Should rape kit testing be left to law enforcement’s discretion?
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Ilse Knecht believes every rape kit that is collected from a potential victim should be tested for two reasons: It sends a message that law enforcement believes the victim and the victim’s story matters.
But very few states require every rape kit collected be tested. In fact, only 10 states have passed legislation to ensure the testing of each kit. Idaho is not among them.
And views — locally and nationally — vary widely on what, if anything, should be done to change that.
Knecht is director of policy and advocacy for the Joyful Heart Foundation, a national advocate for rape kit reform in America. The foundation is a national organization advocating against domestic violence and sexual assault.
“They have to go through a four- to six-hour examination, they’re poked and prodded, photographed and swabbed,” Knecht said about people who undergo rape kit exams. “It’s not an easy position, talking to police, when all you really want to do is go home and take a shower and talk to your family.”
At the Nampa Police Department, records dating back to 2010 show about 10 percent of the kits collected were submitted for testing — 12 kits tested out of the 117 conducted. In the same time frame, about 54 percent of kits collected by the Caldwell Police Department were sent in and tested, and about 52 percent of kits collected by the Canyon County Sheriff’s Office were sent in for testing.
“If we’re not testing kits, we’re sending a message that they don’t matter,” Knecht said. “We are going to test every kit because we want you to know that (suspects) are going to be held accountable.”
In Idaho, if law enforcement determines no crime has been committed or the case is no longer being investigated as a crime, the kit may not be sent to a laboratory for testing.
Additionally, kits are not submitted to the lab if a victim decides he or she does not want the kit tested.
Even if the identity of the suspect is not being questioned, Knecht said the rape kit should be tested regardless.
According to a 2005 National Crime Victimization Survey, approximately 73 percent of rape victims know their assailant.
“‘We don’t need to test acquaintance rape kits,’ is too often said,” Knecht argued. “(A) rape kit can corroborate the victim’s version of events.”
She uses this example: The victim will say something such as, “He licked my breast,” and the suspect will say, “No, I didn’t.”
In that instance, a rape kit can corroborate the victim’s account.
“If you swabbed the area, and (saliva is found) then you’ve caught him in a lie,” Knecht said. “That can help a prosecutor.”
Local advocate agencies in Canyon County support a victim’s decision on whether he or she wants to report a sexual assault and whether to have their rape kit tested.
Kim Deugan, executive director for Advocates Against Family Violence, said her agency would support any victim who elected to request the rape kit not be tested. However, Deugan questioned if leaving the decision of whether to test a rape kit up to one law enforcement agency was appropriate.
“It’s not that we don’t support law enforcement or their efforts,” Deugan said. “But, who are they to make that decision? You can be raped by your husband. It can be against her will. I think they have to really look at the (victim).”
If a victim changes her mind, it’s different from whether a law enforcement agency makes that decision, Deugan said.
“Who are we to say that no crime was committed?” Deugan said. “It can’t be at just the discretion of one person.”
She argued that if a victim is willing to undergo a rape kit examination, it needs to be tested.
Knecht said there is also myth and misunderstanding as to what trauma might look like on a person who has recently been sexually assaulted. One victim may laugh or one may be stone-faced when coming to law enforcement post-rape. To a person untrained in trauma, the behavior could be interpreted incorrectly, she said.
“Every kit should be tested to remove discretion because of bias and misunderstanding,” Knecht said. “When you dedicate to testing every kit you remove that (misinterpretation).”
Law enforcement
Parma Police Chief Albert Erickson said his agency has collected only two rape kits in the last five years. Both were tested. The chief agrees with the existing law that allows law enforcement to determine if a kit should be tested.
“I support the idea that not every kit be tested,” Erickson said. “With the second kit we sent in, it ended up not being rape or sexual assault. Witness testimony determined that later.”
Wilder Police Chief Dusty Tveidt said in the last five years, his agency collected only one rape kit and it was never tested.
In that case, the alleged victim was 16 years old, and the parents requested the rape examination be done, Tveidt said. It was never tested after both parties admitted the sex was consensual. The man she had sex with was 19, but the girl’s parents were concerned.
“I believe it should be at (police and victim) discretion,” Tveidt said. “If someone recants and it’s going to be processed, it’s going to be under taxpayers’ dollars. If you have ones that aren’t going to be processed (for criminal charging) it will slow down cases that will be moving forward.”
Nampa Police Detective Sgt. Donald Peck said some kits don’t get tested because the state lab requires reference samples — meaning DNA samples from both the victim and the suspect — but police don’t always have a suspect.
“I can only work within laws that are provided,” Peck said. “It would be beneficial to take discretion out of law enforcement, because then it doesn’t put (the issue) in a bad place with the victim.”
While physical evidence is one small part of a sexual assault investigation, Peck said, the sexual assault kits “are of vital importance.”
But Matthew Gamette, laboratory system director for Idaho State Police Forensic Services laboratory, said reference samples are not required for testing.
“We ask (police) if they can to get a reference sample before they submit a case,” Gamette said. “It makes it a whole lot easier. But many times they have a difficult time getting warrants or sometimes there are extenuating circumstances that get in the way. But yes, the policy is they should submit reference samples.”
According to state policy for processing sexual assault kits, kits collected since January 2014 require reference samples “or advanced approval from the lab of the extenuating circumstances why reference samples cannot be obtained. Every effort must be made to get reference and elimination samples on these cases.”
Legislative movement
While some states have adopted mandatory testing, the topic has never come before the Idaho Legislature.
Colorado, Connecticut, Illinois, Michigan, Ohio, Pennsylvania, Tennessee, Texas and Washington mandate testing of all sexual assault kits, according to the Joyful Heart Foundation.
California implemented legislation on the topic, but its law only states that all kits “should” be tested.
Idaho Sen. Patti Anne Lodge, R-Huston, was unaware of the law but said she thought giving law enforcement discretion over which kits should be tested was reasonable. Lodge is chairwoman of the Legislature’s Judiciary and Rules Committee.
“We need to leave it to law enforcement, and I don’t want to hurt victims being tested,” Lodge said.
Idaho Rep. Christy Perry, R-Nampa, was unaware of the law but thought it was an issue to discuss, saying she questioned the basis on why rape kits may not be tested.
“Why do we go through the process of a rape kit unless you believe a rape has taken place?” Perry said. “If we are assuming a rape has taken place, why wouldn’t we test it?”
Perry said she did not know enough about the law to make a recommendation, but said she believed the DNA evidence was important for both the victims and potential suspects.
“You can definitely see how it is important,” she said. “I think this is a conversation worth having.”
Canyon County Prosecuting Attorney Bryan Taylor said the decision on whether to change policy should be made by the legislative branch of government.
“I know as a prosecutor, sexual assault kits can be a very important piece of evidence in some cases and in other cases they may not necessarily be,” Taylor said. “Each criminal case must be evaluated individually rather than lumping everything into one category. That is how my office prosecutes such cases as I believe that is what the constitutional guidance to prosecutors is. In Canyon County, we have a very good working relationship with law enforcement agencies and utilize the sexual assault kits as appropriate in each case.”
Rape kit examinations are free to any alleged victim. If they receive medical care for other potential injuries, victims could be billed.
Nationwide issues
On Oct. 6, the Salt Lake Tribune reported Utah’s state crime lab finalized results from 102 rape kits of the 1,248 kits law enforcement agencies submitted since October 2014. Eight of the 102 finalized kits pointed to DNA profiles previously logged in the database.
The submissions by law enforcement in Utah came after public outcry after kits went untested and a series of grants were approved.
In May 2014, Utah enacted legislation amending the state’s victim’s bill of rights through House Bill 157.
According to the bill, the provisions provide that a victim of a sexual offense has the right to be informed whether the DNA profile of the assailant was obtained and whether the DNA profile of the assailant has been entered into the Utah Combined DNA Index System. The victim also has the right to know whether the profile matched another in the database, provided that disclosure would not compromise the investigation. Law enforcement is not required to convey this information unless the victim specifically requests it.
The amendment also states law enforcement must provide written notification to a victim or the victim’s designee 60 days before destroying or disposing of evidence from an unsolved sexual assault case.
In September, nearly $80 million was awarded in grants to address the backlog of untested rape kits nationwide.
Part of that funding was provided after Congress approved a federal spending bill that included $41 million for Sexual Assault Kit Initiative grants within the Bureau of Justice Assistance in 2014. An additional $38 million in grants was awarded through a unique new program by the Manhattan District Attorney’s Office, which can be used to test previously unanalyzed rape kits.
At least 70,000 rape test kits collected nationwide by more than 1,000 law enforcement agencies have not been sent to crime labs for testing, a USA TODAY Media Network investigation published in July found.
A total of 43 law enforcement jurisdictions in 27 states are receiving that funding, according to Becky Early, spokeswoman for the Idaho U.S. Attorney’s Office. Idaho did not apply for any of the grants.
An Associated Press story published Friday in New Orleans told the story of a woman identified as “Marie” who had undergone a rape kit examination that was never tested.
In the years after her rape, Marie kept calling police, but always got the same response: Nothing new.
Finally, about a decade after her attack, she got a sympathetic cold case detective to send in her rape kit for testing, according to the Associated Press.
It came back with a hit.
The man who raped her was locked up in Tennessee. His name was Jimmie Spratt, according to the AP.
The current backlog at the ISP lab, as of Oct. 29, was 28 kits, meaning those kits have been at the lab for more than 30 days.
However, that number does not include the kits local law enforcement never submitted.
Taylor said he was confident as to how Canyon County approached the use of rape kits “and to my knowledge since I have taken office, we have not (run) into any issues and/or problems. Thus, I feel as though the services and prosecution that we are providing to the community and victims is exceptional and we are holding offenders accountable for these type of atrocious crimes.”
This story was originally published in the Idaho Press-Tribune. It is used here with permission.