For years, potentially critical evidence in thousands of rapes in Washington sat untested in police evidence rooms or at state crime laboratories.
In 2015, the number of untested “rape kits” – containing biological evidence, such as saliva, blood, semen, urine, skin cells and hair – totaled an estimated 6,000.
DNA collected via the kits sometimes is the only way to identify a rapist. Without an identified suspect, the victim has no legal recourse.
“Law enforcement needs to have an identified suspect before referring a case to the prosecutor’s office for a charging decision,” said James Lynch, spokesman for the Pierce County Prosecuting Attorney’s Office.
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Even when a victim can name the attacker, rape kits are critical.
Without hard evidence from a kit, prosecutors have little to present but the victim’s account. If they don’t think that is convincing, or if the victim is unwilling to testify, charges might not be filed.
Starting in May 2015, the state Legislature passed a series of laws intended to deal with the backlog of untested rape kits and to ensure it never happened again.
“Individuals who have reported a sexual assault and have been through another traumatic experience – undergoing a rape exam – should absolutely have the assurance that the evidence collected will not sit on a shelf somewhere because there isn’t the funding or the framework in place to have the DNA analyzed,” said Sen. Ann Rivers, R-La Center, who cosponsored legislation to deal with the backlog.
“We can’t change what happened, but as lawmakers, and human beings, we can give them one less thing to worry about.”
FIGHTING THE BACKLOG
Since lawmakers acted, 1,116 of the backlogged kits have been submitted for testing, and 325 have been completed and returned to police and prosecutors. The Washington State Patrol is preparing another 939 kits for processing.
The Legislature also set up a task force to determine the causes of the backlog. It found the backlog grew chiefly for two reasons.
Too few qualified scientists at the State Patrol crime laboratory meant some rape kits awaiting testing were sidelined as higher priority cases came in.
A bigger problem was that law enforcement agencies were collecting kits from victims, but not always sending them to the crime lab for analysis.
Among steps taken:
▪ The Legislature appropriated $2.47 million in the 2016-17 budget period to test old rape kits. The money will cover 4,000 of the backlogged kits. The remainder will remain untested until more money is appropriated.
▪ The State Patrol received more than $1.3 million to help it keep up with the expected higher rate of incoming rape kits.
▪ The state crime lab added seven analyst positions to work primarily on sexual assault kits. Two new analysts are working at the lab and four are in training. One position remains vacant.
▪ To deal with the existing backlog, the state hired an outside lab, Sorenson Forensics in Salt Lake City.
▪ New law mandates that law enforcement agencies must submit new rape kits to the crime lab within 30 days. In Tacoma, for example, police turned in 382 kits between June 2015 and September 2016.
▪ A statewide tracking system is in the works so victims, medical professionals, police and prosecutors can check the status of a kit at any time. In late July, the State Patrol awarded a contract to Canada-based STACS DNA to build the tracking system.
Before the Legislature ordered that rape kits be submitted to the state crime lab within 30 days, individual police officers decided how to prioritize evidence, including which kits to submit for testing.
Nearly all of the 6,000 kits in Washington’s backlog were there because officers opted not to submit them.
The decision to not submit a kit does not necessarily mean officers did not believe the victim. They can make the decision for valid reasons, said Detective Bradley Graham of the Tacoma Police Department’s Special Assaults unit.
For example, a suspect might admit to sex with the victim but claim the encounter was consensual. If DNA testing isn’t needed to identify a perpetrator, police might not submit the kit.
On the other hand, Graham said, evidence documented in a kit might back up the victim’s account, so it’s worthwhile to have the crime lab take a look.
Also, though an offender can be convicted without rape kit evidence, processing the materials can determine whether the person is a serial offender. For example, while processing its backlog, Cleveland, Ohio, police identified 207 serial rape suspects responsible for more than 600 attacks.
By requiring that all kits be submitted for testing, the Legislature revoked law enforcement agencies’ authority to prioritize cases. Now the crime lab decides which kits are most important and pressing for testing.
Graham doesn’t like the change. Despite the backlog, law enforcement officers still are best qualified to judge whether a rape kit needs to be sent to the crime lab, he said.
“The difference here is you’re taking away the discretion,” the detective said. “You’re taking away from me the ability to say this really isn’t what it looks like.”
The system doesn’t exclude police from the decision, said Gary Shutler, DNA Technical Leader at the crime lab. Scientists at the lab rely on information from investigators when they prioritize kits for testing, he said.
According to the state’s Sexual Assault Forensic Examination Best Practices Task Force (SAFE), kits should be tested in the following order:
▪ Active investigations and cases with impending court dates.
▪ Active investigations where public safety is an immediate concern.
▪ Violent crimes investigations, including active sexual assault investigations.
▪ Post-conviction cases.
▪ Other criminal investigations and inactive investigations, such as previously unsubmitted rape kits or recently collected kits that the submitting agency has determined to be lower priority based on its initial investigation
The lab has little storage space, so even after a kit is submitted for testing, it stays with police until a lab scientist is ready to work on it.
Once the new tracking system is established, kits will be entered as soon as they come into police custody. Police, crime lab analysts and prosecutors will be able to determine each kit’s location and where it is in the lab process.
What’s more, victims will be able to anonymously access the system to check on progress in their cases.
Shutler said he expects the State Patrol to have a prototype of the tracking system for testing by the end of the year.
Though it likely will take years before all of the backlogged kits are entered into the system, Shutler said he was optimistic about the system’s possibilities.
“There isn’t anything like this for victims of any crime now,” he said. “It could be the wave of the future.”
TESTING RAPE KITS
About half of the 2,500 cases with evidence the crime lab sees each year are related to sexual assaults, Shulter said.
Most of the State Patrol’s 37 analysts deal with evidence from all types of crimes, not just rape kits. But new legislation changed this as well: The seven new analysts now work exclusively on sexual assault kits collected since 2015.
In testing a kit, an analyst first examines the swabs and the victim’s clothing for the presence of semen, which would confirm sexual activity.
In checking the evidence, Shutler said, “You draw a circle around the items most likely to answer the questions you’re asking. If they don’t, you draw the circle wider. The intimate samples first, then the clothing, then the bedding.”
If the goal is to identify a perpetrator, the analyst looks for body fluids or hair. DNA extracted from these sources produces a unique profile of the person it came from.
But a unique profile isn’t enough to identify the offender. The DNA must be compared with that of the victim and any consensual sexual partners. Once other potential sources are ruled out, the analyst likely has the DNA of the offender.
The analyst then compares the DNA with that collected from suspects. The DNA is entered into the FBI’s Combined DNA Index System. Known as CODIS, the database looks for a match among convicted offenders.
“Even if there is a known suspect that matches the collected DNA, the DNA profile would still get searched through CODIS to identify serial rapists,” Shutler said.
Contracted labs, such as Sorenson Forensics, follow the same process, but do not have access to CODIS.
Once an outside lab isolates the DNA, it sends the results to the state crime lab, where an analyst does a technical review, runs the DNA through the CODIS database and sends the results to police.
PAYING FOR EVERYTHING
The cost of processing a basic rape kit is about $600, according to Shutler. Depending on how much evidence is processed, the price can hit $3,000.
Money appropriated by the Legislature will make some progress in cutting the number of untested kits, but an additional $1.5 million will be needed to end the backlog, according to the SAFE task force.
The crime lab has not spent any of the $2.47 million appropriated for the 2016-17 biennium. Instead, it has reallocated funds from federal grants to make progress while it builds up its workforce.
The funds allocated for 2016-17 have been carried over to the next budget term. The lab will use them once the existing federal funds are exhausted.
“It’s like getting an elephant through a straw,” Shutler said. “There’s no sense in getting the money up front when we don’t have the capacity to do the work.”
But more money will be needed. The Attorney General’s Office has applied for grants through the National Institute of Justice. One application was denied. The 2017 grants will be awarded in the fall.
The Legislature has tried to bring in additional money through a less conventional route. Patrons of live adult entertainment establishments are asked to pay a $4 fee to fund the sexual assault kit initiative.
A bill passed by the Legislature in April would allow the state to accept donations toward testing the backlogged rape kits.
“It all costs money,” Shutler said. “There’s a ton more we could do on the DNA side, but we don’t have the money or manpower. We all have budgets.”
The rape kit
Evidence for a sexual assault kit often is collected at a hospital when the victim first meets with law enforcement.
A sexual assault nurse examiner meets with the victim to assess her health and collect evidence.
Depending on the victim’s complaint, different types of physical evidence are collected. Swabs are taken of the affected areas, which may include the genitalia, anus and mouth. The nurse may scrape under the victim's fingernails or even comb through his or her hair.
The nurse also photographs the victim's body to preserve evidence of bruising and injuries like bite marks. For identification purposes, these photos often show both the affected body parts and the victim’s face.
“It’s a humiliating process,” said Detective Bradley Graham of the Tacoma Police Department’s Special Assaults unit. “We’re asking a victim to disrobe and have their body manipulated for the collection of evidence.”
After the nurse is finished, a TPD officer starts a report on the assault and takes possession of the rape kit. But it isn’t automatically sent to the crime lab.
“For evidence to be submitted and tested,” Graham said, “we must have victim consent.”
Only after police have consent is the kit submitted for testing.
Holly Newman Dzyban, Contributing writer