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An evidence bag from a sexual assault case in the biology lab at the Houston Forensic Science Center. Photo: Pat Sullivan/Associated Press

Texas is the first state to pass a law that would establish a wide array of rape kit reforms—including mandatory testing, an annual statewide audit and a tracking system for both law enforcement and victims to track results.

The extent of the tracking system—whether it ends with CODIS hits or extends through disposition of potential criminal cases—remains to be seen in its ultimate implementation.

The state has become the first to pass legislation that would fulfill requests of advocacy groups like the New York-based Joyful Heart Foundation.

“Texas becomes the first state to pass all key pillars necessary to truly address a state’s untested sexual assault kits,” said Ilse Knecht, director of policy and advocacy for Joyful Heart. “In particular, the tracking of rape kits mandated by H.B. 281 is critical.”

Such testing would establish a common system to track the kits—from hospitals, to law enforcement and crime laboratories, according to the advocates.

Included within the system would be a mechanism for survivors to check the status of those kits—from collection to analysis.

Such tracking systems in other states have traditionally been able to report whether a suspect is identified—but not necessarily what outcome it results in (for instance, the identity of an unknown assailant, an arrest or a prosecution).

Melissa Schwartz, spokeswoman for Joyful Heart, said the new law mandates participation from any agency that investigates or prosecutes a case.

But getting the full database up and running isn’t as simple as just signing a law, Schwartz conceded.

“We know that the proof is in the implementation,” said Schwartz. “Joyful Heart is committed to working with our partners and advocates who have fought for years to bring about comprehensive reform in Texas to make sure that the letter of the law is followed moving forward.”

The tracking system to tell authorities and policymakers how effective “eliminating the backlog” of rape kits is has been a goal of some notable advocates. Rockne Harmon, a retired California prosecutor, has written about the “panacea” of rape-kit testing for Forensic Magazine in the past, and spoken in several interviews about the backlogs.

It’s not that rape kits shouldn’t be tested, Harmon says. But testing should be done in a well-orchestrated manner, and the results should all be properly documented, to better understand how funding and law enforcement resources could best be utilized to catch the most—and most dangerous—criminals, he adds. 

Harmon points to the case of Kalonji Lee—a child rapist who was identified by a CODIS cold case hit in 2004, but who was only caught by Oakland police months later, after he had raped a second 10-year-old girl. The initial case “fell through the cracks,” Harmon has said.

Elimination of the backlog of rape kits—biological samples collected from victims, which sit on evidence rooms shelves but which often contain useable DNA—generally produce a CODIS “hit rate” of about 1 in 4 kits. But there is a range: for instance, Forensic Magazine found that South Dakota’s rate was about 16 percent when it recently eliminated its backlog. Colorado produced about a 20 percent rate.

Knecht, of Joyful Heart, told Forensic Magazine in January that the state-by-state effort to eliminate the backlog is a “patchwork of progress,” depending on policies and agencies.

Texas still has more than 19,000 kits backlogged statewide, according to advocates.

One of the key provisions to Texas’ law is mandatory state funding to make the mandatory testing, database tracking and annual auditing possible. A bill that appeared in the Texas legislature in March made headlines when it proposed to crowdfund for testing of rape kit evidence. (The recently passed bill asks drivers renewing their licenses to contribute $1 to statewide rape kit analysis).

Other states are attempting to pass laws similar to Texas’. It was reported last year that nearly half of all state legislatures had started working on rape kit reform bills.

“With this passage, Texas has demonstrated its commitment to bringing justice to survivors, holding violent perpetrators accountable for their crimes and promoting public safety for all residents,” said Knecht.

Forensic Magazine has previously reported on how state-by-state statutes of limitation have begun to expire as the thousands of rape kits remain untested.

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