It’s been nearly two years since a state audit found that less than half of all rape kits at three California law enforcement agencies were actually analyzed.

Since then, two of the agencies – the Oakland and Sacramento police departments – have made it a practice to test all sexual assault kits. The third agency examined in the audit, the San Diego Police Department, is doubling down on its decision to leave many kits untested.

SDPD said it has roughly 2,400 sexual-assault kits that haven’t been sent to the crime lab for testing.

The 2014 audit, a response to scrutiny over why so many kits were never analyzed as evidence, underscored how little was known about why some sexual assault kits were never tested while others were — and, more important, whether testing more kits would help solve more crimes.

“Analysis of sexual assault evidence kits can be instrumental in furthering the investigations of sexual assaults, especially if the analysis of this evidence occurs within two years of the date of the offense,” the audit found, though “the extent to which analyzing more kits would improve arrest and conviction rates is uncertain.”

It’s only been in the last several years that victim advocacy groups have started to get a handle on how many sexual assault kits are gathering dust on evidence room shelves. The kits hold the forensic evidence gathered through an invasive, lengthy exam of a victim after a sexual assault — hair, semen, saliva, blood — that crime lab technicians use to develop a DNA profile of the assailant. But many kits go unanalyzed.


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Groups like the California Coalition on Sexual Assault and the Joyful Heart Foundation have long argued that all kits should be analyzed. Even in cases where a victim knows her assailant, uploading DNA evidence generated by a kit to the federal Combined DNA Index System might yield matches to cold cases in other jurisdictions, they argue.

California law encourages testing, but doesn’t require it. It’s costly — roughly $1,500 per kit — and, depending on the circumstances of a case, sometimes unnecessary. CODIS, the federal database, has strict rules about when a DNA profile can be uploaded — chief among them is that investigators must be sure that a crime occurred.

Since the audit, both Sacramento County and Alameda County — which includes the Oakland Police Department — have made it a practice to test all sexual assault kits. I contacted both agencies to see if testing more kits has led to better outcomes for crime victims.

A spokeswoman for the Sacramento County DA’s office didn’t respond to multiple emails. Teresa Drenick, spokeswoman for Alameda County District Attorney Nancy O’Malley, who’s become a vocal advocate for testing all sexual assault kits, said that while they don’t have empirical data to prove their approach is best, “the testing of all kits and the upload, when possible, into CODIS certainly increases the numbers of crimes we solve, and, we believe, prevents future sexual assaults from occurring.”

Drenick said that of the first 319 kits tested using funds from a federal grant — kits that had previously been shelved — 124 yielded profiles that were uploaded to CODIS and 55 of those profiles resulted in a “hit,” meaning a match to a known offender.

San Diego, on the other hand, defends its  approach, which it says is smarter and more efficient: Do the investigative work first to determine whether the kit will help the case.

“By the time a kit gets to the laboratory, it’s been vetted as a piece of evidence that’s meaningful, as a piece of evidence that could yield a profile that we would be able to upload into a database at a national or state level,” said Jennifer Shen, manager of the San Diego Police Department’s crime lab.

In other words, SDPD’s argument goes: Why spend time and money testing a kit that ultimately can’t be uploaded to CODIS or might not be the best source of DNA evidence in a particular case?

Still, the department has been criticized for having so many untested kits. According to a public records request submitted last year by the Joyful Heart Foundation, there were 2,873 unanalyzed kits. Shen said the current number is around 2,400.

Earlier this year, during her bid for mayor, former Assemblywoman Lori Saldaña told the Union-Tribune that the Police Department had an “appalling backlog of unprocessed evidence.” And, in May, during city budget talks, San Diego City Councilman David Alvarez asked police to provide information on kits booked into evidence since 2014, including details on why kits aren’t being tested, something the state audit recommended the department start providing.

According to the department’s response, of the 812 kits booked into evidence, 417 were sent to the crime lab for analysis. Of the 395 kits not sent to the lab, in roughly 7 percent of the cases it was because the department lacked jurisdiction. Another 10 percent of cases were deemed unfounded, meaning investigators couldn’t find evidence of a crime. Roughly one-third of the cases fell under the “other” category — for example, a known suspect had been arrested, which under California law, meant it was likely the person had already provided a DNA sample to authorities.

The largest category, involving roughly 40 percent of all untested kits, includes kits from victims who were deemed “uncooperative” and victims who declined prosecution but had identified a suspect.

“Uncooperative” is a term victims’ advocates find troubling since it can be so subjective.

“There can be a real concern and hesitation in moving forward with the criminal justice process because sometimes people feel it won’t yield the justice they’re looking for,” said Shaina Brown, spokeswoman for the California Coalition on Sexual Assault.

“[Uncooperative], to me, is a red light going off,” said Ilse Knecht, director of policy for the Joyful Heart Foundation. “There was something about the way that they were treated that caused them to decide I’m not going to do this. We know that often survivors are not treated with respect, they’re not believed more than any crime and that causes them to pull out of the justice system.”

Alvarez said he appreciated the department’s thorough response, but echoed Knecht’s point.

“The one that raises a red flag and remains a concern to me is where the reason given is ‘uncooperative.’ You go through the process and from all that I’ve … read on this, it’s a very invasive process, it’s very personal. … It should concern us all that they’re willing to go through that and the information doesn’t get used.”

Alvarez said he plans to continue to request annual reports from the Police Department similar to the one he asked for in May.

Shen, the crime lab director, said the department’s sex crimes unit is currently doing a review of all untested kits to make sure an analysis isn’t warranted.

“We’re giving [detectives] information about the kits and they’re doing the research on each and every kit to see if there is any kit that should be tested and wasn’t.”

California cleared its backlog of untested kits in state-run crime labs in 2012. But out of the state-level changes the audit recommended that could impact individual agencies like SDPD, nothing’s really been done.

In 2015 — and specifically in response to the audit — the California Department of Justice created the Sexual Assault Forensic Evidence Tracking database, or SAFE-T, to track the progress of rape kits. Law enforcement agencies, though, aren’t required to participate. A bill introduced earlier this year by San Francisco Assemblyman David Chiu, AB 1848, and co-sponsored by state Attorney General Kamala Harris, would have required law enforcement agencies to annually report to the state how many kits they collected, how many were analyzed by a DNA lab and, of those that weren’t analyzed, why.

Chiu’s bill failed. A related bill, AB 2499, written by Assemblyman Brian Maienschein, a former San Diego city councilman, sought to give victims the ability to log into SAFE-T and track the status of their kit. The bill passed and currently awaits the governor’s signature, but the death of AB 1848 led to it being watered down. The final version says only that the DOJ needs to come up with “a process” for victims to check the status of their kits.

But Joyful Heart Foundation’s Knecht said AB 2499, if it becomes law, still has value and could help move untested kits off the shelves.

“[It] will give victims more access to information about their case, where their kit is, was it tested, what were the results, etc., thereby pushing more testing of the old kits.”

    This article relates to: Police, Public Safety

    Written by Kelly Davis

    Kelly Davis is a freelance journalist focusing on criminal justice and social issues. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com

    12 comments
    Kelly Tanguay
    Kelly Tanguay

    San Diego Law Enforcement says there's no reason to test rape kits, but evidence proves that cases get solved as a direct result of rape kit testing.


    For example, in 2016 Ohio tested ~5,000 untested rape kits and found that more than half of sexual assaults were committed by serial rapists. They were able to make over 250 convictions of people who were raping multiple woman, or had committed other unsolved crimes like murder, that we solved by getting the kits tested. 


    Source: https://nytlive.nytimes.com/womenintheworld/2016/06/09/rape-kit-tests-in-ohio-find-more-than-half-of-sexual-assaults-committed-by-serial-rapists/

    Julia Cooper
    Julia Cooper subscribermember

    This is not ok.  It's particularly relevant because the US Congress has just passed a Rape Victims Bill of Rights with broad bi-partisan support in both houses.  

    Erik Hanson
    Erik Hanson subscriber

    How dare they use money as an excuse? The City Council had an easy time spending $1 million on a study to see how much the price of the Irwin Jacobs Balboa Park plan had inflated in the last 5 years. That after spending 3-4 million on this "free" plan already. Is there anyone that thinks a vote between "test rape kits" or "study inflation on a possible project without a funding source" would result in more than a 2% vote for the latter?

    Bill Bradshaw
    Bill Bradshaw subscribermember

    Second guessing police decisions is a natural pastime for politicians including ex-politicians with time on their hands.  If it’s not the details of police camera usage it’s patrol practices or police lab procedures.  The possibilities are endless.


    What we’re dealing with here is a department which, over a period of many decades, has had a very positive relationship with the people it serves.  This is not Ferguson, Baltimore or Chicago.  There have been a few bad cops that had to be dealt with and this was done, not as fast as we might like, but accomplished.  There have been procedural problems that have also been dealt with.  The is not your “thin blue line” attitude like LAPD used to have and still does to some extent.  It’s community oriented, and this has enabled SDPD to get by with very lean staffing.


    We have also had a series of police chiefs who knew their stuff and were not afraid to get out into the community rather than sitting behind a desk.  And, although there have been problems, often caused by budget constraints, things like the police dispatcher shortage that needed fixing, the department has been responsive to public input and looks at criticism as an opportunity for improvement.


    In short, folks, thank the department for doing a fine job and let’s continue to support these people.  

    lorisaldana
    lorisaldana subscriber

    @Bill Bradshaw


    It appears our understanding of "doing a fine job" is a bit different. The job doesn't end with arrests- it involves investigation, prosecution, hopefully conviction, and ideally: prevention 


    To that end: Are you disputing the facts from numerous studies, that argue against the local law enforcement policy of leaving evidence untested, and allowing criminals to go free?


    Results from other cities  are compelling. Throughout the US, law enforcement agencies and prosecutors that have tested ALL sexual assault evidence kits have identified people who were originally accused of "only" DV or raping and/or sexually abusing others, and determined they have also been committing other violent crimes. these range from serial sexual assault to murder, committed before they are finally ID'd via DNA.


    This is why the nearly $500,000 grant from the federal DOJ, received this week by the city and county of San Diego to enhance the ability to test ALL DNA, is so important. Without these funds and required additional testing and reporting, they may continue to leave these evidence kits untested. 


    As other investigations have proven: there are many additional violent crimes that will go unsolved, criminals who will avoid prosecution, and survivors and/or their families will be denied justice if SDPD and San Diego County don't move their DNA labs into the 21st century with the help of these grants, and also change these policies.

    Bill Bradshaw
    Bill Bradshaw subscribermember

    @lorisaldana @Bill Bradshaw See paragraph 1 of my comment. 


    And note that nowhere in my remarks did I defend this particular practice.  The decision here may be problematic, but there are limits to resources of every organization and SDPD has had it's share of tight budgets.  When Chief Zimmerman's predecessor was faced with deep cuts, he laid off just about anyone in the department who wasn't either a sworn officer or a dispatcher because his highest priority was having the capability to handle a major emergency.  I thought he overreacted but it was his decision and I felt he was experienced enough to know what he was doing. 


    It's easy to throw mud at police departments, but before "convicting" this one people ought to look at it's record over time.  I believe Chief Zimmerman makes good, considered decisions, and I wouldn't be surprised to discover she is taking another look at this right now.  But she's not going to be swayed by the "everyone else does it" approach. 

    DavidM
    DavidM subscriber

    @Bill Bradshaw


    I'm not sure where you've been, but SDPD has not been "community oriented" by any standard except using the name for almost 20 years.

    We're talking about the agency that received money to track misconduct claims, and didn't produce;

    An agency where supervisors failed to supervise;

    An agency in which an officer sued based on a statement that they police differently in minority neighborhoods;

    An agency that has abhorred transparency for officer misconduct to the point of sequestering third party videos ("to preserve the investigation") even where there was no ongoing investigation!

    Where two officers in a matter of years racked up a series of sexual misconduct complaints (and do you really think their comrades and supervisors had no suspicion?).

    An agency that promised reform, didn't deliver, and promised reform again, which still has not been delivered.

    To be clear, I don't think anyone becomes a police officer because they want to abuse authority.  I think they are taught to abuse authority, and they learn within a few months that there's no consequences to that abuse.  The middle and senior management for the past 20 years have forgotten that community support is easier to lose than to earn.  Chief Zimmerman's obfuscation (if not outright deception) on some issues doesn't help.  There is now a cadre of young sergeants and lieutenants who never learned how to earn public trust, which makes it unlikely that the downward slide will end anytime soon.  Zimmerman will be gone soon, and her successor will find that there is no institutionalized methodology for keeping the public on their side.

    And just FYI, and IMO, second guessing ANY government agency is both a right and a duty, particularly of the political leadership.  But this is particularly true of a government agency with the ability to deprive individuals of liberty (if not life).

    Bill Bradshaw
    Bill Bradshaw subscribermember

    @DavidM @Bill Bradshaw OK, you got me.  I'll admit that, for almost nine of the last twenty years I was a volunteer with SDPD in the Retired Senior Volunteer Patrol, coincidentally beginning 1996, 20 years ago.  Job didn't pay much but I had an interesting time doing non-hazardous stuff that's always dumped on police departments when it's not obvious who is responsible for it, things like visiting elderly widowers living alone, and I helped at accidents and flood sites and cited scofflaws in "disabled" parking spots.  Got involved in crowd control situations and observed first hand how nasty many of the citizenry can be, particularly when drunk or doped up.  Met a lot of good cops and a few not-so-good ones.


    What I remember most about the department was that, thanks to the city council's follies on the pension plan, SDPD carried out drastic cuts in service including elimination of a lot of community outreach.  I remember that they used to have a very nice volunteer luncheon annually and used to furnish all the uniform items for the volunteers.  No more lunches, volunteers now pay for some of their gear, a general belt tightening took place which hasn't returned to the good old days (if there were any).


    So, your theory is that SDPD takes eager young recruits and turns them into bullies?  That SDPD is a breeding ground for supervisors that teach officer misconduct and disrespect for the public?  I can't respond to that because I left the department about ten years ago, and didn't see any of that stuff, but it's hard to believe.


    Since leaving the volunteer job I set up a Neighborhood Watch in my community, and the cops were extremely helpful because they really understand the program.  Like any organization, when dealing with them it helps to understand  their priorities and procedures.  One thing every citizen should know is that cops, in every agency, are taught, first and foremost, to take control of any situation they confront.  I think this is the basis of many "problems" between police and the public, and not just in San Diego.  Asserting rights in tense situations is simply stupid!  


    Since you seem to get your jollies by asserting your "duty" to criticize government agencies (and believe me I've done my share of that),  tell me something:  What police organization do YOU think almost always does things right?  Sherriff's Dept?  CHP? LAPD?  Chicago?  Baltimore?.....    

    DavidM
    DavidM subscriber

    @Bill Bradshaw


    You misunderstand me Bill.  I have memories of SDPD being a community oriented agency as well, and they go all the way back to Ray Hoobler, who resigned because his loyalty to the agency trumped his obligation to the truth.  I have several friends who are current officer, including one sergeant.  They are not bad people; they are poorly led, and have been for quite a while.  Read the DOJ report.


    http://ric-zai-inc.com/Publications/cops-w0756-pub.pdf


    When it was released, Chief Zimmerman said some of the recommendations were already implemented, and all would be.  We are now more than a year later, and waiting.  Zimmerman is a caretaker; she was not destined to do anything as controversial as fixing what's broken, or trying something new.


    By the way your picture (small as it is) looks like an RSVP officer who helped me change a tire on Camino del Rio North near Rancho Mission Road  a while back.  (Well, not helped me change, but certainly kept my sister's car from being struck by directing others around it.)  Thanks! 

    lorisaldana
    lorisaldana subscriber

    First, thank you for this report. As I noted during the mayoral campaign: when authorities don't test evidence in these criminal investigations they demonstrate an appalling indifference to ensuring justice for survivors of sexual assaults and other violent crimes. That's why I encouraged the city to apply for DOJ funds to have the capacity to clear these backlogged kits.  


    (see: www.nij.gov/topics/forensics/lab-operations/evidence-backlogs/pages/backlog-reduction-program.aspx)


    Now, it appears the federal Department of Justice has determined both San Diego City and the County can do a better job on testing DNA evidence. 


    Yesterday, I was very happy to hear from Wendy Fry at NBC that both the city and county have received DOJ grant funding to improve DNA testing in their labs. Fry reported that DOJ has awarded $235,604 to the City of San Diego and $242,699 to the San Diego County Sheriff to enhance their DNA analysis capacity. (The Sheriff's department also has a backlog of several hundred sexual assault evidence kits.)


    Finally, it's important to understand that testing these kits will not only help solve the reported crime, but likely many others, including some that have not been reported. (Many survivors of rape and sexual assault don't report due to intimidation, no memory of the assault due to drugs or alcohol, etc.) 


    Nationwide, cities that have used these DOJ funds - AND made commitments  to clear 100% of their backlog of "rape kits"- have determined that many people who commit these crimes are subsequently identified as suspects in other violent acts, from serial rapes to serial murders. They have used this evidence to prosecute and convict on other previously unsolved cases.


    That's why seeking the funds and  committing to do the testing on these 2400+ rape kits was one of my Mayoral campaign issues: it's been proven that people who commit one violent crime are much more likely to be involved in others. So in addition to providing justice to the survivors of the past assault, it is simply good public safety policy to test ALL of these kits,  to prevent assaults in the future and solve other crimes linked to that person. 


    Bottom line: it's time to clear the backlog of rape kits and other DNA evidence from SDPD evidence files.  
    Happy to see this will be moving forward with help from federal DOJ funding.

    lorisaldana
    lorisaldana subscriber

    Does processing backlogged rape kits lead to arrests, prosecutions and convictions? YES.

    From: The Horrifying Consequences of Our National Rape Kit Backlog, April 2, 2016
    http://www.alternet.org/news-amp-politics/horrifying-consequences-our-national-rape-kit-backlog


    “When rape kits are actually put to the test, it’s impossible to put a price on the returns they yield for survivors and others. In Ohio, tests of 10,000 backlogged kits have led to 445 indictments. Houston, Texas, after clearing its backlog of almost 6,700 kits, discovered “850 matches, 29 prosecutions and 6 convictions,” per USA Today. Last year, the Detroit Free Press reported that an effort to test the city’s 12,000 kits has identified “2,478 suspects—including 456 serial rapists...and 20 convictions have been secured.” Some of those cases have likely been cold for a long time, and without testing, would have remained that way.”