Everything about date rape drug tests — from the way they are performed to how the results are interpreted — is deeply unreliable. So why does the legal system treat them like gospel? A BuzzFeed News investigation.

Gaping Irregularities

A BuzzFeed News investigation has exposed gaping irregularities in date rape drug testing procedures at hospitals and state crime labs all over the country — subjecting victims to what the head of the FBI toxicology lab recently described as a game of “roulette.” No national standards exist for the range of drugs labs should test for, the types of screens they use, or the amount of drugs in the system that should count as a positive result — rendering the outcomes wildly unreliable and hard to interpret. The new questions about date rape drug testing add to a building crisis around "forensic science" — in which tools purporting to scientifically determine the innocence or, more often, guilt of suspects have been discredited after decades of use. But while most of those questionable practices, from "arson science" to blood spatter and bite mark analysis, have put innocent people behind bars, experts say the shortcomings in the analysis of date rape drugs have likely let some suspects walk free — and have raised questions in the public's mind about whether date rape drugs aren't just an urban legend. Because of the reverence with which scientific tests are often treated, negative results can shatter victims’ credibility, allowing defense attorneys to cast doubt on everything they say, and even leading prosecutors to abandon cases altogether. America’s system for date rape drug testing is riddled with flaws, according to a review of thousands of pages of lab manuals from every state across the country, as well as dozens of interviews with nurse examiners, toxicologists, law enforcement officials, advocates and lawyers. The testing equipment in some labs isn’t sensitive enough to detect substances at low concentrations, despite the fact that drugs break down quickly in the body, and it may be hours or even days before the victim has recovered sufficiently to report an assault. Other labs test only blood, even though evidence of drugs last much longer in urine, or don’t have the resources to test sexual assault cases at all.

More than 100 substances have been used in date rapes. Labs can’t develop tests quickly enough to keep up.

And some labs rely entirely on a type of drug screen so notoriously fallible that the United Nations Office on Drugs and Crime recommends that it never be used in drug-facilitated sexual assault cases — noting that “false negative results” caused by its “insufficiently sensitive methods” risk bringing investigations to a premature end. What constitutes a positive result differs widely from state to state. In Florida, a urine screen for opiates would come back negative if it showed less than 150 nanograms per milliliter. But if that same sample were tested in New Jersey’s state lab, for example, the results would be deemed positive — even down to as little as 10 nanograms per milliliter. Hospitals typically screen patients for only a limited range of common drugs. And while crime labs can test for a wider range of substances, that may still be a fraction of the drugs that can be used to knock someone out. More than 100 known substances have been used in date rape cases, according to a list maintained by the Society of Forensic Toxicologists (SOFT). That number is constantly growing as new synthetic drugs hit the market. Labs can’t develop tests quickly enough to keep up. Even seemingly benign substances can be dangerous: One recent study found two cases where the active ingredient in eye drops was used to incapacitate victims. If sexual assault frequently goes uncounted, sexual assault that involves drugs or alcohol — known as drug-facilitated sexual assault, or DFSA — is the most underreported category of all and among the most difficult to prove. There are often no witnesses to the crime, and victims can have little or no memory of what happened. Toxicology testing that confirms exposure to drugs or alcohol can immensely strengthen a victim’s claim. But prosecutors and investigators who have worked on sex crimes in more than a half a dozen states told BuzzFeed News they rarely had positive results to support their cases. “It’s never a surprise to me when a result is negative. The tests just can’t be as conclusive as we want them to be,” said Catherine Garcia, who investigated over 1,000 sexual assault cases at the San Diego district attorney’s office and recalled only a handful of positive results. That makes it impossible to know whether a result is negative because, indeed, the victim was not drugged — or because of shortcomings in the test, or the amount of time that passed before it was performed. As unreliable as the results are, however, lawyers still encourage people to get the tests done. “Otherwise the defense will say they didn’t even do their job, they didn’t even try,” said Bob Nichols, a Florida defense attorney who previously worked as a prosecutor on rape cases. Trinka Porrata, who testifies as an expert on the effects of drugs in sexual assault cases, said she works hard to explain to juries that a negative result doesn’t mean the victim was not drugged. Otherwise, she said, “the jury just thinks she’s a lying idiot.” Lots of cases never make it that far at all, though. Because of prosecutors’ fixation on the flawed technology of drug testing, said Jane Manning, a former prosecutor and DFSA expert, “rapists are getting away with rape in cases where they could be arrested and convicted.”

Desiree Rios for BuzzFeed News Medical waste basket at the Tarrant County Medical Examiner's Office in Fort Worth, Texas, where date rape drug testing is performed.

The Limits of What Hospitals Can Do

Kendall’s friends got her to a hospital around 5 a.m., fast enough that something she had ingested would likely still be in her system. She came to in a wheelchair under the emergency room lights.

Scared, disoriented, and unsure of what had transpired, Kendall said no to a rape kit. Her urine was collected, but it was tested only for pregnancy, chlamydia, and gonorrhea, records show. Shortcomings in the collection of urine and blood are another obstacle in determining whether someone was drugged. In the first few hours, victims may still be piecing together what happened, and may not make it to the hospital at all. Even if they do, there’s no guarantee they’ll get tested. While sexual assault nurse examiners are trained to collect urine and blood if a drugging is suspected, those specialists are not always available in hospitals or may not gather enough information to make the call. In Arkansas, the state lab said just getting samples was one of the biggest obstacles to testing. “Our problem more often than not is that they just don’t submit the right samples,” the executive director of the state lab, Kermit Channell, said of the hospitals. Last year, the state lab tested blood or urine in just 68 sexual assault cases, according to figures provided by the lab. By comparison, Idaho’s state lab — a state with half the population as Arkansas — ran toxicology tests in 142 sexual assault cases the last fiscal year. A couple hours after her exam, Kendall’s dad picked her up from her friend’s house and drove her back to the hospital for testing. But staff there refused to see her again, so he drove her to another hospital, across the state line in West Virginia. This time, Kendall had a full exam done, and samples of both her urine and blood were collected and sent to the state lab. In West Virginia, however, the state crime lab tests only blood, though drugs are detected for a longer time period in the urine.

Those screens can’t detect many of the drugs known to have been used in sexual assault cases.

The hospital first did its own drug screens around 10:15 a.m. — about 12 hours after Kendall estimated she had arrived at the party. She still had alcohol in her system, and her urine sample went through eight screens for different drugs or classes of drugs, including cocaine, methamphetamine, benzodiazepines, and cannabinoids. Those screens aren’t sensitive or comprehensive enough to detect many of the drugs known to have been used in sexual assault cases, according to the SOFT guidelines. Around noon, West Virginia State Police trooper Harold Rose interviewed Kendall at the hospital. Her friends had already told the police their account of what happened. In a recording of her four-and-a-half-minute interview obtained by BuzzFeed News, Kendall described hanging out and having a few drinks — and then quickly blacking out. She also told Rose that she had watched Swafford put a pill in another girl’s cup and confronted him about it. “He said that it was just a sleeping pill and she was gonna be okay,” she told the trooper. Later, in sworn testimony, Swafford denied slipping anyone a pill or even making drinks for any of his teenage guests that night. A lawyer representing Swafford did not respond to repeated requests for comment. All of Kendall’s hospital tests came back negative. But none of these tests would have detected the presence of a simple sleeping pill — medication that Swafford would later admit he had a prescription for and kept in his home. Whether it’s a quick procedure in a hospital lab or a more sophisticated one in a specialized crime lab, most toxicology starts the same way that Kendall’s did: with what’s known as immunoassay testing. Immunoassay tests work by using an antibody that binds with a target drug to measure its presence in a sample of urine or blood. These screens are meant as a preliminary step, usually a way to identify a broad class of drugs that can then be narrowed down in further testing. A positive result from an immunoassay can be a cheap and quick way for toxicologists to limit the universe of possible drugs they’re looking for. But as in Kendall’s case, hospital testing tends to focus on commonly abused recreational drugs like cocaine, marijuana, and benzodiazepines. That leaves out a lot of possible substances. And even within a given class, standard urine tests are not always sensitive enough to detect all of the possible drugs. Screens to detect benzodiazepines, for example, frequently return false negative results for some commonly prescribed drugs like Ativan. One recent study focused on patients who were taking prescribed benzodiazepines. When these patients were given immunoassay screens, more than 35% of them tested negative. A more sensitive procedure later confirmed the presence of drugs in 100% of those subjects’ samples. It’s for these reasons that the UN Office on Drugs and Crime recommends that immunoassay tests not be used in drug-facilitated sexual assault cases at all — or at a minimum that the results be approached with extreme caution. But despite these risks, major state crime labs in Nevada, Ohio, and Wyoming rely entirely on immunoassay screens. Unless the first round of results comes back positive, they don’t move on to any other type of testing — potentially shutting down an inquiry that could prove a victim’s claims. Police in Maryland and Pennsylvania don’t even have state crime labs to send samples to. Instead, investigators there rely on private labs, or on the more limited testing that hospitals offer. “If all a laboratory is doing is immunoassay, they’re going to miss a number of drugs that could potentially be used as a vehicle to facilitate assault,” explained Timothy Rohrig, a toxicologist from Kansas who testified for the prosecution in the Bill Cosby trial last year. Most labs now run additional tests for particular drugs alongside the immunoassay screen for a whole class of substances. But without guidance from the police or from the victim on what drugs may be present, guessing at what someone has been given is a daunting task. With so many drugs that could knock someone out, said Gail Cooper, who runs the lab at the medical examiner’s office in New York City, “what we’re looking for is really a needle in a haystack.”

Delcan & Co for BuzzFeed News

“Slipping Someone a Mickey”

Drug-assisted crime has a long history in the popular imagination. In the early 20th century, a saloon owner in Chicago named Mickey Finn surreptitiously drugged his customers’ drinks and then robbed them — giving rise to the phrase “slipping someone a mickey.”

In the 1990s the growing phenomenon of date rape drugging made its way into the plotlines of television shows such as Beverly Hills, 90210 and later Veronica Mars. And, in real life, charming, handsome assailants who secretly drugged their dates made international headlines. In 1996, a pair of twin brothers dubbed the Rohypnol Romeos by People magazine were arrested after cops found seven boxes of the sedative in their apartment along with videos of their crimes. In 2000, Andrew Luster, heir to a cosmetics fortune, was arrested for drugging three women with GHB — a colorless, odorless drug that can cause blackouts — and then raping them. He filmed his crimes. “That’s exactly what I want,” he said on one video that was shown at his trial. “A passed-out, beautiful girl.” The number of cases “was insane, it was bad,” said Nichols, the Florida lawyer and former prosecutor who worked on a number of drugging cases during the 1990s.

The types of drugs change depending on what’s popular or readily available, but the crime doesn’t.

Warnings to women to watch their drinks became widespread on college campuses and in public service announcements. Congress also acted. The Drug-Induced Rape Prevention and Punishment Act of 1996 increased penalties for possessing or distributing Rohypnol. Manufacturers of the drug added a blue dye to the pill to make it easier to detect in drinks. And legislation passed in 2000 brought GHB under tight controls after a 15-year-old died from an overdose when the drug was dropped into her cup of Mountain Dew. The types of drugs change depending on what’s popular or readily available, but the crime doesn’t. Bill Cosby has said that in the 1970s, he gave quaaludes to women before having sex with them. Last September he was sentenced to 3 to 10 years in state prison for drugging and raping a woman in 2004. And in 2015, the former NFL player Darren Sharper was convicted of drugging and raping women in multiple states. He used prescription drugs like Ambien, Xanax, and Valium. Alcohol remains the drug most commonly used to facilitate sexual assault. When it is used in combination with other drugs, it can magnify the effects while masking the cause. But alcohol is a drug that many people consume willingly, which can lead to a sense — among law enforcement, juries, and even victims — that unless someone literally forced them to drink, they have only themselves to blame for whatever transpires. “Juries really want to see that the perpetrator is the one that forced the alcohol,” said Garcia, the former investigator for the district attorney’s office in San Diego. But, she added, “the smartest perpetrators will sit back while maybe the victims are plying themselves with drinks. They’re watching the train wreck and taking advantage at the end.” Despite all this, drug-facilitated sexual assault is not well studied. As a result, it’s difficult to say how often it occurs. In 2005 a Department of Justice funded study found that of about 144 participants who reported a sexual assault, around 4% had been drugged surreptitiously. When including people who had consumed drugs or alcohol willingly, the study found that 35% of the reported cases qualified as drug-facilitated. The study concluded the prevalence was somewhere between these two numbers. No study since then has attempted to quantify the frequency of the crime.

Desiree Rios for BuzzFeed News Blood and urine samples during one stage of date rape drug testing.

Elena’s Lost Night

Elena was swiping through her Tinder app in October 2017 when she came across a photo of a slightly scruffy, sandy-haired 27-year-old named Robbie. The two started chatting and made plans to meet up that night.

“Babyyyy I’m going to meet up with a stranger,” she texted a friend. “Is it okay if I send my exact location when I get there so you can call the cops if I send an SOS lol.” Elena, who requested BuzzFeed News identify her only by her middle name, met Robbie for a beer around 10 p.m. at District Tavern, a sports bar he had suggested. When the drinks were emptied, he invited her upstairs to his apartment, she said in an account she later gave police of the evening and the following morning. Elena went to the window to take in the view, and shot a video on her phone of the city lights. That’s when Robbie prepared some absinthe drinks.

She went to the balcony for a cigarette. A few minutes later, everything went dark.

Then, she said, Robbie suggested a game: He tossed her one of the balloons scattered on his floor and said the first one to drop it had to drink. Then he spiked the balloon down and told her to chug. That was her second drink of the night. Robbie made her another. Soon he tried to kiss her, she said, but she pushed him away and went out to the balcony for a cigarette. A few minutes later, everything went dark.

The next thing she remembered was waking up with a start in his apartment and shooting straight out of bed — so abruptly, she later said, it was as though she were drowning and had suddenly caught her breath. It was around 6 a.m. She noticed first she was naked — even without underwear, which she always slept in. And that Robbie was already awake, next to her. “Did we have sex?” she asked him, according to her police statement. He said yes. “I don’t remember,” she told him.

“That’s okay,” he replied.

An Expanding Universe of Drugs

One of the major challenges of testing for drugs in rape cases is that virtually anything that depresses the central nervous system or lowers inhibitions can be used in an assault.

The list of possible drugs is only increasing. “There are new drugs being manufactured every day,” said Kiara Hagan, a toxicologist who cowrote a paper about detecting a type of synthetic drug in drug-facilitated sexual assault cases. “The biggest challenge is staying on top of these new designer drugs.” But among major state labs across the country, according to a BuzzFeed News review, there is no single standard for what drugs to target in their testing. Some screen for around 40 different compounds, while others will look for more than 200. The landscape of testing is also fractured: In some states, testing is centralized at one major lab, while other states have different crime labs at the county level, the state level, and for the local police — all of which may test differently.

Some state crime labs screen for around 40 different compounds; others look for more than 200.

SOFT, the toxicology trade group, encourages labs to examine the scope of what they test for in these cases and to reduce the cutoff — or the amount of the drug that needs to be present to report a positive result — if the technology they’re using is sensitive enough to detect lower levels. Last February, Marc LeBeau addressed a room full of toxicologists in Boca Raton, Florida, to help them better understand how to treat these cases. LeBeau runs the FBI toxicology lab, has written extensively on DFSA, and trains toxicologists around the country. He said, “You may feel like you can just throw these in with the other cases” like DUIs and postmortems, which labs see more frequently, but “you’re going to run a risk if you do that.” LeBeau encouraged the audience to look at the cutoff limits of their labs as compared to the SOFT recommendations and to make sure they communicated the limits of their testing to investigators. “Overall, what we are trying to do is improve consistency from one lab to the next so investigators aren’t playing Russian roulette with their cases. We want them to get a consistent result no matter where they send their specimens,” he said.

Desiree Rios for BuzzFeed News One step in the testing of blood samples.

“I literally don’t remember what happened”

Robbie had sex with Elena again in the morning after she woke up.

She told police that at the time, she felt like she consented to that second, morning round of sex. But she said she later realized she was barely functioning. Elena remembered little of leaving the apartment and then getting into her car. As she drove out of the parking garage, she was too addled to figure out how the ticket machine worked. “Oh my god I backed into a fence and went down a one way fuckkk,” she texted Robbie, according to messages later provided to the police. On the drive home, cars were honking at her as she swerved in and out of her lane, she recalled. Her surroundings felt fuzzy and dreamlike. “I should not have been driving,” she told BuzzFeed News. She texted him again just after 7 a.m. — “Yeah I fucked up lol I’m upset I don’t remember round one but round two was bomb as fuck I literally don’t remember what happened from the cig tho I hope I didn’t do anything stupid lol.”

“I know my body, I know how I react to certain things. That wasn’t from alcohol.”

Robbie has strongly denied drugging or sexually assaulting Elena. Speaking with BuzzFeed News, he declined to discuss the specific events of that night, but said the morning-after text message proved he had done nothing wrong. “It’s not the type of tone they would have if they just had been sexually assaulted,” he said. But the state she was in led Elena to a different conclusion. She told BuzzFeed News she drank often enough, but had never blacked out before, let alone for nearly eight hours. “I know my body, I know how I react to certain things,” she said. “That wasn’t from alcohol.” Porrata, the expert who trains prosecutors on how to recognize symptoms of a drugging, said memory loss from alcohol tends to be more gradual. When Elena got home, she went back to bed, hoping to sleep off whatever she was feeling. Around 11 a.m., she stepped into her shower but her limbs felt heavy and she kept collapsing. As she crouched on the floor of the shower, the warm water falling on her head, she started crying, unable to keep herself up. She began to think she wasn't just feeling the effects of a few drinks. While naked, she noticed a few fresh marks on her body, including two on her neck that looked like broken blood vessels. Elena believes that some may have been from falling on the balcony, she told BuzzFeed News, perhaps at the moment of passing out.

“You alive,” Robbie asked in a text later that day. “Hardly lol..” she replied. Elena drove to work for her afternoon shift at the mall, but she couldn’t concentrate and became distressed thinking about what might have happened during all the hours she couldn’t remember. “In some ways I’m lucky because I don’t know what happened,” she told BuzzFeed News. “But it’s also unfair that I don’t get to know what happened to my own body.”

“I Don’t Know How to Say This”

Elena ended up leaving her shift early. Blocked by Robbie on Tinder and Snapchat, she found him on Facebook — Robbie Woods — and also saw he had a girlfriend. She sent his girlfriend a message, which she later shared with police: “I don’t know how to say this, but I think your boyfriend drugged me last night and when I blacked out he raped me. I have no idea what happened after about thirty minutes of being there.” She added that she was getting a drug test and apologized, saying she had not previously known that he had a girlfriend. When she got to the hospital that night, a nurse told her they could only test for drugs like cocaine and pot, she recalled. The hospital referred her to a rape crisis center, where staffers did a full rape kit and collected samples of her blood and urine later that night. By that time, more than 24 hours had passed since she met Robbie. Staffers told her that they couldn’t release those samples to the lab unless a crime was reported. The following day, Elena’s mom drove her to the Tampa Police Department. She had been wary of speaking to a detective, but Joshua O’Nolan, from the sex crimes unit, made her feel comfortable talking about what had happened, she said. O’Nolan quickly discovered that Robbie was a pharmacy resident in emergency medicine at a Tampa hospital, and he had recently published a study about sedating adults with a combination of two powerful tranquilizers. That paper was cited in the search warrant that a judge signed off on that night. Hours later, at around 4 a.m, Tampa police stormed Robbie’s apartment. He was in bed with his girlfriend. Police found a wide array of pills and supplements in his apartment, and took around 50 different items into evidence, along with some syringes that were in his bedroom closet. Some of the pills were labeled, like cyclobenzaprine, a muscle relaxant. Others, like the capsules in ziplock bags that he stored in the closet, were unmarked. He was arrested on charges of sexual battery and spent a month in jail. He later spoke out about the experience to local news, stating, “All of the accusations that were brought against me were completely false.”

Speaking to BuzzFeed News, he also condemned the actions of the police. “I felt it was a poor investigation,” he said. “They basically arrested me without any tangible proof.” He said he was speaking up because he didn’t “want this to happen to someone else.” He added that the police should have investigated his accuser, too. He said the syringes, which he referred to as push-dose pressors, were empty or just filled with water, and the unmarked pills were just vitamins and supplements that he had separated out himself. “I usually bag them up for a week at a time so in the morning I can take them all at once.” Days after she met Robbie, Elena’s blood and urine was sent to the lab. In sexual assault cases, the Florida Department of Law Enforcement’s crime lab runs immunoassay screens for 10 different types of drugs. The lab also conducts further tests: one that targets 56 specific drugs, another for traces of benzodiazepines, and a specific test for GHB if the sample is collected within 12 hours. For an opiate like hydrocodone or codeine, the lab’s threshold for a positive result is 150 nanograms per milliliter of urine. Other crime labs set that threshold far lower, at 10 nanograms per milliliter — the guideline set by SOFT. That means that someone with a small amount of the drugs in their system might get a negative result if tested by Florida’s lab, but a positive result if the same samples were tested by state labs in Washington or Colorado. Elena’s samples came up negative. Four of the unmarked items found in Robbie’s apartment were tested by the state lab as well. None were controlled substances, and as a result, a spokesperson said, the lab was not required to identify them. O’Nolan took Elena’s samples to the Hillsborough County medical examiner, whose lab has a wider scope of testing that can detect about 90 different substances. Julia Pearson, the chief toxicologist there, told him that any drugs would be hard to detect, given Elena’s 24-hour delay in getting to the hospital. No traces were found in that test either. Several weeks after the arrest, there were still no charges filed against him. He was released after a hearing.

In February, according to emails obtained in a public records request, state attorney Jessica O’Connor wrote to O’Nolan that she had discussed the toxicology results with the medical examiner’s office and another state attorney. “We are not filing the charge due to the fact we have no evidence to be able to prove that the victim was drugged. Additionally, the victim stated to me she voluntarily drank the absinthe that was given to her and she knew what it was.” O’Nolan pushed back. “Drugs or no drugs, the victim was still sexually assaulted while she was passed out, even if she was only under the influence of the absinthe.” He continued, “the fact that she drank the Absinthe willingly was never in question, it still doesn’t give Woods the right to have sex with her when she is unconscious.” Elena’s rape kit showed foreign DNA from a male, but the prosecutor declined to obtain DNA from Woods to see if there was a match. In April, more than six months after Woods’ arrest, the state filed an official letter of release, electing not to bring charges.

His sister wrote that he “uses drugs to help people, not hurt people.”

Elena hadn’t heard anything about the case for months. Then one day, while she was at work, she got a call from the state’s attorney office telling her there would be no prosecution. “I literally had a breakdown,” she said. “I was just sobbing the entire day.” Robbie Woods told BuzzFeed News that he believes the prosecutors made the right decision. “There were never going to be any positive results” in the toxicology testing, he added, “because I didn’t do anything to cause that.” He said his pharmacology expertise, which he thinks of as a way to help people, was used to try to implicate him. “They took what I used for good and turned it against me. That was really hard to bear,” he said. His sister, Jordan Woods, wrote an outline for a possible book about his experience. It says that her brother “uses drugs to help people, not hurt people.” Regarding Elena’s allegations, she wrote, “This isn’t him, this isn’t my brother. None of it.” The Hillsborough County state attorney’s office said in a statement, “Our office reviewed all possibilities of expert testimony and considered many different factors to determine whether there was sufficient corroboration to support the allegations. After a meticulous review of the facts, there was insufficient evidence to file charges.”

The Tampa Police Department told BuzzFeed News it had “thoroughly investigated this case and it’s up to the State Attorney’s Office to determine if it can be successfully prosecuted.”

Delcan & Co for BuzzFeed News

The “CSI Effect”

Investigators and prosecutors who spoke to BuzzFeed News bemoaned an overreliance on high-tech lab tests that, they say, is getting in the way of old-fashioned shoe-leather police work.

“What we’re struggling with in the last few years is the CSI effect,” said Liz Donegan, who ran the sex crimes unit of the Austin Police Department for nearly a decade. In that time, she said she couldn’t recall any positive toxicology results in sex crimes cases. LeBeau, who runs the FBI toxicology lab, recently called out the problem at a conference of toxicologists. “The investigators want to sit back and wait for the toxicology results to come in before they truly start their investigation, and you have to try to reverse that,” he said. Investigators pointed to vital opportunities to gather evidence that are being missed when the science doesn’t stack up. Interviews and surveillance video, for example, can shed light on the state of the victim at the time of the alleged attack, independent of toxicology results. On Long Island, Nassau County District Attorney Madeline Singas recently prosecuted a case where two couch surfers from Europe were allegedly drugged by a man they stayed with. The next day both women were vomiting heavily. One of the women recalled being led to a massage table and waking up with pain in her pelvis. By the time she managed to get to the hospital, her samples came up clean. “Getting a negative result is not surprising to us. That’s why we have to use experts to help explain it,” said Singas. A toxicologist testified at the trial that the victim’s symptoms were consistent with GHB, and despite the negative test results, the suspect was sentenced to 10 years in prison. But these types of prosecutions are hard-fought and not often won. “There’s a lot of hesitancy to take on these cases,” said Singas. “We spend a lot of time talking to jurors about these issues. A lot of times they’re not well-versed in the science.”

Desiree Rios for BuzzFeed News Katie Scott, a forensic toxicologist at the Tarrant County Medical Examiner's Office in Fort Worth, Texas, working on a drug test.

“You Took Advantage of a Situation”

Jerry Swafford, the school janitor in West Virginia, was brought in for questioning a couple of days after the party.

In the police station, he sat for a 45-minute interview with Harold Rose, the detective assigned to the case, describing how he had found Kendall throwing up in the bathroom and put her to bed on her side so she wouldn’t choke. But on one of the occasions he went back in the room to check on her, he admitted he had pulled down her pants and then unbuttoned his own while she was passed out. Swafford seemed to hesitate before saying what happened next, but Rose threw him a line. “You’ve never been in trouble a day in your life, have you?” Swafford said no. “What’s the worst you been in trouble,” Rose continued, “maybe a couple of tickets?”



Swafford agreed. Noting Swafford’s divorce, the trooper continued, “you’ve had some women issues in your life, correct?” “Yes,” Swafford replied. “So you seen this attractive, beautiful girl laid down on your bed. You took advantage of a situation, but you caught yourself before something worse happened. Is that a fair assessment?” Swafford said yes. When Rose pressed him for more details, Swafford paused for a while and sighed, eventually adding, “I really can’t explain why I did what I did.” By the end of that interview, Swafford was crying, and Rose appeared to have reached a conclusion. “I don’t think there was no sexual intercourse,” he declared. “I don’t think there was any penetration, but I think you did more than just unbutton your pants and just lean over a girl for a few seconds.”

“I really can’t explain why I did what I did.”

Despite Kendall’s interview, and the fact that the police classified the incident as a possible drug-facilitated sexual assault, Rose did not ask Swafford about putting pills in anyone’s drink — not Kendall’s and not the drink of the girl that Kendall says she saw him drugging. Mingo County’s prosecutor, Jonathan Jewell, who goes by “Duke,” recently told BuzzFeed News he did not recall any allegations of drugging in the case. “It was kids having a party at Jerry Swafford’s house,” he said, adding the case “resolved fairly quickly.” In response to questions about the investigation, the West Virginia State Police said that if they had been able to prove that a drug was given to the victim, an additional crime could have been charged, but “no delivery of a controlled substance was able to be proven.” When BuzzFeed News asked how the allegation was investigated, since Swafford was not questioned about any potential drugging and there were no toxicology results from the lab at the time he was charged, a spokesperson said he was “not aware of any other methods utilized.” Under West Virginia law, the definition of sexual assault requires penetration. Kendall’s hospital examination didn’t show any injuries. But that isn’t unusual, especially if a victim is unconscious at the time of the assault. What was unusual — highly unusual — was that in this case, the act had a third-party witness: Kendall’s friend Summer, who opened the door and saw Swafford pressing himself against her. Rose’s recorded interview of Summer lasted less than seven minutes. Based on what he admitted in his interview, Swafford was arrested on lesser charges of sexual abuse and contributing to the delinquency of a minor. He later pleaded guilty to a count of sexual abuse and was sentenced to one to five years in prison. Kendall’s family sued Swafford along with the county board of education on the grounds that the school had ignored warnings about the party and kept Swafford employed despite the fact that he was once found masturbating in his office with a cheerleader’s jacket around his neck. (The court dismissed the case against the board, ruling that there was no clear pattern of behavior.) As part of that civil lawsuit, Swafford testified that he had had trouble sleeping all his life and filled a prescription for Ambien just a few weeks before the party. Despite the testimony of several teens, Swafford denied ever buying or providing alcohol for his daughter or her friends at his house. He also denied putting an Ambien in Kendall’s or anyone else’s drink that night. West Virginia’s crime lab doesn’t use immunoassay testing. Instead, it screens for 90 drugs using more sophisticated equipment. The drug in Ambien is one of them. But it’s one of at least two state labs (the other is Indiana) that tests only blood in sexual assault cases, rather than also testing urine, where drugs stay visible for longer. The body processes Ambien pretty quickly. The average half-life of the drug, or the time it takes for half of the drug content to break down, is a couple hours. Drugs usually take a few half-lives to cycle out of the body. Kendall’s blood was collected around 12 hours after she arrived at the party. By that time, had an Ambien been dropped into Kendall’s drink, “it’s probably not in the blood anymore,” said Richard Johnson, a toxicologist at the Tarrant County medical examiner’s office in Texas, who is a nationally recognized expert on drug-facilitated sexual assault. “If only the blood was tested it’s an instance where the test may be negative but the drug could still be in the urine.” Even in a urine test, Ambien and other common sleeping pills would likely be undetectable after 12 hours unless the lab screened for the molecules it breaks down into, explained Laura Labay, the lab director of NMS Labs in Pennsylvania. Kendall’s blood wasn’t tested until last May, after Swafford had been in jail more than a year. At the end of 2018, the lab’s backlog was more than 550 cases, according to the police spokesperson. When the testing was completed, the samples were returned to the police unit that investigated the case. But that unit — located in a small one-story building at the edge of West Virginia’s border — does not have any cold storage to help preserve samples. They were placed in an evidence room, where they sat, unrefrigerated, since June. With Kendall’s consent, BuzzFeed News obtained her original urine sample last December and had it screened, for the first time — more than two years after it was collected. None of the drug was detected. Kendall said the negative result didn’t change her view of what happened that night. “I know there’s no way that I blacked out and nothing caused that,” she said. “I wish the police and everyone else could see that too.”

“No matter how much we refine the science, you’re never going to be able to test your way out of this problem.”