Several states have passed legislation requiring that every kit that was part of a criminal complaint be tested for DNA evidence. South Carolina lacks such a law, leaving it up to individual law enforcement agencies to decide whether testing is worth the time and expense.
August 20, 2016
he number is actually higher, since some of the more than a dozen law enforcement agencies responding to a Freedom of Information request from The Post and Courier said a complete inventory was not feasible without a significant investment of time. For instance, North Charleston agreed to go back to 2010, when the city started using the current system to keep track of cases. The City of Charleston was able to go back to 1989.
Janie Ward Lauve, executive director of People Against Rape, has been pushing for the testing of all the kits that were accompanied by a criminal complaint.
“I’ve had many women tell me it’s very frustrating,” she said. “The exam is very intrusive. After a woman goes through all that trouble, the kit should at least be tested.”
Several states have passed legislation requiring that every kit that was part of a criminal complaint be tested for DNA evidence. South Carolina lacks such a law, leaving it up to individual law enforcement agencies to decide whether testing is worth the time and expense.
“They should test every kit,” Lauve said. “I think the biggest issue is there is no regulation or policy that says when and how the kits should be tested, so there’s a lot of room for bias and judgment.”
Local law-enforcement agencies reported that they didn’t test the kits in storage because the alleged victim dropped the complaint, because the kit didn’t meet the standards for laboratory testing or because an investigation determined that no crime occurred, meaning that police and prosecutors decided they couldn’t prove the sex wasn’t consensual.
About half of the 167 untested kits that the Charleston Police Department reported were classified as unfounded. Police are aware of the criticism that some cases may have been dismissed too quickly, Charleston police Maj. Naomi Broughton said. Classifying sexual assaults as unfounded was a major topic of discussion at a seminar on police policy that she attended about five years ago, and she said the department put in an extra layer of review when she got back to make sure investigators didn’t dismiss complaints too quickly.
“It’s a very serious checks-and-balances process before we unfound any case,” she said. “We take all these cases very seriously. If there is any question it’s a sexual assault case, we’re going to get it tested. We’re going to send every kit that meets that criteria.”
Of course current practice doesn’t address the concerns over how sexual assault kits were handled in the past.
Many victims of sexual assault dropped the complaint because police gave them the impression they were at fault and they had no chance of winning in court, Lauve said. She cited data from the National Institute of Justice that nearly 70 percent of women who report a rape say police tried to discourage them from going forward with the cases.
“It’s not the victim saying ‘I don’t want to pursue this,'” Lauve said. “It’s because they are being talked into it by the police or getting such bad vibes from the police department that they don’t feel like they’re being believed. They feel like they’re being blamed, told things like you were drunk and we really can’t pursue this.”
Joanne Archambault, a former San Diego police sergeant who founded End Violence Against Women International, has also been pushing for all rape kits that were part of a criminal complaint to be tested.
“One of the biggest problems we have in law enforcement is they have unfounded cases that shouldn’t be unfounded,” she said. “They’re unfounding them before they actually do the investigation.”
Sara Barber, executive director of the S.C. Coalition Against Domestic Violence and Sexual Assault, supports the testing of all kits that were part of a criminal complaint.
“Who is determining credibility?” she said. “Is there an agreed-upon protocol in place or is just a discretionary or arbitrary decision made by individual agencies?” We would support legislation that would require an inventory or count of untested kits as a foundation on improving the response to sexual assault. The victim went through an exam, they made a report to law enforcement. The expectation would be that the kit would be tested.”
A national debate
What to do with untested sexual assault kits has been a topic of national debate at least since thousands were discovered in warehouses in several major cities, including Detroit.
USA Today reported last summer that there were tens of thousands of untested kits across the nation.
Several states have enacted legislation requiring police to send in kits for testing as soon as they get a complaint of a sexual assault.
Reviewing policies governing how S.C. law enforcement agencies handle sexual assault kits or what to do with the inventory has not been a matter of discussion in South Carolina, according to Maj. Florence McCants with the S.C. Criminal Justice Academy, which provides training to police officers under the oversight of the S.C. Training Council. It’s up to the agency to decide how to handle the kits.
Several states have passed laws requiring at least an inventory. Illinois was the first state to require the testing of all untested rape kits in storage. A law that took effect in September 2010 required the testing of all rape kits connected with “a prior or current criminal investigation.” About 4,000 kits were tested, generating 927 matches in the DNA databank, according to End the Backlog, a national organization tracking efforts in each state.
Since then, all but 18 states have enacted legislation requiring at least an inventory of untested kits, according to the group’s latest count. South Carolina is one that has not taken action.
Sen. Larry Martin, R-Pickens, chairman of the Senate Judiciary Committee, said he spent quite a bit of time after the USA Today report studying whether South Carolina should require an inventory or testing of kits in storage.
“When this first came up, I was really concerned maybe we were missing something, if we weren’t providing the resources the law enforcement community needed,” he said.
He said he concluded that kits generally weren’t tested because doing so would not have helped solve a case.
“Usually there is a very good reason the kit is still in the evidence room,” he said. “I would like to think no rape kit in an evidence room is the only thing stopping an arrest from being made.”
Counting the cost
There is no estimate of how many untested rape kits S.C. law enforcement agencies have in storage. Last year the Greenville News reported 205 untested kits with the Greenville County Sheriff’s Office, 45 for the Greenville Police Department, 389 untested kits for the city of Columbia and 100 for Lexington County.
Cost is a factor when considering testing all the kits, with various estimates putting the cost of testing kits at about $1,000 each. The actual cost depends on how many more SLED could handle without paying overtime and outsourcing to other labs.
SLED is already spending about $1 million a year in federal grant money to keep the backlog under control. The money comes from the Justice Department’s DNA Capacity Enhancement and Backlog Reduction Program. For instance, last year, SLED got $934,431 to pay its technicians overtime to test 137 kits and to outsource another 306, according to the grant application. The grant also paid for some other expenses, such as training and travel to the independent labs.
SLED does DNA testing for other violent crimes besides rape. SLED doesn’t keep figures on how many DNA tests are for reported sexual assaults, according to spokesman Thom Berry.
Berkeley County Sheriff’s Chief Deputy Mike Cochran said he’s in favor of testing every kit but not sure if SLED could handle it without money to hire a dozen more lab technicians.
“Everything you can do to get the predators off the street would be a good thing, but there’s not enough capacity to do all the tests,” he said. “If it was the same as dropping off a roll of film at CVS, that would be one thing.”
Kits were also not tested if the victim dropped the complaint. Only DNA samples that are part of a criminal complaint can be entered into the national DNA database. The profile is expunged if the case is dismissed or the accused is found to be innocent.
“If it’s not a criminal event, I don’t know why we would test it,” said Broughton with the Charleston Police Department. “If a sexual assault did not take place, I’m not sure how feasible that would be.”
Ultimately, testing old kits is a decision the state Legislature would have to make, she said.
Many of the kits were not tested because at the time SLED required a DNA sample for comparison if investigators had a suspect. That wasn’t always possible, so many kits were not tested. SLED recently changed that policy and now accepts all kits associated with a criminal complaint for testing, Berry said.
‘Too many variables’
Not all victim advocates are in favor of spending the time and money to test all the old kits. That includes Anne McKibben, state coordinator for the S.C. Victims Assistance Network.
“There are far too many variables that impact why a kit is not tested,” she said. “These variables should be explored before determining all kits should be tested. … Finding the DNA on her doesn’t change the argument that it might have been consensual.”
Kathy Gill-Hopple, a registered nurse who leads the testing program at the Medical University of South Carolina, also questioned whether mass testing would be the best use of money. In the vast majority of cases, the victim knows who assaulted her, and he admits they had sex but argues it was consensual, she said.
“Kits from stranger rapes are not sitting on the shelves,” she said. “Those are almost always reported and sent off for testing.”
If the state is going to spend any more on rape cases, the money should go for more services for victims and education for police and prosecutors, she said. More resources should also go toward researching why so many women get tested and then never file a criminal complaint, she said.
“My concern is not for untested kits, but the number of anonymous report exams we have,” she said. “I want to know why our numbers are high, what the factors are that lead to an anonymous report.”
MUSC’s Sexual Assault Nurse Examiners do the medical exam and gather fluids and fibers for all victims of sexual assault in the tri-county area. The nurses use kits provided by SLED and follow a strict protocol to make sure any evidence will hold up in court. If the victim files a complaint, the kit goes to the agency in which the crime occurred. The agency then decides whether to send the kit to SLED for testing. If the victim does not file a complaint, the kit goes to the Charleston County Sheriff’s Office for storage. The kit is tagged with a case number but does not include the victim’s name until a complaint is filed.
The Sheriff’s Office reported 65 of the “anonymous” kits in storage. If the victim does not file a complaint after a year, the kit is destroyed.
Some states have enacted legislation to extend that time period. Many advocates argue that rape victims need more than a year to recover before undergoing the trauma of prosecution and trial.
“People think investigation and prosecution are these victims’ primary concern, and it’s not,” Archambault said. “They’re just trying to survive the trauma of the sexual assault, get to school, get to work, get their kids off to school. Their lives are really just destroyed. Victims are afraid they’re going to be judged — which they are — they’re not going to be believed — which they aren’t — so their fears are very well grounded, they’re real.”
