LITTLE ROCK, Ark. -- As states across the country work to reduce a backlog in untested rape kits an audit required under a new Arkansas law reveals hundreds of kits that have never been submitted to the crime lab.
Inside the Arkansas State Crime Lab, forensic testing can often tease out a thread of information previously unseen or unnoticed.
"This was a good first step. It forces us to look at our programs to make sure they're what they need to be," Executive Director Kermit Channell. said.
Channell was speaking to the results of a statewide audit of untested rape kits, which revealed 700 more than the state believed might be sitting on law enforcement shelves. That brings the total to more than 2,200 statewide.
"I think I would have been more surprised if we had 6,000 or 8,000 kits out there. That would have really alarmed me," Channell said. "But even though we have this number of kits out there, we need to pay attention."
A Clear Count of Kits in the State
Act 1168 was signed by Governor Asa Hutchinson in April 2015. It requires law enforcement agencies and hospital to fill out a form for each un-submitted sex assault kit to determine how the state fared. This year, 184 of some 300 law enforcement agencies responded. Only nine hospitals submitted results.
"While the response rate is not 100 percent, I believe we covered most, if not all, of the kits out there in the major areas of the state," Channell said. "Most of these cases are handled by the larger departments in most areas."
"We didn't know what the numbers were going to be before the report was created," said State Senate President Pro Tempore Jonathan Dismang (R - Beebe).
The law requires the data compiled from the audit to be submitted in a report to the Speaker of the House and the Senate President Pro Tem.
Reasons Kits Go Untested
The reasons, according to the report data, that the kits were not submitted spanned about two dozen categories across the 700 kits. Law enforcement said 130 kits were not submitted because the victim opted not to go into the criminal justice system.
"More often than any other crime, survivors of sexual assault are often not believed by law enforcement or they are blamed," said Ilse Knecht with the Joyful Heart Foundation.
The foundation advocates for ending the rape kit backlog nationwide. It tracks reforms across the U.S., and it cautions against writing off cases by saying the victim didn't want to go any further in the system.
"Was this a case where the survivor was treated poorly and decided to disengage in the criminal justice system or is it really a case where the victim said I really don't want to do that? " Knecht said. "We absolutely want to respect survivor's wishes, but we also want these cases to be closely looked at to make sure the choice they made is an actual choice and not something they felt forced into because of a negative experience with the system."
"We have to make sure that we're able to educate the victim about what's happening and also what that means not only to their case but also other cases. At the same time, we have to balance the desire of the victim in regards to having it submitted."
Other reasons agencies offered included that the suspect claimed consent in 84 cases, 77 where prosecutors declined and another 45 where the suspects confessed.
"Even with confessions, those are the kinds of cases kits should still be tested in, because we see these offenders are serial offenders so testing these kits could help connect crimes together," Knecht said.
In 25 percent of the new cases, the reason the kit wasn't submitted was either unknown or law enforcement provided no additional information.
"Where the unknowns are I think we want to see what's going on with the agencies there and look and see why," Dismang said.
Requirements for Collection and Submission of Kits
The only law on the books we could find pertaining to submission or preservation of evidence of sexual assault cases was ACA 12-12-104. It largely deals with preservation of evidence post-conviction, though it does require any evidence collected in a sexual assault cause to be maintained and tracked through a continuous chain of custody.
The Commission on Child Abuse, Rape and Domestic violence has issued this policy manual in conjunction with the University of Arkansas for Medical Sciences, recommending best practices and protocols for responding to a sexual assault. However, these guidelines aren't spelled out as requirements in law, from what we've been told by policy experts and legislators.
"We need some good consistency in Arkansas. It's an issue other places around the country are facing, to make sure there are things in place to require long-term retention for the benefit of the survivor and the defendant, even," Channel said.
Other states have begun to enact reforms, from requiring all sexual assault kits to be submitted and eliminating statute of limitations for rape in addition to creating submission and storage guidelines.
According to Channell, he's looked at steps other states have taken, including requirements for collection and submission. One of the balancing acts states have struck is looking at preservation of evidence so that if a survivor decides they do want to move forward with prosecution after time has passed, the state has made sure through policy and protocol that the evidence is still maintained.
"What I have seen is a lot of legislation out there - Michigan, Pennsylvania, Texas --requiring kits to be submitted to the laboratory, regardless of some of the investigative merits on the front end. We're seeing a lot of that," he said. "I'm seeing time constraints placed on when an agency or officer picks up a kit from a healthcare provider , on when it must be delivered to the lab and requirements on labs on appropriate timeframe to get results back. All those things are out there, and I do think it's important to consider those things with the survivor in mind."
"Is that something the legislature could step in and help with that on timelines and storage guidelines?" Fox16 Investigates asked Dismang.
"We have some time before the next regular session. I'm going to take the report and make sure members have a chance to look at it. We want to make sure whatever we do is done so it's beneficial to law enforcement."
According to Knecht, states that have enacted reforms, like Michigan, have seen those changes turn into results.
"Detroit has discovered 729 serial offenders who have committed crimes in 40 states and the District of Columbia," she said.
What the Audit Reveals
Act 1168 mandates that an audit be conducted each year. The individual forms collected from law enforcement agencies regarding those kits are not available under the Freedom of Information Act. The law only provides that the report sent to the two legislators be open for inspection.
That report breaks down the totals and the reasons given for why kits weren't submitted, but it doesn't spell out which agencies or healthcare providers reported untested kits, the ages of the victims involved or actions the agency intends to take with those kits. According to Channell, the State Crime Lab and legislators can delve deeper into the data, but the specific data itself won't be released to the public for review.
"I doubt that will be released to the public," Channell said. "But I believe the intent of Act 1168, at least partly, was to see where we had pockets of challenges. Whether it's education or resources, this data can help us identify and address that."
The State Crime Lab can only collect the information and distribute the audit. It has no authority to compel agencies to submit the exams, and any legislative action would have to come from the Capitol. Although, Channell said there is funding available where those additional 700 kits could be tested.
Channell did note that the Crime Lab can and often does work with law enforcement to let them know the intricacies of the DNA database and what submitting forensic evidence might offer them, beyond a resolution to the immediate case at hand.
"With our DNA database program here and around the country, we have a unique opportunity to look at genetic information and search it. That's not only in Arkansas but across the country. You may have two agencies in two states that have nothing but sexual assault kits. By testing that information, you might find that you have a serial offender. Those two law enforcement teams can then consult and see if there are commonalities between cases. It might allow law enforcement to solve cases together that they would have a hard time tackling alone."
"We believe we should be concerned with each untested kit, because each kit represents a survivor, a survivor that has decided to make the decision to report to law enforcement and most don't," Knecht said.
All agree this first step is important to have a clear picture of the kits out there across the state. Now, lawmakers will have to decide whether the state creates guidelines to ensure every kit that should be tested ends up in the right hands.
Arkansas had identified, through a survey of its 10 largest law enforcement agencies, 1,513 kits that were untested. The State Crime Lab was able to apply for a District Attorney grant from New York to receive nearly $100,000 to fund testing those kits. According to Channell, if all 704 additional kits were submitted to the lab for testing, there would be available resources to get those kits tested.
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