New Law Requires Testing of All Rape Kit DNA Evidence in Illinois

August 29, 2010

A bill recently signed by Governor Quinn will require all law enforcement agencies to send rape kits (physical evidence collected after sexual assaults) for DNA testing. The bill, introduced in early February and passed unanimously in May, came in reaction to recent investigative journalism demonstrating that many of these kits sit on law enforcement shelves in Illinois without ever being tested.

The new law, which takes effect September 1, 2010, makes Illinois the first state in the nation with this requirement. Questions remain about how the state (already facing a budget crisis) will pay for the additional testing, as well as what effect the requirement will have on those accused of sexual assault and the victims of assault.

Since 2005, Chicago police have required that every rape kit received be tested. Until the new law though, there was no statewide requirement that the kits be tested--only that they be retrieved from the hospital where the samples were gathered within two weeks.

Many law enforcement offices across the state did not send all of the kits they received to the state crime lab for testing. Kits have often not been tested when the victim doesn't want to press charges, if the police believe the case isn't very strong or if the state's attorney's office declines to prosecute the case.

Proponents of the new law, including Attorney General Lisa Madigan, point out that rape victims already face difficult hurdles following a sexual assault. Those who take the time to visit a hospital and allow a nurse to gather physical evidence from their bodies--an invasive exam that can take up to eight hours--should not have their efforts merely sit on a shelf, say supporters

Expected Benefits of the New Law

Supporters hope the new law will lead to more rape arrests. FBI statistics indicate that only 11 percent of all reported rapes in Illinois have lead to an arrest. When New York City recently introduced a similar testing requirement, its arrest rape nearly doubled to 70 percent of all reported rapes.

Supporters also point out that even if a victim knows the identity of the suspect, the DNA may be valuable to point out inconsistencies in the suspect's testimony and provide the sort of hard evidence that could impress a jury.

Even if police or prosecutors feel they don't have enough evidence to get a conviction in court, having the DNA evidence could identify a pattern of rapes by the same individual. Furthermore, by guaranteeing that every rape kit collected into evidence will be tested, supporters believe more women may report sexual assaults.

The new law could also potentially benefit those accused of rape. Under constitutional due process protections, people accused of crimes have a right to know all the evidence that the government has concerning a case--both positive and negative. In that sense, the requirement of testing all rape kits can be seen as protecting the rights of the accused. Testing of the evidence could also help exonerate those wrongfully accused of rape.

Difficulties in Implementation

The law also brings with it a great many challenges. Although the bill calls for testing of all submitted rape kits within 6 months, it also says "if sufficient staffing and resources are available." This may effectively become a legal loophole, once again requiring law enforcement to pick and choose which rape kits get tested and which do not.

The law also calls for law enforcement agencies statewide to inventory how many unprocessed rape kits they have by October 15, and for the Department of State Police to submit a plan by February 15, 2011 to deal with the expected backlog of untested kits. Such a plan would likely require additional state funds--funds that will be hard to secure with the state's current budget crisis.

Impact on the Accused

While the requirement of testing within six months may appear to benefit those accused of rape by speeding the process, a glut of tests under the new law could mean that it actually takes longer for the DNA evidence to be returned. Additionally, because DNA tests are now required for rapes, state crime labs may be forced to put other types of DNA tests (for murder or other crimes) on the back burner to deal with the large number of rape kits.

Another unanswered question is what happens to those wrongfully accused of rape after their DNA has been submitted to CODIS--the Combined DNA Index System, the FBI's database of DNA profiles which is used as an investigative tool by police. This raises privacy concerns and fears that these individuals could be unfairly targeted in future investigations, merely because their DNA is on file.

Ultimately, these effects will only be understood as the provisions of the law take effect over the next six months. If you have questions regarding how the law may affect your rights, talk to an experienced criminal defense attorney.

Article provided by Albert L. Wysocki, A Professional Corporation
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