Unfortunately, a grand jury returned the first indictment one day after the 20-year statute of limitations had expired, which means the prosecution will not move forward. In that case, a rape kit from 1993 matched to Charles Steele, whose DNA profile was entered into the state’s database as a result of his incarceration for another rape case in Hamilton County. Detectives submitted the 1993 kit in July 2011 and did not receive the results until 17 months later. After receiving the results on December 25 of last year, they delayed in handing the case over to prosecutors to present to a grand jury. Two days after Steele was indicted, his DNA matched to yet another attack on a Cleveland woman that occurred eight months after the first Cleveland rape. Charges are pending in the later case.

The second indictment involved charges of rape, kidnapping, assault and attempted murder in another 1993 case against defendant Anthony Moore. This second indictment came just one day before the statute of limitations expired.

As more DNA results return from the lab, police will be working against the clock to investigate cases and turn them over to prosecutors for indictment before the statute of limitations expires. A Plain Dealer analysis conducted in February estimated approximately one-third of the kits sent to the lab could result in a DNA hit, if testing trends continue. That would mean more than 1,100 hits once the 3,000-plus kits in storage have been tested. Cleveland Police Chief Michael McGrath has said he plans to add up to two more detectives to the Sex Crimes & Child Abuse unit and to enlist the help of the FBI, if necessary.

Attorney General DeWine announced the backlog initiative in December 2011 and hired four new forensic scientists to focus exclusively on testing backlogged kits. Of the initiative, he said:

“More DNA hits mean more cold cases become open investigations for our local law enforcement agencies. My office is dedicated to helping our local authorities resolve as many of these cases as possible. I encourage any department with sexual assault kits that have not been tested, no matter how old the case is, to submit them now. We want them. We want to help bring justice to the victims. We want to solve more cases.”

Here are a few highlights of their progress:

Robbins, Illinois

CBS Chicago reports that police in Robbins, Illinois, a suburb of Chicago, recently discovered 51 rape kits that had never been sent for testing. Some of the kits dated as far back as 1986. The Cook County Sheriff’s Office is now working to process this backlog because Robbins lacks the resources to do so.

According to the Robbins Police Department, they did not test the kits because the victims either recanted or declined to press charges. This is difficult to verify, however, because a flood in the basement of the Department destroyed the statements that would normally accompany the kits. That being the case, the Sheriff’s Office will process all 51 kits.

In a press conference, Cook County Sheriff Tom Dart said a rape kit examination “is incredibly difficult and traumatic for a woman to go through, and it’s rare someone would go through with it and not want to pursue a criminal case.” He added, “The victims should know they will have their cases heard, and they will be treated like they should have been treated. My goal is to bring justice to these folks.” Sheriff Dart’s office has been assisting Robbins with patrols and investigations in recent weeks, which led to the discovery of the untested kits.

As we reported previously, state officials made a similar discovery in Harvey, a neighboring suburb, in 2007. In a raid on the Harvey Police Department, officials uncovered 200 untested rape kits. In 2010, Illinois became the first state to pass legislation requiring the tracking and testing of all rape kits.

Houston, Texas

Houston’s Mayor Annise Parker has announced the city’s plan to eliminate its backlog of more than 6,600 untested rape kits within 14 months. The Houston Chronicle reports that it will cost Houston $4.4 million to outsource the kits to two private labs for testing. Funding will come from $2.2 million in federal grants and $2.2 million in the city’s current budget.

While it typically costs approximately $1,200 to outsource just one rape kit, the labs have offered a price of $400 per kit given the large volume of kits they will receive. With the backlogged kits, the city will also send 1,450 kits from active rape cases, 1,020 DNA samples from other crimes and an estimated 1,000 rape kits that will be collected over the next year, for a total of 10,130.

Texas was the second state to require that law enforcement agencies test every rape kit booked into evidence. Houston, which received a National Institute of Justice action-research grant, along with Detroit, to study the causes of its backlog, has its own policy of testing every kit. This policy came about because of the ability of rape kit evidence to link perpetrators to other crimes and to honor survivors’ courageous decision to undergo a rape kit exam and report the crime.

Ohio

Law enforcement agencies from across the state of Ohio recently sent more than 2,300 untested rape kits to a state crime lab for analysis. Almost half of the untested kits came from the Cleveland Police. According to the Cleveland Plain Dealer, when all of the recently submitted kits are tested, law enforcement could have an estimated 850 cases resulting from DNA database matches.

While Ohio has not passed legislation requiring the testing of all rape kits, in late 2011, Ohio Attorney General Mike DeWine adopted a policy encouraging all law enforcement agencies to clear their backlogs. His office hired additional crime lab staff to handle the influx of evidence.

Cleveland alone discovered that it had more than 3,700 untested kits dating as far back as 1991. To date, the city has submitted 1,073 kits to the lab. The Toledo Police Department has sent 215 kits, and Akron has sent more than 300 kits, dating as far back as 1994. The crime lab is testing up to 100 kits per month, starting with the oldest first.

Of the kits tested so far, 103 contained useable DNA evidence, and 65 matched to DNA profiles in CODIS. Thirty-six of the cases with matches originated in Cleveland, and those matches have confirmed the identity of 11 suspects, identified potential suspects in 21 cases and identified a possible serial rapist.

Police officials in Cleveland, as well as Toledo and Akron, have expressed their commitment to following up on and investigating the leads that result from clearing their backlogs. Cleveland Police Chief Michael McGrath plans to add two more detectives to the Sex Crimes & Child Abuse unit and seek assistance from the FBI, if necessary. He said, “I wouldn’t send these kits if I wasn’t going to follow up on them.” Deputy Chief Ed Tomba added that their primary concern is locating survivors and responding to the varied reactions they will have upon learning of new leads in their cases.

If passed by the rest of the Colorado General Assembly, the law would also mandate that the Colorado Bureau of Investigation propose a plan for analyzing all submitted rape kits by June 30, 2014. Going forward, the law would require rape kits to be submitted for testing within 21 days of receipt by a law enforcement agency.

State Rep. Frank McNulty introduced the bill in response to an ABC CALL7 investigative report uncovering hundreds of untested rape kits in the greater Denver area. In a guest commentary for the Colorado Observer, Rep. McNulty explained his concern after seeing the report:

It takes very real courage to come forward to report a sexual assault and even greater courage to go through the trauma of evidence being collected. These women subjected themselves to the trauma of evidence collection so that their attacker would be brought to justice and so that other women wouldn’t become victims of their attacker. If rape kits are not tested so that the evidence can be loaded into state and national databases, the opportunity to provide justice for other women who have been assaulted by these same predators is dismissed.

He also made the case for testing every rape kit booked into police evidence:

Some maintain that not every kit submitted needs to be tested. While I understand this from the perspective of allocating financial resources, I simply don’t agree. We should be thorough in testing submitted rape kits and respecting the women who were assaulted. Troubling is the fact that, in one case, only 26 percent of the rape kits that were collected were tested – leaving 74 percent untested. In my opinion, that isn’t right. That agency has since changed its policy and is testing more evidence collected. We need other agencies to do the same.

The Call 7 report that inspired Rep. McNulty to introduce HB 1020 included an interview with a survivor whose rape kit was never tested. She asked:

 “Is it an unrealistic expectation that all evidence be considered and that the investigative process be complete?”

She also bravely testified before the House Judiciary Committee in support of HB 1020, pointing out to lawmakers that testing all rape kits, regardless of the type of crime, can help to identify serial rapists.

If this bill becomes law, Colorado will be the third state—behind Illinois and Texas—to require the testing of all rape kits. We are eager to share updates as HB 1020 progresses through the state legislature.

When asked about the untested kits, Davenport Police Chief Frank Donchez explained, “There are rape kits there that nothing can be done with. If we don’t know the victim, the suspect or the location of the incident, how can we conduct an investigation?”

After undergoing a rape kit examination, which can take between four and six hours, some victims of sexual assault decide not to report the assault to the police. In these instances, the rape kit is sometimes referred to as an “anonymous” or “Jane Doe” kit. To protect the victim’s privacy, the rape kit does not reveal any identifying information. Victims are given a code number they can use to identify themselves if they later choose to report the assault.

How long a police department must store an anonymous kit varies by state and jurisdiction. Under Iowa law, police must store the kit for a minimum of ten years.

Nationally, rape is one of the most underreported crimes, with an estimated 65 percent of cases unreported. There are many reasons why a survivor of sexual assault may decide not to report the assault, including embarrassment or shame, fear of being disbelieved or blamed, the re-traumatization that participating in the criminal justice system can bring, and fear of reprisal by the perpetrator. The closer the relationship between the survivor and the offender, the less likely the survivor is to report the assault.

Whether a survivor eventually decides to report the assault or not, members of law enforcement, prosecutors and service providers must support and empower the survivor to make that decision without any pressure. They must then respect the decision the survivor makes.

In other backlog news, a recent editorial in The New York Times called on the U.S. House of Representatives to pass the SAFER Act, which has since been added to the Violence Against Women Act currently being voted on in the Senate. The editorial also revealed new backlog numbers out of Fort Worth, Texas. When Fort Worth police submitted 960 kits for testing, the results led to the identification of 102 suspects, 47 arrests and 36 felony convictions. While clearing a backlog is a critical first step in bringing justice to survivors, jurisdictions must fully commit to following up on the investigative leads that testing can generate.

In 2011, the Texas state legislature passed a bill requiring law enforcement agencies to count the untested kits in their evidence rooms and report their numbers to DPS. Despite an October 2011 deadline, few agencies complied with the reporting requirement.

To date, approximately 130 of more than 2,600 police agencies have submitted their backlog numbers, including many of the biggest agencies. Among the reporting agencies, there are 15,900 untested rape kits. Based on that number, DPS estimates there to be roughly 20,000 untested kits statewide.

To clear a backlog of that size, DPS believes it will cost between $7 million and $11 million. When the state legislature meets for its 2013 session, it will discuss how to pay for testing. State officials are hopeful that the U.S. Congress will pass the Sexual Assault Forensic Evidence Registry (SAFER) Act, which would create a national registry for rape kit evidence and amend current law to require a greater percentage of Debbie Smith Act grant funds be spent directly on analyzing untested DNA evidence. The U.S. Senate passed the SAFER Act on New Year’s Eve, but it failed to pass the House and will be re-introduced in the new session.

Some Texas law enforcement agencies are already seeing results from their efforts to clear the backlog. In Houston, where fees collected from strip-club patrons help to fund the processing of untested rape kits, testing led to the arrest of a man for a rape that occurred ten years ago.

Greater Denver Area, Colorado

On November 11, 2012, ABC CALL7 released the results of an investigation to determine the number of untested rape kits in the greater Denver area. The investigation uncovered hundreds of untested rape kits. Among the findings were that the Denver Police Department has tested only 56% of the 1,064 rape kits it has collected since 2008. The Fort Collins Police Department, about an hour north of Denver, has tested just 28%of the 243 kits it has collected since 2007. Jefferson County has tested only 36% of the 117 rape kits it has collected in the last five years.

Throughout the investigation, police officials reported that their departments believe it is unnecessary to test all rape kits. A commander with the Denver Police explained, “A lot of rape kits we end up doing are just to document the trauma and everything else that occurred.”  He went on to say, “No, we don’t test 100% of the cases. Some of those we don’t want to test or don’t need to test.”  While detectives decide whether to send kits for testing on a case-by-case basis, they rarely test in cases where the perpetrator is known.

ABC CALL7 spoke to one survivor impacted by the backlog in Colorado. Two years ago, Kelly Binder was drugged, physically restrained and raped by a man she met at a Denver bar. She reported the rape and went through a rape kit examination, which she described as so invasive it felt like a second assault. A few weeks later, the detective assigned to her case told Ms. Binder that it would be too hard to prove that she didn’t give consent and informed her that her kit would not be tested. Ms. Binder said:

“I was raped. This man raped me. And they did nothing, they did nothing at all.”

Within a week of CALL7 breaking the story of the untested kits in the greater Denver area, the Fort Collins Police Department decided to change its policy on testing rape kits. Police Chief John Hutto said prior to the investigation, officers mistakenly assumed that the Colorado Bureau of Investigation (CBI) would not test rape kits when the perpetrator was known and would not upload the DNA into CODIS. After speaking with a CBI representative, Hutto learned all kits are tested and all DNA profiles are uploaded into CODIS.

Going forward, the Department will send every rape kit to CBI for testing, regardless of whether the offender is known. They will also begin looking at older kits they currently have in evidence and send those that fit the criteria under their new policy.

Phoenix Metropolitan Area, Arizona

An ABC15 investigation has uncovered nearly 3,000 untested rape kits in police departments across the Phoenix metropolitan area and hundreds more waiting at crime labs to be tested.  Many rape kits are never sent to a crime lab for testing. Only one police department in the Phoenix area, the Pinal County Sheriff’s Office, has an official “test all kits” policy. The Mesa Police Department and the Maricopa County Sheriff’s Office also reported that they test all rape kits.

Most other police departments in the area do not follow a “test all” policy. The Phoenix Police Department accounts for half of the area’s untested kits. Sgt. Trent Crump stated that testing a kit is left to the discretion of the detective assigned to the case. He said the circumstances in which kits go untested include when a victim declines to prosecute, when a victim changes his or her story or recants, and when a suspect admits to the crime and is arrested.  He also said the Department generally does not test kits in cases where the victim knows the assailant. Sgt. Crump defended this position, saying that when identity is not at issue, testing the rape kit is unnecessary because consent is the issue.

Even when police departments send rape kits for testing, the process is slow and often incomplete. In the first step of the testing process, an analyst determines whether the rape kit contains DNA. If DNA is present, the kit proceeds to the second phase, where the DNA is analyzed and entered into CODIS to determine whether it matches to a known offender and/or other crime scenes. Arizona’s Department of Public Safety’s (DPS) Scientific Analysis Bureau estimates it takes 60 to 90 days just to complete step one, but in reality, it can take much longer.

ABC15 discovered that of the 2,546 rape kits reported as “tested” in the Phoenix metropolitan area over the past five years, many had not completed step two of the testing process. Most police departments in the area count a kit as “tested” when they turn it over to the crime lab, regardless of whether the lab has actually tested it.

In 2004, Hilary Peele, a rape victim-turned-advocate, was raped at knifepoint by a stranger who broke into her apartment in Tempe, Arizona. She reported the assault to police and underwent a rape kit examination. The detective assigned to her case told her the results would come back in two weeks. When Ms. Peele called the detective two weeks later, she was told it was going to be another two weeks. This went on with Ms. Peele calling every two weeks for eight months. She said:

“You start to lose hope. You start to lose faith that your kit will ever be tested. That your attacker will ever be caught.”

Finally, after eight months, Ms. Peele learned that the DNA evidence from her kit matched to a previous rape case, meaning the perpetrator had raped at least one other woman. She believes she would not have gotten the results as quickly had she not called every two weeks.

At Joyful Heart, we believe every rape kit booked into police evidence should be tested. In addition to establishing the identity of an unknown perpetrator, rape kit evidence can confirm a suspect’s contact with a victim, corroborate the victim’s account of the sexual assault, link a suspect to other crimes and exonerate innocent defendants. Not testing rape kits sends the message to survivors that their cases don’t matter. It also sends the message to perpetrators that they can escape punishment for rape. Testing kits demonstrates a commitment to survivors to do everything possible to help them find justice and healing.

After the bill passed out of the Judiciary Committee, Senator Michael Bennet (D-CO) said:

“Victims of sexual assault have already gone through enough. They shouldn’t have to wait unnecessarily for justice. Today’s passage of the SAFER Act in the Judiciary Committee brings us closer to helping local law enforcement reduce backlogs of rape kits and bring criminals to justice. This bill will support those efforts and enable these agencies to stay on top of their work.”

Senator John Cornyn (R-TX) added:

“Today we took a large step toward ensuring justice for victims of sexual assault. I’m encouraged by the bipartisan support the SAFER Act received in the Judiciary Committee and look forward to a vote on the Senate floor.”

As we have previously shared, Joyful Heart supports the SAFER Act as a step toward shedding a light on the hundreds of thousands of untested rape kits in police and crime lab storage facilities across the country. Each untested rape kit represents a missed opportunity to bringing healing and justice to a survivor.

These kits are part of an initial wave of 200 kits that have been sent for testing under the National Institute of Justice’s grant to address Detroit’s backlog of over 11,000 untested rape kits. The DNA evidence in these 21 cases matched to the DNA profiles of suspected offenders involved in at least one other rape case, according to ClickOn Detroit. In some cases, the evidence matched to the DNA in up to five other cases, according to the article.

Testing a rape kit can identify a potential assailant, confirm a suspect’s contact with a victim, corroborate the victim’s account of the sexual assault and exonerate innocent defendants. And of course, testing rape kits can connect suspects to other crimes.

In addition to identifying the possible serial rapists, the DNA evidence in the batch of 153 kits has yielded another 38 DNA matches in the database, according to The Daily Beast. All of the cases now need to be investigated, says Wayne County Prosecutor Kym Worthy in the article.

“People think when you get a CODIS hit, we can just go out and arrest that person,” she says in the article. “But a DNA hit is never the whole case. We have to go find the witnesses, do the old-fashioned kind of investigation. They’re cold cases—they’ve just been sitting there. We have to reinvestigate all these cases.”

“I say ‘reinvestigate,’ but some were never investigated properly, frankly,” Prosecutor Worthy adds.

• Increasing the percentage of Debbie Smith Act grant funds that must be spent on analyzing untested crime scene evidence;
• Providing state and local governments with funding to conduct one-year audits of the untested sexual assault evidence in their possession;
• Creating a national database maintained by the Department of Justice (DOJ) to track those audits, and
• Requiring greater tracking of how Debbie Smith Act grant funds are spent.

The SAFER Act amends the Debbie Smith Act, which provides federal grants to eligible states and local governments to conduct analyses of backlogged DNA evidence. Joyful Heart encourages Congress to pass the SAFER Act because it addresses several concerns we have about the current version of the Debbie Smith Act.

The SAFER Act will ensure that more Debbie Smith grant funds are awarded directly to state and local governments to end the rape kit backlog. The Act will amend current law to increase the percentage of Debbie Smith appropriations grantees must use to analyze untested DNA crime scene evidence, or enhance the capacity of labs to do so, from 40 percent to 75 percent.

The national sexual assault forensic evidence registry, the DOJ-managed database, will increase grantee accountability by ensuring they are spending funds on auditing the untested rape kits in their possession. In turn, grantees will be better able to prioritize the analysis of untested rape kits and target Debbie Smith appropriations. They would be required to identify and upload to the registry a small number of pieces of critical information about each audited rape kit, such as: (1) the date of the sexual assault to which the kit relates; (2) the jurisdiction in which the sexual assault occurred; (3) the date on which the statute of limitations for the sexual assault in question would bar prosecution; and (4) the testing status of the rape kit.

The registry will also assist the DOJ in determining which jurisdictions have a greater need for Debbie Smith funding, and how much of that funding they need to eliminate their backlogs. Finally, the registry will create greater public awareness about the backlog by requiring the DOJ to make information gained through the audits available on a public website.

Joyful Heart calls on Congress to pass the SAFER Act, which currently has bipartisan support in both chambers, and ensure that more of the 400,000 untested rape kits across the country are tested, bringing justice to the survivors those kits represent.

Many times over the course of the last couple of weeks, people have approached me regarding the passage of legislation expanding the New York State DNA Databank. Some have been congratulatory, some have been concerned, but, mostly, a great many have simply had more questions than anything else. To the ordinary person, DNA is something that you hear about on TV crime dramas or read about in biology class. Unfortunately, I didn’t come about my knowledge of DNA through either of those modes but, rather, through circumstances that I would give anything to change.

Eleven years ago, I was a stay-at-home mom, raising my children—two sons and two daughters—and living a rather ordinary life. That all changed in the blink of an eye. Early one morning, after my husband had left for work, a man carrying a knife broke into my home. The very first—and last—room that he came across was that of my 12-year-old daughter, asleep in her bed. He raped her, cut her and then robbed her. Before leaving our home, he told her that if she told anyone, he would return to our home and kill not only her, but our entire family.

After going through the difficult but necessary procedures that follow a rape—the hospital exam, the police sketches, the detective interviews—we returned to our home and our lives, and we began to wait. And wait we did. When the months began to turn into years, we did a DNA grand jury indictment, meaning the DNA evidence from the crime was indicted as a “John Doe” defendant, thereby lifting the burden—and fear—that the statute of limitations might come around before an arrest did. Then, we went home to wait. Again.

Despite a detective who never gave up hope, it was hard for us to remain optimistic. Keep in mind that my daughter and all of my children, were very much aware that the perpetrator was still out there—free—and in their minds, very capable of returning, as he had promised he would. Due to “hits” in the DNA Databank with evidence from other crime scenes, we knew the perpetrator was still in the area and had been linked to other rapes, but we did not know his identity. When you spend your life looking over your shoulder, everyone becomes a suspect and the concept of being safe at home doesn’t exist. This was how we lived our lives for ten years.

Miraculously, the day came that we never thought we would see—an arrest was made in my daughter’s case. The perpetrator wasn’t caught in the act of raping one of his subsequent victims. He was caught because he stole money from his employer—a petit larceny. For a decade, he wreaked havoc on countless lives and what finally put him behind bars was the theft of a few dollars.

As odd as it may sound, my family got lucky, if it’s even imaginable to use such a term. Our luck came from the fact that the misdemeanor for which he was convicted was, at the time, one of the few  convictions in New York State that required him to give a DNA sample. Had New York not expanded its DNA Databank in 2006 to include some misdemeanors, the man who raped my daughter might not have been found. Yet despite our relief, we knew that more needed to be done. New Yorkers shouldn’t have to get lucky to get justice and the law should require DNA samples be given upon conviction for all crimes.

To that end, countless people fought for years for the DNA Databank to include samples for all convictions. I am proud to say that Governor Cuomo signed the expansion into law last month. It was a huge victory for all families in New York State. Not only does it ensure violent criminals are held accountable, but it will also go a long way towards preventing crime in the first place.

The arrest of my daughter’s attacker came with the guarantee that he can no longer devastate other families. It’s hard to say how many would-be victims would have been saved by this one arrest from the life of fear and “not knowing” our family experienced. The passage of this legislation has the potential to save thousands the heartache my family has endured. It also offers protection and hope to the wrongfully accused. Its passage was long overdue.

While nothing can ever undo the hurt my family has suffered, this new law does guarantee that the residents of New York will be safer. It offers hope that fewer parents will ever know such sorrow, that fewer little girls will live their lives looking over their shoulders and that families are safer both on the streets and in their homes. As New Yorkers, we should settle for nothing less.