State audit finds nearly half of ‘rape kits’ at 3 police agencies went unanalyzed

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A state audit report released Thursday found that nearly half of all sexual assault evidence kits at three selected law enforcement agencies were never analyzed — and that many lacked a clear explanation why.

The backlog of sexual assault evidence kits, commonly referred to as rape kits, has received increased scrutiny from legislators and sexual assault prevention advocates; Gov. Jerry Brown passed legislation late last month aimed at encouraging a more timely process for analyzing evidence, while Alameda County has worked with the FBI to examine its own backlog.

The audit team conducted an in-depth review of Oakland Police Department, San Diego Police Department, Sacramento County Sheriff’s Department and their respective crime labs. It also surveyed 25 other law enforcement agencies.

It found that of about 1,900 sexual assault evidence kits received by the three agencies from 2011 through 2013, only about 850 were analyzed. About another 140 were in the process of being analyzed at labs, leaving about 910 kits unanalyzed.

“It’s really telling that in these areas there are so many untested rape kits,” said UC Berkeley senior Aryle Butler, a sexual assault survivor.This speaks to why survivors don’t go to police. Why would they go to the police if they’re not going to make a difference?”

Additionally, when the audit team looked at 15 unanalyzed kits at each of the three agencies, it found that only six kits from OPD contained explanations from investigators for why the kits were not analyzed. For the other nine — and the 30 kits from the other two agencies — investigators provided no justification in case documentation.

When someone is sexually assaulted, he or she has the choice to obtain a forensic exam at a hospital, although police must sign off on the exam first. For UC Berkeley students, the closest hospital that conducts forensic exams is Highland Hospital in Oakland. After the exam, the kits are provided to a law enforcement agency investigator, who decides whether to send the results to a crime lab for analysis.

UC Berkeley graduate student Nicoletta Commins, a sexual assault survivor, obtained a rape kit at Highland Hospital. She recalled receiving the results of her forensic exam within about a week. But because she knew who her assailant was, she doesn’t know if the kit was ever formally analyzed — the results she heard from an investigator merely indicated that there was trauma and nonconsensual sexual activity. Still, she said, it played an important role in the investigation of her assault.

“I ended up going through a criminal investigation, and some of the evidence that was in the rape kit … it definitely supported my side of the story,” Commins said.

Common reasons kits may not be analyzed include situations in which survivors choose not to participate in the investigation or the question is not whether sexual activity occurred but whether it was consensual.

The audit found that for the 45 unanalyzed cases it reviewed, the decision not to analyze had no negative impact because analysis was not likely to further the investigation. But documentation on why certain cases were not pursued would be beneficial to the public, according to the audit.

No existing federal or state law requires forensic exams to be analyzed — nor does there exist a state regulation about what circumstances should prompt such analysis. The legislation signed by Brown last month, which was authored by Assemblymember Nancy Skinner, D-Berkeley, encourages law enforcement agencies to send forensic evidence from sexual assaults to crime labs in a timely manner — within 20 days from when it is processed. It does not, however, impose any actual requirements on agencies.

The audit also found that every piece of unanalyzed evidence reflects a missed opportunity to input DNA into the Combined DNA Index System, or CODIS, which could help identify unknown assailants. But because limited research exists on the benefits of analyzing all sexual assault evidence kits, the audit only recommended that testing sexual assault cases with unknown assailants be required by law.

Because most sexual assaults are committed by someone the survivor knows — two-thirds, according to the Rape, Abuse and Incest National Network — the importance of putting data into CODIS is often overestimated, Butler said.

“It’s a little strange that there would even be a focus of ‘let’s just get the DNA into CODIS,’ ” Butler said. “Most rapes are not committed by a stranger.”

Adding assailants’ DNA into the system might be more beneficial if there were higher rates of reporting because many assailants are serial perpetrators, said campus senior Sofie Karasek, a sexual assault survivor who co-founded survivor advocacy organization End Rape on Campus. But Karasek said more survivors needed to feel reporting was a “viable and safe option.”

Sylvia McDaniel, a spokesperson for OPD, said the agency approved of the recommendations, adding that it has formalized and implemented policy requiring its crime lab to analyze newly received sexual assault evidence kits in weekly batches. The police department also now requires investigators to provide documentation when they don’t request a kit’s analysis.

The audit also encourages legislators to enact laws such as requiring cases with unknown assailants to be processed within a certain timeframe. Because these kinds of cases sometimes find a suspect match after the state statute of limitations for sex crimes expires, state law allows agencies an extra year to file charges after a suspect is identified. This only applies, though, if the forensic evidence was analyzed within two years of receipt.

According to the audit, the director of OPD’s crime lab expressed concerns about the funding for this requirement. Rape kits cost, on average, $1,500 for the agencies reviewed and surveyed.

Butler said state-by-state laws might vary too much and take too long to implement. She called for a federal law that would give clearer standards about the process of obtaining and analyzing a forensic evidence exam.

Commins, too, said legislation addressing perpetrators’ actions was necessary. More medical evidence, she said, such as the results of rape kit analysis, could help provide accountability.

“If there’s no accountability, you can’t do that much,” Commins said. “I don’t think rapes are going to go away until there’s some real serious fear of consequence.”

Katy Abbott covers crime and courts. Contact her at [email protected] and follow her on Twitter @katyeabbott.