Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

7,000 Untested Rape Kits Remain in Oklahoma

Adam Banner - Saturday, March 24, 2018


It’s been a year since the governor issued an executive order creating a task force to conduct a statewide audit of law enforcement agencies in Oklahoma to determine the extent to which rape kits are being left untested.

A recent statement from the state Attorney General’s office puts the number of untested rape kits at 7,000. Until the Attorney General completes its audit to include the reasons for the untested kits, it is difficult to draw conclusions about the impact the situation has on criminal prosecutions and the operation of the criminal justice system as a whole.

When combined with recent news reports of errors made by law enforcement forensic labs throughout the country in processing DNA evidence, the trust prosecutors, defense attorneys, judges and jurors place in such evidence is now in doubt.

The issue of rape kits going untested is not a new one. I wrote about it in a 2015 article for HuffPost while funds were being pledged by the Justice Department and the Manhattan District Attorney’s Office in a nationwide effort to eliminate the testing backlog that existed in 27 states, including Oklahoma.

As I explained in that earlier article, the trauma, both physical and mental, is prolonged for victims who must endure the collection of forensic evidence in a process commonly referred to as the rape kit. The victim, who cannot wash away the memories of the attack, is denied the chance to physically cleanse himself or herself with a shower because police and prosecutors need all evidence the examination might reveal.

A rape kit is used during an extensive examination of the victim to gather DNA and other evidence. The examination can take hours to perform and is usually conducted by a specially trained health care professional or forensic examiner. In addition to providing treatment for injuries suffered by the victim during the attack, a complete medical history is taken from the victim along with information about the attack itself.

An examination of the victim from head to toe follows. Blood, hair, and other samples are taken. The victim is photographed to document the findings of the examiner. It is only after the completion of the examination that a sexual assault victim is allowed to begin the process of cleansing.

An analysis of DNA obtained through a rape kit can be persuasive evidence for jurors to consider, but if it is performed incorrectly, DNA evidence can, and will, leed to wrongful convictions. An audit of the crime lab operated by the police department in Austin, Texas, revealed flawed testing procedures could have tainted the convictions in almost 2,000 cases.

Mistakes by the crime laboratory operated by police in Houston resulted in the conviction of a young man on a rape charge. After spending four years incarcerated for a crime he claimed he did not commit, the truth regarding errors in the DNA interpretation used at the young man’s trial finally led to his release from prison.

Unless a rape kit is necessary for the prosecution of a particular case, there are some who argue it would be a violation of the rights of the victim to conduct testing simply to gather DNA of the accused for other uses, such as for entry of the information into national databases…especially if the victim chooses not to report the crime or cooperate in the prosecution of the case. Others argue that the collection of DNA profiles helps in solving crimes.

For the time being, the nationwide backlog of untested rape kits continues. The task force appointed by the governor in Oklahoma had a three-step mission to accomplish:

  • Determine how many rape kits remain untested in the state.
  • Identify the reasons the rape kits remain untested.
  • Formulate solutions to the reasons why rape kits go untested.

The first phase of its mission, an audit to determine the number of untested rape kits in the state appears to be completed based upon the news released by the attorney general’s office. The attorney general expects to have the second phase of the mission, the reasons, available by the next meeting of the task force.


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