Delays, blunders and police neglect in Wisconsin's response to rape kits

Keegan Kyle | USA TODAY NETWORK-Wisconsin

Show Caption Hide Caption "Every time you have to tell your story it takes a piece of you" Sexual assault survivor and victim advocate Amber Johnson speaks to the USA TODAY NETWORK-Wisconsin

State investigator Jeff Twing was just trying to find out how many untested rape kits the Vernon County Sheriff's Department had in its storage room.

The department seemed too busy to count its own kits, so Twing offered to make the two-hour trip northwest from Madison to Viroqua to help.

A litany of excuses followed.

Sheriff's Deputy Ted Harris said he couldn't meet with Twing, a Wisconsin Department of Justice agent, because he was out of town that day. Another day, the deputy had dinner plans. And when Twing offered another date, Harris replied that he would be "installing window treatments" for a side job and was unavailable. He suggested Twing could speak with a different deputy in a few weeks.

That was in 2016 — more than two years after the justice department learned that over 6,000 rape kits were sitting, untested, in storage rooms at police stations and hospitals across Wisconsin. The kits can contain evidence vital to catching sexual predators or freeing the wrongly convicted, but had never been sent to state crime labs for analysis.

The state couldn't use grant money to pay for testing those kits until every police and sheriff’s department in Wisconsin inventoried them, according to the grant rules. The Vernon County Sheriff’s Department was among the slowest of those police agencies, but more than 300 departments failed to complete inventories even after they were given an extended deadline.

A USA TODAY NETWORK-Wisconsin investigation found that police neglect was one of the reasons it took the state more than four years to send old kits to labs, where analysts will check skin, saliva and other evidence for DNA that could help survivors of sexual assault — including more than 2,000 children — finally get justice.

The investigation, based on nearly three years of reporting and hundreds of government documents, reveals a pattern of delays and blunders across Wisconsin's criminal justice system:

► Police and prosecutors often relied on mistaken attitudes about survivors of sexual assault or their attackers to conclude there was no reason to send rape kits to labs for DNA testing. One justice department report said officers had displayed a "frightening" view of victims.

► Some kits were withheld because they already had a known suspect — failing to account for the possibility that the same person may have attacked others in unsolved cases, or might rape others in the future.

► Even after state authorities recognized a need to test thousands of rape kits, police and sheriff’s departments dragged their feet in providing counts and other information from case records.

► Wisconsin Attorney General Brad Schimel, the state's top law enforcement official in charge of getting the kits tested, prioritized taxpayer savings. Testing was a goal in Wisconsin — but it could wait for a bargain price.

Rather than ask lawmakers for additional full-time staff, Schimel applied for out-of-state grants, which had strings attached, and he limited resources for the project to grant-funded work. He also contracted with private firms for the testing, rather than beef up Wisconsin's own crime labs for the task, as other states had done.

As a result, some of those states were catching habitual sex offenders for years before Wisconsin started testing kits.

The extent of neglect by police and sheriff’s departments caught Department of Justice officials by surprise in 2016. The justice department, under Schimel's leadership, had assembled only a few agents, analysts and attorneys to ensure local agencies finished their inventories, the investigation found.

Even Schimel's agents lacked a sense of urgency at times, records show.

For instance, two months after the state's extended deadline for completing inventories had expired in July 2016, agent Lindsay Conrad told the Village of Pewaukee Police Department there was "no pressure" to complete its work. Conrad said she was "just checking in" and offering a helping hand, according to one of dozens of email exchanges between agents and police obtained by the USA TODAY NETWORK-Wisconsin.

State officials eventually secured special approval from the federal government in October 2016 to begin tests while tardy inventories rolled in.

Thousands of Wisconsin's untested kits were more than seven years old by that point. More than 200 were collected by police and hospitals in the 1990s. A few kits were even older — one dating to 1984.

Vernon County officials ultimately found four rape kits sitting on their shelves, each left untested because the sheriff's department declined to investigate. State officials now plan to test three of the kits, including one collected more than a decade ago.

'Your body is poked and prodded'

Natasha Alexenko of New York became a national advocate for swift testing of rape kits after her own remained idle for 14 years.

New York authorities finally shipped her kit to a lab in 2007. Alexenko said she was stunned to learn her kit hadn't been tested immediately after she was assaulted in 1993.

The evidence in the kit led authorities to her attacker through DNA matching and helped put him behind bars for decades. She felt relieved he wouldn't harm anyone else.

"It was something that haunted me my entire life," she said in an interview.

The process of collecting the DNA evidence, too, can be traumatic, she said.

It can involve an intrusive pelvic exam in which nurses ask victims to recall their assaults — sometimes just hours after being attacked.

"Once again your body is poked and prodded. Once again you have to go through the entire event," Alexenko said. "I had to make certain that I did my part as a citizen and make sure that no one else got hurt by this madman."

Alexenko, who has lobbied for quicker testing of rape kits nationwide, said the pace in Wisconsin and elsewhere has been frustrating.

"It hasn't been a priority," she said. "Something that is so easy — take evidence, test it — has become a nightmare. It seems like everything just took way longer than it should."

Slow to investigate

Department of Justice officials discovered Wisconsin's backlog years after similar backlogs in New York, Los Angeles, Detroit, Memphis and other cities drew national outrage. Alarm over an Illinois backlog spurred Wisconsin lawmakers in 2011 to require DNA tests in sexual assault cases involving unknown suspects.

But that law fell short. It did not address evidence that had already been collected but not tested. And it did nothing to prevent thousands of future rape kits from being ignored.

In 2014, Wisconsin's backlog appeared so large and spread across so many police stations that state officials weren’t sure how to respond. To clear out backlogs, some states increased funding for crime lab overtime or hired lab workers to help manage the mountain of work. Although costly, this approach meant testing could begin immediately or within months of new employee training.

That didn’t happen in Wisconsin.

Still, those overseeing Wisconsin's project were initially optimistic. In September 2015, after receiving $4 million in grants, the head of state victim services predicted testing would soon begin.

"I'm hoping that sometime this fall we’re going to start testing these kits and get rolling on this," Jill Karofsky, who has since become a Dane County judge, said in an interview at the time. "It’s our belief that we’re going to help victims and catch perpetrators."

The response chosen by Wisconsin officials saved state taxpayers an estimated $4 million in lab work, because rape kits can cost about $1,000 each to test.

But the response came at the cost of time. The testing at private labs didn’t start until January 2017.

Wisconsin's first contract with a private lab went to a Virginia-based company that said it could analyze up to 200 kits a month. Even after Wisconsin contracted with two more private labs, state authorities estimate some tests still won't be completed until the end of this year.

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Wisconsin officials partially rejected hiring state workers for untested rape kits because the project was considered a one-time need. However, in the years since, Wisconsin's demand for DNA analysis in various kinds of criminal cases has dramatically increased, overwhelming state workers and causing the tests to take weeks longer.

Four years after the discovery of Wisconsin's backlog, only 75 of the nearly 1,900 kits tested so far have yielded DNA matches with national offender and crime scene databases. That’s far fewer than the 750 estimated by Wisconsin officials in 2015.

In other states, scores of rapists have been arrested and prosecuted as a result of the testing of old rape kits.

In Wisconsin, charges have been filed in only three cases so far:

► A Menasha woman's kit was left idle for nearly a decade. She reported in 2008 that a man she met at a tavern raped and injured her. After DNA testing last year — nine years after the assault was reported — the kit led to charges. Aaron Heiden, who was enrolled at the University of Wisconsin-Stevens Point at the time the assault was reported, now faces up to 50 years in prison if convicted.

RELATED: The story behind Wisconsin's first arrest from old rape kits

► In New London, a 17-year-old girl's kit was ignored for five years after she told police that a 43-year-old man raped her. After DNA testing last year, state prosecutors charged the man, Leroy Whittenberger, with four counts of sexual assault. He could spend the rest of his life behind bars if convicted. Before the state stepped in, armed with the rape kit results, local prosecutors twice refused to charge Whittenberger in the case — even though he had been previously convicted of sexually assaulting teenage girls.

► A 13-year-old girl from Beloit reported being raped by a man with a gun nearly 18 years ago. After DNA testing of her rape kit this year, state prosecutors charged Jason Smith, 41, who was convicted of two sexual assault charges in 2005 and sentenced to 50 years in prison. Online court records say the 2005 convictions stemmed from assaults that happened three months after the Beloit teen reported being raped in 2000.

Last year, Department of Justice officials, who oversee the state's crime labs, authorized more overtime and hired 11 part-time workers in an effort to speed up testing for new criminal cases. Now they anticipate asking lawmakers for money to pay more workers next year.

Blunders in the spotlight

By the time Schimel became Wisconsin’s attorney general in January 2015, the backlog had already surfaced after research by a national advocacy organization, the Joyful Heart Foundation.

It later received widespread attention in July 2015 as part of a USA TODAY NETWORK investigation.

But Schimel kept quiet about the stockpile of untested kits in early 2015 while he sought out-of-state grants and lawmakers debated state spending needs.

During media interviews and budget hearings last year, Schimel tried to recast delays in the testing project as a strategy to avoid mistakes and respect victims’ wishes. He made no mention of the broken schedule or the bureaucratic delays that Department of Justice officials faced in the project’s infancy.

He said victim choices were a leading cause of untested rape kits.

That wasn’t true.

In fact, police inventories show most kits sat idle because of law enforcement decisions. Authorities either saw no value in testing or declined to pursue cases — but police inventories often don't say why.

In January last year, Schimel made a false public statement about the number of kits that had been tested, saying hundreds had been done when the real number was nine.

He struggled again with the correct figure months later.

RELATED: As a DA, Schimel had his own rape kits pileup

Schimel praised police agencies for their help, even though emails and other state records show many of them lacked urgency.

At a March 2017 budget hearing, Schimel told lawmakers this: "We wanted the grant process to move faster. It couldn’t move faster."

He added: "I'm proud of our progress."

But behind the scenes, his office has characterized the situation much differently.

In an application for federal aid two years ago, they described "disturbing" resistance to the testing of rape kits from police throughout Wisconsin.

In another grant application last year, they noted that just 120 of Wisconsin’s 17,000 officers — fewer than 1 percent — were trained by the state annually in best practices for investigating sexual assault. Officers around the state had described hundreds of victims as uncooperative and unreliable, justice department officials wrote.

"The possible scenarios of how the victim may have been treated are frightening," Department of Justice officials wrote. "While it may be somewhat justifiable that these were their initial reasons for not submitting (evidence), it’s disturbing that, even after specifically asking them to send these kits, they still have a negative view of their experience with the victim."

Left in the dark

Amber Johnson didn't know her rape kit was left untested by Appleton police until the USA TODAY NETWORK-Wisconsin obtained records confirming that this year.

She’s likely not the only one who was left in the dark.

That’s because it’s up to police to decide whether to notify victims unless they sign up for a state notification service. Department of Justice officials say it may make sense to withhold results out of concern that the information could needlessly reopen old wounds.

Johnson reported being assaulted in 2011 by an acquaintance who did not dispute sexual contact with her. The man, Gerard Bunnell, was later convicted of third-degree sexual assault and served nine months in jail.

Appleton police records indicate the kit in Johnson’s case wasn't tested because Bunnell was convicted without it.

State authorities now advise police to send kits for testing even if they know the suspect’s identity because the testing could help catch serial rapists.

"If somebody has a kit out there and it’s never tested, the DNA is never collected, it’s never in a database and this can continue to happen," Johnson said. "And you can’t tell me that there's not repeat offenders."

Academic studies in recent years have shown serial sex offenders are more common than previously thought. Of 243 rape kits studied in 2013 by Case Western Reserve University in Ohio, at least 51 percent were linked to offenders of multiple sex crimes.

A suspected serial rapist assaulted Beverly Flores in Texas — but no one knew it for three years.

Flores said in an interview with the USA TODAY NETWORK-Wisconsin that Houston officers didn't believe her story that a stranger entered her home and raped her. The police insisted she must have been thinking about her boyfriend at the time, so they didn't test her kit.

Years later, Flores said, the evidence was tested and identified a man accused of assaulting another woman. He is now facing multiple sexual assault charges.

"The only thing that came out of my mouth was 'I told you so,'" Flores said. "They were just trying to get it out of the way. I never thought me calling them for rescue would go like that. I don't feel like any other women should be treated like this."

Flores is suing the Houston Police Department in federal court because of the three-year delay in testing — a shorter time than most of Wisconsin's untested kits have been dormant since state authorities discovered them.

Schimel's response to critics

Department of Justice and campaign aides to Schimel declined requests seeking an interview with the attorney general, who has appeared on radio and television programs in recent weeks to tout his response to untested rape kits.

Schimel has recently called the state's work a "feverish pace" and refuted claims that testing could have been completed faster. He has mocked critics, too.

"If our crime lab stumbled on the cure for cancer, someone would criticize that — 'Well why, didn’t you do that quicker?'," he told Green Bay radio host John Muir on May 30. "With some people that want to play politics with important things like this, you’re just never going to win.

"We’re taking on a problem that frankly needed to be taken on. I didn’t have to do this. I could’ve just pointed the finger at everybody else in the criminal justice system and said, 'Well, you guys failed to do this stuff over the years. It’s not my problem.'"

Some criticism of Wisconsin's response has come from within law enforcement. Green Bay police reported in 2014 that it had 322 untested rape kits. None of them reached crime labs until police drove them to Madison in June 2017.

"It was just a lot of waiting on what the state wanted to do," Green Bay Lt. Jeff Brester said. "Our issue was it took so long before the state allowed us to send them in."

Brester said his agency sent its inventory to the Department of Justice in April 2016 — before state deadlines. It took another six months to finalize the paperwork with Agent Twing’s help. Then Green Bay police had to wait eight more months to clear their shelves.

"It wasn’t all our fault per se," Brester said, citing continued confusion over when rape kits should be sent to crime labs for analysis. "I don’t know of an officer out there who doesn’t want to solve a sexual assault."

Lagging Portland and Nevada

One of the Republican attorney general's loudest critics is Josh Kaul, a Democrat campaigning to unseat him this year.

Kaul has often contrasted Wisconsin's rape kit project with an effort in Portland, Ore., which is also relying on private labs to complete the work.

The Portland Police Department and the local district attorney received grants for testing at the same time as Wisconsin. But Portland — a single city — tested more than three times as many kits as the entire state of Wisconsin during the first 2½ years.

By the time Wisconsin filed its first criminal case, Portland had filed four. When Wisconsin had 23 DNA matches with national databases, Portland had more than 150.

"We're way behind them here," said Kaul, a Madison attorney and former federal prosecutor.

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Wisconsin is also way behind Nevada. Like Wisconsin, Nevada received millions of dollars in grants for testing from the federal government and Manhattan prosecutors in September 2015.

Since then, Nevada, which had a backlog of more than 6,000 kits, has tested about 4,300 of them. The results so far: 10 arrests and more than 400 DNA matches. An additional 2,000 Nevada kits are in labs under review.

Wisconsin has tested nearly 1,900 kits so far. More than 2,200 remain in labs under review.

Nevada lawmakers have also taken steps to further fund testing and prevent future backlogs while Wisconsin lawmakers have stuck to the sidelines. Nevada lawmakers have approved $6.7 million for testing since 2015 and begun requiring rape kits to be sent to crime labs within 30 days. The evidence must be tested within 120 days.

In Wisconsin currently, state authorities advise police and prosecutors to send rape kits to crime labs for testing and not destroy the evidence. But aside from cases involving unknown suspects, no law requires them to do so.

How to handle rape kits largely remains up to the discretion of local authorities.

Full grant request denied

After the state received its first $4 million grant several years ago, Schimel pledged the money would "go a long way to bring justice to survivors of sexual assault."

"We owe it to those who had the courage to report a sexual assault and underwent a sexual assault forensic exam, to now test their kits, investigate their cases and hold their perpetrators accountable," Schimel said. "With these grants we will save others from becoming victims and we will make our communities safer."

In response to a USA TODAY NETWORK-Wisconsin investigation of the continued backlog earlier this year, Department of Justice officials said they were working on a legislative overhaul. Then in a letter to legislators a week later, Schimel described seeking a rape kits tracking system and "very clear parameters and expectations for handling sexual assault evidence."

Schimel last year persuaded his fellow Republicans who control the Legislature to reject calls from Democratic legislators for more rape kit funding, an audit of the state's testing project and for new mandates on submitting rape kits to crime labs. One bill would have required all kits to be submitted to crime labs within 30 days, as in Nevada.

Schimel also kept his agency's concerns with police training quiet while lawmakers debated state spending needs. He again decided to apply for grant funding — this time to expand teaching Wisconsin cops how to properly handle people who report being sexually attacked.

Even after federal authorities denied awarding the state its full $3 million grant request in September last year, Department of Justice officials said no taxpayer money would be sought from Wisconsin lawmakers to close the $1 million gap.

They would make do.

Madeleine Behr and Alison Dirr contributed to this report.

What is a rape kit?

Rape kits are packages of evidence that contain skin, fingernail, dental floss, clothing and other samples to help investigate sexual assault cases. The evidence is often collected by a trained nurse at a hospital, and if a victim wishes to report a crime, the evidence is sent to law enforcement for DNA analysis. Rape kits are also sometimes the product of routine autopsies or forensic exams of suspected offenders. Except in cases involving unknown suspects, law enforcement agencies in Wisconsin typically have discretion whether to send rape kits to state crime labs for testing. State authorities now advise testing kits even in cases involving known suspects because the evidence may help reveal serial rapists with victims in different places.

About this investigation

USA TODAY NETWORK-Wisconsin began investigating Wisconsin’s response to a massive backlog of rape kits in 2015 as state Department of Justice authorities were applying for federal grants to pay for testing the evidence. The organization has covered public hearings about the backlog; analyzed state databases; reviewed hours of audio and video recordings; and obtained hundreds of records, including grant materials, court filings, police reports, evidence inventories and emails. Many records were obtained by compelling government agencies to release them through open records laws. The news organization has also conducted dozens of interviews with survivors of sexual assault, medical professionals, advocates for victims, local law enforcement, state authorities and others closely involved in the testing project.

If you'd like to discuss this investigative report or Wisconsin's rape kits backlog, contact project editor Mark Treinen at mtreinen@gannett.com.