Mariska Hargitay Is Wrong About the Rape Kit Backlog

Untested rape kits are a national scandal, but more funding isn't the answer.

In 2016, then–Vice President Joe Biden appeared on Law and Order: Special Victims Unit. He was there to talk about the "rape kit backlog," the untested rape kits languishing indefinitely across the U.S.—an issue he'd been working on alongside Mariska Hargitay, one of the show's stars.

The scenario was reversed Wednesday night, with Hargitay getting a spot at the Democratic National Convention to make her pitch for a President Joe Biden. But the subject was the same: ending the "rape kit backlog."

"I created the Joyful Heart Foundation to help survivors heal and to change the way society responds to sexual violence," she said. Biden "will end the backlog of hundreds of thousands of untested rape kits….Testing kits not only makes our country safer, but it sends a vital message to survivors that what happened to them mattered."

It's a real problem. Rape kits—which contain DNA evidence from rape victims' bodies that can be used to locate the alleged offender—too often remain untouched. It goes without saying that testing such kits can help find rapists, and yet hundreds of thousands of them have collected dust in police stations over the years.

But this "backlog" isn't really a backlog: Law enforcement agencies shoved those kits aside without ever sending them to a lab. That's called negligence. And it's not something that should be rewarded by throwing more money at the responsible parties, which is precisely what Hargitay would like to do.

First off, police departments already receive a hefty amount of funding to test rape kits. The entire purpose of the Debbie Smith Act of 2004 is to send cash to state and local law enforcement agencies so they are able to do just that. The legislation has been reauthorized multiple times over the last 15 years, and it has funneled more than a billion dollars toward the cause.

Even so, Biden and Hargitay successfully lobbied for the Sexual Assault Kit Initiative, launched in 2015, which has given federal money to police departments that already had the money to test such rape kits but opted not to. Worse yet: That same year, when the Manhattan District Attorney's Office announced it would kick in $38 million to the cause, those funds came from civil asset forfeiture seizures, the program that allows police officers to take possessions from people merely suspected of committing crimes.

By and large, police budgets have grown over the years, with staffs increasing and DNA technology continuing to advance. Yet Meaghan Ybos, founder and executive director of People for the Enforcement of Rape Laws, has documented an incredible level of rape-kit negligence:

In 2009, a Human Rights Watch report exposed over 12,000 untested rape kits in law enforcement storage throughout Los Angeles County. That same year, inquiries by the Cleveland Plain Dealer about the failure of law enforcement to stop serial rapist and mass murderer Anthony Sowell spurred the city's police department to announce plans to process over 4,000 untested rape kits of its own. Also in 2009, after the FBI took control of the Detroit Police Department property room, officials revealed over 8,000 rape kits in police storage had never been submitted to a lab. In 2013, the Memphis Police Department admitted it had failed to test over 12,000 rape kits. In 2014, a New Orleans Police Commander who had been lauded in 2011 for testing at least 800 unprocessed rape kits revealed the department had failed to submit more than 400 rape kits collected since 2011. In 2017, the Wayne County Prosecuting Attorney's office admitted at least 555 rape kits collected by Detroit Police since the 2009 public outcry weren't tested until 2015, a fact that was never announced to the public.

Hargitay partially explains that by saying sex crimes departments are scantily resourced and understaffed. But it is the police departments themselves that allocate staffing and other resources. When violent crime gets the short end of the stick, that's not a funding issue; it's a priorities issue.

Given all that, law enforcement's apathy toward rape kits and the ensuing investigations can't be explained by a dollar amount. Nor can it be solved by one.

"If we are to try to imagine any solutions to this, it's not going to be 'Believe women,' or more training for the police, or trauma-informed training," says Ybos, who was raped in 2003 and had her own kit sit untouched for nine years in Memphis, Tennessee. "People bring things up like, 'We need more female police officers.' No. No. Solutions like that, that compartmentalize this and don't address the policing issues overall—this is just going to be a perpetuation of the problem that caused this situation."