U.S. Department of Justice Office of Justice Programs MAY 2011 National Institute of Justice
Special RepoRt
The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases
www.nij.gov U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531
Eric H. Holder, Jr. Attorney General
Laurie O. Robinson Assistant Attorney General
John H. Laub Director, National Institute of Justice
This and other publications and products of the National Institute of Justice can be found at:
National Institute of Justice www.nij.gov
Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods www.ojp.usdoj.gov may 2011
The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases
Nancy Ritter
NCJ 233279 John H. Laub Director, National Institute of Justice
Findings and conclusions of the research reported here are those of the author and do not necessarily reflect the official position or policies of the U.S. Department of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance; the Bureau of Justice Statistics; the Community Capacity Development Office; the Office for Victims of Crime; the Office of Juvenile Justice and Delinquency Prevention; and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART). About This Report
Untested sexual assault evidence is being Should officials try to come up with the discovered in police evidence rooms all resources to test them all — even cases across the country. In this report, the Nat- that may be 25 years old — or should they ional Institute of Justice (NIJ) offers an over- establish a prioritization or “triage” pro- view of the issue. We look at a variety of cess to determine which SAKs should be ramifications for the police and crime labo- sent to the lab, and when? ratories, for the courts and for the victims. This report explores some of the reasons It is unknown how many unanalyzed sexu- why the answers to these questions are al assault kits (SAKs) there are nationwide. not as straightforward as they may seem. There are many reasons for this, but one Jurisdictions are using various approaches is that tracking and counting SAKs is an to tackle the untested SAK problem. How- antiquated process in many U.S. jurisdic- ever, developing scientific evidence to tions. Certainly, there may be legitimate determine which approaches are the most reasons why some of the recently discov- effective — solving the most crimes with ered unanalyzed SAKs were not sent to a the greatest efficiency, considering current lab. Not all evidence collected in an alleged fiscal realities — will take time. sexual assault is going to be probative. For example, in cases where “consent” is an This report also explores some of the issue (the suspect admits sexual contact issues behind “stranger” and “acquain- but maintains it was consensual), detec- tance” rape; implications for police inves- tives may consider that the SAK does not tigation and case prosecution, particularly add any important information to the inves- with respect to statutes of limitations; and tigation. That said, it is clear that we, as the sensitive and multifaceted issue of vic- a nation, need to understand more about tim notification in older cases. how law enforcement decides to submit a SAK to the crime lab for analysis (or As the nation grapples with the discovery not) and how cases are triaged for other of thousands of older sexual assault kits, investigation. it is crucial that we balance justice, public safety and the victims’ needs. The goal is to move beyond the “crisis management” of the moment to the adoption of system- Should all newly discovered atic practices, procedures and protocols SAKs be analyzed? that will prevent this situation from ever What should a jurisdiction do when a large happening again. number of untested SAKs are discovered?
iiiiii The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases
Nancy Ritter
Lately it seems that, every few months, four in 10 of the nation’s law enforcement thousands of untested rape kits are agencies — 43 percent — do not have a discovered in another police evidence computerized system for tracking forensic room around the country: 10,000 in Los evidence, either in their inventory or after Angeles, 12,000 in Dallas, 10,500 in it is sent to the crime lab (see The 2007 Detroit. Survey of Law Enforcement Forensic Evidence Processing, available at http:// The road ahead for resource-strapped www.nij.gov/topics/law-enforcement/ jurisdictions trying to deal with the discov- handling-evidence/unanalyzed-evidence. ery of older, unanalyzed sexual assault evi- htm). Just one example among many: The dence is anything but straightforward. In Los Angeles County Sheriff’s Department fact, the repercussions are affecting every still uses handwritten evidence tags and stakeholder in the nation’s criminal justice log books. system: the police and crime laboratories; the courts; victim service agencies; policy- According to the NIJ survey (more than makers at the federal, state and local lev- 2,000 law enforcement agencies respond- els; and, most significantly, the victims. ed), 18 percent of unsolved alleged sexual assaults that occurred from 2002 to 2007 A rape kit — more accurately called a contained forensic evidence that was sexual assault kit (SAK) — is a box or still in police custody (not submitted to a envelope used to collect and store bio- crime lab for analysis). (See sidebar, p. 3, logical evidence from the victim of an “Untested Evidence in Law Enforcement alleged sexual assault. Evidence in a SAK Agencies.”) can include vaginal, oral or anal swabs that may yield the perpetrator’s DNA. There may be legitimate reasons why Photographs, hair, fingerprints, fibers, some of the recently discovered unana- bed sheets or clothing would be stored in lyzed SAKs were not sent to a lab. Not all bags, not in the SAK itself. (See sidebar, evidence collected in an alleged sexual p. 2, “What Is a Sexual Assault Kit?”) assault is going to be probative. In cases where “consent” is an issue (the suspect About the Author Untested SAKs can be stored in a number admits sexual contact but maintains it of places: police department evidence was consensual), detectives may consider Nancy Ritter is a writer rooms, crime labs, hospitals, clinics, rape that the SAK does not add any important and editor at the National crisis centers. It is unknown how many information to the investigation. Evidence Institute of Justice. unanalyzed SAKs there are nationwide. also may not be sent to a lab for analysis There are many reasons for this, but one if charges against the alleged perpetrator of the primary ones is that tracking and have been dropped or the suspect has counting SAKs is an antiquated process in pled guilty. many U.S. jurisdictions. A recent National Institute of Justice (NIJ) survey found that On the other hand, the NIJ survey also revealed some concerns regarding why
1 Special RepoRt / may 2011
What Is a sexual assault KIt?
Sexual assault kits (SAKs) — often called “rape However, collecting consistent and high-quality kits” — were introduced in the 1960s as a tool to evidence can be a particular problem in non- collect and store biological and trace evidence urban jurisdictions. Nine hundred of the 1,350 in cases of alleged sexual assault. SAKs may rape crisis centers in the U.S. are in rural areas, contain: where turnover among hospital and clinic staff is high. Many people in rural America, including ■■ Vaginal, anal and oral swabs. Indian Country, do not know how to obtain or ■■ Pubic hair combings. use a SAK, and they have no access to a sexual ■■ Blood and urine specimens. assault nurse examiner (SANE).
■■ Fingernail scrapings. SANEs and sexual assault forensic examiners The victim’s clothing, bedding and other physical (SAFEs) are highly trained professionals who evidence in a sexual assault may also be collect- provide medical care to victims and ensure the ed and submitted to a lab for analysis, but these consistency and quality of evidence collection. are not technically considered part of the SAK. This is a balancing act. SANEs and SAFEs main- tain that evidence collection should not trump Unfortunately, the composition of SAKs can vary health care. In fact, the first concerns for many from jurisdiction to jurisdiction. For example, women who have just been sexually assaulted although the police and sheriff’s departments in are fear of HIV or other sexually transmitted dis- Los Angeles County use the same SAK, the rest eases, pregnancy and the need for psychologi- of California does not. This can affect consistent cal counseling. A well-trained SANE or SAFE is collection and processing procedures. crucial to simultaneously assuring the health of the victim and the collection of high-quality evi- In Illinois — where the state police are required dence for possible future criminal proceedings. to provide SAKs to every state agency — consistency and quality control issues are addressed through a single SAK coordinator, who provides feedback to medical professionals and others who collect evidence.
untested evidence may not be sent to a forensic evidence in developing new leads crime lab for testing. Forty-four percent of in a criminal investigation. the law enforcement agencies said that one of the reasons they did not send evi- That said, it is clear that we need to under- dence to the lab was that a suspect had stand more about how law enforcement not been identified. Fifteen percent said decides to submit a SAK to the crime lab that they did not submit evidence because for analysis (or not) and how cases are tri- analysis had not been requested by a aged for other investigation. To do that, we prosecutor. These findings indicate that must examine the myriad issues surround- some law enforcement agencies may ing the discovery of thousands of unana- not fully understand the potential value of lyzed SAKs.
2 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
untested evIdence In laW enforcement agencIes
In 2009, the National Institute of Justice (NIJ) The knowledge gap revealed in the NIJ survey published the results of a nationwide survey of — particularly among the nation’s small depart- forensic evidence that had not been submitted by ments (less than 25 officers) — could be due to a police agency to the crime laboratory for analy- a lack of training. Specialized training in these sis. More than 2,000 state and local law enforce- cases may have been beneficial and could have ment departments responded to the survey. led to a different outcome. Also, 11 percent of the agencies that responded to the The findings revealed that, during 2002-2007, survey said that one reason they did not submit police had not submitted forensic evidence — evidence was the lab’s inability to produce timely including DNA, fingerprints, firearms and tool- results, and 6 percent said that the lab was not marks — to a crime lab in: accepting new evidence because of a backlog. ■■ 18 percent of unsolved rapes. When considering this knowledge gap, it is Forty-four percent ■■ 14 percent of unsolved homicides. important to remember that CODIS did not of the police ■■ 23 percent of unsolved property crimes. become operational until the late 1990s and could still be considered relatively new. Whether some departments said Although there are reasons why police may not detectives do not forward evidence to the lab one of the reasons send forensic evidence to a lab — it may not because they do not fully understand how a “no be considered probative, the charges may have suspect” CODIS hit can aid their investigation — they did not send been dropped, or a guilty plea may already have or because there are standing policies or other evidence to the lab been entered — the researchers at Research issues that prevent them from doing so — is an Triangle Institute, International, which conducted issue that merits further study. was because a suspect the survey, concluded that some police may not had not been identified. fully understand the value of evidence in devel- Finally, it is important to understand what the NIJ oping new investigative leads. survey did not determine. For example, the survey did not reveal how many of the cases not sent to Forty-four percent of the responding police a lab would actually have benefitted from analy- departments said one of the reasons they did not sis. The survey also did not address the number send evidence to the lab was because a suspect of unsolved cases in which evidence had been had not been identified. Fifteen percent said they analyzed in the past but now — with the benefit did not submit evidence because analysis had of larger offender databases and new forensic not been requested by a prosecutor. Three in 10 technologies — might be solved or yield investi- said they did not submit evidence because they gative leads; for example, a latent print submitted were uncertain of its usefulness. to IAFIS several years ago with no successful These are important findings because evidence match could yield a hit now. can potentially identify a suspect in a so-called Some of the police departments noted that their “no suspect” case. For example, DNA can iden- survey responses were based on estimates. tify a possible perpetrator through the Combined Larger agencies (including large county and DNA Index System (CODIS), the national DNA state agencies) reported difficulty in providing database, and latent prints can identify a pos- information about sexual assaults because these sible perpetrator through databases such as records are not maintained in a centralized the national Integrated Automated Fingerprint system. Property crimes in larger agencies are Identification System (IAFIS). typically investigated at the precinct level (where the case information would be maintained), and
Continued on page 4
3 Special RepoRt / may 2011
untested evIdence In laW enforcement agencIes (contInued)
this may also be true for rape cases. Finally, it is ■■ Training police on the benefits and use of important to note that the survey’s findings are forensic evidence, including protocols for based on self-reported information; there was no sending cases to the lab for analysis. independent verification of the data. ■■ Creating (or improving) information manage- ment systems to track forensic evidence and Despite these caveats, however, there is no enhance communication among the police, doubt that the survey reveals problems with lab and prosecutor’s office. This could include an ongoing lack of procedures and policies for connected evidence tracking systems, dedi- cated staff for case management and regular collecting, processing and storing forensic evi- team meetings for case review. dence, including cases of alleged sexual assault. ■■ Policies and practices for evidence retention Providing more storage capacity for analyzed and unanalyzed forensic evidence, and stan- vary widely from jurisdiction to jurisdiction, with dardized evidence-retention policies. one in five agencies saying that they were not ■■ sure whether they had such policies. Less than Providing more research to determine what proportion of the open cases could benefit half of the police departments, for example, said from forensic testing, and how such cases they had a policy regarding the preservation of should be prioritized for testing. biological evidence in cases where the defen- dant was found guilty. The full report, The 2007 Survey of Law Enforcement Forensic Evidence Processing, The researchers who performed the survey made by Kevin J. Strom, Jeri Ropero-Miller, Shelton a number of recommendations to address these Jones, Nathan Sikes, Mark Pope and Nicole issues, including: Horstmann, is available at http://www.nij.gov/ topics/law-enforcement/investigations/ handling-evidence/unanalyzed-evidence.htm.
Should all newly discovered In Dallas, for instance, evidence in 12,000 cases of alleged sexual assault, which SAKs be analyzed? occurred from 1981 to 1995, was recently discovered in police custody; the evidence What should a jurisdiction do when a large in many of these cases is not even a com- number of untested SAKs are discovered? plete SAK — only swabs taken during the Should officials try to come up with the examination of the victim. Dallas officials resources to test them all — even cases determined that testing all of the evidence that may be 25 years old — or should they is not possible at current resource levels. establish a prioritization or “triage” process As in most jurisdictions, “cold cases” in to determine which SAKs should be sent Dallas are a lower priority than new cases, to the lab, and when? Unfortunately, there and it can take up to two years to get DNA has been little research in this area, and results back from their lab. Therefore, at there are few evidence-based “best prac- this point, only unsolved stranger rapes are tices” to help jurisdictions handle the crisis being tested; based on a preliminary analy- management of the moment — and to pre- sis, this represents 20–25 percent — about vent this problem from developing again in the future.
4 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
3,000 cases — of the recently discovered evidence. the challenges of crIme lab staffIng In Los Angeles, the recently discovered SAKs were sent to private labs for analysis Many of the nation’s state and local crime (a process called “outsourcing”) and paid laboratories are facing significant challenges for, in part, through NIJ’s DNA backlog in hiring and retaining staff. Some forensic reduction grant program. Although officials scientists leave to pursue careers at federal intended to have all of the SAKs tested, laboratories, in the private sector, or at other cases still had to be prioritized. Therefore, state and local labs that pay more. Just one the Los Angeles Police Department example: In 2008, the Georgia Bureau of (LAPD) established this order for test- Investigation (GBI) lost 10 of their 22 trained ing: (1) stranger/unknown suspect sexual professionals (four lab technicians and six assaults and cases in which the alleged DNA analysts); in 2009, GBI lost seven of their perpetrator was in a position of trust, 23 trained professionals (five DNA analysts, (2) acquaintance rape, (3) cases previously one Combined DNA Index System (CODIS) rejected by the district attorney’s office, administrator and one lab tech). and (4) cases in which there was a ques- Although federal tion that a crime occurred. The challenge of ensuring a sufficient, well- trained staff in the crime lab also extends grants are extremely It is important to note that, even with a to funding sources. Continuing with GBI as useful, state and decision to outsource the analysis of evi- an example, officials noted that 17 of the 32 dence, crime labs in jurisdictions where employees at headquarters are paid from local officials point large numbers of SAKs are discovered are federal grants administered by the National out that funding still greatly affected. In the U.S., public Institute of Justice (NIJ). Although federal labs must perform a technical or “peer” grants are extremely useful, state and local analyst positions review of analyses done in a private lab. officials point out that funding analyst posi- from nonguaranteed The LAPD crime lab, for example, has had tions from nonguaranteed grants makes it to devote 10–15 analysts to managing difficult to plan for the future. grants makes it the very time-consuming technical review for the recently discovered SAKs. In fact, In a 2007 NIJ-funded survey of 148 public difficult to plan this has led to what some refer to as the labs, nearly 90 percent said that they would for the future. “new backlog” of cases awaiting technical not have sufficient funding to continue oper- review. This is not an insignificant issue, as ations without federal grants and were fall- current FBI rules require completion of a ing behind in casework and not keeping up technical review before a DNA profile can with new technologies. These findings em- be uploaded to the Combined DNA Index phasize the importance for state and local System (CODIS). (See sidebar, right, “The jurisdictions to engage in fiscal planning that Challenges of Crime Lab Staffing.”) allows them to sustain strong crime lab operations. (The full report, 2007 DNA In Detroit — where 10,500 unprocessed, Evidence and Offender Analysis Measure- untested or improperly stored SAKs from ment: DNA Backlogs, Capacity and Funding, 1988 to 2006 were recently discovered — by Lisa Hurst and Kevin Lothridge, is avail- officials have randomly selected 400 cases able at http://www.ncjrs.gov/pdffiles1/nij/ to review, screen and test. (See sidebar, grants/230328.pdf.) p. 6, “Detroit: One Jurisdiction Begins.”)
5 Special RepoRt / may 2011
with the greatest efficiency, considering detroIt: one JurIsdIctIon begIns current fiscal realities — will take time.
In Detroit, where 10,500 previously untested sexual assault kits (SAKs) were recently The evidence itself discovered in police storage, officials are performing a comprehensive audit of 400 Experts say that everyone — victims, randomly selected cases. Evidence in the police, politicians, forensic scientists, 400 SAKs is being analyzed, including DNA criminologists — must keep two crucial testing; concurrently, the “400 Project” team factors in mind when making smart SAK- — an independent investigator, an attorney testing decisions: the quality of the evi- and two victim advocates — are looking at dence and the facts of the alleged sexual the entire case, including a victim-centered, assault. It is estimated that, on average, multidisciplinary follow-up investigation. 50–60 percent of SAKs test positive for biological material that does not belong to Based on the outcomes of these 400 cases, Developing the victim; that percentage is much lower researchers at Michigan State University in some parts of the country. scientific evidence will perform a statistical analysis to help determine the characteristics of the remain- To shed more light on this issue, NIJ is to determine which ing 10,100 cases. This is expected to give currently funding researchers at California approaches are the officials valuable data upon which to base State University, Los Angeles, to study a policies regarding: most effective — random sample of the recently discovered ■■ Notification of victims. cases in Los Angeles. The researchers are solving the most looking at specific case “outcomes,” such ■■ Prioritization of evidence for lab analysis. as the percentage of SAKs that yielded a crimes with the ■■ The level of resources to meet increased DNA profile and the percentage that were greatest efficiency, demands on law enforcement, who will uploaded to CODIS and resulted in a “hit” have to investigate cases where a DNA considering fiscal profile is revealed (whether or not there to other crimes or offenders. (See sidebar, is a Combined DNA Index System (CODIS) p. 7, “Los Angeles’ Sexual Assault Kit realities — will hit), and increased demands on prosecu- Research Study.”) Results of the study are take time. tors, who may need to file more cases. expected in 2011. NIJ is also funding an action research Experts also point to another factor to project to help jurisdictions tackle the keep in mind when a jurisdiction out- problem of untested sexual assault kits sources lab testing. Last year, the U.S. that have been discovered in police evi- Supreme Court upheld a ruling giving dence rooms; based on this research, the defendants a constitutional right to directly Institute expects to help develop proto- confront the analyst who performed tests cols to prevent this from happening in the on evidence used against them. This can future. (See sidebar, p. 8, “NIJ’s Action be expensive for a jurisdiction that must Research Project to Address Untested SAK pay for private lab scientists to go to court Evidence.”) to testify. Technological advancements in DNA Certainly, the various approaches now analysis are also likely to play a major being used to tackle the untested SAKs role in testing older SAKs. For example, problem will yield important knowledge. the Georgia Bureau of Investigation (GBI) However, developing scientific evidence crime lab first tests evidence to determine to determine which approaches are the if male DNA is present; rather than spend- most effective — solving the most crimes ing several hours looking at slides, trying
6 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
project called “Fast Track Forensics.” In los angeles’ sexual assault KIt this pilot study, sexual assault cases with research study unknown offenders are processed as usual, while a few swabs are taken from After the Los Angeles police and sheriff’s the SAK and sent directly to the state departments began testing a large number Department of Justice laboratory for imme- of previously unanalyzed sexual assault diate analysis. Results are turned around kits (SAKs), the National Institute of Justice in three days and uploaded into CODIS to (NIJ) funded researchers at California State search for a DNA match. To date, there University, Los Angeles, to randomly select have been a number of “hits,” with par- 20 percent of the cases for further study. ticularly good results from saliva testing.
The goal of the study is to provide information that will not only help jurisdictions efficiently Stranger rape versus test (or decide not to test) large numbers of Over the years, unanalyzed SAKs but may also help prevent acquaintance rape this situation from occurring again. biases may have When it comes to tackling the multidimen- Among the questions being addressed: sional problem of unanalyzed SAKs, victim affected the advocates point to the proverbial elephant ■■ What kind of evidence do the SAKs decision to not contain? � in the room: stranger rape versus so-called acquaintance rape. send sexual assault ■■ What kind of results are obtained from evidence to the testing? For example, is semen identified? Although few would dispute the existence How many cases yield a DNA profile? of a bias in the criminal justice system — a lab if, for example, ■■ How many profiles are uploaded to the higher priority placed on arresting a strang- the victim was a Combined DNA Index System (CODIS), and er who attacks an unknown victim than what matches link these older, recently discovered sexual assault cases with on a college student who rapes an intoxi- prostituted woman, other crimes or offenders? cated date — this distinction is disturbing a drug abuser or to some victim advocates, who argue that The researchers are also looking at police every rape is a stranger rape: to a victim, mentally ill. criteria for sending a SAK to the lab for some say, an acquaintance becomes a analysis. It is also hoped that the study (find- “stranger” when he rapes her. Many victim ings expected in 2011) will help decision- advocates also maintain that not aggres- makers throughout the criminal justice sively pursuing acquaintance rape may system to craft procedures and protocols for mean that other sexual assaults are not investigating and solving sexual assaults in prevented — that same college student, the future. they say, may continue assaulting women.
As our nation focuses on the SAK back- to identify sperm, GBI analysts now use a log issue, we would be naïve to ignore DNA test that looks for male DNA found other potential biases. Over the years, on the Y chromosome, using robots to test biases may have affected the decision many cases at the same time. If no DNA to not send sexual assault evidence to is detected, it is not necessary to proceed the lab if, for example, the victim was a with full analysis to try to develop a DNA prostituted woman, a drug abuser or men- profile. tally ill. Therefore, some argue, testing all SAKs would reveal potential connections In Los Angeles, the police and sheriff’s between stranger rapes and acquaintance departments are currently engaged in a rapes and would go a long way toward
7 Special RepoRt / may 2011
nIJ’s actIon research ProJect to address untested saK evIdence
On October 27, 2010, the National Institute of to determine why the SAKs were not sent to the Justice (NIJ) issued a request for proposals lab; they will then develop a plan to tackle the to identify solutions to the nationwide problem problem and evaluate the intervention strategies of untested evidence in sexual assault cases. that were put in place. In phase II of the project, This solicitation seeks to better understand NIJ will award funds to help the sites implement why so many sexual assault kits (SAKs) are not their plans. forwarded from police evidence rooms to crime labs for DNA testing and to develop innovative To see the solicitation (applications were due approaches to solve the problem. (See the January 18, 2011), go to http://www.ncjrs.gov/ White House announcement on a nationwide vio- pdffiles1/nij/sl000947.pdf. Follow this research lence against women initiative at http://www. project through NIJ’s website, http://www.nij. whitehouse.gov/blog/2010/10/05/ending- gov/topics/forensics/welcome.htm. violence-against-women.) Shortly after the solicitation was released, NIJ This spring, NIJ funded two jurisdictions — participated in a webinar, hosted by the Harvard Wayne County, Mich., and the city of Houston University Kennedy School of Government. The — to explore the problem and come up with two-hour discussion addressed various aspects solutions. In phase I of these “action research” of the solicitation, including the action research projects, each site will form a team to include model through which NIJ hopes to develop inno- a criminal justice researcher and representa- vative practices that other jurisdictions will also tives from the police department, crime lab, be able to use. Listen to the November 17, 2010, prosecutor’s office and a community-based webinar for free at http://www.innovations. victim services organization. The teams will first harvard.edu/xchat-transcript.html?chid=353. review and inventory cases in their jurisdiction
eliminating victim bias. Advocates of test- Victim notification ing of all SAK cases also point out that uploading all profiles into CODIS may Whether a jurisdiction facing a SAK back- link crimes that otherwise would not log decides to test all cases or, as in have been linked. (See sidebar, p. 10, Detroit, begins with a small number, noti- “One Woman’s Story.”) fying the victims is a crucial part of the pro- cess. However, determining best practices Finally, it is important to note that increas- for doing this — let alone putting the right ed training and education may help officials mechanisms in place — will not be easy. and victims in cultures, including some American Indian tribes, where there are When, for example, should the victim be cultural taboos concerning a sexual assault notified? When her unanalyzed SAK has examination. been located after many years? When the kit is sent to the lab for analysis? When analysis reveals that there is no probative evidence — or only when a DNA profile is determined?
8 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
What will the victim notification protocol distance themselves from the crime, be if the suspect is not in CODIS and a including moving away from where the “John Doe” warrant is issued — or if assault happened. the rapist’s identity is revealed through a CODIS hit and it appears that he raped Current victim notification practices vary other women before or after raping her? among jurisdictions that are dealing with large numbers of unanalyzed SAKs. In one And how should victims be contacted — city, an official-looking letter is sent, asking via letter, phone call, in person? the victim to call regarding an unspecified matter. In Detroit, a team of four people At first blush, it may seem that there is no (including a victim advocate and a former question that sexual assault victims should Detroit homicide detective) has begun in- be notified at some point in the process. person notification of the 400 victims in After all, why would a victim not want to the cases where the SAKs are being test- know if DNA analysis of evidence from a ed. In Dallas, authorities initially placed a rape when she was an 18-year-old college public service announcement in the news- freshman had — 20 years later — revealed paper and on TV in an effort to reach some the rapist’s identity? of the victims. Although the notice ran for just one day, authorities say the response Experts say there could be as many was good. At this point, however, Dallas Victim advocates answers to that question as there are vic- officials have decided to minimize contact tims. For example, what if the victim, now with victims unless they identify a suspect. estimate that 38 years old, never told her husband or perhaps half of 15-year-old daughter about the rape? What Victim safety is a major concern during if she has had years of counseling and notification. Victim advocates warn that a the victims of a moved on? Beyond simply being notified victim of a long-ago rape could be currently long-ago rape at one step or another in the criminal jus- living in a domestic violence situation and tice process, does the victim get a say — that contact by the police could act as a would want to be or not — in whether her case moves from trigger for violence by her current partner. told that evidence the police evidence room to the lab, from They also note that a victim who is sud- the prosecutor’s office to the courtroom? denly told that the unsolved crime may had been found in now be investigated, including DNA analy- their case … . The Not all victims want to enter the criminal sis of the SAK, may suddenly feel in great- justice process. For some, the primary er danger from the person who raped her. other half, they concern after being raped is medical care: say, would just testing for HIV, STDs and pregnancy, or There is also the issue of counseling. receiving mental health care. Victim advo- Some people experience a host of prob- want to continue cates estimate that perhaps half of the lems after being sexually assaulted. on with their lives. victims of a long-ago rape would want to Officials also should be aware that some be told that evidence had been found in of the victims among the thousands of their case; they would want to be told the recently discovered SAKs may be drug results of DNA analysis and be a part of addicts, prostituted women, mentally ill any prosecution. The other half, they say, or homeless. What counseling will they would just want to continue on with their need? lives. Clearly, with sufficient will and resources, Beyond determining the best way to con- we can decrease the backlog of SAKs and tact victims, the logistics of simply find- even identify suspects, but as we think ing many of them is not likely to be easy. about the best way to do this, it is crucial Many victims of sexual violence try to to consider how to support the victims.
9 Special RepoRt / may 2011
one Woman’s story
by Kellie Greene
On January 18, 1994, my life changed forever. I he was already serving a 25-year sentence for was 28 years old when I returned to my Orlando, the first rape — and it wasn’t for another three Fla., apartment and was attacked by a man hid- years that I would learn that he was allowed to ing in my kitchen. He hit me over the head with serve the two sentences concurrently. He would my tea kettle — then beat and raped me for 45 spend no extra time in prison for beating and minutes. � raping me. There are real After the stranger fled, I immediately called 911. In 1999, I founded SOAR®, Speaking Out About I was treated at the hospital, where doctors used Rape, Inc®. Through SOAR, I work on behalf of people behind every seven staples to close the wound in my head. rape survivors. I have worked with one woman, one of the sexual Although police found semen on my leggings, for example, who was raped when she was 18 Florida, at that time, was only doing DNA testing years old. Twenty years later, she was notified assault kits that in cases where a suspect was already identified. by police that the rapist had been identified. remain untested. Therefore, evidence in my case was put on a By that time, she was 38, married, and had a shelf, where it became part of the “backlog.” 15-year-old daughter. She had never told her It will be difficult family that she was raped 20 years earlier. Now, I tried to move on, but I was haunted by the she had to. for each one, attack. I spent the next years studying every face regardless if they in the grocery store, at work, even when I was I have worked with a woman in Texas whose driving down the road. Every few months, the rapist was identified through DNA only after the welcome a renewed detective and I talked to see if anything had been statute of limitations had expired in her case. investigation or missed that might identify a suspect so that my Her only option now — the only way she can evidence could be sent to the crime lab. help keep her rapist off the street — is to testify have tried to forget at his annual parole hearing, which means that, Eventually, evidence in my case was sent to the and move on in their every year, she must re-live the rape. crime lab because police believed there were lives, perhaps never similarities with another rape. Although testing There are real people behind every one of the telling their family revealed that the rapist in that case was not the sexual assault kits that remain untested. It will man who raped me, at least the DNA profile was be difficult for each one, regardless if they wel- of the assault. now in the state database. come a renewed investigation or have tried to forget and move on in their lives, perhaps never One day — three years after I was raped — the telling their family of the assault. As we move detective called to tell me that DNA testing of forward in solving the problem of untested evi- semen on my leggings had identified the man who dence in sexual assault cases, I believe it is cru- raped me. It was the first time in three years that I cial that our criminal justice system be mindful of felt safe. But my relief turned to anger when I was the unique issues these survivors will face. told that the man — David Shaw, a man with a history of burglary and theft — had raped another About the author: Kellie Greene is the founder woman in December, six weeks before he raped of SOAR®, Speaking Out About Rape, Inc.®, me. Shaw was arrested for that earlier rape, but, http://www.soar99.org. In 2000, she lobbied for sadly, the evidence in that case was not tested for and helped write a law that bans concurrent two years. If it had been tested, this man would sentencing of sex offenders and murderers in have been identified and caught and I would not Florida. Greene was a member of the task force have been raped and beaten. � that the National Institute of Justice brought together in 2010 to talk about the issue of untest- Three days before the trial in my case, Shaw pled ed evidence in sexual assault cases. guilty and was sentenced to 22 years. However,
10 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
And, say the experts, one of the challenges analysis is not approved until a sample will be to understand that every rape victim from any potential consensual partner may, after so many years, have her or his is obtained for “elimination” purposes; own idea of what “justice” looks like. might this protocol have to be revisited if a jurisdiction faces a large backlog of older SAKs? Posttesting: The The good news is that there are working domino effect models. The Phoenix Police Department, Where will for example, has developed an internal Beyond the notification of victims and database, called the Post Match Priori- the resources decisions regarding the forensic testing of tization Model, for all of its sexual assault recently discovered SAKs, there are major and protocols cases. If analysis of a SAK results in a implications for “downstream” partners in CODIS hit, investigative priority is on sus- come from, as the criminal justice system. (See sidebar, pects who are in prison but scheduled to p.12, “Stakeholders Identify Priorities.”) already strapped be released soon. The second priority level Where, for example, will the resources and is cases with a high likelihood of success- police departments protocols come from, as already strapped ful prosecution. Cases with suspects who police departments face demands for face demands are already in custody for 10 or more years follow-up investigations? If an investigation receive the lowest priority for follow-up for follow-up results in the identification of a suspect, investigation after a CODIS hit. how will already overworked prosecutors investigations? and public defenders handle additional Another example of a protocol that seems cases? to be working: New York City’s Office of the Chief Medical Examiner sends e-mails Police investigations in older cold cases to district attorneys, DNA examiners and require a significant commitment of time, police when there is a CODIS hit based on training and talent. If a DNA profile is the analysis of a SAK. This centralized sys- developed from testing evidence in a tem has helped detectives prioritize follow- SAK, previous investigative leads and past up investigations. interviews will have to be re-examined, and all this work will have to be prioritized As jurisdictions grapple with these issues, alongside current criminal investigations. it is important to consider the best way to What investigative protocols will a jurisdic- communicate with the victim at the various tion use, for example, when a DNA profile stages in the process. Advocates point out is developed from testing but does not that a sexual assault survivor who is told match a profile in CODIS or a local data- her SAK has been recently discovered and base? Will a John Doe warrant be issued? will now be analyzed is likely to start won- dering about the next steps: Will a confir- Police agencies also must have a plan mation sample be collected, for example, when a DNA profile from an older SAK and when will additional investigative inter- does have a CODIS hit. What priorities views be conducted? Certainly, the impact and protocols will govern the often time- on the victim must be considered, if evi- consuming effort of tracking down the dence in her rape yields a DNA profile or suspect and gathering a DNA confirmation a CODIS hit, but the police department is sample? Can the victim be located and experiencing resources issues that would is she available for prosecution? It also delay or prevent further investigation and should be noted that, in some jurisdictions, possible prosecution. a request to send a SAK to the lab for DNA
11 Special RepoRt / may 2011
staKeholders IdentIfy PrIorItIes
In May 2010, the U.S. Department of Justice ■■ Reconsider funding streams in which law brought sexual assault nurse examiners, crime enforcement has to pay for lab analyses. laboratory directors, cold case detectives, prose- cutors and victim advocates to Washington, D.C., Crime Laboratories to discuss the challenges surrounding untested ■■ Create a plan to handle work if large numbers evidence in sexual assault kits (SAKs). A full of previously untested SAKs are suddenly sent to the crime lab. report of the meeting is available at http://www. ovw.usdoj.gov/docs/rape-kit-roundtable- ■■ Address staff hiring and retention issues. summary-10262010.pdf. ■■ Increase implementation of high-throughput analysis procedures. Here are some of the priorities identified by the attendees: ■■ Perform research to make DNA analysis fast- er, better and cheaper, and improve storage capacity for SAKs. Victim Advocates ■■ Increase the understanding of victim notifica- Sexual Assault Nurse Examiners tion issues. ■■ Improve the integration of evidence collection ■■ Strive to eliminate bias in the criminal justice into a broader continuum of medical care. system against certain victims and types of ■■ sexual assault. Improve the quality review/peer review pro- cess of SAK collection. ■■ Focus on long-term counseling and support ■■ to help victims return to normal life, including Update the curricula for Web-based and exploring innovative approaches outside the onsite training, and increase technical criminal justice system. assistance. ■■ Consider changes to laws related both to vic- Prosecutors tim compensation and to reimbursement for the ■■ Implement meetings among prosecutors, lead cost of sexual assault kits. investigators and lab scientists to improve decision making regarding evidence that does Law Enforcement and does not need to be analyzed in the lab. ■■ Create evidence-based practices for investi- ■■ gating sexual assault cases, including priori- Improve training on case management, hand- tizing before and after a CODIS hit. ling cold cases, crime lab techniques and issues, and the use of forensic evidence at ■■ Develop information technology support for trial. evidence and case tracking. ■■ Create information systems for case manage- ■■ Improve training regarding the collection of ment that will automatically notify laboratories evidence, what prosecutors need to build a to stop working a case if there is a judicial case, prioritizing SAKs for lab analysis and determination (for example, a plea) or it is assembling a case book. otherwise not moving forward. ■■ Develop protocols for notifying victims that their SAK is going to be tested and that the investigation of their case may be renewed.
12 the Road ahead: Unanalyzed evidence in SexUal aSSaUlt caSeS
Statutes of limitations goes without saying that decisions in these various scenarios will likely be influenced Jurisdictions facing the discovery of older by resources. SAKs must consider what their testing pol- icy will be if the statute of limitations (SOL) in a case has passed. The SOL for sexual State legislatures respond assault depends on the type of assault and varies across jurisdictions. In Los Angeles, As we struggle as a nation to deal with for example, there is a 10-year SOL on the ramifications of the discovery of thou- sexual assault, but a recent law tolls the sands of unanalyzed SAKs, some states SOL (stops the clock) if a DNA profile of a are responding legislatively. Texas, for suspect is determined within two years of example, recently passed a law creating a the assault. new database — accessible only to local law enforcement — that contains the DNA In Dallas, where they recently discovered profiles of alleged rapists. If DNA testing evidence in thousands of alleged sexual reveals a profile, it goes into the database, assaults as far back as the 1980s, the SOL even if the case is not filed and prosecuted. situation is complicated. During the 1980s and 1990s, the SOL for sexual assault How might such data be used? Information Some proponents cases was 5 years. In 2001, however, the regarding an unadjudicated past rape can law was changed: Now, there is no SOL be used in the parole hearing of a convict- of analyzing all in sexual assault cases if suspect DNA is ed offender, for example. Prosecutors older SAKs argue present; if there is no DNA evidence, the also note that evidence of past criminal SOL is 10 years. Although the statutory behavior — even criminal behavior that that, even when change allows Dallas officials to go back to was unadjudicated, if the court deems it is the statute of September 1, 1996, without running into directly relevant to the case at hand — can SOL problems, most of the recently dis- be used under Federal Rule of Evidence limitations has covered evidence in that jurisdiction is in 404(b). passed, it could sexual assaults that occurred before 1996. Often simply referred to as “404(b),” this be important to If a case cannot be prosecuted because rule allows evidence regarding a defen- have “404(b) the deadline for filing has passed, is it a dant’s character or prior criminal conduct wise use of resources to have the SAK into a trial under certain circumstances. evidence” of a evidence tested? The answer is not as Some proponents of analyzing all older past rape if the obvious as it may seem. SAKs argue that, even when the statute of limitations has passed, it could be impor- person is on trial Some proponents of testing all SAKs argue tant to have 404(b) evidence of a past for another rape. that, even if a case cannot be prosecuted rape if the person is on trial for another — or the victim does not want to move for- rape. Prosecutors point out that, especially ward — the evidence should nonetheless in cases of so-called acquaintance rape, be tested to determine if the rapist might the ability to present 404(b) evidence can have committed other rapes. Evidence of effectively turn a “he-said, she-said” case prior, unadjudicated sexual assaults may into a case of “he-said, she-said, she-said.” also be considered in the sentencing of a rapist. Illinois recently passed a new law that requires the SAK in every alleged sexual Some argue that cases should be pursued, assault to be sent to the lab for analysis. even if the SOL has passed, as a way to Before this law went into effect, the state provide some resolution to the victims. It police crime lab received approximately
13 Special RepoRt / may 2011
Delays 1,500 SAKs for analysis every year. Add the victims. Delays in evidence being sent to that the SAKs that were never sent to to a lab — as well as delays in analyzing in evidence being the lab — an informal survey found 4,000 evidence — result in delays in justice. sent to a lab — unanalyzed SAKs in only 82 of the state’s In worst-case scenarios, this can lead to 1,200 law enforcement agencies as of additional victimization by serial offenders as well as delays May 2010 — and the current (and future) or the incarceration of people wrongly con- in analyzing backlog of SAKs in the Illinois State Police victed of a crime. (See http://www.nij.gov/ crime lab begins to look daunting. journals/262/postconviction.htm for the evidence — story, in the NIJ Journal, of one recently result in delays For more on DNA backlogs nationwide, exonerated man.) see the NIJ special report, Making Sense in justice. of DNA Backlogs, 2010: Myths vs. Reality, As the nation grapples with the discovery available at http://www.ncjrs.gov/pdffiles1/ of thousands of older sexual assault kits, nij/232197.pdf. it is crucial that we balance justice, public safety and the victims’ needs. The goal, of course, is to move beyond the “crisis man- The road ahead agement” of the moment to the adoption of systematic practices, procedures and Ultimately, at the heart of this latest chal- protocols that will prevent this situation lenge for our criminal justice system are from ever happening again.
14 About the National Institute of Justice
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