress and 
hold States and localities accountable. Law enforcement agencies will 
be responsible for reporting their reductions of rape kit backlogs, and 
the Department of Justice will be responsible for analyzing that data 
and reporting back to Congress.
  Third, this bill will guarantee that survivors of sexual assault 
don't ever pay for their rape kits. Right now, States must cover the 
full cost of a rape kit examination, either upfront or through 
reimbursement. But some states don't even cover half of the cost. 
Survivors who live in States who are in compliance with the law still 
mistakenly receive bills because of the confusing nature of the 
reimbursement process. We don't bill criminals for fingerprint 
processing. Survivors of sexual assault should never see the bill for 
their rape kit exam, let alone pay any upfront costs.
  Fourth, this bill will train more health professionals to administer 
rape kit exams. If survivors of sexual assault are lucky enough to have 
their rape kit processed, it is important to ensure it is not declared 
inadmissible in court due to faulty evidence collection.
  Lastly, this bill will provide funds for a study on the availability 
of trained health professionals to administer rape kit exams at Indian 
Health Services facilities. Recent studies have shown that Native 
American women suffer a disproportionately high amount of sexual 
violence, and we need to make sure that IHS has the proper resources it 
needs to serve survivors.
  We have waited too long to address the rape kit backlog in the United 
States to the detriment of survivors and our communities. It is time to 
aggressively clear rape kit backlogs and put rapists where they belong: 
off our streets and behind bars. With the Federal Government beginning 
to collect more DNA samples from convicted, non-violent offenders and 
dozens of State governments following its lead inaction now would mean 
that rape kits wait longer on the shelf, rape survivors wait longer for 
justice, and rapists spend more time on the streets.
  Survivors of sexual assault do not deserve this. They deserve 
justice. I want to continue Congress's work in trying to address this 
issue. In doing so, I follow in the footsteps of people like Vice 
President Biden and Chairman Leahy, who have consistently and 
powerfully championed sexual assault survivors within the Senate 
Judiciary Committee and on the floor of the Senate.
  I ask that my colleagues join Senator Grassley, Senator Feinstein, 
Senator Hatch, and me in supporting the Justice for Survivors of Sexual 
Assault Act of 2009.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page S11214]]

  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2736

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Justice for Survivors of 
     Sexual Assault Act of 2009''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Rape is a serious problem in the United States.
       (2) The Department of Justice reports that in 2006, there 
     were an estimated 261,000 rapes and sexual assaults, and 
     studies show only \1/3\ of rapes are reported.
       (3) The collection and testing of DNA evidence is a 
     critical tool in solving rape cases. Law enforcement 
     officials using the Combined DNA Index System have matched 
     unknown DNA evidence taken from crime scenes with known 
     offender DNA profiles in the State and National DNA database 
     2,371 times.
       (4) Despite the availability of funding under the 
     amendments made by the Debbie Smith Act of 2004 (title II of 
     Public Law 108-405; 118 Stat. 2266) there exists a 
     significant rape kit backlog in the United States.
       (5) A 1999 study commissioned by the National Institute of 
     Justice estimated that there was an annual backlog of 180,000 
     rape kits that had not been analyzed.
       (6) No agency regularly collects information regarding the 
     scope of the rape kit backlog in the United States.
       (7) Certain States cap reimbursement for rape kits at 
     levels that are less than \1/2\ the average cost of a rape 
     kit in those States. Yet, section 2010 of title I of the 
     Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3796gg-4) requires that in order to be eligible for grants 
     under part T of the Omnibus Crime Control and Safe Streets 
     Act of 1968 (42 U.S.C. 3796gg et seq.) (commonly known as 
     ``STOP Grants'') States shall administer rape kits to 
     survivors free of charge or provide full reimbursement.
       (8) There is a lack of sexual assault nurse examiners and 
     health professionals who have received specialized training 
     specific to sexual assault victims.

     SEC. 3. PURPOSE.

       The purpose of this Act is to seek appropriate means to 
     address the problems surrounding forensic evidence collection 
     in cases of sexual assault, including rape kit backlogs, 
     reimbursement for or free provision of rape kits, and the 
     availability of trained health professionals to administer 
     rape kit examinations.

     SEC. 4. RAPE KIT BACKLOGS.

       (a) Additional Protocol Requirement for Receiving Edward 
     Byrne Grants.--Section 502 of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3752) is 
     amended--
       (1) by redesignating paragraph (5) as paragraph (6); and
       (2) by inserting after paragraph (4) the following:
       ``(5) A certification that the applicant has implemented a 
     policy requiring all rape kits collected by or on behalf of 
     the applicant to be sent to crime laboratories for forensic 
     analysis.''.
       (b) Additional Debbie Smith Grant Requirements; 
     Definitions.--Section 2 of the DNA Analysis Backlog 
     Elimination Act of 2000 (42 U.S.C. 14135) is amended--
       (1) in subsection (a)(2), by striking ``samples from rape 
     kits, samples from other sexual assault evidence, and samples 
     taken in cases without an identified suspect.'' and inserting 
     ``to eliminate a rape kit backlog and to ensure that DNA 
     analyses of samples from rape kits are carried out in a 
     timely manner.'';
       (2) in subsection (b)--
       (A) paragraph (6), by striking ``and'' at the end;
       (B) in paragraph (7), by striking the period at the end and 
     inserting a semicolon; and
       (C) by adding at the end the following:
       ``(8) if the State or unit of local government has a rape 
     kit backlog, include a plan to eliminate the rape kit backlog 
     that includes performance measures to assess progress of the 
     State or local unit of government toward a 50 percent 
     reduction in the rape kit backlog over a 2-year period; and
       ``(9) specify the portion of the amounts made available 
     under the grant under this section that the State or unit of 
     local government shall use for the purpose of DNA analyses of 
     samples from untested rape kits.'';
       (3) in subsection (f)--
       (A) in paragraph (1), by striking ``and'' at the end;
       (B) by redesignating paragraph (2) as paragraph (3); and
       (C) by inserting after paragraph (1) the following:
       ``(2) the amount of funds from a grant under this section 
     expended for the purposes of DNA analyses for untested rape 
     kits; and''; and
       (4) by striking subsection (i) and inserting the following:
       ``(i) Definitions.--In this section:
       ``(1) Rape kit.--The term `rape kit' means DNA evidence 
     relating to--
       ``(A) sexual assault (as defined in section 40002(a) of the 
     Violence Against Women Act of 1994 (42 U.S.C. 13925(a))); or
       ``(B) conduct described in section 2251, 2251A, or 2252 of 
     chapter 110 of title 18, United States Code, regardless of 
     whether the conduct affects interstate commerce.
       ``(2) Rape kit backlog.--The term `rape kit backlog' means 
     untested rape kits that are in the possession or control of--
       ``(A) a law enforcement agency; or
       ``(B) a public or private crime laboratory.
       ``(3) State.--The term `State' means a State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the United States Virgin Islands, American Samoa, Guam, 
     and the Northern Mariana Islands.
       ``(4) Untested rape kit.--The term `untested rape kit' 
     means a rape kit collected from a victim that--
       ``(A) has not undergone forensic analysis; and
       ``(B) for a combined total of not less than 60 days, has 
     been in the possession or control of--
       ``(i) a law enforcement agency; or
       ``(ii) a public or private crime laboratory.''.
       (c) Adjusting Byrne Grant Funds for Compliance and 
     Noncompliance; Statistical Review.--Section 505 of title I of 
     the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3755) is amended by adding at the end the following:
       ``(i) Adjusting Byrne Grant Funds for Compliance and 
     Noncompliance.--
       ``(1) Definition.--In this subsection the term `date for 
     implementation' means the last day of the second fiscal year 
     beginning after the date of enactment of this subsection.
       ``(2) Additional funds for compliance.--
       ``(A) Reduction of rape kit backlog.--
       ``(i) 50 percent reduction.--For any fiscal year beginning 
     after the date of enactment of this subsection, a State or 
     unit of local government shall receive an allocation under 
     this section in an amount equal to 110 percent of the 
     otherwise applicable allocation to the State or unit of local 
     government if the State or unit of local government reduced 
     the rape kit backlog by not less than 50 percent, as compared 
     to the date of enactment of this subsection.
       ``(ii) 75 percent reduction.--For any fiscal year beginning 
     after the date of enactment of this subsection--

       ``(I) a State or unit of local government that has received 
     additional funds under clause (i) in any previous fiscal year 
     shall receive an allocation under this section in an amount 
     equal to 110 percent of the otherwise applicable allocation 
     to the State or unit of local government if the State or unit 
     of local government reduced the rape kit backlog by not less 
     than 75 percent, as compared to the date of enactment of this 
     subsection; and
       ``(II) a State or unit of local government that has not 
     received additional funds under clause (i) in any previous 
     fiscal year shall receive an allocation under this section in 
     an amount equal to 120 percent of the otherwise applicable 
     allocation to the State or unit of local government if the 
     State or unit of local government reduced the rape kit 
     backlog by not less than 75 percent, as compared to the date 
     of enactment of this subsection.

       ``(iii) 95 percent reduction.--For any fiscal year 
     beginning after the date of enactment of this subsection--

       ``(I) a State or unit of local government that has received 
     additional funds under clause (ii) in any previous fiscal 
     year shall receive an allocation under this section in an 
     amount equal to 110 percent of the otherwise applicable 
     allocation to the State or unit of local government if the 
     State or unit of local government reduced the rape kit 
     backlog by not less than 95 percent, as compared to the date 
     of enactment of this subsection;
       ``(II) a State or unit of local government that has 
     received additional funds under clause (i) in any previous 
     fiscal year, and has not received additional funds under 
     clause (ii) in any previous fiscal year, shall receive an 
     allocation under this section in an amount equal to 120 
     percent of the otherwise applicable allocation to the State 
     or unit of local government if the State or unit of local 
     government reduced the rape kit backlog by not less than 95 
     percent, as compared to the date of enactment of this 
     subsection; and
       ``(III) a State or unit of local government that has not 
     received additional funds under clause (i) or (ii) in any 
     previous fiscal year shall receive an allocation under this 
     section in an amount equal to 130 percent of the otherwise 
     applicable allocation to the State or unit of local 
     government if the State or unit of local government reduced 
     the rape kit backlog by not less than 95 percent, as compared 
     to the date of enactment of this subsection.

       ``(B) Timely processing.--For the first fiscal year 
     beginning after the date of enactment of this subsection, and 
     each fiscal year thereafter, a State or unit of local 
     government that, during the previous fiscal year, tested 95 
     percent of all rape kits collected from a victim during that 
     previous fiscal year not later than 60 days after the date 
     the rape kit was taken into the possession or control of a 
     law enforcement agency of the State or unit of local 
     government shall receive an allocation under this section in 
     an amount equal to 105 percent of the otherwise applicable 
     allocation to the State or unit of local government.
       ``(3) Withholding of grant funds for noncompliance.--
       ``(A) Failure to reduce rape kit backlog.--
       ``(i) Year 1.--For the first fiscal year after the date for 
     implementation, a State or unit of local government shall 
     receive an allocation under this section in an amount equal

[[Page S11215]]

     to 90 percent of the otherwise applicable allocation to the 
     State or unit of local government if the State or unit of 
     local government--

       ``(I) has a rape kit backlog;
       ``(II) received a grant under this subpart during each of 
     the 2 previous fiscal years; and
       ``(III) has failed to reduce the rape kit backlog by not 
     less than 50 percent, as compared to the date of enactment of 
     this subsection.

       ``(ii) Year 3.--For the third fiscal year beginning after 
     the date for implementation, a State or unit of local 
     government shall receive an allocation under this section in 
     an amount equal to 90 percent of the otherwise applicable 
     allocation to the State or unit of local government if the 
     State or unit of local government--

       ``(I) has a rape kit backlog;
       ``(II) received a grant under this subpart during the 
     previous fiscal year; and
       ``(III) has failed to reduce the rape kit backlog by not 
     less than 75 percent, as compared to the date of enactment of 
     this subsection.

       ``(iii) Years 5, 7, and 9.--For each of the fifth, seventh, 
     and ninth fiscal years beginning after the date for 
     implementation, a State or unit of local government shall 
     receive an allocation under this section in an amount equal 
     to 90 percent of the otherwise applicable allocation to the 
     State or unit of local government if the State or unit of 
     local government--

       ``(I) has a rape kit backlog;
       ``(II) received a grant under this subpart during the 
     previous fiscal year; and
       ``(III) has failed to reduce the rape kit backlog by not 
     less than 95 percent, as compared to the date of enactment of 
     this subsection.

       ``(B) Timely processing.--For the second fiscal year 
     beginning after the date for implementation, and each fiscal 
     year thereafter, a State or unit of local government that, 
     during the previous fiscal year, tested less than 95 percent 
     of the rape kits collected from a victim during that previous 
     fiscal year not later than 90 days after the date the rape 
     kit was taken into the possession or control of a law 
     enforcement agency of the State or unit of local government 
     shall receive an allocation under this section in an amount 
     equal to 95 percent of the otherwise applicable allocation to 
     the State or unit of local government.
       ``(j) Annual Statistical Review and Report.--
       ``(1) In general.--The Director of the National Institute 
     of Justice of the Department of Justice (in this subsection 
     referred to as the `Director') shall conduct an annual 
     comprehensive statistical review of the number of untested 
     rape kits collected by Federal, State, local, and tribal law 
     enforcement agencies.
       ``(2) Report of data to director.--Each law enforcement 
     agency of the Federal Government or of a State or unit of 
     local government receiving a grant under this subpart (in 
     this subsection referred to as a `covered law enforcement 
     agency') shall record and report to the Director the number 
     of untested rape kits administered by or on behalf of, or in 
     the possession or control of, the covered law enforcement 
     agency at the end of each fiscal year.
       ``(3) Report to congress and the states.--
       ``(A) Initial report.--Not later than 2 years after the 
     date of enactment of this subsection, and annually 
     thereafter, the Director shall submit to Congress and the 
     States a report regarding the number of untested rape kits 
     administered by or on behalf of, or in the possession of, a 
     covered law enforcement agency.
       ``(B) Subsequent annual reports.--The Director shall 
     include, in the second report, under subparagraph (A), and 
     each subsequent report, the percentage change in the number 
     of untested rape kits for each covered law enforcement 
     agency, as compared to the previous year.
       ``(4) Penalty.--For fiscal year 2011, and each fiscal year 
     thereafter, if a State or unit of local government has 
     received a grant under this subpart, and a covered law 
     enforcement agency of the State or local government has 
     failed to report the data required under paragraph (2), the 
     State or unit of local government shall receive an allocation 
     under this section in an amount equal to 95 percent of the 
     otherwise applicable allocation to the State or unit of local 
     government.
       ``(k) Definitions.--In this section:
       ``(1) Rape kit.--The term `rape kit' means DNA evidence 
     relating to--
       ``(A) sexual assault (as defined in section 40002(a) of the 
     Violence Against Women Act of 1994 (42 U.S.C. 13925(a))); or
       ``(B) conduct described in section 2251, 2251A, or 2252 of 
     chapter 110 of title 18, United States Code, regardless of 
     whether the conduct affects interstate commerce.
       ``(2) Rape kit backlog.--The term `rape kit backlog' means 
     untested rape kits that are in the possession or control of--
       ``(A) a law enforcement agency; or
       ``(B) a public or private crime laboratory.
       ``(3) Untested rape kit.--The term `untested rape kit' 
     means a rape kit collected from a victim that--
       ``(A) has not undergone forensic analysis; and
       ``(B) for a combined total not less than 60 days, has been 
     in the possession or control of--
       ``(i) a law enforcement agency; or
       ``(ii) a public or private crime laboratory.''.

     SEC. 5. RAPE KIT BILLING.

       (a) Coordination With Regional Health Care Providers.--
     Section 2010(a)(1) of title I of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3796gg-4(a)(1)) is 
     amended by striking ``assault.'' and inserting ``assault and 
     coordinates with regional health care providers to notify 
     victims of sexual assault of the availability of rape exams 
     at no cost to the victims.''.
       (b) Repeal of Reimbursement Option.--Effective 2 years 
     after the date of enactment of this Act, section 2010(b) of 
     title I of the Omnibus Crime Control and Safe Streets Act of 
     1968 (42 U.S.C. 3796gg-4(b)) is amended--
       (1) by striking paragraph (3);
       (2) in paragraph (1), by inserting ``or'' after 
     ``victim;''; and
       (3) in paragraph (2), by striking ``victims; or'' and 
     inserting ``victims.''.
       (c) Provision of Rape Kits Regardless of Cooperation With 
     Law Enforcement.--Section 2010(d) of title I of the Omnibus 
     Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796gg-
     4(d)) is amended by striking ``(d) Rule of Construction'' and 
     all that follows through the end of paragraph (1) and 
     inserting the following:
       ``(d) Noncooperation.--
       ``(1) In general.--A State, Indian tribal government, or 
     unit of local government shall not be in compliance with this 
     section unless the State, Indian tribal government, or unit 
     of local government complies with subsection (b) without 
     regard to whether the victim cooperates with the law 
     enforcement agency investigating the offense.''.

     SEC. 6. SEXUAL ASSAULT NURSE EXAMINER TRAINING.

       (a) Definition.--Section 40002(a) of the Violence Against 
     Women Act of 1994 (42 U.S.C. 13925(a)) is amended--
       (1) by redesignating paragraphs (29) through (37) as 
     paragraphs (30) through (38), respectively; and
       (2) inserting after paragraph (28) the following:
       ``(29) Trained examiner.--The term `trained examiner' means 
     a health care professional who has received specialized 
     training specific to sexual assault victims, including 
     training regarding gathering forensic evidence and medical 
     needs.''.
       (b) Additional Personnel.--Section 2101(b) of title I of 
     the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3796hh(b)) is amended by adding at the end the 
     following:
       ``(14) To provide for sexual assault forensic medical 
     personnel examiners to collect and preserve evidence, provide 
     expert testimony, and provide treatment of trauma relating to 
     sexual assault.''.

     SEC. 7. SEXUAL ASSAULT NURSE AVAILABILITY AT INDIAN HEALTH 
                   SERVICES STUDY.

       (a) Study.--The Comptroller General of the United States 
     shall conduct a study of the availability of sexual assault 
     nurse examiners and trained examiners (as defined in section 
     40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 
     13925(a)), as amended by this Act), at all Indian Health 
     Service facilities operated pursuant to contracts under the 
     Indian Self-Determination and Education Assistance Act (25 
     U.S.C. 450 et seq.).
       (b) Report and Recommendations.--Not later than 1 year 
     after the date of enactment of this Act, the Comptroller 
     General of the United States shall submit to the Committee on 
     the Judiciary and to the Committee on Indian Affairs of the 
     Senate and to the Committee on the Judiciary and the 
     Committee on Natural Resources of the House of 
     Representatives a report containing the findings of the study 
     conducted under subsection (a), and recommendations for 
     improving the availability of sexual assault nurse examiners 
     and trained examiners (as defined in section 40002(a) of the 
     Violence Against Women Act of 1994 (42 U.S.C. 13925(a)), as 
     amended by this Act).
                                 ______