ISP forensic services lab

The ISP forensic services lab is seen here testing DNA samples. The submission of rape kits for DNA collection is left entirely up to law enforcement discretion and the submission rates vary widely among police departments in Idaho.

Teresa Baker, Idaho State Police

NAMPA • In Pocatello, the rate is 26 percent. In Nampa, only 10. In Coeur d’Alene, though, testing rates are at 60 percent.

Those are the percentages of rape and sexual assault evidence collection kits that each law enforcement agency has submitted, over a five-year timeframe, to the state lab for testing.

In November, the Idaho Press-Tribune published two stories after learning that Canyon County law enforcement’s submission of rape kits varied widely in testing rates. They ranged from 10 percent in the Nampa Police Department, to 54 percent submitted by the Caldwell Police Department and 52 percent of Canyon County Sheriff’s Office kits were submitted for testing.

After learning of a lack of uniform policy on the submission of the kits, the Press-Tribune reviewed 22 Idaho law enforcement agencies using public record requests. The review found great disparity in rape kit testing among each law enforcement agency.

Over five years, Twin Falls Police, for example, had a 23 percent submission rate while Moscow Police had a 35 percent submission rate of rape kits being sent for testing at a lab.

Moscow Police, from Nov. 23, 2010, to Nov. 23, 2015, collected 55 kits and sent 19 to a lab. The Twin Falls Police Department, from Jan. 1, 2010, to Nov. 3, 2015, collected 84 kits and only sent 19 to a lab for testing.

Meanwhile, the Meridian Police Department collected 40 kits from Oct. 1, 2010, through Nov. 4, 2015. Of those collected, 32 kits were sent to a lab. That’s an 80 percent submission rate.

Currently in Idaho, if a law enforcement agency determines no crime has been committed or the case is no longer being investigated as a crime, a sexual assault kit may not be sent to a laboratory for testing. Kits are also not submitted for testing if a victim decides he or she does not want the kit tested. The term rape kit is used to describe the forensic exam a person may undergo after an alleged sexual assault, which looks for evidence that sex abuse has occurred.

Through the record requests, some law enforcement agencies couldn’t provide a reason as to why some specific cases didn’t have a sexual assault kit tested for evidence, and other agencies estimated it would take as long as 60 hours to find the answer on why some kits weren’t tested — stating the agency did not track that explanation in an easily accessible way.

The Press-Tribune’s record requests illustrate the lack of uniform statewide policy on how to track whether a rape kit is sent to a lab for testing.

At the Bonneville County Sheriff’s Office, from April 8, 2014 – Nov. 30, 2015, it collected 18 kits. Of those, eight were submitted, nine were not sent in and one belonged to another agency.

However, to find numbers of rape kits collected and tested over a full five-year time frame, the agency estimated 60 hours of labor would be needed to find the answer. The Bonneville County Sheriff’s Office estimated fees of up to nearly $800 for further explanation because data prior to April 8, 2014, was not readily accessible. The Idaho Press-Tribune declined to pay the fee.

A bill proposed by Rep. Melissa Wintrow, D-Boise, last week would change how sexual assault kits are tracked by all law enforcement agencies in Idaho and could provide some general explanations as to why some may go untested. The bill is currently working its way through the Statehouse.

“When tested, DNA evidence … inside those rape kits can be an incredibly powerful tool to solve and prevent a crime,” Wintrow said when first proposing the bill to legislators. “It can identify an unknown assailant and confirm the known suspect. It can affirm the survivor’s account of the attack and discredit the suspect. It can tie the suspect to other crime scenes and it can exonerate the wrongfully convicted or accused.”

Idaho Testing

There is no state law in place regarding the submission of rape kits for testing. The Idaho State Police Forensic Services lab currently has a policy with two criteria on why a kit may not be tested:

1. Law enforcement determines no crime has been committed.

2. A victim requests his or her kit not be tested.

From Jan. 1, 2010, to Nov. 15, 2015, Garden City Police collected 25 kits and submitted 14 of them to a lab for testing, or 56 percent.

Of the 11 never sent in for testing, Garden City Police said seven kits weren’t sent because prosecutors declined to pursue charges, and four kits were not sent per the victim’s refusal.

If Wintrow’s legislation passes, the Garden City Police would be required to keep track of what happened to those 11 untested kits and maintain an explanation as to why they weren’t tested.

ISP’s lab in Meridian is responsible for testing all kits from Idaho law enforcement agencies, with the exception of some that are tested at an FBI lab.

DNA Matching Success

Some police officials have agreed the purpose of sending a rape kit in for testing stretches beyond verifying that one individual committed one crime, but it can also benefit police by entering the DNA into a national database, which could tie that suspect to DNA found in other crimes.

The Combined DNA Index System, or CODIS, is the FBI’s national database, which combines federal, state and local DNA profiles.

The National DNA Index contains more than 12.1 million offender profiles, 2.2 million arrestee profiles and 674,150 forensic profiles as of December, according to the FBI’s website.

As of December, CODIS had produced more than 315,410 hits assisting in more than 303,201 investigations, according to the FBI.

In Idaho, the FBI has tracked 31 cases in which a DNA sample aided in an investigation as of December 2015.

“I see the value in testing the kits, even if I don’t want to prosecute,” Wintrow said about kit submission. “What if it’s a match (to another sample in the database)?”

Idaho Rape Kit Procedure

A common question on whether testing a kit is necessary stems from whether the suspect acknowledges DNA would exist because sex did occur — meaning both parties admit their DNA would likely be present in the samples collected.

In the past, Idaho State Police Forensic Services Lab required a reference sample be sent in with the kit, meaning a sample from the suspect.

In 2014, the lab changed some policies on kit submission but still does not mandate all rape kits be submitted for testing. It is the responsibility of each law enforcement agency to send kits to the lab.

According to ISP policy on processing sexual assault kits, kits collected since January 2014 required reference samples “or advanced approval from the lab of the extenuating circumstances why reference samples cannot be obtained. Every effort must be made to get reference and elimination samples on these cases.”

An elimination sample would be a DNA sample submitted with the kit to rule out someone who is not a suspect.

The change resulted in the potential to submit kits that had not been tested by the lab in the past.

Boise Police Sgt. Kip Higby said in 2014, his department reviewed the number of untested rape kits collected and found 173 were never submitted.

Since the Idaho State Police had changed its policy and no longer required a reference sample, the agency reviewed the 173 old cases and found that about 100 of those kits were eligible for submission, Higby said.

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Higby, a former detective within the Boise Police Department’s Special Victims Unit, said the “vast majority” of the kits that weren’t sent in for testing were because of a consent issue, meaning they were not searching for a suspect’s DNA because that suspect already admitted he or she had sex with the alleged victim. This would apply to cases in which both the alleged victim and the suspect agree that sex occurred but dispute whether the interaction was consensual.

Under previous submission criteria in place by ISP’s lab, those kits would not have been applicable for submission, Higby said.

Higby said the value of the kits is more than just identifying a suspect in one case. He said submitting kits for testing is valuable in that any DNA found is entered into a database regardless of whether prosecution is pursued or if a guilty conviction is reached. The DNA can be used to identify a person involved in other crimes. DNA profiles are not public record, so even if a person is never charged or convicted, the general public would not be able to know if a person’s DNA is submitted to the database.

“If we can prove there is a pattern of behavior (by a suspect), it’s much more likely to get prosecution if we can link (a BPD case) to two or three other cases, with different victims and show his (modus operandi) is the same, the story is same, and the victim is similar,” Higby said.

Connecting the pattern of behavior as well as the DNA proof is beneficial in cases where the only question is consent, not a suspect’s identity.

“That’s what I really see as the value of submitting those consent cases,” Higby said.

Higby believes there should be some discretion in whether to submit a rape kit for testing, specifically if a victim does not want his or her kit tested.

“The victim should have a say in that kit,” Higby said. “It’s not just the suspect’s DNA, it’s also the victim’s DNA (entered) in the database.”

DNA in the state and national database does not all come from samples taken in sexual assault kits. Any person convicted of a felony in Idaho is required to submit a DNA sample to the state. This applies to people convicted of any type of felony, not just sex crimes.

But when a victim does not oppose testing, Higby said he’s a “big proponent of submitting all kits.”

The Proposed Legislation

Wintrow’s bill would add the stipulation that if law enforcement decides not to submit a kit for testing, a county prosecutor must review the decision. Testing of all kits would not, however, be mandatory.

The legislation also would add tracking policies for all kits and an audit mandating that law enforcement report how many kits that agency has obtained, how many kits went untested and the reason some kits were untested. As is, much of the decision to test a kit is at law enforcement discretion.

The bill proposed by Wintrow also would change how officials decide which kits will remain untested.

If it passes, the legislation would create a uniform policy among police agencies, rather than each agency having sole discretion on whether to send a kit in for testing.

“If we don’t test the kits, what kind of a message does that send?” Wintrow said.

Wintrow, former director of the Women’s Center at Boise State University, said the topic was especially important to her after working on a campus.

“Many times what happens, especially on college campuses, is we will see what we call a serial rapist; where somebody may repeat the offense,” Wintrow said in a committee hearing. “So something like this could be very helpful in identifying the perpetrator.”

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