For years, the Tennessee Bureau of Investigation has worked to resolve a backlog in untested rape kits that have left thousands of sexual assault cases unsolved.

State officials are now acknowledging another equally serious failure of investigations into sexual assault and other violent crimes.

Local law enforcement and booking agencies across Tennessee have failed to collect potentially tens of thousands of DNA samples from alleged perpetrators that are required by law. Rape kits and other DNA crime scene evidence are only as effective as the potential to find a match to perpetrators whose genetic information have been uploaded into a federal DNA database.

“We have a number of cases that are unsolved because we don’t have a hit in the system,” TBI Director David Rausch told Gov. Bill Lee during a November presentation about the agency’s budget. 

David Rausch, Director of the Tennessee Bureau of Investigation. (Photo: tn.gov)
David Rausch, Director of the Tennessee Bureau of Investigation. (Photo: tn.gov)

“If that DNA isn’t being collected then there’s a lot of people out there that are in the shadow,” he said. “We don’t know the size of that problem in Tennessee.”

So called “lawfully owned DNA” is DNA evidence required under state law to be collected by local police or booking agencies for a series of violent offenses, including sexual assault. The laws vary from state to state over when that evidence must be collected — before or after conviction. 

Tennessee’s law has two scenarios in which DNA must be collected: after arrest and a probable cause hearing and before an individual is released from custody. 

A second measure requires the Tennessee Department of Correction or probation and parole officials to collect DNA samples while an individual is incarcerated.

The DNA samples are then shared with the TBI’s Forensic Services Division for analysis and entry into the federal CODIS system — the national Combined DNA Index System used by law enforcement across the country in check for potential matches of DNA to known individuals from evidence collected after a violent crime. 

TBI spokesman Josh DeVine said agency officials “just don’t know” exactly where the failure to collect lies.  

“This is an emerging criminal justice issue, not only in Tennessee, but also in states across the country,” DeVine said. 

Other states that have analyzed the extent of uncollected DNA have found tens of thousands of uncollected samples, Rausch said.

“Most states, we’re hearing, they’ve got 30,000 to 50,000 submissions that have not been collected,” Rausch said. “We don’t know what that looks like in Tennessee.”

The TBI has gotten a $1 million, three-year grant to perform a census of lawfully owned DNA, taking stock of how many individuals have not had their samples taken or logged into the CODIS system. 

A TBI spokesman said law enforcement agencies across the country are also failing to collect DNA samples.

“The more DNA in CODIS the better change of catching the perpetrator and holding them accountable,” said Kelly Peters, director of advocacy for the Sexual Assault Center in Nashville. “This is a good thing for victims.”

Meanwhile, Rausch said the TBI has “almost resolved the backlog” in untested rape kit evidence.

Testing on an initial group of identified kits from Memphis law enforcement is complete, but the city is continuing to perform additional, outsourced testing on negative results from the first batch using alternate methods in an effort to get more data, DeVine said. The city is also pursuing testing on other previously untested items, including bedding and sheets. If the city’s outsourced testing results in additional DNA data, the TBI is required to review it and submit it to the federal CODIS system. DeVine did not provide the number of kits that fall into this category.

The City of Memphis has been involved in a long-running federal lawsuit over its handling of rape kits — some dumped in a landfill — since 2013.

Previously untested kits from other parts of the state discovered in a statewide inventory in 2014 have been completed.

More current cases – 419 in all — were sent to a private lab in April for testing. An unknown number of more complex rape kit testing remains under testing TBI Crime Lab.