Untested and Neglected: Clarifying the Comparator Requirement in Equal Protection Claims Based on Untested Rape Kits

Emily Jones | April 18, 2021

Rape kits are important tools used to store the evidence that is collected from a victim’s body and clothing following a sexual assault. Although the DNA evidence stored in rape kits is crucial to rape investigations, police departments throughout the country have routinely failed to test rape kits. This remains true despite the national funding allocated specifically for rape kit testing. This widespread neglect hinders justice and renders community members unprotected from sexual violence. The national rape kit backlog has sparked legal challenges; six lawsuits have been filed against police departments for systematically refusing to test rape kits, alleging equal protection violations based on gender under 42 U.S.C. § 1983. This Note discusses the two lawsuits that have reached the circuit court level. These two suits illustrate the difficulty in establishing discriminatory intent—a necessary component of an equal protection claim. Ultimately, this Note argues that courts should recognize police refusal to test rape kits as a violation of the Equal Protection Clause of the Fourteenth Amendment and should not require plaintiffs to plead a specific comparator to establish discriminatory intent.