March 8, 2017
Between 2000 and 2016, hundreds of women went to Fresno hospitals for sexual assault forensic exams. Many had just been raped, but they chose to have their bodies scraped and prodded for physical evidence to assist law enforcement in finding their attacker.
Until the last few months, 765 rape kits – each marked with the victim's name and the date of the assault – gathered from these exams sat untested in a freezer at the Fresno Police Department. If not for a grant from an unlikely source, the kits would likely still be there. And the department does not yet have a firm policy in place to keep the backlog from recurring, while those victims assaulted more than 10 years ago will never see their attacker arrested for the crime – even if they are identified.
How so many piled up is a mystery. Most are from cases detectives deemed to be lower priority for a variety of reasons – maybe there's no suspect identified or the victim doesn't remember what happened.
This is not just a Fresno problem. The Joyful Heart Foundation, an advocacy group for sexual assault survivors, has found that tens of thousands of untested rape kits are sitting in police stations across the country. Testing them would bring new criminal charges, exonerate those falsely accused, identify serial predators and – most importantly – provide survivors with closure and healing.The nationwide issue
Ilse Knecht is the policy and advocacy director for Joyful Heart and heads the Accountability Project, an initiative launched to discover the true extent of the country's rape kit backlog. Once Knecht and her team get a feel for the scope of the issue, they will work to secure federal funds to assist law enforcement in getting the kits tested.
Knecht has found tens of thousands of untested kits in her research. Iowa had more than 4,000. Minnesota had about 3,500. There were 2,220 in Kansas. In Michigan, they have found more than 15,000. So far in California, the Accountability Project has recorded just under 9,000.
"Having all these untested kits is indicative of a larger systemic problem," Knecht said. "We don't take rape seriously in this country."
Knecht said she's reviewed some of the police reports attached to these untested kits. Some have only one or two lines calling the rape accusation unfounded or noting the victim appeared drunk. Others say the victim didn't cry or seem upset, so the assault probably didn't happen.
"Trauma affects each person differently," she said. "A survivor may laugh or be stoned faced. We need to train law enforcement to recognize trauma and end bias or prejudice."
Research has shown that law enforcement blames or disbelieves the victim in rape cases at a significantly higher clip than any other crime, Knecht said. Survivors have to prove their case to police as an extra step. Many withdraw from law enforcement, refusing to become a witness or report future rapes. It also impacts the healing process.
Cities that have fully addressed their untested kits discover unknown offenders, link assaults together to identify serial rapists and perhaps prevent future crimes by taking both off the street, Knecht said. In rare cases, some accused of rape have been cleared through the DNA results.
She added that many believe a rape kit is only useful for identifying strangers, but research has shown that most rapes are committed by someone the victim knows. These attackers often target people living on the margins of society – the poor, the uneducated, the undocumented – and tell them no one will believe them if they report the assault. Most of these offenders will continue to rape until they are stopped, and testing all kits can help police do that.
To combat this, the California Legislature passed a law last year saying that every police force "should" get all rape kits tested as soon as possible. The Accountability Project is backing an amendment currently proposed that would change the "should" to "will."
Communities that have cleared their backlog have seen an increase in sexual assault reporting and victim cooperation, Knecht said. That's huge, given that only about one-third of all sexual assaults in the United States are reported to law enforcement.
The FBI and the National Institute of Justice created a research initiative to address the issue. It allows for any law enforcement agency or forensic laboratory to send untested kits in batches of 30 at a time to the FBI for analysis, provided various conditions are met.
In 2011, the institute awarded grants to Houston and Detroit to determine the scope of the untested kit problem and develop practices for solving it.
Among those new practices was a victim notification program. Police often cite survivors choosing not to assist an investigation as a reason for rape cases going cold. In Detroit, 41 such rape cases were selected for the program. The average length of time between when the assault occurred and the time of notification was nine years. Of the 41 cases, investigators made contact with 31 survivors. After notification, more than half decided they wanted to participate in the investigation and prosecution.
The Detroit report notes: "This rate of re-engagement was higher than expected given the pervasive victim-blaming treatment many survivors had experienced from law enforcement personnel at the time they had filed the police report. Victims were less likely to react positively and to re-engage the longer the period of time between the assault and the notification (beyond nine years), which highlights the importance of timely testing of sexual assault kits and investigation of reported sexual assaults."
Both cities also established phone and email hotlines for victims to check on the testing status of their kits and investigations.
In 2009, the institute conducted a nationwide survey of law enforcement practices from 2002-07. It found that police had not submitted forensic evidence to a crime laboratory in 18 percent of unsolved rapes, 14 percent of unsolved homicides and 23 percent of unsolved property crimes.
The police departments' reasons for not submitting this evidence illustrates how complicated the issue is, as both private and public agencies have parts to play. Perhaps no suspect had been identified in the case, or analysis was not requested by the prosecutor. The laboratory may be too jammed up to accept new kits or analyze the evidence quickly enough for the investigation. Sometimes, the institute said, officers may not be aware of the evidence's usefulness.
Joyful Heart's founder and president, actress Mariska Hargitay of "Law and Order: Special Victims Unit," has also produced a documentary centered around four women whose rape kits went untested for years called "I Am Evidence." It will air on HBO later this year.How is Fresno handling it?
The foundation called out the Fresno Police Department for a lack of transparency. On May 26, 2016, it sent the department a public records request for the number of untested kits. On June 14, the city responded, saying it could not provide that information because it is not tracked in a way easily shared with the public.
When The Bee asked for the same number in late March, it was provided within a few days. Larry Donaldson, the department's attorney who wrote the response to Joyful Heart, could not be reached for a comment on why one request was honored and the other was not.
Sgt. Daniel Macias, a supervisor with the department's sexual assault unit, discussed the specifics of the department's backlog.
As of April 12, 552 kits had been tested by the California Department of Justice. There were 213 untested kits waiting in Fresno to be sent for analysis. Macias expected these would be shipped by the end of May.
The funding for this push came from the New York County District Attorney's Office through what is commonly called a DANY Grant. Beginning in 2016, $38 million was distributed to 32 jurisdictions to help cut the backlog. Rape kit testing is beneficial to all law enforcement, the office said, because it adds to nationwide DNA banks used to track and identify criminals, such as the Combined DNA Index System (CODIS).The oldest of the kits dates to 2000, Macias said.
Prior to this year, rape cases had a 10-year statute of limitations in California, meaning charges had to be filed within 10 years of the assault. But a new law signed in September abolished the statute, making it so all rapes committed after Jan. 1, 2007 no longer have a time limit.
This means that any of the Fresno kits collected after Jan. 1, 2007 can be used at evidence in future cases. As detectives worked through the 552 kits returned so far, Macias said at least 20 new cases are going forward. Police are in the process of serving search warrants to suspects in these cases that will compel them to submit DNA samples. If those samples match the DNA found in the kits, they will be arrested and charged.
It also means the kits collected between 2000 and the end of 2006 will not be used as evidence in new cases. Macias wasn't sure just how many kits fell into this category, but for most of them, their assault will go unpunished.
The department is still working out whether to let these survivors know. Some may want to know the identity of their attacker. Some no longer want to be reminded or talk to police about anything at all.
However, Macias said every survivor whose possible case has not expired will be notified and asked if they want to assist in prosecution.
"It's difficult," Macias said. "Some have moved on. They may be married now or have kids. Their partner may not know. They may not want to re-live it again."
Macias said testing all the backlogged kits is important for updating the federal databases and identifying repeat offenders. Many rapists are repeat offenders, and some will continue raping until caught. Identifying these offenders could give police and the Fresno County District Attorney's office more information for other current or future cases.
Priscilla Meza is the executive director of Rape Counseling Services of Fresno – the primary victim's advocacy group for sexual assault in Fresno County. She hopes Fresno's backlog won't deter sexual assault survivors from reporting their crimes in the future.
"My concern is the message it sends to survivors and victims," Meza said. "That if they come forward, nothing's going to be done."
Only 44 percent of the nonprofit's clients have reported their assault to law enforcement, Meza added.Difficult to prosecute
Rape and sexual assault investigations may be the most difficult crimes to investigate and prosecute. According to the Rape, Abuse & Incest National Network, the country's largest sexual assault survivor advocacy group, rapists serve jail time in only six out of every 1,000 rapes.
Advocacy groups and federal crime statistics differ slightly on the percentage of rapes reported to law enforcement, but both place the percentage in the low 30s.
Choosing which sexual assault cases go forward is tough, Macias said. Detectives essentially assign a priority to each case. Those where arrests are likely – the suspect was caught in the act or easily identified – are at the top of the list. Cases where the survivor doesn't remember what happened – maybe she was drunk – or isn't being fully cooperative with police move towards the bottom. As the case priority lowers, so to does the urgency for getting a rape kit tested.
But how did so many of these "lower priority" cases pile up? Macias doesn't really know. He joined sex crimes in late 2014.
"I don't believe the (California Department of Justice) had the resources to keep up with the kits," Macias said.
When asked why the department didn't just send the kits to another lab – the Fresno County Sheriff's Office has one directly across the street from police headquarters and has no rape kit backlog – Macias said it was a cost issue. The justice department is legally required to analyze the department's evidence at no cost, he explained, but all other labs would charge the city.
The Department of Justice maintains that is has no backlog or resource problems concerning sexual assault kits.
Spokeswoman Bethany Lesser said the department serves 46 of 58 California counties, including Fresno County. It has handled around 2,000 kits per year for the last three years without increasing its 30-day backlog, which Lesser said is considered a working inventory.
The justice department is also working on its own expediency. Currently, 28 counties – including Fresno – are part of a program designed to analyze rape kits and return the findings within 20 days. The program will extend to the remaining 18 counties soon, and Lesser hopes it will reduce or eliminate backlogs across the state.
In Fresno, the sex crimes unit now stays current on its testing, sending every kit to the Department of Justice within a week of collection, Macias said. It has also assigned a detective to serve as a sexual assault cold case investigator who will handle all the evidence gathered in the backlog testing and assign cases out as needed. Sex crimes currently has two sergeants and 12 detectives, eight of whom investigate cases. Three detectives handle sex offender registration and compliance measures, while the remaining detective handles online crimes.
However, the financing used to end the backlog will not last forever – the funding from the DANY Grant ends in 2018 – and there's currently no plan in place to replace it. There's been no money set aside to cover for it.