Should Iowa test DNA evidence even when the victim doesn't want it done?

Iowa is making inroads in testing more than 4,000 rape kits that in some cases have sat for decades on law enforcement agencies' shelves.

But what if some victims don't want their kits — either old or current ones — tested? Should Iowa analyze them anyway?

It's a question that's simmering as the state tackles a backlog of 4,265 rape kits stuck in storage, including some kits dating to the 1990s, according to a survey.

But that same survey also showed that about 800 kits were not tested because victims didn't want charges filed.

The survey found a range of reasons why the remaining 3,400 kits were untested, including doubt about the victim's accusation, prosecutors not requesting an analysis and uncooperative victims.

"We don’t really know what victims' wishes are in a large majority of these kits," said Janelle Melohn, director of the Attorney General Office’s Crime Victim Assistance Division. "We don’t know if victims wanted the kit sent to the lab or if law enforcement dropped the ball."

'Respecting victims' wishes'

Iowa has sent 141 of the backlogged rape evidence kits to a private Delaware laboratory for analysis. As officials await results, some are mulling what steps should be taken to avoid future backlogs of untested kits.

They are developing a statewide system that will track the status of each administered rape evidence kit and are increasing training for law enforcement officers.

That's important as Iowa's crime lab finds itself buried by new requests for evidence testing, including rape kits.

So far, though, Iowa has no plans for mandatory testing of kits, a move 20 states have taken to be more aggressive about getting rapists off the streets.

"A test-all strategy takes discretion out of the hands of the local agency, and there’s not a discussion about ‘Did this really happen?'" Melohn said.

But it’s not something Iowa is considering, she added. “In the event the victim says, ‘I do not want my kit tested,’ then I believe we should be respecting victims' wishes.”

Sending the wrong message

Many of the states testing all rape evidence kits passed legislation mandating the move after it was uncovered that tens of thousands of kits nationwide were never sent by local law enforcement agencies to laboratories.

The kits include material collected from a sexual assault victim during a medical exam. The DNA-bearing evidence, including hair and semen, can help law enforcement find offenders or exonerate suspects.

Some, though, support taking the decision of whether to submit the kits for testing out of the hands of law enforcement.

Joyful Heart Foundation, a nonprofit policy and advocacy group begun in 2004 by actress Mariska Hargitay, backs legislative mandates to test all kits. Hargitay is star of "Law & Order: Special Victims Unit."

“Survivors have done everything society has asked them to do after they’ve been assaulted — they’ve reported the crime to police, they’ve gone through the medical exam, which is not easy to do,” said Isle Knecht, Joyful Heart’s policy and advocacy director. “Not testing the kit sends a message that their case doesn’t matter.”

Still, Knecht said, victims should have a say in whether their kits are tested.

The Iowa Coalition Against Sexual Abuse does not back a “true test-all strategy,” said Kerri True-Funk, the group’s associate director.

Instead, it backs improved training for law enforcement officers in interviewing trauma victims and investigating sexual assault cases.

Beth Barnhill, the coalition’s executive director, said there is concern about over-emphasizing the importance of the kits.

“They are important, but an investigation shouldn’t stop just because a kit hasn’t been tested,” she said.

States differ on approach

Legislation proposed earlier this year in Maryland that would have mandated testing failed to move out of committee, according to the Baltimore Sun. Some in the state worried about the costs associated with testing all kits.

South Dakota, however, passed legislation in 2016 requiring kits to be sent to the state’s crime lab within 14 days of law enforcement taking possession of them from the hospital.

Iowa will likely not move in that direction, Melohn said.

“We do not want to discourage victims from coming forward and having an exam done because they are afraid we are going to force them to participate in a process that they didn’t ask for,” she said.

Thorough exams after a sexual assault can reveal potential medical problems, she said.

Still, Melohn acknowledged that she is troubled by the number of kits that went untested because the victim didn’t want to file charges or officials doubted the victim’s statement.

“A victim who changes her story or remembers more details later comes across as being less than forthcoming — or lying,” Melohn said. “And what we found out in the last decade of research is that that’s really common for victims who have gone through a sexual assault.”

Bowing to medical professionals

Rather than mandate testing, officials are taking other steps that could increase the number of kits sent for testing, she said.

A consent form has been added to the rape kit that will help educate victims on their rights about the exam and evidence testing, Melohn said. It denotes whether the victim wants the kit tested and includes information on what to do if the victim changes her mind.

“Some of those kits weren’t tested because law enforcement noted that a victim said ‘no,’” she said. “Victims say no (to testing) for a lot of reasons — because of the way they were treated in the hospital, by law enforcement, by prosecutors.

“My hope is that we’re pulling law enforcement out of that process, and it’s the medical professionals who are talking to victims about the consent form.”

Des Moines police would support “well thought out” protocols that protect victims’ rights and enhance officers’ ability to investigate sexual abuse crimes, said Sgt. Paul Parizek, the department’s spokesman.

However, the department wouldn’t support mandates that didn’t provide more funding to the state’s crime lab, he said.

Iowa's crime lab already has a backlog of DNA to analyze from current sexual assault cases, nearly two-thirds of which have been waiting to be processed for 90 days or more. Adding to that backlog would not benefit victims, Parizek said.

Still, he added, “We want to have everything in our arsenal that we can to arrest suspects in a crime and protect others from becoming victims.”

Private firm begins analysis of untested kits

The state entered into an agreement with Virginia-based Bode Cellmark Forensics Inc.to analyze untested rape kits at costs ranging from $695 to $895 per kit, depending on the presence of male DNA, state officials said.

Results from the first testing are expected in late September.

Under Iowa law, rape evidence kits must be held by law enforcement agencies for at least 10 years. Untested kits near the end of the statute of limitations were among those sent to the private lab for testing.

Legislation that was passed this year, however, requires law enforcement not to discard any of the 4,265 untested kits, state officials said.

Now, kits from those who were 13 or younger or in which the offender was unknown will have priority.

About 320 of the kits were from victims 13 or younger.