High number of untested rape kits in Oakland
A sweeping audit by the office of California Attorney General Xavier Becerra found nearly 1,200 untested rape kits at the Oakland Police Department, accounting for about 9% of the nearly 14,000 untested kits held by law enforcement agencies across California.
Auditors found that all but 41 of Oakland’s 1,197 untested kits stem from cases before 2016, and police spokesman Paul Chambers said in an email Thursday that a majority of the kits were linked to reports before 2006.
The department was responsible for the vast majority of the 1,349 untested kits in Alameda County, and only the San Diego Police Department, which counted 1,627 untested kits, had more among all of California’s police and sheriffs’
departments.
Chambers said Oakland’s own internal review found that 957 of the 1,197 cases had “legitimate, articulated and documented reasons as to why the kit was not tested.”
However, the total number of untested kits came as a shock Thursday to Alameda County District Attorney Nancy O’Malley, who spearheaded a major effort in 2014 to tally, collect and test all backlogged rape kits from all 19 law enforcement agencies in the county, including Oakland.
When asked why Oakland police have so many untested kits, O’Malley responded: “That’s a good question.”
“I know their statement says that these were old cases, so maybe they were very old,” she said, before adding that local police departments were supposed to mine their property rooms for the county audit years ago.
The attorney general’s report was published April 20, when it was presented to the Legislature and mostly slipped under the radar during the coronavirus outbreak. The audit was produced as a result of AB3118, a 2018 law that required a onetime review of all untested rape kits held by California law enforcement agencies, medical centers and crime labs, as well as other facilities.
Until this point, researchers said, the existence of an untested rape kit backlog in California was “generally unquestioned,” but the exact scope was unknown. The lack of data “posed challenges for policymakers who must decide how best to address the backlog,” the report states.
Elsewhere in the Bay Area, auditors found 841 untested kits at the Richmond Police Department, 255 at the Fairfield Police Department and 323 reported at the San Mateo County Sheriff ’s Office. Several cities reported zero untested kits, including San Francisco and Berkeley.
San Francisco Police Sgt. Michael Andraychak said the department cleared all previously submitted and untested rape kits in 2016, and said the lab is currently processing kits in 15 to 20 days, “which is well under the 120day requirement set forth in the City Charter.”
Statewide, the audit found 35% of kits went untested because the victim declined prosecution, while 29% of kits weren’t processed because the allegations couldn’t be substantiated or officials found the case was not prosecutable.
Chambers said about 80% of the nearly 1,200 untested kits in Oakland were linked to cases that were unfounded, already adjudicated in court or involved a victim that didn’t want the kit tested or declined to cooperate with the case. But that leaves 240 rape kits, including 169 that require “further review.”
Of the 169 cases, Chambers said, 78 are from 1988 to 1999, and 91 are from 2000 to 2006. While California enacted a law in 2017 that eliminates the statute of limitations for most sexual assaults, the law did not apply retroactively.
Regardless, Chambers said, the department is taking the task “seriously and will determine whether any untested kits that remain should still be tested.”
Chambers said that since 2006, the department’s specialvictims section has reviewed all sexual violence cases and the crime lab has appropriately tested all sexual assault kit evidence “well within the 120day statutory limit set by the state.”
Chambers said the department’s number of untested kits might be higher than most other agencies because Oakland has not purged its kits for decades, while other agencies might have destroyed kits after the statute of limitations passed.
O’Malley said she will work closely with Oakland to test the remaining kits. Previous efforts to clear backlogs have unmasked serial offenders, some of whom continued to assault women for years after they were first reported.
It was O’Malley’s 2014 review of untested rape kits that implicated Keith Kenard Asberry Jr. as the person who in 2008 kidnapped and assaulted a 19yearold woman and 15yearold girl in Berkeley. The rape kit was shelved for years for reasons that remain unclear, but Asberry is now charged with multiple sexual assaults as well as a 2015 murder.
“I am a big proponent of testing all kits, so we know what the lay of the land is,” O’Malley said. “I think the more we know about who’s doing the sexual assaulting the better.”
Advocates for sexual assault survivors have pushed for all kits to be tested, with few exceptions. Ilse Knecht, director of policy and advocacy for the survivor nonprofit Joyful Heart Foundation, has bristled when police contend cases are “unfounded,” and therefore not subject to testing.
“What happens too frequently is cases are often deemed unfounded without investigation or thorough investigation,” she said. “When you go back and look at those cases and test some of those kits, you find that mistakes have been made.”
Knecht said she’s also skeptical about victims reportedly declining to help prosecutors, adding that many are urged to give up on cases by investigators.
“They’re often questioned in a way that feels like interrogation: ‘Are you sure you want to go through with this? Don’t you just want to go home and sleep?’ ”
California is one of a number states that in recent years made counting and testing rapekit backlogs a priority. North Carolina, Kentucky, Missouri, Washington and other states have also conducted statewide audits, and advocates estimate there are hundreds of thousands of untested kits across the country.
On Monday, Becerra announced a $2 million grant program to help California law enforcement agencies clear their backlogs. Oakland police officials said they will apply for the grant.
“Justice delayed is justice denied,” Becerra said in a statement. “That should never haunt a survivor of sexual violence.”
As of Jan. 1, 2018, all local authorities in California were required to report evidence from sexual assault kits to the California Department of Justice, which operates a databank known as SAFET.
Last fall, Gov. Gavin Newsom signed a law that requires police to submit rape kits for testing within 20 days and crime labs to test the evidence within 120 days.