Lawmakers target loophole that left thousands of Massachusetts rape kits untested

Buried in the amendments section of the budget bill now on Gov. Charlie Baker’s desk is language that would slam shut a legislative loophole that has left more than 6,300 rape kits — many decades-old — sitting untested on laboratory shelves.

“It’s hard to understand why it is an incredibly dramatic evidentiary collection that survivors have to have within 72 hours of a violent crime was just sitting on a shelf,” said Rep. Natalie Higgins, D-Leominster. “It really breaches the trust.”

Higgins helped draft a 2018 bill that changed the tracking process for rape kits, requiring all samples be tested within 30 days of collection. The next year, the Legislature and Baker allocated $8 million to address the backlog of nearly 400 untested kits.

A state inventory audit eventually found more than 6,300 untested rape kits dating back to 2000, with a handful from the 1980s and 1990s. An amendment filed by Higgins to the fiscal 2022 budget would force the State Crime Lab to test those samples — or outline a plan to do so — by the end of the year.

The discrepancy boils down to a single word: “unsubmitted.”

Lawmakers in 2019 took unsubmitted rape kits to mean all rape kits that had not been tested for DNA, but to the State Police Crime Lab, it meant only the kits that had not been submitted to the lab by police departments, Higgins said.

Rape kit testing backlogs are not a uniquely Massachusetts problem. The Joyful Heart Foundation, an organization that advocates for laws to test all rape kits for DNA in a timely manner, estimates “hundreds of thousands of rape kits sit untested in police department and crime lab storage facilities across the country.”

There are myriad reasons why sexual assault evidence from rape kits might not be processed, but JHF says the two most common reasons are because detectives or prosecutors do not request DNA analysis. These kits may remain in a police evidence storage facility indefinitely.

At the Massachusetts State Crime Lab, at least 2,000 of the untested kits were never tested because the district attorneys explicitly told scientists not to, according to a spokesman for the Executive Office of Public Safety and Security. Other reasons for not testing include instances when a victim did not want to move forward, if the identity of the perpetrator was determined or if cases had already been adjudicated.

Still, Higgins, who is a sexual assault survivor, said no one goes through the process of a rape kit “expecting it will sit on a shelf for years.”

“It’s heartbreaking and infuriating that they would try to cover this up,” Higgins said, noting the past year to rectify the loophole “was an incredibly emotional process for me — to face so much resistance on something that is such a no brainer.”

Speaker of the House Ronald Mariano, joined by Minority Leader Rep. Brad Jones, R-North Reading, said closing the loophole was a priority, leading the charge to add it to the fiscal 2022 budget.

“We are reaffirming our commitment to the many survivors who have been waiting for justice and placing new accountability measures on those tasked with implementing this program,” Mariano said in a statement.

Baker is expected to sign, veto, or send the bill back with amendments by Monday.

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