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With new money, state chips away at daunting backlog of rape evidence — but can't keep up

With new money, state chips away at daunting backlog of rape evidence — but can't keep up

December 16, 2016

or years, hundreds of white cardboard boxes, each containing biological evidence from an alleged sexual assault, sat untouched inside the massive freezer at the Seattle Police Department's 26,000-square-foot evidence warehouse off Airport Way South.

One of those boxes held the swabs and samples taken from a Puyallup woman who was 21 when she underwent a sexual-assault examination at Harborview Medical Center seven years ago.

"It was a terrible experience over all," she said of the invasive exam. "Being poked and prodded and photographed for hours is on nobody's wish list."

Even after learning criminal charges would not be filed against the man she says drugged her at a North Seattle bar and then sexually assaulted her, the woman said she was never told whether the set of evidence from her sexual assault — called a rape kit — was analyzed by forensic scientists at the Washington State Patrol's Crime Lab.

Until last year, chances were good that the white box would have remained sealed with evidence tape, just like thousands of others stored in police-evidence rooms across the state.

But now, Washington law-enforcement agencies are slowly chipping away at the backlog of about 6,000 untested rape kits and submitting them for forensic analysis. Approximately $3.5 million in state money and federal grants have been put toward the effort.

At the same time, legislation that went into effect in July 2015 requires police to send every new kit to the crime lab, where DNA profiles from alleged perpetrators are entered into the Combined DNA Index System (CODIS), a national database operated by the FBI.

Even with the added money, it's still expected the rape-kit backlog will increase by approximately 150 cases annually unless more resources are devoted to the effort.

It used to be up to individual officers or detectives to decide whether to send a rape kit to the crime lab for DNA testing — and the decision was frequently driven by whether an officer thought a case was likely to be prosecuted, said state Rep. Tina Orwall, D-Des Moines, who has sponsored rape-kit legislation and who co-chairs a state task force on the untested kits.

The kits typically weren't tested if a victim knew her assailant because creating a DNA profile was deemed unnecessary.

But too often, Orwall said, the decision to request testing hinged on whether police believed a victim's account, or considered her credible enough to testify at trial.

Removing discretion over which rape kits get tested is meant to eliminate possible police bias while increasing the odds that serial offenders — especially those who claim to have had consensual sex with their accusers — can be connected to multiple cases through their DNA, Orwall said.

Despite earmarking $2.75 million over two years to hire seven more forensic scientists, working through the backlog while handling the influx of new kits is a slow slog at the State Patrol's five DNA labs. Chronic staffing shortages, heavy caseloads and federally mandated changes to the way DNA is processed have contributed to the delay.

Even after outsourcing some of the old kits to a private lab for testing and filling all of the positions, it's expected the rape-kit backlog will increase by approximately 150 cases annually, State Patrol Chief John Batiste wrote in a Dec. 1 report to lawmakers. He recommended hiring three additional forensic scientists to meet the growing demand and suggested contracting with another private lab to expand capacity.

It takes about two years of training before a forensic scientist is able to handle his or her own DNA casework. Once fully trained, each scientist can complete testing on seven rape kits a month, or 84 per year, according to Batiste's report.

As the lab works to expand its testing capacity, state lawmakers earlier this year also approved the creation of a rape-kit tracking system to enable victims to anonymously follow their kits online as they move from hospitals to evidence rooms and laboratories. With more than $3 million in funding over four years, the tracking system — which will be operated by the crime lab — is expected to be up and running by early 2018.

"We want to make sure they never sit on back shelves again and the only way to do that is to track every kit," Orwall said.

The state task force is looking at when and how to go about notifying victims about the results of DNA testing on their rape kits, she said.

Addressing the issue of untested rape kits is happening on a national level, with a number of states working through their own backlogs. Unanimous passage of a federal bill of rights for sexual-assault survivors, signed by President Obama in October, ensures that survivors in federal rape cases have the right to have a sexual-assault examination, be told the results, have the evidence preserved until the statute of limitations runs out, and receive notification before a kit is destroyed.

But there's no uniform way jurisdictions are addressing the estimated 400,000 rape kits nationally that haven't been tested, some of them 20 or 30 years old, said Ilse Knecht, the policy and advocacy director of the Joyful Heart Foundation, a nonprofit organization for victims of sexual assault, domestic violence and child abuse.

The foundation is behind the national End the Backlog campaign and is tracking progress across the country. While several states are instituting reforms, others haven't even conducted audits to count their untested kits, Knecht said.

"Victim-blaming is alive and well, unfortunately, so that factors a lot in this equation," she said. "But we've actually made a lot of progress. The face of reform is exponentially increasing."

Successes in places like New York City, Detroit, Cleveland and Houston — where police have been able to connect serial offenders to multiple crimes after testing old rape kits and getting "hits" in CODIS — are persuading other cities to look at the forensic potential sitting in their evidence rooms, Knecht said.

"We've learned from our mistakes and other jurisdictions' mistakes," said Mitch Barker, who was a cop for 33 years and is now the executive director of the Washington Association of Sheriffs and Police Chiefs. "I think we're better educated on the dynamics around rape. We're not there yet, but we're getting way better."

Until the law changed, it was rare for kits to be tested in so-called "consent cases," those involving a victim who reported being sexually assaulted by someone she knew and a suspect who claimed sex was consensual, Barker said. In other cities, though, police are getting hits from these cases, and connecting suspects to additional crimes, he said.

But DNA evidence alone isn't enough to charge someone with rape, and "just a hit (in CODIS) doesn't make a prosecutable case," said King County Senior Deputy Prosecutor Lisa Johnson. About 40 percent of sexual-assault cases referred by police to Johnson's office are prosecuted, but a large number of those involve child victims. Prosecuting adult cases is much harder, she said.

The most frequent defense in rape cases is that sex was consensual — and since rape is typically a crime committed in private, prosecutors have to be able to present evidence that the victim didn't consent to sex or that the defendant knew or should have known the victim was incapable of providing consent, Johnson said.

Harborview, which until 2009 was the only hospital in King County where sexual-assault exams were offered, sees about 500 sexual-assault victims a year and conducts 300 to 350 exams, said Terri Stewart, the coordinator of the Sexual Assault Nurse Examiner (SANE) program. Four other King County hospitals now offer the exams, and more than 2,000 nurses have received SANE training statewide.

At Harborview, between 150 and 175 patients a year either decline an exam or come to the hospital after the five-day deadline to collect forensic evidence has elapsed, Stewart said. (The deadline is three days for child victims who haven't gone through puberty.)

Unlike many smaller hospitals, Harborview has the capacity to store rape kits for six months, sometimes longer if a victim requests it, Stewart said. That gives rape victims time to decide whether to report an assault to police.

"Being able to offer them time to stop and think is very helpful," said Stewart of the decision to involve the criminal-justice system.

The kits can contain a variety of evidence, including underwear worn at the time of an assault, swabs of a victim's mouth, fingernails, genitals and any part of the skin where semen or saliva may be present. Blood and urine are also collected and bruises and other injuries are photographed.

Between July 2015 and September 2016, the State Patrol Crime Lab received 3,619 requests for DNA tests on evidence in rape cases. That represents a 240 percent increase over the 1,065 requests received between July 2013 and September 2014.

Massive workload

At the State Patrol Crime Lab in Seattle, Jean Johnston, the manager of the Patrol's CODIS lab, has noticed a sharp increase in police requests for laboratory testing of new rape kits.

Between July 24, 2014, and May 23, 2015, police across the state submitted 1,942 rape kits for forensic testing. During the same period a year later — after the new mandatory testing law went into effect — that number increased 62 percent to 3,154.

Statewide, police requested lab testing on 3,619 new kits submitted between July 2015 and September 2016, with testing completed on 1,065 of them, according to a report provided by the State Patrol. That's a 240 percent increase over the 1,065 kits submitted for testing between July 2013 and September 2014.

As for the state's roughly 6,000 previously untested kits, Johnston said the crime lab has so far sent 223 of them to a private lab in Salt Lake City. Some smaller agencies have sent 30 kits at a time to the FBI's laboratory in Quantico, Va., for testing through a National Institute of Justice program.

It's been slow going due to the crime lab's massive workload — and a shortage of the scientists needed to perform DNA casework, said Gary Shutler, technical manager of the Patrol's five DNA labs. There's been added pressure on the lab's resources as staff have also been working to implement federally mandated changes in the way DNA profiles are generated in order to account for increases in world population, he said.

Even though police are required to submit new rape kits for testing within 30 days of receiving them, Johnston said that's just not practical, given the labs' limited storage space. So instead, officers submit paperwork and each kit is added to the queue, then the physical kits are submitted when a scientist is available to analyze them, she said.

It's still too early to know how many of the old rape kits could lead to CODIS hits on suspects, but Johnston said the crime lab averages about 40 hits a month on a variety of crimes.

In Seattle, detectives recently finished submitting paperwork to the lab on 1,063 old rape kits, the oldest from 1996, said police Capt. Deanna Nollette, who oversees the department's Special Victims Unit, which includes 16 detectives who investigate sexual assaults.

Out of the 1,063 old kits, SPD has so far received results in 73 cases and the testing generated two new investigative leads, which have been assigned for follow-up, she said.

Last year, 203 rape kits were logged into SPD's evidence freezer. As of Nov. 1, the number was 185.

Nollette sees value in testing every rape kit going forward:

"The more samples that you have in any database, the better the information is," she said. "Just because today was a consent case or was two known parties together doesn't mean that might not link to a stranger case at some point and help us solve a case, or show us a pattern of behavior."

The Puyallup woman who was sexually assaulted in the summer of 2009 holds out hope that someday her assailant will be tied to other cases through DNA and be held accountable.

She doesn't remember her assault but woke up naked, with vomit and clothing strewn around her room and a condom wrapper on the floor. By the time she made it to Harborview, 10 hours had elapsed and no drugs were found in her system, though she remained violently ill.

When police interviewed the man, "He told them I wanted it, I begged for it," she said. Without proof that he'd drugged her or that she hadn't consented to sex, no charges were filed.

"It was a bad situation and legally … there was nothing they felt they could present in court," the woman said. "He knew exactly what he was doing and there's no doubt in my mind I'm not the only one he's done that to."

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