[House Report 118-256]
[From the U.S. Government Publishing Office]


118th Congress    }                                     {       Report
                          HOUSE OF REPRESENTATIVES
 1st Session      }                                     {      118-256

======================================================================

 
                 RAPE KIT BACKLOG PROGRESS ACT OF 2023

                                _______
                                

October 26, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

           Mr. Jordan, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 5721]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 5721) to amend the Omnibus Crime Control and Safe 
Streets Act of 1968 to require certain reporting on sexual 
assault kit testing, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     7
New Budget Authority and Tax Expenditures........................     7
Congressional Budget Office Cost Estimate........................     7
Committee Estimate of Budgetary Effects..........................     7
Duplication of Federal Programs..................................     7
Performance Goals and Objectives.................................     7
Advisory on Earmarks.............................................     8
Federal Mandates Statement.......................................     8
Advisory Committee Statement.....................................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis......................................     8
Changes in Existing Law Made by the Bill, as Reported............     9
Additional Views.................................................    13

    The amendment is as follows:
  Strike all that follows after the enacting clause and insert 
the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Rape Kit Backlog Progress Act of 
2023''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) A sexual assault kit includes a sexual assault forensic 
        exam, meaning an examination provided to a sexual assault 
        patient by a health care provider who has specialized education 
        and clinical experience in the collection of forensic evidence 
        and treatment of these patients, which includes--
                  (A) gathering information from the patient for the 
                medical forensic history;
                  (B) an examination;
                  (C) coordinating treatment of injuries, documentation 
                of biological and physical findings, and collection of 
                evidence from the patient;
                  (D) documentation of findings;
                  (E) providing information, treatment, and referrals 
                for sexually transmitted infections, pregnancy, 
                suicidal ideation, alcohol and substance abuse, and 
                other non-acute medical concerns; and
                  (F) providing follow-up as needed to provide 
                additional healing, treatment, or collection of 
                evidence.
          (2) A sexual assault kit is an important forensic tool used 
        by law enforcement and prosecutors to investigate and prosecute 
        sexual assault and other crimes.
          (3) It is estimated that there are currently well over 
        100,000 untested sexual assault kits in America, but the exact 
        number is not known.
          (4) Untested sexual assault kits means that there are sexual 
        assaults unprosecuted, sexual assaults occurring that could 
        have been prevented, and a delay in uploading DNA to Combined 
        DNA Index System (commonly known as ``CODIS'') that can assist 
        law enforcement in solving other violent crimes.

SEC. 3. REPORT TO ATTORNEY GENERAL REQUIRED ON SEXUAL ASSAULT KIT 
                    TESTING.

  Section 502 of the Omnibus Crime Control and Safe Streets Act of 1968 
(34 U.S.C. 10153) is amended--
          (1) in subsection (a), by adding at the end the following:
          ``(7) A report indicating whether--
                  ``(A) the State or unit of local government has 
                conducted a comprehensive sexual assault kit inventory, 
                commonly known as a `backlog inventory', to identify 
                the physical location, untested or tested status (or 
                full sexual assault kit status, if available), and any 
                individual test kit identification or tracking 
                information of each sexual assault kit in the 
                possession of such State or unit of local government, 
                or that has been otherwise transmitted by a State or 
                unit of local government to a third-party, such as for 
                testing, storing, processing, or handling;
                  ``(B) with respect to each sexual assault kit that 
                the victim has consented to have collected, the State 
                or unit of local government has submitted each such 
                sexual assault kit to a laboratory for DNA analysis;
                  ``(C) results of any such DNA analysis were uploaded 
                to the Combined DNA Index System;
                  ``(D) the State or unit of local government has 
                established an electronic tracking system for a victim 
                to identify the physical location of their sexual 
                assault kit and the results of any DNA analysis that 
                was performed;
                  ``(E) the State or unit of local government has 
                established a victim notification protocol for 
                informing a victim of the status of their sexual 
                assault kit, including where their sexual assault kit 
                was analyzed;
                  ``(F) the State or unit of local government has in 
                place a comprehensive sexual assault kit inventory 
                system to identify sexual assault kit status, physical 
                location, and any test kit identification or tracking 
                information of each sexual assault kit in the 
                possession of such State or unit of local government, 
                or otherwise transmitted by a State or unit of local 
                government to a third-party, such as for testing, 
                storing, processing, or handling; and
                  ``(G) the information in any comprehensive sexual 
                assault kit inventory system described in subparagraph 
                (F) is updated, and how and when it is updated.''; and
          (2) by adding at the end the following:
  ``(c) Determination by Attorney General.-- Between the receipt of a 
grant application and deciding on such application, the Attorney 
General shall determine--
          ``(1) if the State or unit of local government has completed 
        the conduct described under subsection (a)(7); and
          ``(2) if such conduct has not been completed, the reason that 
        it has not been completed.
  ``(d) Eligibility.--A State or unit or local government shall only be 
eligible for a grant under this subpart if the Attorney General 
determines such State or unit of local government has completed the 
conduct described under subsection (a)(7).
  ``(e) Requirement for Grant Recipients.--A State or unit of local 
government that has been awarded a grant under this subpart as of the 
date of the enactment of the `Rape Kit Backlog Progress Act of 2023' 
shall have one calendar year from such date of enactment to complete 
the conduct described in subsection (a)(7) or such State or unit of 
local government shall become ineligible for a grant under this 
subpart.
  ``(g) Definitions.--In this section:
          ``(1) Sexual assault kit.--The term `sexual assault kit' 
        means evidence gathered by a medical professional from a victim 
        following a sexual assault, which evidence may--
                  ``(A) include swabs, test tubes, microscopic slides, 
                and evidence collection envelopes, for hairs and 
                fibers; and
                  ``(B) vary in accordance with the circumstances of 
                the sexual assault and with any applicable rules or 
                procedures of the jurisdiction.
          ``(2) Sexual assault kit status.--The term `sexual assault 
        kit status' means whether an individual sexual assault kit is--
                  ``(A) collected and untested;
                  ``(B) collected and tested;
                  ``(C) lost or missing, expired or spoiled; or
                  ``(D) tested and results reported to the victim, 
                proper authorities, and the Combined DNA Index 
                System.''.

SEC. 4. ATTORNEY GENERAL PUBLIC REPORT ON RAPE KIT BACKLOGS.

  Subpart 1 of part E of title I of the Omnibus Crime Control and Safe 
Streets Act of 1968 (34 U.S.C. 10151 et seq.) is amended by adding at 
the end the following:

``SEC. 510. ATTORNEY GENERAL PUBLIC REPORT ON RAPE KIT BACKLOGS.

  ``(a) In General.--Beginning not later than two years after the date 
of the enactment of the `Rape Kit Backlog Progress Act of 2023', and 
annually thereafter, the Attorney General shall make publicly available 
on the internet website of the Department of Justice a report, 
including--
          ``(1) each report on the conduct described under section 
        502(a)(7) received from an applicant for a grant under this 
        subpart;
          ``(2) an aggregate analysis of the reports described under 
        paragraph (1);
          ``(3) if an applicant for a grant under this subpart has been 
        awarded a grant; and
          ``(4) if an applicant for a grant under this subpart 
        completed the conduct described under section 502(a)(7) and if 
        it has not completed the conduct described under such 
        subsection, the reason that the conduct has not been completed.
  ``(b) Prohibition on Personally Identifiable Information.--Any 
information published by the Attorney General pursuant to this section 
may not contain the personally identifiable information of a victim and 
if such information was erroneously published, it shall be removed from 
the website of the Department of Justice immediately upon discovery.''.

                          Purpose and Summary

    H.R. 5721, introduced by Rep. Nancy Mace (R-SC), amends the 
Omnibus Crime Control and Safe Streets Act of 1968 to require 
certain grant applicants and recipients to report to the 
Attorney General on whether they have taken steps to inventory, 
audit, and track sexual assault kits and their testing.

                Background and Need for the Legislation

    DNA evidence is an essential part of ensuring that 
survivors of sexual violence receive justice and see their 
perpetrators held accountable. DNA evidence is often found and 
recovered using rape kits.\1\ Despite the availability of 
federal funding through the Debbie Smith DNA Backlog Grant 
Program for crime labs to process DNA evidence,\2\ many state 
and local governments still struggle to process rape kits in a 
timely manner. According to USAFacts, a nonpartisan data 
center, the number of untested rape kits continues to grow in 
crime labs and law enforcement facilities across the United 
States.\3\ USAFacts found that across 30 states and the 
District of Columbia, there were at least 25,000 kits in need 
of testing in 2022.\4\ However, determining the precise number 
of untested kits is difficult because of a lack of effective 
tracking techniques.\5\
---------------------------------------------------------------------------
    \1\Chris Gilligan, States Struggle With Rape Kit Backlogs Despite 
Funding Efforts, U.S. News (June 20, 2023), https://www.usnews.com/
news/best-states/articles/2023-06-20/rape-kit-backlogs-remain-in-
states-despite-funding.
    \2\Debbie Smith Act, RAINN, https://www.rainn.org/articles/debbie-
smith-act (last visited Sept. 21, 2023).
    \3\Chris Gilligan, States Struggle With Rape Kit Backlogs Despite 
Funding Efforts, U.S. News (June 20, 2023), https://www.usnews.com/
news/best-states/articles/2023-06-20/rape-kit-backlogs-remain-in-
states-despite-funding.
    \4\Id.
    \5\See Emily J. Hanson, Cong. Res. Serv., R44237, Sexual Assault 
Kits (SAKs) and the Backlog of Untested Sexual Assault Evidence: In 
Brief 6 (2022).
---------------------------------------------------------------------------
    The testing backlog for rape kits often results from 
evidence not being sent to the crime lab or evidence arriving 
at the crime lab but not being tested.\6\ This may occur due to 
a number of reasons, including poor tracking and evidence 
logging practices; a general increase in the amount of DNA 
evidence requiring testing; and a lack of equipment, 
technicians, or funding.\7\
---------------------------------------------------------------------------
    \6\Addressing the Rape Kit Backlog, RAINN, https://www.rainn.org/
articles/addressing-rape-kit-backlog (last visited Sept. 21, 2023).
    \7\See generally, Hanson supra note 5, at 5-8.
---------------------------------------------------------------------------
    The backlog has become more widely known due to publicized 
failures in the timely testing of rape kits, including a case 
in Houston, Texas, in which two women sued the city over 
testing delays. In September 2017, a woman filed a class-action 
suit against the city of Houston over a backlog of untested 
rape kits.\8\ The woman stated that her rapist's DNA was in 
several untested rape kits of other alleged victims.\9\ The 
rapist was a convicted child rapist whose criminal record 
encompassed 20 years of violent crimes, including kidnapping, 
unlawful restraint, and sexual assault of a child.\10\ The 
woman alleges that if the kits had been tested, police could 
have arrested her assailant before he assaulted her.
---------------------------------------------------------------------------
    \8\Keith Garvin, Rape victim sues city of Houston over backlog of 
untested rape kits, Click 2 Houston (Sept. 25, 2017), https://
www.click2houston.com/news/2017/09/26/rape-victim-sues-city-of-houston-
over-backlog-of-untested-rape-kits/.
    \9\Id.
    \10\Id.
---------------------------------------------------------------------------
    Another plaintiff joined the lawsuit claiming that her 
assault would not have happened if evidence from previous 
victims was tested.\11\ Under Texas law, rape kits are supposed 
to be tested within 30 days. However, both women did not hear 
about the backlog of their rape kits until 5 years after the 
evidence was collected.\12\ The victims claimed that it was 
unjust for the city of Houston to expect them to continuously 
follow up for results of rape kits taken years prior.\13\ The 
lawsuit listed the Houston Mayor Sylvester Turner, Houston 
Police Chief Art Acevedo, several former mayors, and several 
former police chiefs as defendants. While the case was 
ultimately dismissed, the lawsuit brought attention to the 
issue of untested rape kits across the country.
---------------------------------------------------------------------------
    \11\Id.
    \12\Robert Downen, Lawsuit expands allegations that City of Houston 
didn't properly investigate rapes, Houston Chronicle (Dec. 23, 2017).
    \13\Id.
---------------------------------------------------------------------------
    Despite backlogs in many jurisdictions, some states are 
working to reduce the time it takes to test rape kits while 
improving transparency for victims by implementing tracking 
systems. These systems allow victims to follow the progress and 
forensic path of their rape kit.\14\ Advocates argue that 
tracking systems provide increased accountability and 
transparency, which will in turn speed up a case to 
resolution.\15\ At least 40 states and the District of Columbia 
have implemented or committed to establishing a sexual assault 
kit tracking system in the past nine years.\16\
---------------------------------------------------------------------------
    \14\Amanda Hernandez, Sexual assault survivors can now track their 
rape kits in most states, The 19th News (Sept. 12, 2023), https://
19thnews.org/2023/09/sexual-assault-survivors-tracking-rape-kits/.
    \15\Addressing the Rape Kit Backlog, RAINN, https://www.rainn.org/
articles/addressing-rape-kit-backlog (last visited Sept. 21, 2023).
    \16\Most States Commit To Improve Rape Kit Tracking; 60k Untested, 
National Criminal Justice Association (Sept. 8, 2023), https://
www.ncja.org/crimeandjusticenews/most-states-commit-to-improve-rape-
kit-tracking-60k-untested.
---------------------------------------------------------------------------

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the Committee states that no hearings were held to assist in 
the formulation of H.R. 5721.

                        Committee Consideration

    On September 28, 2023, the Committee met in open session 
and ordered the bill, H.R. 5721, favorably reported with an 
amendment in the nature of a substitute, by a roll call vote of 
26-0, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 5721:
    1. Vote on favorably reporting H.R. 5721, as amended--
passed 26 ayes to 0 nays.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to the requirements of clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received a cost estimate for this bill from the 
Director of the Congressional Budget Office. The Committee has 
requested but not received from the Director of the 
Congressional Budget Office a statement as to whether this bill 
contains any new budget authority, spending authority, credit 
authority, or an increase or decrease in revenues or tax 
expenditures. The Chairman of the Committee shall cause such 
estimate and statement to be printed in the Congressional 
Record upon its receipt by the Committee.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives, a cost 
estimate provided by the Congressional Budget Office pursuant 
to section 402 of the Congressional Budget Act of 1974 was not 
made available to the Committee in time for the filing of this 
report. The Chairman of the Committee shall cause such estimate 
to be printed in the Congressional Record upon its receipt by 
the Committee.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 5721 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 5721 amends the Omnibus Crime Control and 
Safe Streets Act of 1968 to require certain grant applicants 
and recipients to report to the Attorney General on whether 
they have taken steps to inventory, audit, and track sexual 
assault kits and their testing.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 5721 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House rule XXI.

                       Federal Mandates Statement

    An estimate of federal mandates prepared by the Director of 
the Congressional Budget office pursuant to section 423 of the 
Unfunded Mandates Reform Act was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis

    Section 1: Short Title. ``Rape Kit Backlog Progress Act of 
2023.''
    Section 2: Findings. This section makes a series of 
findings pertaining to sexual assault kits and the testing 
backlog, including what is included in a sexual assault kit, 
that there are an estimated 100,000 untested kits across the 
country, and that untested kits allows criminals to evade 
prosecution.
    Section 3: Report to Attorney General Required on Sexual 
Assault Kit Testing. This section amends Section 502 of the 
Omnibus Crime Control and Safe Streets Act of 1968 to require a 
report on whether state and local governments have conducted a 
comprehensive backlog sexual assault kit inventory to identify 
the location, whether it has been tested, and/or any tracking 
information otherwise transmitted to state/local governments 
for the purpose of testing, storing, processing, or handling.
    This section also requires the report to include whether 
the state or local government has submitted each sexual assault 
kit for DNA analysis, whether the results were uploaded to 
CODIS, whether the state or local government has developed a 
tracking system and victim notification protocol, whether the 
state or local government has in place a comprehensive 
inventory system to locate and track sexual assault kits, and 
how often a state or local governments inventory system is 
updated.
    This section further requires the Attorney General to 
determine whether a state or local government has complied with 
the reporting requirements and makes only those state or local 
governments that have complied eligible for a grant. A state or 
local government that has been awarded a grant prior to the 
date of enactment of this bill will have one year to comply 
with the new reporting requirements, or will become ineligible 
for the grant.
    This section also defines ``sexual assault kit'' and 
``sexual assault kit status.''
    Section 4: Attorney General Public Report on Rape Kit 
Backlogs. This section states that beginning not later than two 
years after the bill's enactment and annually thereafter, the 
Attorney General must publish a report containing: (1) each 
report on the required conduct by a state or local government 
grant applicant; (2) an aggregate analysis of each of the 
reports; (3) whether the grant applicant was awarded a grant; 
and (4) if the grant applicant completed the required conduct 
as described above, or a reason why the conduct has not been 
completed. This section also requires the Attorney General to 
ensure that the report does not contain the personally 
identifiable information of a victim.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics, and existing law in which no change is 
proposed is shown in roman):

                       OMNIBUS CRIME CONTROL AND
                        SAFE STREETS ACT OF 1968




           *       *       *       *       *       *       *
TITLE I--JUSTICE SYSTEM IMPROVEMENT

           *       *       *       *       *       *       *



          Part E--Bureau of Justice Assistance Grant Programs


Subpart 1--Edward Byrne Memorial Justice Assistance Grant Program

           *       *       *       *       *       *       *


SEC. 502. APPLICATIONS.

  (a) In General.--To request a grant under this subpart, the 
chief executive officer of a State or unit of local government 
shall submit an application to the Attorney General within 120 
days after the date on which funds to carry out this subpart 
are appropriated for a fiscal year, in such form as the 
Attorney General may require. Such application shall include 
the following:
          (1) A certification that Federal funds made available 
        under this subpart will not be used to supplant State 
        or local funds, but will be used to increase the 
        amounts of such funds that would, in the absence of 
        Federal funds, be made available for law enforcement 
        activities.
          (2) An assurance that, not fewer than 30 days before 
        the application (or any amendment to the application) 
        was submitted to the Attorney General, the application 
        (or amendment) was submitted for review to the 
        governing body of the State or unit of local government 
        (or to an organization designated by that governing 
        body).
          (3) An assurance that, before the application (or any 
        amendment to the application) was submitted to the 
        Attorney General--
                  (A) the application (or amendment) was made 
                public; and
                  (B) an opportunity to comment on the 
                application (or amendment) was provided to 
                citizens and to neighborhood or community-based 
                organizations, to the extent applicable law or 
                established procedure makes such an opportunity 
                available.
          (4) An assurance that, for each fiscal year covered 
        by an application, the applicant shall maintain and 
        report such data, records, and information 
        (programmatic and financial) as the Attorney General 
        may reasonably require.
          (5) A certification, made in a form acceptable to the 
        Attorney General and executed by the chief executive 
        officer of the applicant (or by another officer of the 
        applicant, if qualified under regulations promulgated 
        by the Attorney General), that--
                  (A) the programs to be funded by the grant 
                meet all the requirements of this subpart;
                  (B) all the information contained in the 
                application is correct;
                  (C) there has been appropriate coordination 
                with affected agencies; and
                  (D) the applicant will comply with all 
                provisions of this subpart and all other 
                applicable Federal laws.
          (6) A comprehensive Statewide plan detailing how 
        grants received under this section will be used to 
        improve the administration of the criminal justice 
        system, which shall--
                  (A) be designed in consultation with local 
                governments, and representatives of all 
                segments of the criminal justice system, 
                including judges, prosecutors, law enforcement 
                personnel, corrections personnel, and providers 
                of indigent defense services, victim services, 
                juvenile justice delinquency prevention 
                programs, community corrections, and reentry 
                services;
                  (B) include a description of how the State 
                will allocate funding within and among each of 
                the uses described in subparagraphs (A) through 
                (G) of section 501(a)(1);
                  (C) describe the process used by the State 
                for gathering evidence-based data and 
                developing and using evidence-based and 
                evidence-gathering approaches in support of 
                funding decisions;
                  (D) describe the barriers at the State and 
                local level for accessing data and implementing 
                evidence-based approaches to preventing and 
                reducing crime and recidivism; and
                  (E) be updated every 5 years, with annual 
                progress reports that--
                          (i) address changing circumstances in 
                        the State, if any;
                          (ii) describe how the State plans to 
                        adjust funding within and among each of 
                        the uses described in subparagraphs (A) 
                        through (G) of section 501(a)(1);
                          (iii) provide an ongoing assessment 
                        of need;
                          (iv) discuss the accomplishment of 
                        goals identified in any plan previously 
                        prepared under this paragraph; and
                          (v) reflect how the plan influenced 
                        funding decisions in the previous year.
          (7) A report indicating whether--
                  (A) the State or unit of local government has 
                conducted a comprehensive sexual assault kit 
                inventory, commonly known as a `backlog 
                inventory', to identify the physical location, 
                untested or tested status (or full sexual 
                assault kit status, if available), and any 
                individual test kit identification or tracking 
                information of each sexual assault kit in the 
                possession of such State or unit of local 
                government, or that has been otherwise 
                transmitted by a State or unit of local 
                government to a third-party, such as for 
                testing, storing, processing, or handling;
                  (B) with respect to each sexual assault kit 
                that the victim has consented to have 
                collected, the State or unit of local 
                government has submitted each such sexual 
                assault kit to a laboratory for DNA analysis;
                  (C) results of any such DNA analysis were 
                uploaded to the Combined DNA Index System;
                  (D) the State or unit of local government has 
                established an electronic tracking system for a 
                victim to identify the physical location of 
                their sexual assault kit and the results of any 
                DNA analysis that was performed;
                  (E) the State or unit of local government has 
                established a victim notification protocol for 
                informing a victim of the status of their 
                sexual assault kit, including where their 
                sexual assault kit was analyzed;
                  (F) the State or unit of local government has 
                in place a comprehensive sexual assault kit 
                inventory system to identify sexual assault kit 
                status, physical location, and any test kit 
                identification or tracking information of each 
                sexual assault kit in the possession of such 
                State or unit of local government, or otherwise 
                transmitted by a State or unit of local 
                government to a third-party, such as for 
                testing, storing, processing, or handling; and
                  (G) the information in any comprehensive 
                sexual assault kit inventory system described 
                in subparagraph (F) is updated, and how and 
                when it is updated.
  (b) Technical Assistance.--
          (1) Strategic planning.--Not later than 90 days after 
        the date of enactment of this subsection, the Attorney 
        General shall begin to provide technical assistance to 
        States and local governments requesting support to 
        develop and implement the strategic plan required under 
        subsection (a)(6). The Attorney General may enter into 
        agreements with 1 or more non-governmental 
        organizations to provide technical assistance and 
        training under this paragraph.
          (2) Protection of constitutional rights.--Not later 
        than 90 days after the date of enactment of this 
        subsection, the Attorney General shall begin to provide 
        technical assistance to States and local governments, 
        including any agent thereof with responsibility for 
        administration of justice, requesting support to meet 
        the obligations established by the Sixth Amendment to 
        the Constitution of the United States, which shall 
        include--
                  (A) public dissemination of practices, 
                structures, or models for the administration of 
                justice consistent with the requirements of the 
                Sixth Amendment; and
                  (B) assistance with adopting and implementing 
                a system for the administration of justice 
                consistent with the requirements of the Sixth 
                Amendment.
          (3) Authorization of appropriations.--For each of 
        fiscal years 2017 through 2021, of the amounts 
        appropriated to carry out this subpart, not less than 
        $5,000,000 and not more than $10,000,000 shall be used 
        to carry out this subsection.
  (c) Determination by Attorney General.-- Between the receipt 
of a grant application and deciding on such application, the 
Attorney General shall determine--
          (1) if the State or unit of local government has 
        completed the conduct described under subsection 
        (a)(7); and
          (2) if such conduct has not been completed, the 
        reason that it has not been completed.
  (d) Eligibility.--A State or unit or local government shall 
only be eligible for a grant under this subpart if the Attorney 
General determines such State or unit of local government has 
completed the conduct described under subsection (a)(7).
  (e) Requirement for Grant Recipients.--A State or unit of 
local government that has been awarded a grant under this 
subpart as of the date of the enactment of the ``Rape Kit 
Backlog Progress Act of 2023'' shall have one calendar year 
from such date of enactment to complete the conduct described 
in subsection (a)(7) or such State or unit of local government 
shall become ineligible for a grant under this subpart.
  (g) Definitions.--In this section:
          (1) Sexual assault kit.--The term ``sexual assault 
        kit'' means evidence gathered by a medical professional 
        from a victim following a sexual assault, which 
        evidence may--
                  (A) include swabs, test tubes, microscopic 
                slides, and evidence collection envelopes, for 
                hairs and fibers; and
                  (B) vary in accordance with the circumstances 
                of the sexual assault and with any applicable 
                rules or procedures of the jurisdiction.
          (2) Sexual assault kit status.--The term ``sexual 
        assault kit status'' means whether an individual sexual 
        assault kit is--
                  (A) collected and untested;
                  (B) collected and tested;
                  (C) lost or missing, expired or spoiled; or
                  (D) tested and results reported to the 
                victim, proper authorities, and the Combined 
                DNA Index System.

           *       *       *       *       *       *       *


SEC. 510. ATTORNEY GENERAL PUBLIC REPORT ON RAPE KIT BACKLOGS.

  (a) In General.--Beginning not later than two years after the 
date of the enactment of the ``Rape Kit Backlog Progress Act of 
2023'', and annually thereafter, the Attorney General shall 
make publicly available on the internet website of the 
Department of Justice a report, including--
          (1) each report on the conduct described under 
        section 502(a)(7) received from an applicant for a 
        grant under this subpart;
          (2) an aggregate analysis of the reports described 
        under paragraph (1);
          (3) if an applicant for a grant under this subpart 
        has been awarded a grant; and
          (4) if an applicant for a grant under this subpart 
        completed the conduct described under section 502(a)(7) 
        and if it has not completed the conduct described under 
        such subsection, the reason that the conduct has not 
        been completed.
  (b) Prohibition on Personally Identifiable Information.--Any 
information published by the Attorney General pursuant to this 
section may not contain the personally identifiable information 
of a victim and if such information was erroneously published, 
it shall be removed from the website of the Department of 
Justice immediately upon discovery.

           *       *       *       *       *       *       *


                            Additional Views

    I provide these additional views in support of the 
favorable reporting of H.R. 5721, the Rape Kit Backlog Progress 
Act of 2023. The bill would require state and local governments 
that receive or apply for Byrne JAG funding to meet certain 
reporting requirements, including whether they have conducted a 
comprehensive inventory of rape kits in their possession, if 
results of DNA analyses have been uploaded into the Combined 
DNA Index System (CODIS), and whether they have developed an 
electronic tracking system and a notification protocol for 
victims.
    For these reasons and those explained below, I support the 
overall intent and purposes of the bill. However, I 
respectfully urge our colleagues to recognize that the 
imposition of a penalty that renders such governments entirely 
ineligible to receive or apply for Byrne JAG awards is 
misplaced and ineffective to incentivize compliance with 
unrelated reporting requirements meant to provide greater 
insight into the national rape kit backlog.

                                OVERVIEW

A. Rape Kits and the Rape Kit Backlog

    DNA technology is a powerful tool that helps law 
enforcement professionals solve and prevent crime. Testing 
sexual assault examination kits (also referred to as rape kits) 
can yield evidence in the form of a DNA profile, which can be 
entered into local, state, and national databases containing 
DNA from offenders. This evidence can identify an unknown 
assailant, reveal serial offenders by connecting different 
crimes together, and exonerate the wrongfully convicted.
    For nearly two decades, increased attention has been paid 
to DNA backlogs in cases involving sexual assault (often 
referred to as the rape kit backlog) that exist across the 
country.\1\ According to the National Institute of Justice 
(NIJ), rape kits are typically considered backlogged if they 
are either in the possession of law enforcement and have never 
been submitted to a laboratory for testing or they have been 
submitted to a crime laboratory but remain untested after 30 
days.\2\ Research suggests the latter case--of untested rape 
kits at a lab--is more common. The definition used for a 
backlog can also vary across jurisdictions, for example by the 
number of days required or submission status (i.e., whether the 
kit is in the lab awaiting a test or unsubmitted to a lab). But 
the binding element across all definitions regardless of 
location or days counted is that the kits remain untested. The 
rape kit backlog is a national problem among all 50 states and 
territories.
---------------------------------------------------------------------------
    \1\Pinchevsky, G.M., Criminal Justice Considerations for 
Unsubmitted and Untested Sexual Assault Kits: A Review of the 
Literature and Suggestions for Moving Forward, Criminal Justice Policy 
Review, vol. 29, no. 9 (2018).
    \2\National Institute of Justice, Sexual Assault Kits: Using 
Science to Find Solutions, https://www.nij.gov/unsubmittedkits/.
---------------------------------------------------------------------------
    Rape kits may remain untested for various reasons such as 
limited resources in crime laboratories, as well as law 
enforcement and police discretion. Law enforcement may opt not 
to pursue a forensic investigation for a variety of reasons, 
including the perception of victim cooperation or a decision 
that the results of testing the kit would not be pertinent to 
the overall investigation. Regardless of the reasons for not 
testing rape kits, the backlog of untested rape kits has raised 
concerns that the cases attached to the untested kits are not 
being fully investigated and that evidence in untested kits 
could have been used to prevent other crimes.
    Failure to process these kits could mean missed 
opportunities to identify perpetrators, bring them to justice, 
and prevent further victimization. The results from four 
studies funded by the NIJ indicated that 25%-50% of tested rape 
kits generated CODIS-eligible DNA profiles and 50%-60% of those 
CODIS profiles resulted in a hit.\3\ Many perpetrators of rape 
are serial criminals. Approximately 37% have been found to have 
committed at least one previous felony, and DNA in rape kits 
can connect crimes together. The failure to submit rape kits 
for testing also decreases community trust in law enforcement. 
Survivors from Houston to Memphis have filed class action 
lawsuits against city officials for their rape kit backlogs, 
asserting that timely testing of rape kits could have prevented 
their own or others' sexual assaults. Other experts have 
pointed out that testing the backlog may also help address 
wrongful convictions.
---------------------------------------------------------------------------
    \3\Pinchevsky, G.M., Criminal Justice Considerations for 
Unsubmitted and Untested Sexual Assault Kits: A Review of the 
Literature and Suggestions for Moving Forward, Criminal Justice Policy 
Review, vol. 29, no. 9 (2018).
---------------------------------------------------------------------------

B. Congressional Efforts to Address the Rape Kit Backlog

    There are several federal grants to address rape kit 
availability, analysis, and the rape kit backlog. The bulk of 
these programs focus on assisting state and local law 
enforcement and crime labs to address their backlogs or fund 
research about the backlog. These grants include the Sexual 
Assault Forensic Exam Program, the Sexual Assault Kit 
Initiative, and the largest of the grant programs, the Debbie 
Smith DNA Backlog Grant Program, as well as several grants 
authorized in the Violence Against Women Act (VAWA).
    Since its enactment in 2004, the Debbie Smith Act has been 
renewed three times (2008, 2014, 2019) with overwhelming 
bipartisan support. While the Debbie Smith Act was authorized 
to provide up to $151 million in funding per year through 
Fiscal Year 2019, Congress appropriated just $117 million in FY 
2015. The Debbie Smith Reauthorization Act of 2019 (P.L. 116-
104) reauthorized the program again at $151 million per fiscal 
year through FY 2024. For FY 2021, Congress appropriated $110 
million for the Debbie Smith program.
    Despite the expenditure of millions of dollars in grant 
funding over the last twenty years, the national rape kit 
backlog persists. According to the sponsors of the Rape Kit 
Backlog Progress Act, there are fifteen states with more than 
one thousand untested kits and eight states with no reporting 
whatsoever. In co-lead Representative Nancy Mace's state of 
South Carolina, there are reportedly over one thousand untested 
DNA rape kits and more than 13,000 in California, the state of 
co-lead, Representative Barbara Lee. A 2022 analysis by 
USAFacts found that Maryland had 3,599 backlogged rape kits in 
law enforcement agencies, while North Carolina had 9,045 
backlogged rape kits in crime labs.\4\
---------------------------------------------------------------------------
    \4\USAFacts, How many rape kits are awaiting testing in the U.S.? 
See the data by state, https://usafacts.org/articles/how-many-rape-
kits-are-awaiting-testing-in-the-us-see-the-data-by-state/.
---------------------------------------------------------------------------

C. The Need for Better Data to Assess the Magnitude of the Rape Kit 
        Backlog

    The exact number of untested kits is unknown since many 
jurisdictions do not have systems for counting or tracking rape 
kits nor is there is a national system for collecting or 
tracking rape kits. There is also no federal law mandating the 
tracking or testing of rape kits, nor a federal reporting 
requirement of any kind. In the absence of more precise data, 
many researchers and advocacy organizations have attempted to 
estimate the size of the backlog. A 2018 NIJ-funded study 
estimated that 200,000 rape kits remained untested in the 
custody of police departments.\5\ Although the number has 
dwindled since that time, there are still nearly 100,000 
untested rape kits piled up in law enforcement facilities and 
crime labs across the country, according to some reports. 
Another study published in 2021 used data collected from 911 
counties in 15 states to generate a national estimate of 
300,000 to 400,000 unsubmitted rape kits between 2014 and 
2018.\6\
---------------------------------------------------------------------------
    \5\Campbell, R. et al., Tested at Last: How DNA Evidence in 
Untested Rape Kits Can Identify Offenders and Serial Sexual Assaults, 
Journal of Interpersonal Violence, vol. 33, no. 24 (2018).
    \6\Strom, K. et al., How much justice is denied? An estimate of 
unsubmitted sexual assault kits in the United States, Journal Of 
Criminal Justice, Volume 73 (2021).
---------------------------------------------------------------------------
    The Joyful Heart Foundation, a national organization that 
advocates on behalf of sexual assault victims, is attempting to 
address the lack of complete and timely data by counting the 
rape kit backlog through public records requests and tracking 
data in cities and states across the country.\7\ As of January 
2022, the organization had uncovered more than 52,000 untested 
kits in 67 jurisdictions in 29 states, and it estimates that 
there are still 400,000 untested rape kits yet to be 
discovered.\8\ Joyful Heart has most recently documented nearly 
90,000 untested kits in 37 states and Washington, DC.\9\
---------------------------------------------------------------------------
    \7\See The Joyful Heart Foundation, State of the Backlog, https://
www.endthebacklog.org/state-of-the-backlog/.
    \8\Id.
    \9\The Joyful Heart Foundation, State of the Backlog, https://
www.endthebacklog.org/state-of-the-backlog/.
---------------------------------------------------------------------------

D. The Rape Kit Backlog Progress Act of 2023

    H.R. 5721, the Rape Kit Backlog Progress Act of 2023, would 
impose reporting requirements on states and local governments 
to provide greater insight into the national rape kit 
backlog.\10\ The bill would require all governments that 
receive Edward Byrne Memorial Justice Assistance Grant (Byrne 
JAG) funding to report the following: whether a comprehensive 
inventory of rape kits in their possession has been conducted; 
whether the kits have been submitted to a laboratory for DNA 
analysis; whether results of any analysis have been uploaded to 
the Combined DNA Index System (CODIS); whether an electronic 
tracking system for victims to identify the location of their 
kits and the results of any DNA analysis has been established; 
whether a victim notification protocol to inform victims of the 
status of their kits has been established; whether there is a 
comprehensive rape kit inventory system to identify the status, 
physical location, and identification or tracking of any kit; 
and whether the information in the inventory is updated, and 
how and when the information is updated. The Attorney General 
would be responsible for determining whether these requirements 
have been met by Byrne JAG Program applicants and recipients.
---------------------------------------------------------------------------
    \10\Pursuant to 34 U.S.C. Sec. 10251, ``unit of local government'' 
means any city, county, township, town, borough, parish, village, or 
other general purpose political subdivision of a state; any law 
enforcement district or judicial enforcement district that meet various 
requirements; an Indian Tribe; the District of Columbia; or territory.
---------------------------------------------------------------------------
    The Act does not provide new funding, but it conditions 
eligibility for Byrne JAG funds on fulfillment of the reporting 
requirements outlined in the bill. Administered by the Bureau 
of Justice Assistance (BJA), the Byrne JAG Program is the 
leading source of criminal justice funding to state and local 
jurisdictions. Since FY 2005, BJA has funded over 24,000 direct 
Byrne JAG awards, totaling more than $7.6 billion. As the bill 
is currently written, failure to comply with the reporting 
requirements would render any applicant ineligible to apply for 
a Byrne JAG grant. And any recipient of such funds that fails 
to meet the reporting requirements within one year of enactment 
of the bill would become ineligible for a Byrne JAG grant.
    The Byrne JAG Program provides states, territories, tribes, 
and local governments with critical funding necessary to 
support a range of program areas including: law enforcement; 
prosecution and courts; prevention and education; corrections 
and community corrections, including reentry; drug treatment 
and enforcement; planning, evaluation, and technology 
improvement; crime victim and witness initiatives; mental 
health programs and related law enforcement and corrections 
programs, including behavioral programs and crisis intervention 
teams; and implementation of state crisis intervention court 
proceedings and related programs or initiatives, including 
mental health courts, drug courts, veterans courts, and extreme 
risk protection order programs.
    Each year, BJA includes areas of emphasis in the Byrne JAG 
program solicitations, encouraging state and local award 
recipients to consider coordination with federal law 
enforcement agencies and other stakeholders, including 
communities most impacted by crime and violence, in addressing 
these challenges. For FY 2023, the Byrne JAG areas of emphasis 
were: advancing justice system reform efforts; advancing racial 
equity and support for underserved communities; preventing and 
combating hate crimes; crime and violence reduction strategies; 
and community-based violence intervention approaches.

                                CONCERNS

    Without the constitutional authority to require changes to 
state and local law, Congress has limited tools to incentivize 
state and local governments to adopt certain policies and 
practices. Legislation is often proposed that conditions 
federal grant program eligibility, such as the Byrne JAG 
program, as penalty for noncompliance with certain federally 
endorsed practices. At present, there are only three statutory 
penalty provisions that could trigger the loss of up to 25% of 
a state's Byrne JAG award, though new bills with penalty 
provisions are introduced regularly, e.g., H.R. 5721, the Rape 
Kit Backlog Progress Act of 2023.
    Many stakeholder groups with varying interests, including 
the Major Cities Chiefs of America and the National Criminal 
Justice Association, have long opposed grant penalties in 
legislation. These groups argue that grant incentives rather 
than penalties are more appropriate to accomplish the intended 
goals of the bill. Penalties have proven ineffective in 
incentivizing or encouraging action by governments or agencies 
within governments, particularly when the cost of compliance--
whether financially or politically--is greater than the loss of 
funding. One such example is the Sex Offender Registration and 
Notification Act (SORNA), which passed in 2006 and imposes a 
10% penalty on Byrne JAG grants. Seventeen years later, fewer 
than twenty states have met all the requirements of the Act. 
The remaining states forfeit the penalty each year because the 
financial cost and political impact of the change in policy are 
considered prohibitive.
    According to these stakeholders, the penalties imposed in 
this legislation on Byrne JAG grant awards are unlikely to 
induce compliance by states and local governments. In 2008 and 
2010, funding for Byrne JAG decreased dramatically. While 
appropriations are slowly restoring the losses in funding, 
current funding remains far too low to compel compliance with 
any mandate that is determined by localities to be costly, 
time-consuming, or complicated. In 2015, state and local 
governments spent $226 billion on justice system services, 
compared to $319 million in Byrne JAG awards. Currently, Byrne 
JAG contributes less than one-quarter of one percent (0.22%) of 
state and local governments' own expenditures for policing 
services, underscoring the ineffectiveness of these grant 
funding penalties as incentives for promoting compliance. 
Meanwhile, additional funding is critical at this time given 
the burdens state laboratories have faced as their workloads 
have increased in response to the rise in violent crime. 
Furthermore, the threat of a penalty on grant awards provides 
no leverage over most local law enforcement agencies, as fewer 
than 1,500 of the nation's 18,000 local law enforcement 
agencies receive any Byrne JAG funds. While there are indeed 
crime labs that receive Byrne JAG funds, not all crime labs in 
all states receive these funds since there are other federal 
grants that provide support for forensic activities. 
Stakeholders have also pointed out that conditioning these 
grants often produces unintended consequences, such as 
impacting law enforcement's ability to conduct investigations 
and promote public safety. States and local governments could 
be forced to suddenly terminate funding for hundreds of Byrne 
JAG-funded programs operating in communities across the country 
for noncompliance with an unrelated mandate.
    Stakeholders representing law enforcement and criminal 
justice-related agencies, including the Consortium of Forensic 
Science Organizations, have also voiced specific concerns about 
the reporting requirements that would be imposed by H.R. 5721 
and the penalties that would result if the requirements were 
not met. First, failure to comply with the reporting 
requirements would result in the loss of 100% of a Byrne JAG 
grant award. This could have a devastating impact on many 
states, tribes, territories, and local communities given that 
the Byrne JAG Program is the primary source of federal justice 
funding and the wide range of public safety applications the 
funding supports. As a result, the impact of the penalty would 
stretch far beyond issues related to rape kits. Second, a 100% 
penalty is too severe and inconsistent with other existing 
penalties imposed on grant awards. As previously mentioned, 
SORNA imposes a penalty of 10% on Byrne JAG funding, while the 
Prison Rape Elimination Act provides for a 5% penalty, and the 
Death in Custody Reporting Act imposes a discretionary 10% 
penalty.
    Third, a large portion of Byrne JAG funding passes from 
states to local jurisdictions from a single grant award. Due to 
the 100% penalty imposed by the bill, several agencies could 
lose vital funding if their state or local government, or a 
single agency within that state or local government, fails to 
comply with the bill's reporting requirements. Fourth, the 
reporting requirements are burdensome and would require 
additional resources to comply with them while offering no 
flexibility for those entities in the process of complying, 
failing to consider (or conflicting with) existing protocols 
for testing, analyzing, and tracking rape kits, and possibly 
violating existing federal law.
    For instance, a review and analysis of whether individual 
rape kits have been submitted to a lab for DNA analysis and 
whether those results have been uploaded to CODIS would require 
data from every law enforcement agency and crime lab in the 
state or local government. Each of the stakeholder groups 
stressed the enormity of such an undertaking. Further 
complicating the ability of state and local governments to 
collect this data--particularly within one year--rape kits are 
sometimes held in the possession of the hospitals where 
forensic sexual exams take place. This was pointed out by the 
American Society of Crime Lab Directors, an organization among 
the CSFO, that also contends that much of the data sought in 
this bill already exists, emphasizing the need to consult with 
practitioners familiar with the technical aspects of rape kits 
and DNA analysis. The Crime Lab Directors also cautioned that 
requiring states and local governments to report whether they 
have established an electronic tracking system for a victim to 
identify the results of any DNA analysis that was performed 
could violate federal CODIS law and the Genetic Information 
Nondiscrimination Act (GINA) (Pub. L. 110-233).
    Moreover, H.R. 5721 would include an unfunded mandate since 
grants for backlog tracking systems in the Sexual Assault 
Forensic Evidence Reporting Act of 2013 (SAFER Act) are no 
longer funded.\11\ Again, one year is an insufficient amount of 
time for implementation, especially with respect to an unfunded 
mandate. More time would be needed to implement each of the 
requirements while the imposition of immediate penalties 
without allowing time to create workable solutions is 
problematic. Lastly, the provision in the bill that applies to 
recipients of grants that must comply within one year of 
enactment could be interpreted to mean that failure to comply 
with the reporting requirements could render a recipient 
ineligible for Byrne JAG grants in perpetuity.\12\
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    \11\The Sexual Assault Forensic Evidence Reporting Act of 2013 
(SAFER Act) (Title X of Pub. L. 113-4) added two new purposes for which 
authorizing legislation for the Debbie Smith DNA Backlog Grant Program 
funds can be used: to conduct an audit of the samples of sexual assault 
evidence in the possession of a state or unit of local of government 
that are awaiting testing; and to ensure that the collection and 
processing of DNA evidence by law enforcement is carried out in a 
timely manner.
    \12\Section 3(e) provides, in pertinent part, that a government 
that has been awarded a JAG grant shall have one calendar year from 
enactment to complete the reporting requirements or ``such State or 
unit of local government shall become ineligible for a grant under this 
subpart.''
---------------------------------------------------------------------------
    To address the many concerns expressed by the stakeholder 
groups, Ranking Member Sheila Jackson Lee (D-TX) offered an 
amendment that would make ineligibility for Debbie Smith 
Grants, rather than Byrne JAG grants, the penalty for state and 
local governments that fail to meet the reporting requirements 
of H.R. 5721, connecting the penalty for noncompliance to the 
information sought in the bill. The Jackson Lee amendment would 
maintain the penalty scheme of the bill as well as the purpose 
of the bill. Ultimately, the Committee did not vote on adoption 
of the amendment because Ranking Member Jackson Lee withdrew 
the amendment from consideration.

                               CONCLUSION

    H.R. 5721 imposes a reasonable--and very likely necessary--
requirement that states and local governments provide 
information to Congress to determine the magnitude of the 
national rape kit backlog and whether the decades long 
expenditure of millions of dollars in federal funding is 
effectively helping address the backlog. However, I 
respectfully disagree with the bill's imposition of a penalty 
for noncompliance that is not clearly defined, unrelated to 
reporting requirements that are burdensome and costly, and 
would result in ineligibility to apply for or receive the 
entirety of a grant award that could produce a multitude of 
unintended consequences and have an overall devastating impact 
on communities across the country. I urge our colleagues to 
work with stakeholder groups to improve incentive provisions 
before the legislation is brought forward for consideration by 
the full body.
                                            Jerrold Nadler,
                                                    Ranking Member.

                                  [all]