City Weekly reported in January on a survey conducted by a veteran Sexual Assault Nurse Examiner showing that 94 percent of reported adult sexual assaults in Salt Lake County were not prosecuted. The shocking statistic prompted lawmakers to dig into the logistics of how rape kits are often left on law-enforcement shelves, and they soon learned that the problem is not limited to Salt Lake County.
After the story broke in the media, Jay Henry, the director of the Utah Department of Public Safety crime lab, wrote in a Jan. 28 e-mail that though the lab supplies roughly 1,000 new kits to hospitals and law enforcement every year, “on average, we receive about 30 percent of those kits back as a submission from a local law enforcement agency” for processing.
Henry wrote that agencies had begun submitting a higher volume of kits, which created the new problem of overwhelming the state lab’s staff. The lab can process up to 300 kits per year, Henry wrote, and would need $750,000 to help process the estimated 1,000 to 2,000 kits that have not been tested. And going forward, he wrote, the lab would likely need $600,000 in ongoing yearly funding to hire staff and have the resources to process an increased volume of kits.
But if lawmakers were taken aback by the new statistics, they were equally surprised when the Department of Public Safety backtracked and told lawmakers at a Feb. 13 criminal-justice appropriations meeting that it didn’t want the ongoing $600,000. Instead, a representative said, they felt they needed to figure out the actual number of untested kits before asking for ongoing support to take care of them.
Sen. Daniel Thatcher, R-West Valley City, said he would respect their decision, but like others, was uneasy about not investing in future need.
“I don’t want to let this go unfunded if there’s the possibility one of these kits could close a case if it’s processed, and we don’t have the resources to process it,” Thatcher said.
Alana Kindness of the Utah Coalition Against Sexual Assault says that the issue isn’t as simple as an agency saying “thanks, but no thanks” to money for processing rape kits. She points out that the untested kits aren’t piled up at the state labs, but at police agencies, and no one knows for sure exactly how many there are. To determine that figure, Kindness is joining a working group—made up of law enforcement, prosecutors and Sexual Assault Nurse Examiners—that will study the issue during the next six months to learn how to better process kits and encourage their submission.
“I don’t anticipate that there’s going to be a huge influx of cases because it’s going to be an agency-by-agency shift,” Kindness says.
The fact that, on average, 70 percent of kits statewide aren’t being submitted aggravates those who advocate for victims of sexual assault. Some have accused law enforcement of not taking the cases seriously, but, crime lab director Henry says, some kits are involved in cases that are later determined to be non-probative or to have involved consensual sex.
And if it takes months for kits to be processed, detectives may end up prioritizing the kits they submit. During the February funding committee, even the Department of Public Safety’s commissioner, Jeff Carr, said law enforcement recognizes the crime lab is a “scarce resource.”
The crime lab has found itself in a difficult spot: ask for money now that could be misspent or underutilized, or come up with a game plan to not only work through the current demand, but also potentially test all samples submitted by all law-enforcement agencies in the state.
Henry says keeping up with demand can be a struggle sometimes, especially when it takes about $120,000 and two years to adequately train one worker, and his best staffers often leave for more lucrative private-sector work. Given those limitations, Henry says, he decided he couldn’t just ask for new money but instead would need a new approach.
“I am going to propose that we test all kits,” Henry says. “But ... we’re going to test them in a different way.”
Henry wants to push for a system that could process more evidence by being selective in what analysts look at. Rape kits can include numerous pieces of evidence, including biological fluids, clothing and other physical evidence. Henry believes his lab could process more samples by testing only the most relevant DNA materials. Other evidence could be tested upon request, he says, but by focusing their analysis, labs could process the most important subsets of the kits.
Salt Lake District Attorney Sim Gill says the collaborative approach to this issue is a smart move, but he also has concerns about selectively testing kits. Gill says if part of a kit were tested and led to an arrest, the lab would then have to test the rest of the kit and do it quickly before the case goes to trial, taking pressure off the front end of the system but putting it on the back end. Gill says he’d recommend that different stakeholders come up with best practices and that law enforcement be taught a uniform process for gathering rape kits.
For Gill, efficiencies should be pursued, but it may come down to whether lawmakers decide to pay in lip service or in funding that “delivers on the implicit promise to victims of sexual crimes that we’re going to take these issues seriously.”
To help with that, a bill being presented by Rep. Jennifer Seelig, D-Salt Lake City, would require law enforcement to notify victims of the status of their submitted rape kits and inform them if they chose not to analyze the sample.
The bill, which as of press time had passed favorably out of a House committee, also requires that victims be notified if a sample wasn’t submitted to the lab, and that law enforcement tell the victim if there is a match between the DNA profile of the assailant and a profile on the Utah Combined DNA Index System.
Seelig says she was frustrated when she first heard that the crime labs did not want to pursue the ongoing funding, but she’s also realistic about how the legislative process works, especially if the state may want to require submissions from law enforcement in the future.
“If we end up mandating the impossible without providing the resources, that doesn’t help anyone,” Seelig says.
While DNA analysis is the mission of Henry’s staff, he laments that as an administrator so much of his work happens to be analyzing budgets.
“They never show this part on CSI, do they?” he says.