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.

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.