The Department of Justice is insisting that it has no specific appropriation from Congress to fund the testing of rape kits around the country, even though some members of Congress say Justice should have funding from the huge omnibus spending bill from late last year.

Last week, Rep. Ted Poe, R-Texas, accused Justice of failing to fund the Debbie Smith DNA Backlog Program, even though Congress authorized that program in 2013, and funded it in 2014.

The Violence Against Women Reauthorization Act of 2013 amended the Debbie Smith DNA Backlog Grant Program "by adding authorizing language for grants to fund audits of sexual assault evidence samples stored by States or units of local government that are 'awaiting testing,'" according to a statement from the National Institute of Justice, an agency within the DOJ.

However, the National Institute of Justice said that "[t]o date, the department has not received appropriations specifically to implement the 'Debbie Smith DNA Backlog Grant Program.'"

The NIJ does receive money yearly to "administer grant programs that are directed at providing awards to state and local law enforcement agencies and laboratories to conduct DNA testing for various types of crimes including sexual assault," Gerry LaPorte, director of the National Institute of Justice for the Office of Investigative and Forensic Sciences, told the Washington Examiner.

"Every year when we get this appropriation, we try and determine what the major needs are of the entire forensic science community with respect to forensic science," LaPorte said. The NIJ also funds DNA testing for cold cases, missing persons cases and research programs to "enhance DNA techniques," he said.

But Justice's claim that there is no specific appropriation for the Debbie Smith program goes against Poe's understanding. Poe told the Examiner that the money was appropriated for rape kit testing in the Continuing Resolution-omnibus spending bill, H.R. 83, which was passed last December. On page 64 of that bill, it says "$117,000,000 is for a DNA analysis and capacity enhancement program and for other local, State, and Federal forensic activities, including the purposes authorized under section 2 of the DNA Analysis Backlog Elimination Act of 2000 (Public Law 106–546) (the Debbie Smith DNA Backlog Grant Program)."

Poe said he contacted the DOJ saying that, "the money was appropriated and that they weren't spending the money based upon congressional intent and the law on analyzing rape kits."

LaPorte said that language didn't do enough to specifically appropriate funding.

"We don't receive an appropriation," LaPorte said. "What [Congress was] referring to was the DNA Analysis Backlog Elimination Act. And so SAFER was passed under that and there is no appropriation for that particular act."

The SAFER Act is a reference to Title X of the Violence Against Women Reauthorization Act of 2013. It authorizes "Debbie Smith grants for auditing sexual assault evidence backlogs" and works toward "[r]educing the rape kit backlog," according to the text of the law. LaPorte said the agency never received money to fund the SAFER Act.

"No, we never did receive money for that particular authorization. So that was a law that was authorized but not appropriated," LaPorte said. "However, we still are working very hard to sort of meet the spirit of that legislation, and that's what we do right now with our DNA backlog program is we provide funding for laboratories to test their DNA, and it can be in sexual assault kits, it can be from murders, and it can be from other violent crimes as well, too."

The DOJ spent over 75 percent of these funds on laboratory DNA testing with an additional four or five percent helping to fund a program in which the FBI tests sexual assault kits for state and local law enforcement agencies for free, LaPorte said. While the money did not go to an individual program, it was still spent on DNA testing.

"Almost 80 percent of the money that was available to us is going directly to testing DNA evidence," LaPorte said.

He added that there is "no such thing really as a Debbie Smith Backlog."

"I think that's where the confusion comes in," LaPorte said. "There's always going to be backlogs in laboratories because the demand is always so high, so laboratories are constantly getting all kinds of evidence, including sexual assault evidence."

Poe, on the other hand, argues that the $117 million per year was to fund the Debbie Smith Program and that the appropriations in the CRomnibus bill required 75 percent of these funds to "be applied to analyzing rape kits." An additional 5 to 7 percent was supposed to go toward auditing the number of untested sexual assault kits across the nation and the remaining money was to go toward other support programs for sexual assault victims, Poe said.

"It's not complicated. And my concern is, why isn't the Justice Department analyzing the rape kits based upon the intent of Congress to spend 75 percent of this specific fund specifically for rape kits?" Poe asked.

Poe also said that the White House estimated that there were 400,000 untested sexual assault kits across the nation, a number the NIJ said had not been substantiated.

"We don't know the exact number because part of the money is supposed to go to audit, to find out exactly how many rape kits there are sitting on dusty shelves throughout the country," Poe said.

LaPorte said that there has not been a "national survey of how many kits are remaining."

Poe said he was uncertain what the DOJ was spending the appropriated money on, but that they are not spending it on rape kit testing.

"And it would not seem to me, rather than the Justice Department making excuses and trying to misinterpret the law on what they're supposed to be doing, why don't they do the right thing for rape victims and analyze the rape kits?" Poe said. "This is not justice for the rape victims to know that there are thousands of rape kits, thousands of victims, waiting for some government agency to analyze that sexual assault kit …"

One of Poe's concerns is the sexual assault statute of limitations which varies from state to state. If enough time passes before a kit is tested, the prosecution would be unable to press charges even if the perpetrator was identified.

"The more the Justice Department waits on making sure and getting these analyzed, the longer the statute of limitations continues to run," Poe said.

Despite there being a "tremendous benefit" to testing sexual assault kits, LaPorte said the difficulty comes when figuring out how to test old sexual assault kits when there are also immediate cases requiring attention.

"The challenge is going to be now that when we test sexual assault kits that are 10, 15 years old, that have been in storage for a number of years, and now we have to sort of put them in the queue with the DNA evidence that's being submitted from rapes and murders that happened last week or two weeks ago," LaPorte said. "That's where the big challenge comes in is how are we going to sort of do all this at once."

However, when asked how much money the NIJ would need to help the situation, LaPorte said his department was not allowed to request funding and refused to offer a monetary figure.

Ultimately, Poe said the DOJ should be doing more to help sexual assault victims.

"The Department of Justice should work with sexual assault victims and make sure they get justice. And the failure to analyze rape kits is shameful, it's shameful in my opinion," Poe said.