S.F. police chief rejects chance to test backlog of rape evidence

S.F. Police Chief Greg Suhr during a news conference speaks about an audit of the crime lab's DNA unit, which has come under fire for faking results, as well as other police misconduct, at the Hall of Justice, Friday, April 3, 2015, in San Francisco, Calif. less S.F. Police Chief Greg Suhr during a news conference speaks about an audit of the crime lab's DNA unit, which has come under fire for faking results, as well as other police misconduct, at the Hall of Justice, ... more Photo: Santiago Mejia, The Chronicle Buy photo Photo: Santiago Mejia, The Chronicle Image 1 of / 3 Caption Close S.F. police chief rejects chance to test backlog of rape evidence 1 / 3 Back to Gallery

San Francisco police Chief Greg Suhr has refused to partner with the district attorney’s office to apply for grants to pay for the testing of old rape kits — meaning the identities of hundreds of perpetrators who raped women in the city before 2003 will remain unknown.

Prosecutors in District Attorney George Gascón’s office wanted to apply for two new grants this spring, but needed the agreement of the Police Department to qualify for the money. Suhr declined, saying his staff is “maxed out” trying to address major disarray in the crime lab, which is in possession of the old kits.

The old kits can’t lead to prosecutions because the statute of limitations in California for rape is 10 years. But the district attorney and women’s advocacy groups say the kits still have value in court and can lead to peace of mind for victims.

The crime lab has been plagued by problems in recent years — from the 2010 theft of cocaine evidence by a drug tester that led to the dismissal of 1,700 criminal cases to revelations in March that a lab technician and supervisor failed a DNA proficiency exam, jeopardizing hundreds more cases.

Backlog partly cleared

Last year, the Police Department cleared a backlog of untested rape kits dating to 2003. But nobody in the department knows how many pre-2003 rape kits remain untested. The department estimates that there are “hundreds” of old rape kits at the lab, but its antiquated system of tracking them, created in 1971, means the kits are essentially a jumbled mess.

“We have to determine how many there are. Then we have to figure out how many of those have actually been tested, because there is no clear record,” Suhr said. “Some of the files may be so old that scientifically they are not capable of being tested.”

San Francisco is one of many cities with a large backlog of untested rape kits, a problem that has raised questions about why the kits were allowed to sit for so long. The U.S. Senate Committee on the Judiciary held a meeting on the issue last month.

Women who report being sexually assaulted are asked to go to a hospital immediately for an invasive forensic exam that usually lasts four to six hours. Hospital staff collect the woman’s blood, urine, fingernail clippings and hair, and take swabs from her mouth, genitals and anus. The victim’s clothing and underwear are also kept as evidence.

The compiled evidence is called a rape kit, but it is virtually worthless unless tested by a crime lab in hope of retrieving the rapist’s DNA evidence, to be entered it into a national database called the Combined DNA Index System, known as CODIS.

The database contains more than 10 million genetic profiles of criminals and can be used by law enforcement agencies around the country to identify suspects by linking their DNA to previous crimes. Rapes are often committed by serial offenders, meaning the database can be particularly useful in solving sexual assault crimes.

Suhr said he would “absolutely” apply for a grant to test the older kits when the crime lab’s myriad issues are cleared up. But the application deadlines for the grants Gascón had his eye on have passed, and there’s no guarantee that the grants will be offered again.

Moreover, Suhr said that if and when he does apply for a grant it, wouldn’t be with the district attorney, because that office “is not critical to the effort to clear the backlog.”

Suhr and Gascón have made no secret of their apparent dislike for each other — including sparring in the press in recent months over whether it was appropriate for Gascón to form a task force to investigate a host of recent law enforcement scandals, including the crime lab woes and racist text messages sent by some of Suhr’s officers.

Maxwell Szabo, spokesman for Gascón, said the public expects the two agencies to work together and that Suhr’s refusal to team up on the grant applications means the backlog of rape kits may never be cleared.

‘Wrong message’

“The fact that they declined to participate, twice, is unacceptable, and it sends the wrong message,” Szabo said. “This is about women’s safety.”

There has been new attention to untested rape kits nationally, thanks in large part to the work of advocacy groups and support from politicians up to President Obama.

The president’s 2015 budget included $41 million to pay for the testing of old kits and to prosecute perpetrators. Applications for the National Sexual Assault Kit Initiative, run by the U.S. Department of Justice, were due May 7.

A separate pot of $35 million is being disbursed by Manhattan District Attorney Cyrus Vance Jr. to jurisdictions around the country. Vance’s office received the money from asset forfeiture cases, and he wants it to go the testing of 70,000 rape kits nationally. That program’s application deadline was June 1.

Each grant is worth up to $2 million, and Gascón believes the entire backlog in San Francisco could have been cleared if it had won one of the grants. Each grant came with access to a testing facility willing to do the work for about $500 per kit, when the typical rate can be up to $1,500 per kit. If it had won the grant money, the San Francisco crime lab would only have had to find and turn over the untested kits — not do the actual testing.

The Justice Department grant also came with leeway to spend the money on training staff and purchasing new tracking systems, which would be useful for the troubled San Francisco crime lab, said Rebecca O’Connor of the Rape Abuse and Incest National Network.

“It’s unfortunate to me to hear there’s no desire to go after that funding,” she said. “We would hope that jurisdictions would avail themselves of every opportunity to make sure that these kits are making their way off shelves and being tested.”

Mike Connolly, head of the department’s Forensic Services Division, said the process is more complicated than simply sending off the kits. The case files associated with the old rape kits are held by an outside vendor, and the Police Department has to pay the vendor every time it wants to pull a file. “You could eat up all your grant money on those fees,” Connolly said.

Reasons for testing

Despite the 10-year statute of limitations, the district attorney and women’s advocacy groups say there are many other reasons besides obtaining a conviction in one case. They say it’s a major disservice to women to leave their untested kits sitting on shelves.

Proof of a rape that happened more than 10 years ago can still be used as evidence in a different case against the same perpetrator, helping to establish a pattern and convince a jury of guilt.

In addition, a judge has the discretion to allow a rape survivor whose assailant is known through DNA testing to provide a victim impact statement in a different case against the same man. That can lead to a longer sentence.

Closure for victims

But perhaps the most important reason is to give rape survivors peace of mind, especially if it is determined that the assailant is dead or in prison, said Ilse Knecht, senior adviser for the Joyful Heart Foundation, a national advocacy group for sexual assault survivors and a major proponent of clearing the national rape kit backlog.

“It’s really important to give victims any pass at justice that we can,” she said. “Those kits represent survivors who have done everything that we’ve asked them to do. They’ve reported the crime to law enforcement. They’ve endured a four- to six-hour exam. We owe it to them to test their evidence.”

Suzy Loftus, president of the city’s Police Commission, said testing all the old rape kits is “a big priority” for the commission and the department, but that getting the crime lab to the position where it can accomplish that goal is “a work in progress.”

“All these kits need to be tested,” she said. “This isn’t for lack of want. We’re just not there yet.”

Emily Green and Heather Knight are San Francisco Chronicle staff writers. E-mail: egreen@sfchronicle.com, hknight@sfchronicle.com Twitter: @emilytgreen, @hknightsf