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Wednesday, September 20, 2017 by Cate Malek

Despite Austin’s crime lab meltdown, Texas is working to clear its DNA backlog

When Wendy Davis decided to find out how many untested rape kits there were in the state of Texas, she readily admits she had no idea what she was getting into.

Davis, a former state senator, was first told that there was a backlog by a representative of the state forensics lab in 2009. Around the U.S., advocates for survivors of sexual assault were sounding the alarm about a national emergency: thousands of DNA kits from sexual assaults sitting untested in labs – sometimes for decades. When Davis and a bipartisan group of state senators pushed through legislation to test the kits, Texas became one of the first two states in the nation to start to investigate how big the problem even was.

“I certainly wasn’t prepared for the number that we were going to get when we asked for that audit,” Davis said. “None of us was prepared.”

When the numbers came back, legislators realized that Texas labs had accumulated at least 20,000 kits. Each kit is essentially a collection of clothes and DNA swabs taken from a survivor after a sexual assault, and testing these kits is the first step to finding and prosecuting a rapist. The fact that even this most basic step was not happening pointed to a system so broken that advocates say it “condones sexual assault.”

In the past year, intense focus has been put on the closure of Austin’s DNA lab, which was found to have unsound testing protocols as well as a series of other critical problems. But those closely involved with the criminal justice system say this is just one small piece of a much bigger issue. Despite the fact that Texas has been more progressive than other states in its laws around testing rape kits, all the state audit has done is revealed the size of the problem.

“Although we are in some ways advanced when it comes to this issue in terms of what other states are doing, Texas still has a long way to go,” Davis said.

The System Condones Rape

In July, Emily LeBlanc and Dana Nelson wrote a letter to Austin officials that started off with the statement that the criminal justice system “condones rape and does not hold perpetrators, or itself, accountable.” The letter received significant pushback, especially from Travis County District Attorney Margaret Moore, who wrote that “to assert that the Austin/Travis County criminal justice system condones rape, and does not hold perpetrators or itself accountable is a disservice to this entire community,” according to the Austin American-Statesman.

LeBlanc and Nelson were surprised by the response. They are co-chairs of the Sexual Assault Response and Resource Team, known as SARRT, for Travis County, a coalition of organizations working on sexual assault. LeBlanc said what they wrote is commonly understood to be true by the criminal justice community – from police to attorneys to advocates.

“It was our goal to speak up for survivors and we felt some urgency in doing so,” LeBlanc said. The numbers back her up. Around 50 DNA kits come into the Austin lab every month, according to SafePlace, the nonprofit responsible for collecting the evidence when a survivor reports an assault. But national statistics report that only 3 percent of rapists ever see a day in jail.

These staggering numbers are the reason LeBlanc became an advocate in the first place. She started out counseling survivors of sexual assault, but realized that she “couldn’t heal the world one victim at a time.” She was hearing the same stories again and again and wanted to try to address the problem at a systemic level.

She and Nelson have been some of the most outspoken in the local community on the closure of the Austin DNA lab because they view it as the first breakdown in the system they are trying to reform. After hearing officials making statements to the media that sounded as if they were downplaying some of the problems at the lab, they felt the need to take a strong stand.

“We know it takes one bad interaction with the system for survivors to drop out of the process,” LeBlanc said. In Austin alone, there are 4,000 untested kits in the backlog, with the oldest dating back to 1990. Many survivors have lost hope that their case will ever be addressed.

“(Survivors) want their cases taken seriously, they want to know what’s happening, they want to move forward, they want to know who assaulted them, they want to know that that person is being held accountable,” LeBlanc said.

I Was So Naïve

It was advocates like LeBlanc who pushed the rape kit issue onto Wendy Davis’ desk. Davis gained national fame for filibustering a state bill that seriously curtailed abortion rights in Texas while wearing bright pink sneakers, and is known as a passionate advocate for women’s issues.

Wendy Davis

Davis said she encountered support from both Democrats and Republicans as she started to push for an audit. But she encountered a backlash from a surprising group – local law enforcement agencies that she believes didn’t want to be told how to handle their evidence. Because of that pushback, the audit numbers are just an estimate, as lawmakers are still waiting for a few holdout police departments around the state to report their numbers.

“I was so naïve,” Davis said. Although she and other lawmakers were able to pass a law to audit the rape kits in 2011, this didn’t come close to reforming the DNA testing system.

Although the audit opened up some grant money for local police departments to test their backlogs, the legislation needed funding to make it effective – funding advocates say they’re still pushing for. And now that the initial audit has been done, Davis said the next step is to keep an updated count so advocates know if the backlog is decreasing. Then there’s the question of making sure DNA labs are testing the evidence properly, which proved not to be the case at the Austin lab, and may be the case at others.

Despite these challenges, legislators have made progress in past years. Most notably, a law passed by Democratic state Rep. Donna Howard to create a rape kit database that allows survivors to track the status of their rape kit, almost like UPS can track a package someone has mailed. While the bill doesn’t reduce the size of the backlog, it’s meant to give survivors more control over the testing process. With the passage of this bill, Texas became the first state in the nation to enact all six pillars of comprehensive rape kit reform, according to End the Backlog, a nonprofit focused on reforming rape kit testing on a national level.

And here in Austin, progress is being made as well. Michael Eveleth, the current commander of the Austin Police Department’s forensics lab, has said it is on track to clear the backlog of rape kits by the end of summer 2018. But LeBlanc cautioned that once the backlog is cleared, then 4,000 new cases will be on the desks of Austin police, potentially creating another backlog.

Both LeBlanc and Davis believe that behind the many breakdowns in the national criminal justice system is a general lack of concern for sexual assault.

“At the heart of these problems are the attitudes that have existed for decades with regard to sexual assault itself,” Davis said. It comes down to “whether we believe that survivors of assault deserve a criminal justice response, or whether we hold onto this notion that somehow assault victims are responsible.”

Photo by the University of Michigan made available through a Creative Commons license.

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Key Players & Topics In This Article

Austin Police Department: the law enforcement entity for the City of Austin.

Texas Legislature: The state’s legislative governing body composed of the House and Senate.

Travis County District Attorney

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