Rape kits task force wants to finalize recommendations
Now that more than 7,000 untested rape kits have been identified in Oklahoma, a task force that’s working to make recommendations for the state moving forward has been weighing the question of how to proceed.
The task force is scheduled to meet Monday to try to finalize its recommendations for Gov. Mary Fallin and state legislative leaders ahead of a July 1 deadline.
Last year, Fallin signed an executive order directing law enforcement agencies to audit their evidence rooms and report their number of untested rape kits. She also created the Oklahoma Task Force on Sexual Assault Forensic Evidence and charged the group with making recommendations based on the results of the statewide audit.
A total of 312 law enforcement agencies reported 7,270 untested rape kits as of a May 31 cutoff date set by the task force. Another 120 agencies didn’t respond to the audit directive.
Law enforcement agencies reported a variety of reasons why those kits weren’t tested, including “lack of victim cooperation” and the fact that the district attorney declined to file charges. Oklahoma does not have a mandate to test all rape kits, so different agencies follow different protocols when it comes to submitting rape kits for testing.
The task force has been considering whether to submit all or some of those untested kits to a lab for testing and the challenges and benefits that could result from doing so.
Recommendations for testing
Victims of sexual assault can undergo a forensic exam to receive important medical care and collect any DNA evidence left behind from the assault. The nurse or doctor who conducts the exam preserves the evidence in a sexual assault evidence collection kit, commonly known as a rape kit.
Victims can have an exam done without reporting the crime to law enforcement. They also can choose to decline any parts of the exam at any point.
Those who advocate for testing all rape kits that are connected with a reported crime say that testing the kits can help identify serial rapists, bolster prosecutions, exonerate innocent people and send a message to victims that they matter.
By analyzing evidence collected in a rape kit, forensic scientists can sometimes develop a DNA profile that is unique to the perpetrator. The forensic lab can then submit the profile for searching against state and national DNA databases using the Combined DNA Index System, or CODIS, a computer system managed by the FBI.
The CODIS database allows federal, state and local forensic laboratories to exchange and compare DNA profiles electronically, which can help identify an unknown suspect, link DNA profiles from more than one crime to find serial offenders and eliminate suspects.
During recent years, there have been pushes in other states to audit untested rape kits and enact reforms. Some states and communities have made the decision to test their backlogs.
“When they do test all of their rape kits that are connected to a reported crime, they’re solving many old cases — decades old, some of them,” said Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation, a national nonprofit organization that works to empower survivors of sexual assault, domestic violence and child abuse. “And some of these offenders have been out on the streets re-offending for decades.”
In Akron, Ohio, testing 1,822 rape kits provided police with names of suspects in 498 cold cases and genetic profiles in another 349, said Danielle Tudor, a member of the task force who is a rape survivor.
“It isn’t just this case, this person, this offender,” she said. “There’s such a much bigger picture, and that’s what we’re after with testing the backlog and testing rape kits moving forward.”
But some task force members have raised concerns about entering someone’s DNA into the CODIS database if that person has not been arrested or convicted of the crime.
During an Oklahoma City Council meeting in March, Oklahoma City police Chief Bill Citty said sometimes rape kits aren’t tested if a victim or the district attorney declines to prosecute. He expressed concerns about possibly entering an innocent person’s DNA into the database if the case was not prosecuted or if a victim decided they didn’t want to move forward.
“If you automatically put that evidence into that database, you’re potentially putting an innocent person into a national database for DNA on a possible rape,” Citty told the council. “And I’m not sure that I would agree with that.”
Task force members have been discussing recommendations for how the state could prioritize the testing of previously untested rape kits because the state’s resources would not allow for testing such a large volume of kits at once.
In some cases, victims did not want their rape kits tested, and task force members discussed the importance of honoring the victims’ wishes in those cases.
When discussing the testing of previously unsubmitted kits, Bob Ravitz, public defender of Oklahoma County, pointed out that in some cases, untested kits may be tied to cases in which the perpetrator has already entered a plea of guilty for the crime. In those cases, the person’s DNA would already be in the CODIS database, he said.
“I don’t want to be testing something if the person is in CODIS just for the sake of testing it, and that’s what we’d be doing,” Ravitz said.
Backlog verses untested
In her executive order, the governor directed the task force to identify and pursue funding “to eliminate the backlog” of untested kits. However, members of the task force have debated whether to refer to the untested kits as a backlog.
Some members of the task force expressed concern that using the term backlog could be misleading or could cause a public outcry.
The untested kits that were identified through Oklahoma’s audit are not kits that are sitting in a lab waiting to be tested, but rather kits that law enforcement officers chose not to submit to a lab for testing.
The National Institute of Justice defines a backlogged kit as one that has been at the lab for at least 30 days. But in other cases, the term backlog has been used to refer to rape kits that have not been submitted for testing by law enforcement.
“I don’t think it’s correct to put on here ... that we don’t have a backlog of sexual assault kits in Oklahoma,” Tudor said, referring to the report the task force is compiling.
Melissa Blanton, chairwoman of the task force, said there are multiple definitions of backlog among different federal funding sources, and some of those definitions overlap.
“I don’t want this report to reflect that we have a backlog in Oklahoma meaning those kits are sitting in a lab waiting to be tested because that’s not the reality of the data that we have,” she said.
Sen. Kay Floyd, D-Oklahoma City, who is also a member of the task force, said if people read the report and see that there’s no backlog of sexual assault kits in Oklahoma, that’s all they will hear.
“It is going to be extremely difficult at that point to move forward because the people who hear that one line are going to think there’s not a problem,” she said.
Challenges for the labs
The task force has been discussing funding and logistical challenges if the state chose to test the untested kits that have been identified.
Forensic labs in the state would not be able to handle the load at once. The Oklahoma City and Tulsa police departments have their owns labs. Other law enforcement agencies submit their kits to the Oklahoma State Bureau of Investigation for testing.
Sgt. Jillian Phippen, a member of the task force who is in charge of the Tulsa Police Department’s Special Victims Unit, said their lab would not have the capacity to test all of the department’s 3,003 untested kits.
“You would put our current cases back two and three years if we threw all these old kits in,” Phippen said. “It’s just not practical for our current victims to do that, so we would have to find an outsource lab.”
Outsourcing the testing would create other challenges.
“It’s not as easy as I walk into the vault and take those and stick them in the mail,” said Andrea Swiech, a task force member who works with the OSBI. “As the state CODIS administrators, we have to send people to the laboratory that’s selected to audit them because we’re going to then trust the data they’re giving us to put into the system.”
Private labs don’t have access to CODIS, so the state administrator would have to enter all of that information, she said.
They would have to go through the evidence and properly package it to send out. When it comes back, they would have to do a technical review of all of that data and enter it into CODIS, Swiech said.
If experts were needed to testify in court, district attorneys would have to pay their fees to come in, Swiech said. Outside labs typically charge about $2,500 a day for their experts to come testify, she said.
When the OSBI has outsourced before, they’ve had about 20 to 25 cases a year where they’ve had requests for the outside vendor to come in and testify, Swiech said. Often, district attorneys don’t have the funds to cover that, she said. When that happens, the OSBI has to get the evidence resubmitted and retest it themselves, she said.
“We can’t testify to an outside laboratory’s results,” Swiech said. “The accuser has the right to cross-examine the person that did the testing, so we have to go then and retest it.”
One funding option the task force has discussed is a federal grant program called the Sexual Assault Kit Initiative, or SAKI, which provides communities with resources to develop and implement comprehensive rape kit reform. The Tulsa Police Department has submitted an application for the grant, which, if awarded, provides funding for a three-year project.
During the task force’s last meeting, Phippen said the audit the state conducted does not match the criteria for the SAKI grant.
“It would all have to be redone,” she said. “... The SAKI grant is very specific on the things that you gather and we didn’t gather that information. So my grant that I submitted is to reaudit.”
Swiech said the attorney general’s office would have to certify that the state did an inventory of untested kits, but the state’s audit would be accepted.
Ravitz said members of the task force had talked early on in the process about wanting to gather more information, but they didn’t think they had the ability to do so based on what they were tasked with in the executive order.
“We gathered what the administrative directive from the governor’s office required us to,” he said.