Tens of thousands of rape kits go untested across USA

Steve Reilly | USA TODAY

After 18 years without justice, Joanie Scheske believed the man who raped her would never be caught.

That changed when St. Louis police called in 2009. Evidence in a separate, eight-year old sexual assault was finally tested and matched her attacker's DNA.

Rapist Mark Frisella, whose attack was so brutal Scheske still suffers from epilepsy, is serving 19 years in prison.

"I had a really difficult time wrapping my head around why that rape kit was never tested," Scheske said. "My case is a poster child as to why you test these kits."

A USA TODAY Media Network investigation identified tens of thousands of sexual assault evidence kits never tested by police.

In the most detailed nationwide inventory of untested rape kits ever, USA TODAY and journalists from more than 75 Gannett newspapers and TEGNA TV stations have found at least 70,000 neglected kits in an open-records campaign covering 1,000-plus police agencies – and counting. Despite its scope, the agency-by-agency count covers a fraction of the nation's 18,000 police departments, suggesting the number of untested rape kits reaches into the hundreds of thousands.

The kits contain forensic evidence collected from survivors in a painstaking and invasive process that can last four to six hours. Testing can yield DNA evidence that helps identify suspects, bolster prosecutions and in some cases exonerate the wrongly accused.

The records reveal widespread inconsistency in how police handle rape evidence from agency to agency, and even officer to officer. Some departments test every rape kit. Others send as few as two in 10 to crime labs.

Decades of promises from politicians, and more than $1 billion in federal funding, has failed to fix the problems. The roughly $1,000 cost to analyze each kit is among the hindrances for police.

Records obtained from police agencies in all 50 states show:

• While attention has been focused on large metro police agencies, tens of thousands of untested sexual assault kits are accumulating almost without notice at rural and smaller city departments. Hundreds of rape kits remain untested in places like Muncie, Ind., Visalia, Calif., St. Cloud, Minn., and Green Bay, Wis.

• In most states and at most law enforcement agencies, there are no written guidelines for processing sex-crime evidence. Decisions often are left to the discretion of investigating officers, leading to inconsistencies.

• Although uploading offenders' DNA information into state and national databases is proven to identify serial predators who move across jurisdictions, police often treat rape kits as if the evidence is relevant only to the single assault with which it is associated.

• Authorities at all levels of government are failing to quantify the problem. At least 50 major law enforcement agencies — from Montgomery, Ala., to Reno, Nev. — have never counted the untested rape kits in their evidence rooms. Most states haven't undertaken an inventory.

• The U.S. Department of Justice is failing to comply with a 2013 law that was meant to get more rape kits tested and set national protocols for processing sexual assault evidence.

For rape survivors like Scheske, the accumulation of untested evidence is more than abstract statistics.

"Every single one of those rape kits is a person, and (their) family and friends," she said. "It's like a baby's mobile: You touch one piece and it moves all the others. It's not just one person. Everyone that their sphere of influence touches is affected by what happens to a victim."

Rape survivor describes exam trauma Debbie Smith explains enduring the evidence-gathering medical exam following her attack.

Debbie Smith of Williamsburg, Va., is one of thousands whose cases were solved by DNA analysis. After a masked man invaded her home in 1989 and raped her — threatening to come back and kill her if she told anyone — she lived in constant fear of his return for more than six years.

Smith remembers the day she was notified that a DNA match identified her attacker. He was already behind bars in Maryland for another crime. "It was the first time in those 6½ years that I took a deliberate breath. I wanted to breathe. I wanted to live."

The inconsistent analysis of rape kits persists even as comprehensive testing in some cities — including New York, Cleveland and Detroit — has demonstrated the power of the previously unused evidence to identify unknown assailants, confirm the accounts of sexual assault survivors, and exonerate wrongly accused suspects.

The results showed the discretion investigating officers have over whether to test rape kits has often been misused, said Sarah Haacke Byrd, managing director of the Joyful Heart Foundation, a group pushing for testing of all kits tied to a reported sexual assault.

"Time and time again, we have seen that law enforcement frequently disbelieves victims when they're seeking help from law enforcement," she said. Mandatory testing "takes discretion out of the hands of law enforcement."

In the course of this investigation, the questions from local and national journalists started prompting change, even before publication. State agencies and local police that didn't know how many untested rape kits they held started counting because of reporters' questions and open records requests. Those new audits alone found more than 2,000 kits containing untested evidence. Several agencies decided, based on reporters' inquiries, to send some or all of their untested rape kits to crime labs. In South Carolina, told of the findings, legislative leaders began pursuing statewide standards defining when police should test rape evidence.

Yet for uncounted thousands more rape survivors, the evidence remains untested, in storage.

It took more than a decade for Michael J. Brown to face justice for the 1993 rape of a school-aged girl at a New York City apartment complex.

On Aug. 6, 1993, Brown followed the girl inside a Queens apartment building where she was visiting a friend. He placed his hand over her mouth and abducted her, taking her to the rooftop, where he raped her and knocked her unconscious with a brick, according to court records.

The victim was taken to a local hospital, where she was interviewed by police and a rape kit was prepared. Then, for nine years, that evidence sat in a freezer among a trove of 16,000 untested rape kits held by the New York City Police Department.

In prior decades, the evidence had little value unless new leads emerged. But DNA technology advanced and state and federal governments built offender databases. Police and policymakers saw value in analyzing the evidence.

In the late 1990s, NYPD spent $12 million to send every kit to a private lab for analysis. About 2,000 matched DNA in offender databases — "cold hits" as police call them. One of the matches: Michael Brown.

His DNA had been entered into the FBI's Combined DNA Index System (CODIS) database after an unrelated crime in Maryland. The DNA match led to his indictment in 2003 for the New York girl's rape. He was convicted in 2005.

Other cities and several states followed New York's example and now send all rape kits for testing. New laws and changing attitudes in some jurisdictions have led to CODIS matches resulting in thousands of new investigations and hundreds of indictments — many involving serial offenders tied to sex crimes in different parts of the country.

Testing by Cleveland-area prosecutors linked more than 200 alleged serial rapists to 600 assaults. Statewide, Ohio Attorney General Mike DeWine's effort to collect and test sexual assault kits has resulted in at least 2,285 CODIS hits so far.

In Houston, analysis of about 6,600 untested rape kits resulted in about 850 matches, 29 prosecutions and six convictions.

And, since the Colorado Bureau of Investigation began requiring police statewide to submit sexual assault kits for testing last year, more than 150 matches have been found.

Despite those successes, many police agencies haven't changed their policies.

In New York state, law enforcement agencies outside of New York City are under no legal requirement to test rape evidence. No state law exists requiring agencies to track how many untested kits are stored in their evidence rooms.

New York is one of 44 states with no law stipulating when police should test rape kits and 34 states that haven't conducted a statewide inventory.

"We need to have a full accounting for the state of what's left, what hasn't been tested, why it hasn't been tested and just clear it up," said New York State Assembly member Linda Rosenthal, a Democrat, who has introduced legislation requiring an inventory. The bill has yet to make it out of committee.

Interviews with law enforcement officials, and a review of police records obtained by USA TODAY, reveal sexual-assault-kit testing is often arbitrary and inconsistent among law enforcement agencies — and even within agencies.

In Jackson, Tenn., for example, notations in evidence records show contradictory reasons as to why rape kits were not tested. In some cases, the Jackson Police Department did not test evidence because the suspect's identity was already known, records show. In 13 other cases since 1998, records show police decided not to test kits because there was "no suspect" or "no known suspect," even though testing the kits could help identify a suspect.

Another untested sexual assault kit held by the Jackson Police Department is from a 2005 case where a woman was found under a car and told police in two separate interviews she was raped after using drugs with a man in a hotel, according to case records.

"She asked (him to) stop but he continued to have sexual intercourse with her," the investigator wrote in one report. But the investigator's notes from a third interview days later indicate "she did not remember what had happened" and the sex was voluntary. The case was closed. The sexual assault kit had not been tested as of last month.

"That should have been investigated further and I feel confident that it would be now," Jackson Police Capt. Mike Holt said of the case, noting changes over the past decade in how police interact with victims.

Law enforcement officials said the most common reason kits are not tested is there is not a prosecutable case, usually due to a lack of cooperation from victims.

Perceived lack of cooperation from a victim is not a valid reason to jettison forensic evidence, said Mai Fernandez, executive director of the National Crime Victims Center, a Washington-based non-profit. Some survivors may fear retaliation if they press charges.

"The victim might not decide that they want to go forward with the case, but they might decide later on that they do," Fernandez said. "Or, if there's enough circumstantial evidence, including the kit, a jurisdiction could decide to go forward without the victim."

Some government officials and researchers have faulted police for a predisposition to doubt survivors' stories.

"The fact is that often rape kits are unsubmitted for testing because of a blame-the-victim mentality or because investigators mistrust the survivor's story," Illinois Attorney General Madigan told a U.S. Senate subcommittee at a hearing in May. "This outdated way of thinking must change."

After more than 10,000 untested sexual assault kits were discovered in Detroit in 2008, a landmark study funded by the Justice Department faulted police for "negative, victim‐blaming beliefs."

"Rape survivors were often assumed to be prostitutes and therefore what had happened to them was considered to be their own fault," researchers from Michigan State University wrote in their analysis of Detroit's rape investigations.

At some agencies, records reviewed by USA TODAY show untested sexual assault kits come from cases involving child victims.

Records from the Dallas Police Department show at least 43 sexual assault kits taken into custody from 1996 to 1999 were from children, some as young as 12. In an interview, Dallas police officials said there are likely many more kits from children among its inventory of more than 4,000, but there are no plans to specifically target them for testing.

"Often, someone will say that they were victimized. But when you get into the case, actually what it is, is that their parent had told them not to go visit a friend, so they had to make up a story," said Dallas police spokesman Major Jeff Cotner, who noted that testing of older kits could delay testing that is more urgently needed for current investigations.

Many law enforcement officials are adamant in their defense of leaving some kits untested.

At about $1,000 per kit, officials said submitting a rape kit for testing unnecessarily could divert resources from other policing needs or delay testing of evidence in cases where the need for analysis is more urgent.

"The kit itself isn't always the best science or the best evidence to a case," said Sgt. Trent Crump, spokesman for the Phoenix Police Department, which has accumulated 1,782 untested rape kits since 2000. He said the agency uses an "evidence-based testing procedure" to decide in each case.

A growing number of advocates are pushing universal testing.

"I think that in cities that have started testing all of their backlog, they're finding enough patterns of serial rapists for the information to be really valuable in current cases as well as the ones that have been sitting on shelves for years," said Scott Berkowitz, president of the non-profit Rape, Abuse and Incest National Network.

Over the past decade, Congress has appropriated about $1.2 billion to cut the nation's backlog of DNA testing needs, including sexual assault kits. In other terms: enough to test 1 million rape kits.

In 2013, Congress passed legislation to focus federal spending and set national testing standards. The Sexual Assault Forensic Evidence Registry Act, or SAFER Act, required at least three-quarters of the funding for sexual assault kits be used for testing or taking inventory of the evidence. The law set up grants to help local police pay for inventories and testing. No grants have been awarded. A Justice Department steering committee met only once, in March 2014.

Sen. John Cornyn, R-Texas, who authored the law, called it "completely unconscionable" that the Justice Department has not complied.

With federal action stalled, changes in how sexual assault evidence is treated is falling to state and local officials. As more cold hits emerge, some law enforcement leaders have started to advocate for more stringent record-keeping and testing policies.

Col. Elmer Setting, who leads the New Castle Police Department in Delaware, said he has pushed for a statewide mandate to test every rape kit.

"They've had success stories with testing these kits," he said. "It's amazing how, (for) many of these sexual predators, we have their DNA and we never tested the kit. It doesn't make any sense."

In addition to New York, bills are pending in other states — including Massachusetts, New Jersey, Oklahoma and Maryland — to require inventories of untested rape kits. In five states, legislation is pending requiring testing of any new rape kits.

The mandatory testing bills being considered in New Jersey, Oklahoma, Tennessee and West Virginia would add to testing laws on the books in Colorado, Illinois, Michigan, Ohio, Texas and Washington.

"If we could catch more rapists through testing," said Rosenthal, the New York lawmaker, "we ought to test every single kit we have."