The chronic under-investigation of rape is a serious enough problem without bogus etiologies, federal funding flops, and commercialized advocacy that exploits victims.

The backlog myth

Reports of thousands of untested rape kits in police storage — too often called a “backlog” — have made rape kits the political and charity crusades du jour.

Rape kits contain physical evidence collected from the bodies of rape victims soon after their assaults. In the hopes of helping police find their rapists, victims surrender their bodies to law enforcement for forensic examinations that can be painful and last four to six hours. Lately, police departments have been forced to admit that they never even tried to process this evidence.

Forde Heights, IL police recovered this 2006 rape kit, covered in mold, from a police refrigerator in 2010.

But contrary to endless headlines and news reports, police departments do not have backlogs. “Backlog” suggests well-meaning police officers submitted rape kits to labs but weren’t able to obtain DNA testing. In cities like Memphis, Detroit, and Cleveland, rape kits didn’t accumulate while waiting in line for testing; they languished in police department custody, sometimes in improper storage conditions and left to mold and degrade. Law enforcement never tried to test them. More often than not they also failed to do any other investigative work. The backlog narrative conveniently shifts responsibility away from law enforcement, which may explain why officials use it so much.

The funding fallacy

Whether it’s states or local law enforcement agencies, lack of funding is not a valid excuse for not testing rape kits.

Since 2004, Congress has granted over a billion dollars and passed two laws aimed at solving this problem. One of those laws, the Debbie Smith Act, was named for a rape victim. But despite the law’s sentimental name, its grants are not targeted for use in rape cases. This loophole strongly benefits the DNA technology providers that contract with the government’s Debbie Smith Act funds, as agencies purchase their chemicals, office supplies, and microscopes to solve all other crimes.

Mariska Hargitay, wearing her Olivia Benson costume, cheers on Detroit DA Kym Worthy and Manhattan DA Cy Vance at a 2014 press conference announcing new federal funding for untested rape kits.

In 2013, the Government Accountability Office reported the programs lacked oversight and transparency. The National Institute for Justice was unable to explain why rape kits piled up while agencies took Debbie Smith funds. Neither could it answer basic questions about how this money was spent. More disturbingly, the NIJ could not explain its decisions in awarding DNA testing-related grants, nor could it determine if grant recipients met the funding goals outlined in their grant applications. A 2015 Rewire investigation found the NIJ had no reliable numbers on figures such as how many rape kits were awaiting analysis or whether the funds were even used to test rape kits.

Yet, advocates and officials continue to lobby for more federal money to “end the backlog.”

In September 2015, Manhattan District Attorney Cy Vance pledged $35 million from his office’s asset forfeiture program to rape kit “backlogs” nationwide. Between Vance and Congress, $79 million will be disbursed to more than 40 jurisdictions to pay for processing rape kits. While these funds come with some guidelines for use, it’s unclear how the grant will be monitored to avoid waste, dysfunction, and abuse.

With all the talk about federal laws and grants, it’s important to remember that local law enforcement agencies have the final say in how they investigate crimes. Regardless of rape kit grants, each department still has its own leadership and culture with unique political priorities. If rape is low on the list of priorities, a grant will not improve outcomes for people who report rape.

Questionable advocacy

In the age of cause marketing, charity can be weaponized, and Joyful Heart Foundation, founded by Law and Order: SVU star Mariska Hargitay, is a repeat offender.

Joyful Heart Foundation consists of initiatives like End the Backlog and NO MORE. But its nonprofit advocacy doubles as commercial promotion of SVU. The promotion ranges from subtle — Hargitay wearing her SVU costume as she stands next to DAs and police chiefs at press conferences — to blatant — NO MORE telling you to “take action” by watching SVU marathons.

In the real world, where untested rape kits are a symptom of bad policing, Hargitay uses her fictional, unrealistically sympathetic sex crimes detective character to influence public policy. Why hasn’t any media questioned this?

We all deserve better.

– By Heather Marlowe and Meaghan Ybos