Criminal Justice Considerations for Unsubmitted and Untested Sexual Assault Kits: A Review of the Literature and Suggestions for Moving Forward

Abstract

One of the latest reforms to the criminal justice response to sexual assault involves changes to the submission and testing of sexual assault kits. Across the United States, thousands of kits have either not been submitted to a laboratory or tested by a laboratory, prompting criticisms that victims of sexual assault have not received justice for the crimes perpetrated against them. Jurisdictions across the country have reevaluated their responses to sexual assault, including their investigations and submission and testing of sexual assault kits. It is critical that future efforts respect the recommendations of jurisdictions that have spearheaded earlier reforms and are guided by victim-centered and trauma-informed principles. This article reviews recent research that has been conducted on changes in processing sexual assault kits, provides examples of different approaches to address unsubmitted and untested kits, and suggests ideas for future research and practice to consider as this area moves forward.

Keywords

sexual assault kits forensic testing unsubmitted kits untested kits

Introduction

The criminal justice response to sexual assault has come under criticism many times throughout history. Recently, concerns over the number of sexual assault kits (also known as rape kits) that are unsubmitted to crime laboratories, untested, or backlogged at laboratories have received national media, community, and scholarly attention. A sexual assault kit is a collection of forensic and physical evidence from a sexual assault victim that can be used to test for foreign DNA and conduct additional tests to potentially be used in pursuit of a criminal case against an offender (National Institute of Justice, 2015). Sexual assaults are unique, as the victim’s body often becomes the primary unit of evidence; in effect, the victim is the crime scene (Johnson, Peterson, Sommers, & Baskin, 2012). As a result, collecting evidence for inclusion in sexual assault kits and testing this evidence can be a challenging undertaking.

Recently, agencies across the United States have counted thousands of untested sexual assault kits in their respective custodies (B. Campbell & Wells, 2014; Office of Violence Against Women, 2010). Some of the most populated cities in the United States have been affected. For example, in 2009, the Human Rights Watch nonprofit organization identified well over 12,000 untested sexual assault kits in Los Angeles County, California, the majority of which were from the Los Angeles Police Department and Los Angeles Sheriff’s Department (see also J. Peterson, Johnson, Herz, Graziano, & Oehler, 2012). In Houston, Texas, more than 16,000 kits were discovered in police storage, of which more than 6,500 kits were not submitted to a laboratory for forensic testing (National Institute of Justice, 2015). In Detroit, Michigan, more than 11,000 kits were in police custody; more than 8,700 had not been submitted for testing (R. Campbell, Fehler-Cabral, et al., 2015; National Institute of Justice, 2015). These are only examples; jurisdictions dealing with these issues span the entire country.

As a result, scholars have discussed the extent to which justice has been “denied” and “delayed” (Strom & Hickman, 2010) for victims of crime, including victims of sexual offenses. Concerns about the criminal justice system’s use of (or failure to use) sexual assault kits and underserving victims of sexual assault actually reflect two different phenomena; one characterizes cases in which a sexual assault kit was collected but was never submitted by law enforcement to a crime laboratory for analysis (justice denied; unsubmitted kit), while the other refers to sexual assault kits that were collected and submitted to a laboratory but not yet tested (justice delayed; untested and/or backlog; for example, Strom & Hickman, 2010). Although these two phenomena are qualitatively different and may have emanated for different reasons, they both represent significant unease surrounding the testing of sexual assault kits and the criminal justice system’s treatment of victims of sexual assault.

In light of this, many questions naturally arise, including how the issue of unsubmitted and untested sexual assault kits has grown across the country and why—despite the increased utilization of forensic evidence in criminal cases—so many untested kits exist. Naturally, the next question is where do we go from here? Although scholars have begun to address these questions, research in this area is in its relative infancy. Some research has focused on the reasons for testing (and not testing) forensic evidence, while other research has examined the effects of medical and forensic evidence from sexual assault kits on criminal justice case progression and outcomes. Still other research has examined the processing of these cases from a victim-centered lens, focusing on how victims of sexual assault may be affected by the large number of unsubmitted and untested sexual assault kits. In all areas, however, more research is necessary to fully understand the issue.

This article reviews recent research concerning the use of sexual assault kits and treatment of victims who have had kits collected. A heavy focus of this review stems from research that has emerged from National Institute of Justice (NIJ)–funded projects in select cities aimed at addressing the issue of unsubmitted and untested sexual assault kits. Based on the limited extant research, suggestions for future research in this area are provided; these suggestions have implications for the use of sexual assault kits and the criminal justice response to sexual assault more broadly.

Terminology

Before continuing, it is important to note that despite the increased focus on sexual assault kit testing over the last few years, the terminology used across studies has not always been consistent. However, more recent attention paid to the issue has prompted the clarification of terminology used to describe the processes of submitting and testing sexual assault kits. NIJ distinguishes between three different terms describing the status of sexual assault kits: unsubmitted, untested, and backlogged (National Institute of Justice, 2015). Unsubmitted sexual assault kits are those which have not been submitted by law enforcement to a crime laboratory for forensic testing. Untested kits are those that have been submitted to a crime laboratory but not yet tested. Backlogged kits are those that were submitted to a crime laboratory but have not been tested within 30 days. Although the three terms refer to different issues, all represent significant concerns in the criminal justice response to sexual assault.¹

Sexual Assault Kits and the Criminal Justice System

The current focus on reforming sexual assault kit submission and testing practices can be framed under the larger context of the criminal justice response to sexual assault over time (see also Spohn, 2016). Over many decades, the criminal justice response to sexual assault has received much attention. For example, in the 1970s, reformers attempted to change the stringent requirements placed on victims of sexual violence for their cases to be considered by the criminal justice system (Horney & Spohn, 1991). Prior to such reforms, victims were required to report their victimization quickly, prove that they resisted the offender, and show that force was used in the incident—all of which underserved victims of sexual violence. Reforms took aim at combating these dated practices, in hopes that it would improve the criminal justice response to victims of sexual violence, renew trust in the criminal justice system, and subsequently increase the likelihood that victims would report; the reforms “did not produce the dramatic results anticipated by reformers” (Horney & Spohn, 1991, p. 138; Spohn & Tellis, 2012). Despite some changes in reporting, the criminal justice system still had a significant amount of work to do to improve the response to sexual violence and increase victims’ trust in the system.

Over the past few decades, there have been positive changes to the criminal justice response to sexual assault. However, it could be argued that one of the most recent and substantive issues surrounding the criminal justice response to sexual assault is the number of unsubmitted and untested sexual assault kits in police storage custody. As such, local, state, and federal agencies have become involved in efforts to address these issues. NIJ, for example, has long been central in research efforts related to sexual victimization, including exploring the role of sexual assault kits and forensic evidence on sexual assault cases (see Backes, 2013, for a review of NIJ-involved sexual violence research). In 2010, NIJ partnered with a number of other government agencies in an initial attempt to systematically and comprehensively respond to the growing numbers of unsubmitted and untested sexual assault kits across the country. Various groups of criminal justice experts met to discuss the state of untested sexual assault kits in the United States, challenges associated with untested kits, and recommendations for moving forward (Office of Violence Against Women, 2010). Both prior to and after this meeting, NIJ funded projects to explore various facets of sexual assault kit testing—including, but not limited to, the role of forensic evidence and the degree to which sexual assault kits affect criminal case outcomes—in areas including Los Angeles, Houston, Detroit, New Orleans, and Massachusetts (e.g., R. Campbell, Fehler-Cabral, et al., 2015; Nelson, 2013; J. Peterson et al., 2012; Ritter, 2012). Some of the results of these projects are discussed below.

Testing Sexual Assault Kits and Their Usefulness for Case Processing

Jurisdictions that have recently made concerted efforts to begin eliminating the large number of unsubmitted and untested sexual assault kits have provided strong support for the usefulness of these kits in solving crimes. According to R. Campbell, Feeney, Fehler-Cabral, Shaw, and Horsford (2015), sexual assault kits may hold the keys to either uncovering or confirming the identity of a sexual assault perpetrator, revealing serial offending patterns, and even providing evidence that an individual was wrongly convicted (see also R. Campbell, Shaw, & Fehler-Cabral, 2015), and arguments can be made for testing sexual assault kits involving both strangers and nonstrangers (R. Campbell, Feeney, et al., 2016; R. Campbell, Pierce, Sharma, Feeney, & Fehler-Cabral, 2016b; see also Spohn, 2016; Wells, 2016), as well as kits involving cases both within and outside of the statute of limitations (R. Campbell, Pierce, Sharma, Feeney, & Fehler-Cabral, 2016a). Given the number of potential benefits of using sexual assault kits in criminal cases, it is no surprise that scholars have investigated the extent to which forensic evidence in sexual assault kits was not previously submitted and tested, and why.

Strom et al. (2009) distributed surveys to a nationally representative sample of state and local law enforcement agencies to understand their forensic evidence processing practices for various types of crimes, including rape, and reported that although forensic evidence was collected in close to three quarters of unsolved rapes, it was not submitted to a crime lab in 18% of these unsolved cases. Strom and colleagues reported that law enforcement agencies did not submit forensic evidence to labs for a number of reasons, including the case was already processed (e.g., adjudicated, dismissed) without the use of forensic evidence, the evidence was not believed to have been useful to the case, and the prosecutor did not request the evidence (Lovrich et al., 2004; Strom et al., 2009). Furthermore, according to Strom et al., (2009) agencies often cited that evidence was not submitted because a suspect was not identified. Patterson and Campbell (2012) also found that forensic evidence was not submitted to a crime lab for analysis in close to half of sexual assault cases involving victims and offenders who were strangers, thus concluding that “SAKs [sexual assault kits] that are not submitted to a crime lab may be a missed opportunity to gather additional information about the case that could have produced investigational leads or strengthened the case” (p. 2269).² The belief that forensic evidence only becomes useful after a suspect is identified is not unique to sexual assault crimes (see Beaver, 2010); however, recent research has highlighted the importance of considering that forensic evidence can help identify a suspect in sexual assault offenses. For example, in a NIJ-funded study in New Orleans, out of 256 DNA profiles uploaded to the Combined DNA Index System (CODIS), 139 resulted in hits (Nelson, 2013). In that study, the majority of hits involved cases where the offender was not previously identified as a suspect. Processing sexual assault kits can also help identify suspects responsible for multiple sexual assaults; in Detroit, 8% of a sample of 1,595 sexual assault kits that were tested resulted in the identification of serial sexual assaults where DNA matched more than one sexual assault kit (R. Campbell, Fehler-Cabral, et al., 2015). Moreover, R. Campbell and colleagues (2016b) identified significant serial sexual assault hit rates for kits involving strangers as well as nonstrangers (see also R. Campbell, Feeney, et al., 2016). Thus, the suggestion that evidence should only be submitted to laboratories when a suspect is identified has continuously been unsupported by the research.

Patterson and Campbell (2012) expanded upon this research to explore the predictors of whether a sexual assault kit would be submitted to a crime lab, and found that although close to 60% of kits were submitted to the lab in the county under study, kits were less likely to be submitted depending on certain case and situational characteristics, including if the incident did not result in physical injury to the victim or if the victim cleaned his or her self after the incident. To gather information about why law enforcement officials viewed certain cases and kits as benefiting from testing, Fallik and Wells (2014) surveyed Houston Police Department detectives about their views on investigative screening of evidence in sexual assault kits. They reported that detectives thought that the lab tests would enhance their investigation in only 3% of cases; explanations include many victim-focused reasons, such as victims’ wishes to contact and cooperate with detectives, pursue charges, and perceptions of victim credibility. Other factors included the expiration of the statute of limitations, prosecutors’ unwillingness to prosecute, and questions of consent as opposed to whether sexual contact occurred.

Despite the reasons uncovered by researchers for not submitting kits for testing, scholars have examined whether submitted—and subsequently tested—kits could be useful for processing cases through the criminal justice system.

CODIS profile eligibility and CODIS hits

The first step in utilizing forensic evidence in a criminal case is to determine whether any foreign DNA can be identified and analyzed and, if so, whether it results in an eligible profile to be uploaded to CODIS, a national DNA database maintained by the Federal Bureau of Investigation (FBI) with eligible profiles of arrested and/or convicted individuals, depending on the requirements of the state (see CODIS, n.d., for more information). If an eligible profile can be generated, it can be entered into CODIS to see if the profile matches an offender or case-to-case profile. R. Campbell, Feeney, and colleagues’ (2015) recent publication outlines the operation of CODIS, including how it can operate in sexual assault cases.

Recent studies have explored the extent to which forensic evidence collected from sexual assault kits results in eligible profiles for uploading into CODIS, and subsequently the extent to which uploaded profiles result in CODIS hits. In four recent NIJ-funded studies, between roughly 25% and 50% of all sexual assault kits resulted in a CODIS-eligible profile in a respective jurisdiction (R. Campbell, Fehler-Cabral, et al., 2015; Nelson, 2013; J. Peterson et al., 2012; Wells, Campbell, & Franklin, 2016). It is important to note that the likelihood of attaining an eligible CODIS profile is higher when the kit first screens positive for biological evidence and a DNA profile is developed (discussed below when appropriate).

Specifically, in Detroit, researchers randomly sampled a total of 1,595 sexual assault kits and found that of these kits, just under half had an eligible CODIS profile (n = 785; R. Campbell, Fehler-Cabral, et al., 2015). In New Orleans, of the over 1,000 cases (both older and new cases) tested, 25% (n = 256) resulted in an eligible CODIS profile (Nelson, 2013). In the Los Angeles area, DNA was analyzed in roughly 68% of the 1,948 sexual assault kits (n = 1,320); of those cases where DNA was analyzed, 53% (n = 699) resulted in CODIS profiles to be uploaded into the database (36% of all the total number of kits, not conditioned on whether or not there was DNA present for screening or analysis; J. Peterson et al., 2012). In Houston, a DNA profile was developed and uploaded to CODIS for close to 79% of all kits that screened positive for biological evidence and could have a DNA profile developed (or 43% of all kits, not conditioned on whether or not there was screening for biological evidence or whether a DNA profile could be developed; Wells et al., 2016).

The next step in the investigative process is to explore whether the CODIS-eligible profiles resulted in either a case-to-case hit or offender hit that could further guide the investigation. In the four jurisdictions previously mentioned, approximately 50% to 60% of CODIS-eligible profiles resulted in CODIS hits. Specifically, in Detroit, of those kits resulting in a CODIS-eligible profile upload, roughly 58% (n = 455) resulted in a CODIS hit (R. Campbell, Fehler-Cabral, et al., 2015). In New Orleans, of the 256 CODIS-eligible profiles, 54% (n = 139) resulted in a hit in the national database (Nelson, 2013). In Los Angeles, of the almost 700 CODIS-eligible profiles uploaded from backlogged cases, approximately half (n = 347) resulted in offender or case-to-case hits, with the majority of hits matching a person in the database (J. Peterson et al., 2012). Finally, in Houston, there was a CODIS hit in just under half of the cases involving a CODIS profile upload (Wells et al., 2016).³

Case progression

Next, scholars have explored the overall effects of forensic evidence on criminal justice processing of sexual assault kits. Attempts to examine the effects of forensic evidence on case processing are not new and not limited to sexual assault cases (see J. L. Peterson, Hickman, Strom, & Johnson, 2013; J. Peterson, Sommers, Baskin, & Johnson, 2010, for discussions and research). However, in light of recent attention placed on untested sexual assault kits across the country and the potential impact of kits on case processing, the NIJ-funded studies on unsubmitted and untested sexual assault kits provide important contributions to the extant literature.

In Los Angeles, researchers explored the effects of forensic evidence on case processing for cases involving backlogged sexual assault kits (prior to and after testing) and nonbacklogged kits (prior to and after testing). J. Peterson et al. (2012) reported that among both the backlogged and nonbacklogged samples, approximately 40% of sexual assault cases resulted in an arrest prior to testing evidence from the sexual assault kit; furthermore, 18% had resulted in a conviction. After testing the kits, there was some criminal case progression (e.g., filing of charges) but the impacts were somewhat minimal.

In New Orleans, Nelson (2013) reported that 40 sex crime cases were closed by either warrant or arrest during the 1 year of the project, and 15% (n = 6) of the closed cases were adjudicated.

Houston researchers reported that of the 104 cases with CODIS hits, one case was being presented to the District Attorney, investigations were in progress in 5% of cases (n = 6), and only one resulted in charges filed against an offender as of the final write-up of the Houston report (Wells et al., 2016). The inability to move forward with cases in Houston was partially—but not completely—influenced by expirations in the statute of limitations, inability to locate the victim, and the victim not wishing to participate in the case.

In sum, the NIJ-funded studies suggest that there is some criminal justice case progression based on testing cases, although there is clear variation. Moreover, as noted by (Wells and colleagues (2016), other factors affect the utility of forensic evidence in criminal cases, so additional research is needed in this area.

Although the aforementioned results stemmed from studies specifically focused on testing previously unsubmitted and untested sexual assault kits, other scholars have explored the effects of forensic evidence on criminal justice case processing, without limiting the focus to studies of testing previously untested kits. The limited research in this area is mixed. For example, (Johnson and colleagues (2012) compared forensic science’s “theoretical potential” to affect the criminal justice processing of sexual assaults with its actual effect, as determined by empirical research conducted over the last few decades. They reported that the literature is inconsistent in its assessment of the role of forensic evidence in sexual assault investigations.

Du Mont and White’s (2007) large-scale, international review of the effects of “medico-legal evidence”—which they defined as including biological (e.g., hair, blood, semen), injuries (e.g., ano-genital), emotive (e.g., emotional presentation), and physical (e.g., clothing) evidence—on the criminal justice processing of sexual assault cases globally, reported that the effect was limited. When examining the medicolegal evidence and legal outcome relationship, they reported that less than 50% and less than 30% of studies reported a significant association between general physical injuries and ano-genital injuries (i.e., trauma to the genital area) experienced by a victim and some form of positive legal outcome, respectively. Moreover, and perhaps most closely related to the topic of sexual assault kits, only 8% of studies reported a relationship between biological samples and positive legal outcomes. Despite these conclusions, the authors caution readers that the inconsistencies across studies and the overall conclusions may be affected by methodological differences across studies (Du Mont & White, 2007; Johnson et al., 2012), such as different stages of the criminal justice process under study (e.g., police clearance rates, charging decisions, etc.), the type of evidence included, and sample composition (see Du Mont & White, 2007, section 4; see Johnson et al., 2012, for a brief discussion). Moreover, it is important to note that the Du Mont and White (2007) review was not limited to research conducted within the United States; therefore, the findings must be understood within the context and with appreciation for the differences in criminal justice processing of sexual assault cases across different countries.

In sum, the research suggests that overall, forensic evidence can certainly be useful for criminal case processing (J. L. Peterson et al., 2013); however, the nuances of the relationship (e.g., direct or indirect; R. Campbell et al., 2016b), the type of forensic evidence that is utilized (e.g., R. Campbell, Patterson, Bybee, & Dworkin, 2009), and the other factors that affect the utility of forensic evidence (Wells et al., 2016) are unclear. As jurisdictions continue to address the number of sexual assault cases with untested kits, additional information will emerge about the influence of testing previously untested kits on case outcomes.

Victim-Centered and Trauma-Informed Approaches to Victims of Sexual Assault

In addition to research exploring the utility of sexual assault kits for understanding case processing, recent research stemming from federally funded action-research projects out of Detroit and Houston has highlighted the importance of criminal justice policies, procedures, and practices being victim-centered and trauma-informed. Victim-centered care refers to ideals such as prioritizing sexual assault victims’ needs, wishes, priorities, and overall well-being throughout the criminal justice process (National Institute of Justice, 2015; U.S. Department of Justice). Trauma-informed policies are attuned to the effects—neurobiological and beyond—that trauma can have on victims, and underscore the importance of providing resources and support to victims of sexual assault (see R. Campbell, Fehler-Cabral, et al., 2015, for more information). For example, R. Campbell (2016) discusses how experiencing a traumatic event (e.g., sexual assault) can alter the way that the brain processes emotional reactions and memories, and how various law enforcement interview techniques can affect a victim’s ability to emotionally process and recall memory. Action-research groups in both Detroit and Houston developed victim-centered and trauma-informed policies and procedures for responding to the untested sexual assault issue in their respective communities, in particular in creating their victim notification protocols (Busch-Armendariz, Donde, et al., 2015; Busch-Armendariz, Sulley, & McPhail, 2015; Busch-Armendariz, Sulley, & Morris, 2015; R. Campbell, Fehler-Cabral, et al., 2015). Specifically, multidisciplinary teams in both communities were tasked with determining the best ways to notify victims of the status of their kit, and work together in a way that supports the victim and the victim’s wishes and needs.

Response to victims after the sexual assault

The focus on victim-centered and trauma-informed principles is supported from numerous studies that discuss how the way victims are treated post-assault is vitally important to their overall well-being. However, extant research also suggests that overall, various domains (i.e., criminal justice, medical, mental health) that come in contact with victims of sexual assault may fail to respond in an effective manner. Research has documented evidence of poor treatment of victims of rape—particularly those who do not fit the mold of a “real rape” victim (e.g., stranger, use of force; Estrich, 1987)—through studies on victims (e.g., R. Campbell, 2005, 2006; Du Mont, White, & McGregor, 2009), victim’s advocates (R. Campbell, 1998; Maier, 2008), and licensed mental health professionals (R. Campbell & Raja, 1999). R. Campbell’s (2008) review of the literature on the legal, medical, and mental health response to victims of sexual assault suggests that victims can have difficult and traumatic experiences with all three domains. Although this research is focused on the response to victims of sexual assault broadly, it is reasonable to extrapolate this concern to issues surrounding the response to victims who undergo a forensic exam. It is widely understood that sexual victimizations are highly underreported; however, when victims seek emergency medical care, they often undergo a rape exam, in which forensic evidence is often collected (R. Campbell, 2005). Given the nature of their experiences and the medical procedures undertaken, scholars have found that victims of sexual assault are often highly distressed upon contact with medical and legal service providers, and report experiencing secondary victimization (e.g., R. Campbell, 2005, 2006). Victims’ experiences can be affected—either positively or negatively—by the medical professional conducting the examination (e.g., sexual assault nurse examiner [SANE] vs. a medical professional with less specialized training) and/or presence of victims’ advocates (R. Campbell, 2006; Du Mont et al., 2009; Maier, 2008); still, it is a lengthy, and often times, traumatic experience (R. Campbell, 2005, 2006; Corrigan, 2013; Du Mont et al., 2009). According to research conducted by R. Campbell (2005, 2006), the majority of survivors reported that they were “reluctant to seek further help.”

Nevertheless, despite the level of distress victims of sexual assault often experience, they may be (heavily) encouraged by legal and medical service providers to undergo the sexual assault exam and have evidence collected for a kit (Du Mont et al., 2009). Some research suggests that victims may believe that the evidence collected in a sexual assault kit would

get evidence or proof of the assault; force the assailant to take responsibility for what he did; help identify the assailant; prove the assailant’s guilt; prevent the assailant from re-offending or hurting other women; and increase their feelings of safety and protect loved ones from the assailant. (Du Mont et al., 2009, p. 776; see also Corrigan, 2013)

Unfortunately, some research suggests that “there may be a disjuncture between what some victims believe a forensic examination can achieve and what in reality it may deliver” (Du Mont et al., 2009, p. 778). Moreover, victims’ expectations about the role of forensic evidence might eventually be met with the reality that many kits are simply not tested. Busch-Armendariz and Sulley (2016) have referred to the failure to test sexual assault kits shortly after the initial report of the incident as a tertiary form of victimization; this form of victimization occurs after the sexual assault incident and the secondary victimization by the criminal justice system.

(Re)engagement with the system

Because the attention paid to unsubmitted and untested sexual assault has prompted many jurisdictions to test more sexual assault kits—new and old—many victims of sexual assault may be contacted by criminal justice personnel about the results of their kits and subsequent criminal justice movement (for some, a decade or more after the victimization occurred). As such, criminal justice practitioners and researchers have considered the effect this may have on victims and their desire to re-engage with the system about their case. Only limited research has attempted to explore how victims of sexual assault whose kits are not submitted and/or not tested perceive the criminal justice system and their willingness to participate with the system after their kit is eventually tested. Workgroup members involved in the Houston action-research project argue that future research must consider how the criminal justice system can support victims of sexual violence as they “re-engage” and work with criminal justice system personnel to move forward with their cases (Busch-Armendariz, Sulley, & McPhail, 2015). Victim-centered and trauma-informed protocols have emerged as extremely promising and recommended practices for jurisdictions to adopt when initially contacting and re-contacting victims of sexual assault who reported the incident to law enforcement. As noted by R. Campbell, Fehler-Cabral, et al. (2015), “Victim notification is re-opening survivors’ memories and feelings” (p. 232), so policies and procedures must be sensitive to this reality and approach cases accordingly. For example, the Houston site developed a number of protocols for notification; such protocols included promoting victim-centered approaches and victim empowerment by allowing victims of sexual assault (who underwent a forensic exam and reported to police) to make the initial contact with the police department through a telephone information line and/or email address to get information about their case, and developing the position of the Justice Advocate to aid with victim support and assist with the investigator–victim relationship (SAK Action-Research Task Force, 2013). In Detroit, victims of sexual assault were given the choice to decide if they would like to connect with criminal justice personnel, and if they chose not to connect with criminal justice personnel, that decision would be respected. In addition, initial contact with the victim involved an apology for the failure to initially test the sexual assault kit, as well as a display of concern for the victim (R. Campbell, Fehler-Cabral, et al., 2015).

Recent evidence concerning victim experiences post-notification about their case comes from research out of the Houston and Detroit projects. Both positive and negative experiences have been reported. In Houston, seven victims were interviewed about their contact with the criminal justice system upon notification about their case. In line with prior research, it was not uncommon for these victims to report experiencing secondary victimization upon their initial report of their victimization. Moreover, the majority felt some form of strong emotion—ranging from positive to negative—after being contacted about their case (Busch-Armendariz, Sulley, & McPhail, 2015). Nonetheless, some of the victims wished to re-engage with the system for two primary reasons: to help and protect others, and to hold the offender accountable for his actions.

Detroit’s action-research team pilot tested their victim notification procedures with a small group of cases and reported information about investigators’ perceptions of victims’ reactions to notification about their sexual assault kit (R. Campbell, Fehler-Cabral, et al., 2015). Of the 31 victims who were notified in their pilot study, approximately 16% (n = 5) expressed a “strong negative emotional reaction” to the notification, 29% (n = 9) expressed a “strong positive emotional reaction,” and roughly 55% (n = 17) expressed neither a strong negative nor positive emotional reaction to the notification. The researchers found that the lapse in time between the initial victimization and re-contact, and the age at victimization were related to victims’ reactions and their choice not to re-engage with the system; more negative reactions and less desire to engage with the system were experienced among victims who experienced a longer time period between incident and notification, as well as among victims who were younger at the time of their victimization. They also collected data on those victims who wanted to re-engage with the criminal justice system. Of the 28 victims whom the team identified for a possible second meeting to discuss the case, 18 agreed (64%) to meet. Ultimately, 16 (57% of the 28 victims) wanted to re-engage with the system. Importantly, R. Campbell, Fehler-Cabral, et al. (2015) identified that of those victims who experienced a “strong negative emotional reaction,” none wanted to re-engage with the criminal justice system. Thus, it is important that victims’ needs and emotions are prioritized to increase the likelihood of positive experiences with the criminal justice system and subsequently increase the likelihood of positive emotional reactions to notification and desire to engage with the system.

Considerations of “Success” and How Future Research Can Assist

Both the action-research projects in Houston and Detroit, as well as other research conducted in this area, have provided important foundational knowledge about testing previously untested sexual assault kits and the experiences of victims upon notification about their case. Fortunately, because of the greater attention recently afforded to sexual assault kits, additional jurisdictions across the country are attempting to improve their responses to sexual assault incidents and test and utilize sexual assault kits. In September 2015, the Manhattan District Attorney’s Office granted roughly US$38 million to 32 different jurisdictions across the country to address backlogs of sexual assault kits (The New York County District Attorney’s Office, 2015); at the same time, the U.S. Department of Justice, Bureau of Justice Assistance granted US$41 million to 20 jurisdictions to respond to the untested sexual assault kit issue (The United States Department of Justice, 2015). Thus, toward the end of 2015 alone, close to US$80 million was allocated to agencies specifically to address the untested sexual assault kit concern in the United States.

Funds and attention to the issue are significant advancements in responding to victims of sexual violence—particularly those who undergo a forensic exam—and will undoubtedly help add to the foundation for changing the criminal justice response to sexual violence. However, simply testing kits is not enough; systematic policy change and subsequent behavioral change among criminal justice professionals must take place, so that jurisdictions do not find themselves saddled again with thousands of unsubmitted and/or untested kits. This is clearly no easy task and is certainly affected by outside influences, including resource allocation. The success stories of projects conducted in Detroit and Houston illustrate the commitment required among all stakeholders in any jurisdiction to combat this issue, highlight the importance of working groups comprised of practitioners and researchers for addressing the issue of unsubmitted and untested sexual assault kits, and encourage the placement of safeguards into practice to reduce the odds of systematic, substantial numbers of unsubmitted and untested kits from occurring again (R. Campbell, Fehler-Cabral, et al., 2015; Wells et al., 2016). As such, this area is open for future research to help areas improve their responses (see also R. Campbell, Feeney, et al., 2015, for other suggestions in how future research can build upon the foundation of empirical attention in this area).

On face value, it is relatively easy to see the relevance of how forensic evidence might be helpful for arresting a suspect, and prosecuting, convicting, and sentencing a defendant; thus, it is natural for researchers to continue to explore the ways that increased testing of sexual assault kits can affect criminal justice outcomes. Indeed, research in this area is needed, and scholars should continue to explore this line of inquiry. For example, researchers might consider examining the enactment of legislation involving sexual assault kit submission and testing and its impact on criminal justice processing over time. However, assessing the utility of a sexual assault kit for criminal justice processing is not the only mechanism by which the criminal justice system can measure its success in responding to sexual violence (see Lonsway & Archambault, 2012) and certainly not the only way research can move our knowledge forward. Lonsway and Archambault’s (2012) notion of “alternative measures of success” is very useful for considering the different ways that the criminal justice system’s response to sexual victimization and utilization of sexual assault kits can be improved beyond rates of case processing (e.g., conducting evidence-based investigations, ensuring accountability, properly clearing cases; see also Wells et al., 2016).

The discussion below provides suggestions for how researchers can help identify areas for future work, promote positive change, and subsequently suggest additional measures of success to gauge practice in the area of sexual assault kits. Although these suggestions primarily revolve around sexual assault kits, some naturally have implications for the response to sexual assault cases more broadly.

Improvement of the Public’s Perception

Relatively recently, mainstream media and nonprofit organizations such as The Joyful Heart Foundation (2015; and their program End the Backlog) and Human Rights Watch (2009) have helped make awareness and education about unsubmitted and untested kits more accessible to the general public. The general population’s perception of these issues may affect the likelihood that victims report and feel comfortable undergoing a sexual assault examination and/or engaging with the system, as well as the extent to which social support networks encourage victims to do so. For instance, research has uncovered that (at least initially) victims of sexual assault do not often report to police and formal institutions and instead rely on informal support systems, most commonly friends and family members (e.g., Fisher, Daigle, Cullen, & Turner, 2003). Moreover, reporting victimizations to those in social networks is significant, as research has identified that initial disclosures may be highly influential in victims’ experiences and decisions post-victimization (e.g., Ahrens, 2006; Ahrens, Campbell, Ternier-Thames, Wasco, & Sefl, 2007; Bonnan-White, Hetzel-Riggin, Diamond-Welch, & Tollini, 2015; Ullman, 1999). According to Patterson and Campbell’s (2010) study of 20 rape survivors who reported their victimization and received a forensic exam, just over 25% of the victims reported to law enforcement only after encouragement from informal social supports, and another 25% of victimizations were reported to law enforcement by a third party, without the victim’s consent. Thus, roughly half of the cases were reported to law enforcement due to some third-party involvement.

As mainstream media continues to uncover and highlight the issues pertaining to unsubmitted sexual assault kits, it is essential to understand the general population’s perceptions of the criminal justice system’s response to sexual victimization and sexual assault kits. It seems plausible that the public’s view of the criminal justice system may affect the likelihood that friends and family encourage victims to undergo a medical examination that could potentially uncover or substantiate important forensic evidence, as well as participate with the criminal justice process. The same idea may exist for increased legislative responses to sexual assault kit submission and testing and the likelihood that victims of sexual assault undergo exams and/or engage with the criminal justice system.

Improvements in public perceptions of the system can indicate success not only with sexual assault kit reform but also in the overall criminal justice response to sexual assault. Simply put, over time, improvements in community perceptions of the ability of the criminal justice system to effectively combat sexual victimizations can signify success, even if it simply points to perceptions of legitimacy of the criminal justice system.

It is currently unclear how the community’s awareness and perceptions of sexual assault kit submission and testing may have implications for the criminal justice system’s ability to effectively combat sexual assault. Research of this nature can help uncover if, and how, recent media attention has affected public perceptions of the criminal justice system’s ability to utilize sexual assault kits in investigations, and what impact (actual or theoretical) such perceptions might have on community members when faced with someone who has been victimized (someone else or themselves). Given the weight placed on community–criminal justice system relationships for effectively combating crime, such research could have large implications.

Criminal Justice Personnel’s Perceptions of Victims of Sexual Assault and the Utility of Sexual Assault Kits

As noted earlier in the review, research has found that many criminal justice professionals may not see the utility of testing sexual assault kits under many circumstances (Fallik & Wells, 2014; Lovrich et al., 2004; Patterson & Campbell, 2012; Strom et al., 2009), and many victims of sexual assault report negative interactions with justice system personnel, which contributes to the experience of secondary victimization (e.g., R. Campbell, 1998, 2005, 2006; R. Campbell & Raja, 1999; Maier, 2008). As one of their suggestions for “alternative measures of success,” Lonsway and Archambault (2012) noted that making positive changes in the ways that law enforcement officers interview victims and collect evidence can be viewed as significant measures of success in the criminal justice response to sexual assault, beyond how far the case progressed through the system. This focus has been adopted in the sexual assault kit action-research projects, and initial research in this area has shown positive effects after modifying protocols followed by criminal justice personnel. R. Campbell, Fehler-Cabral, and colleagues (2015) found that training on a trauma-informed approach to victim notification positively affected the way members of the project in Detroit conducted their jobs; members were better able to understand victims’ experiences, reporting behaviors, and responses to criminal justice involvement.

As states make legislative changes and agencies across the country revisit their policies surrounding the submission and testing of sexual assault kits, researchers should continue to explore criminal justice actors’ perceptions and attitudes of sexual assault victims and sexual assault kits. Exploring how officers navigate the policy and practical changes surrounding the investigation of these cases will provide an important perspective on this component of reform. R. Campbell and Johnson (1997) conducted a similar line of research in their assessment of officers’ conceptualizations and definitions of rape and the extent to which they were in line with state definitions after rape law reform in the 1970s and 1980s. They found that although some officers’ definitions reflected the changes, others did not. Their research concluded with suggestions for next steps based on the implications of the study, including increased training of officers. Therefore, it is important to explore not just how reforms have changed but also how criminal justice actors have (or have not) adapted to reforms. As noted by Horney and Spohn (1991), “Many reforms have failed because reformers assumed that the behavior of decisionmakers in the criminal justice system is controlled by legal rules” (p. 138). Other research conducted on police officers’ responses to formal policy changes in other domains of violence against (predominately) women—including the use of pro- and mandatory arrest policies for incidents of domestic violence—has shed light on the extent to which criminal justice actors adhere to policy changes and reforms (Ferraro, 1988; Simpson, Bouffard, Garner, & Hickman, 2006).

The notion that increased research on police officers’ perceptions is important to more comprehensively understand law enforcements’ response to sexual assault and sexual assault kits and forensic evidence parallels the sentiment of other scholars (e.g., Corrigan, 2013; Fallik & Wells, 2014) who generally agree that this line of inquiry would help propel the field forward. Corrigan (2013), for example, noted that policy makers and researchers often fail to explore law enforcement officers’ perceptions and attitudes about sexual assault and victims of sexual assault, including the role of sexual assault kits and expectations of victims undergoing such exams. Failure to explore the law enforcement perspective ignores an extremely important component of efforts to reform the criminal justice response to sexual assault, including how kits and forensic evidence are viewed (but see B. Campbell, Menaker, & King, 2015; Menaker, Campbell, & Wells, 2016).

Victim-Centered Approaches

Similar to the above section, it is vital to continue assessing the effects of proposed victim-centered and trauma-informed practices on actual victim satisfaction with the criminal justice system, likelihood of future reporting (for a sexual assault offense or otherwise), engagement and re-engagement with the system, and subsequent case progression through the system. Such research should begin at the initial contact with the victim, through victim notification about a sexual assault kit after the kit has been tested, and the follow-up with victims of sexual assault throughout the remainder of the criminal justice process. Research that follows sexual assault cases, including those involving sexual assault kits, and the utilization of victim-centered and trauma-informed policies throughout the entire criminal justice process would be a highly valued contribution to the literature from two perspectives: such research could document how various decision makers and criminal justice-involved personnel adopt, utilize, and perceive these promising principles, as well as highlight the effects these approaches have on victims.

Research from the action-research projects in Houston and Detroit has begun to shed light on how changed protocols affect the experiences of victims after being notified about their cases. However, as noted by R. Campbell, Fehler-Cabral, et al. (2015), evidence-based practices surrounding victim notifications have not yet been clearly identified; thus, it is important that empirical attention is placed on this area of inquiry to guide future efforts and develop best practices for notification policies. Such policies may be different depending on the location of the victim, victim characteristics (e.g., sex), length of time that has passed between the incident and notification, outcome of forensic testing, and other considerations; however, research is needed to disentangle these nuances (Busch-Armendariz, Sulley, & Morris, 2015; R. Campbell, Fehler-Cabral, et al., 2015). Following this point, it may be that victims with different individual and case characteristics react better or have more positive experiences depending on the modality of notification, which is supportive of considering a case-by-case basis and not implementing a strict “one-size-fits-all” approach to notification procedures. Outcomes in this area should consider not just victims’ desire to engage with the system and whether or not increases in victim engagement occur after reform but also victims’ perceptions of the process. Recently, Busch-Armendariz and Sulley (2016) proposed utilizing a procedural justice framework to guide victim-centered efforts.

Moreover, research should continue to explore the wants and needs of victims regarding notification. In Houston, victims of sexual assault and community professionals (including victims’ advocates, medical personnel, and others) were asked about their opinions surrounding victim notification procedures, including when and how victims should be notified (Busch-Armendariz, Donde, et al., 2015). Results of focus group interviews shed light on what victims of sexual assault and those who work with them would like to see reflected in notification procedures. Additional research in this area, as well as research on procedures that might be tailored specifically to cases with differing characteristics (e.g., relationship between victim and suspect; statute of limitations expiration status; CODIS hit), or victims located in different geographical locations from where the initial crime occurred, is also warranted (e.g., R. Campbell, Fehler-Cabral, et al., 2015; SAK Action-Research Task Force, 2013). Understanding, and subsequently addressing, the discrepancies between the wants and needs of victims and the actual treatment of victims can help improve the formal response to sexual victimizations. Such an “alternative measure of success” would be achieved if the system can become more parallel with the wants and needs of victims of sexual assault.

Trauma-Informed Approaches

Additional research on trauma-informed approaches to victim notification is also warranted. Research on the neurobiology of trauma has the potential to significantly alter the traditional way of approaching sexual assault cases and notifying victims about changes in their cases after testing kits. Additional research should explore various strategies that criminal justice professionals utilize to interact with victims of sexual assault in trauma-informed ways and ways that do not heighten the risk of secondary victimization and increased hormonal changes associated with trauma from the incident (R. Campbell, 2016). Similar to earlier recommendations, this can be accomplished by exploring how various criminal-justice-involved personnel make sense of trauma-informed approaches and their experiences with using such approaches. Moreover, how victims respond to these approaches can shed light on the effectiveness of reform, which, if positive (as would be expected from the extant literature), can signify a significant positive shift in responding to victims of sexual assault. Research might accomplish this with focus groups or other qualitatively rich designs.

Although research exploring the effects of sexual assault kit reform is in its infancy, it is an important area of inquiry that should guide future research. This area of study is prime for research to continue exploring the practical utility of sexual assault kits in criminal justice cases, expand our traditional measures of “success,” and think of how the system can better serve victims of sexual assault. The lessons learned from studies on sexual assault kits and criminal justice responses may also have broader implications for the processing of sexual assault cases—with or without kits—through the system. The victim-centered and trauma-informed principles guiding notification policies and other responses are also useful for a paradigm-shifting way of responding to sexual assault broadly.

Conclusion

Recent reform to the response to sexual assault has taken the form of sexual assault kit policies and procedures. As jurisdictions across the country reevaluate their approach to submitting and testing sexual assault kits, they will be met with challenges ranging from how to initially fund the testing of kits, how to properly investigate the influx of kits being tested, and how to process cases through the system. As reforms continue, it is vitally important that jurisdictions continue to develop procedures that properly and effectively respond to an important (and sometimes forgotten) person involved: the victim.

Footnotes

Acknowledgements

Many thanks to the two anonymous reviewers for their constructive feedback to improve the article. The author also thanks Melissa Rorie and Bradley A. Campbell for their input on earlier versions of the article.

Author’s Note

The author of this article is a member of a large state-wide working group in Nevada which guides the Sexual Assault Kit Initiative grant, awarded by the Bureau of Justice Assistance, Office of Justice Programs to the Nevada Office of the Attorney General, Award No. 2015-AK-BX-K005. The work published in this paper was not directly supported by the grant. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the author and do not necessarily reflect the views of the Department of Justice.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Gillian M. Pinchevsky is an assistant professor in the Department of Criminal Justice at the University of Nevada, Las Vegas. Her research focuses on violence against women and the criminal justice system’s response to violence against women. Her research has been published in a number of refereed journals, including Crime and Delinquency, Trauma, Violence, and Abuse, Journal of Interpersonal Violence, and Violence Against Women.

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