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VOL. 128 | NO. 250 | Tuesday, December 24, 2013

Rape Kit Backlog Lawsuit Shifts Questions

By Bill Dries

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Since August, Memphis City Council members have been reviewing the numbers. Asking questions about them. Verifying them. Categorizing them.

It is the other numbers discussion at City Hall these days – the one about how many rape kits city agencies took on sexual assault victims that the Memphis Police Department never processed over a period of approximately 30 years.

And with the filing of a lawsuit Friday, Dec. 20, in the U.S. District Court for the Western District of Tennessee, there will almost certainly be new numbers to come. And there will be renewed questions that have taken a back seat at City Hall to the details of clearing the backlog.

The lawsuit filed by a Jane Doe sexual assault victim from 2001 against the city of Memphis is about how it happened.

The premise of the lawsuit is that it was no accident or mistake.

The lawsuit, filed by attorney Robert Spence, alleges Memphis Police Department brass knew Jane Doe’s rape kit – and maybe as many as 15,000 others – were not being tested and that the practice was “ratified by multiple policymakers within the city of Memphis Police Department.”

“Defendant has a history of discriminating against females,” the lawsuit continues. “Defendant treats domestic violence abuse reports from women with less priority than other crimes not involving women reporting domestic violence abuse.”

It also claims the city “knew about the herein described conduct and facilitated it, approved it, condoned it and/or turned a blind eye to it.”

The lawsuit alleges the lack of processing of the rape kits violates the equal protection clause of the U.S. Constitution, and it seeks class-action status for a group of victims that could number more than 15,000.

The lawsuit’s estimate is based on the number of sexual assault and rape victims who made reports to third-party agencies during the time covered by the backlog, had rape kits done as part of their cases and who were then turned over to police for further investigation.

The council committee sessions are the only consistent view the public has had of the problem. Council members, early in their discussions, called for monthly progress reports on how many kits had been processed and how many showed indications of enough evidence to warrant further testing.

It’s also where the first public indications have been found of how long clearing the backlog will take and how much it will cost the city.

When the council focused its attention on the problem in August, the first committee session included plenty of questions about how this could have happened.


Council member Janis Fullilove was aggressive in her questioning about who specifically was responsible. She pushed Memphis Police Director Toney Armstrong for answers, while acknowledging that the problem began long before he became police director. Armstrong repeatedly said he didn’t know. The council’s discussion shifted to how to clear the backlog.

In August, Armstrong wasn’t making even a general estimate on the number of rape kits, putting it at “several thousand.”

As the lawsuit gets into the discovery stage, he and other top police brass will be pushed for more specific and definitive answers, not only about how it happened but what the procedures were for handling the rape kits and who was responsible for enforcing those procedures.

Armstrong told council members last week he will need an additional $396,000 or will have to find that amount within his existing division budget just to address further processing of the initial group.

The backlog, according to Armstrong, stands at more than 12,000, with an initial batch of 1,600 still being processed. He is putting them in groups of 400 each, with the idea that that is about as many as multiple independent labs can each handle.

So far, three-fourths of the kits that have been processed have shown some kind of results that require additional processing. That’s more than Armstrong initially estimated. His first estimate was that about half would come back with some indications that would prompt further testing

Memphis Mayor A C Wharton Jr. said the city is applying for state and federal grants to help pay the cost of processing the backlog.

The administration is also trying to track down a letter reportedly sent by the Tennessee Bureau of Investigation that resulted in some rape kits being sent to that state agency.

City Chief Administrative Officer George Little estimated processing the entire backlog will take “several years.”

The Memphis Police Department also has plans to build a center with a laboratory specifically for testing and processing such rape kits.

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