As the San Diego Police Department began clearing out its years-long backlog of untested rape kits, leaders at the crime lab this spring instructed analysts to handle DNA found in those kits differently than they handled kits from active investigations.
The May directive came a month after the crime lab instituted less rigorous testing procedures  for dozens of rape kits from the untested backlog, which the department agreed to analyze  under pressure from city, state and national officials after  arguing for years  that there was no value in doing so .
Five criminalists said the department’s policy seemed to defeat the purpose of testing the kits in the first place. A national expert on rape kit testing and former SDPD detective agreed, saying the department’s policy did not seem focused on solving cold cases. An SDPD spokesperson said the department’s policy is merely intended to ensure consistency with FBI protocol.
When a victim reports a sexual assault, nurses take swabs from different parts of their body, along with items like fingernail clippings and hair, and put it into a kit to search for a suspect’s DNA. It’s called a SART kit, for sexual assault response team. If a victim indicates they had consensual sex within five days leading up to the assault, a sex crimes detective collects a DNA reference from that consensual partner, allowing analysts to differentiate that person’s DNA from a potential suspect’s before uploading any foreign DNA from the kit to the federal DNA database.
It’s a standard safeguard imposed by the FBI to ensure local law enforcement doesn’t add a non-suspect’s DNA to a database used to solve rape cases.
In May, crime lab leaders instructed staff members on when they could test consensual partner references for kits from the backlog, and when they could add foreign profiles found in those kits to the database, known as CODIS.
“Historical SART kits will NOT be searched in CODIS, unless medical report inside the kit clearly indicates no consensual partner the last 5 days,” the agenda for the May meeting reads .
Five crime lab analysts, whose names Voice of San Diego has agreed to withhold because they fear retaliation, said that meant they had to treat cases in which there was no mention of recent consensual sex in the kit’s medical report as though there had been a consensual partner, but no reference was available.
They also said they were told not to look for more information on the case to clear up the ambiguity.
“We are not reading CRMS reports for these,” the agenda reads, referring to SDPD’s criminal records management system. “If a consensual partner is indicated within that window of time, or the information is not available, we are NOT uploading any foreign profiles to CODIS.”
The change has meant crime lab analysts added fewer profiles to CODIS than it would have before May, the crime lab analysts said.
One criminalist said it is easy to look in the department’s internal system to see if a consensual partner swab has been collected and is available for testing, but they were told they were not to take that step.
“For historic cases, we can’t ask if there’s a consensual partner,” the criminalist said. “And if we have a consensual partner reference in property, we are not allowed to check it out. It was for any historical case, no consensual partner work.”
A second criminalist said the process seemed absurd, because it meant DNA located in kits was not being uploaded to the federal database even when SDPD had already collected a consensual partner reference, or when a call to a detective could have clarified any ambiguity in the report.
“I said, ‘What are we doing? What is even the purpose of doing this? What’s the point?,” the second criminalist said.
Joanne Archambault, a former SDPD detective, founded End Violence Against Women International, a nonprofit group that offers training  programs  for law enforcement on best practices for rape kit testing. Those practices include emphasizing the importance of making every effort to eliminate consensual partners from DNA found in a rape kit. Her training explains that it’s important not just to safeguard the rights of consensual partners, but also to ensure the results from a kit don’t mislead sex crimes investigators.
Yet Archambault said it was “insane” to treat a kit that does not mention a consensual partner the same as one that says there was a consensual partner, but there wasn’t a sample available to test.
“To make a blanket statement that if it’s not mentioned in the report … you’re not uploading it – I don’t understand that,” she said. “I don’t see the diligence.”
Lt. Shawn Takeuchi, an SDPD spokesman, said crime lab management and the sex crimes unit created a process for testing consensual partner swabs that was largely designed for kits from the backlog, because they did not already have a detective assigned to the case since they were old.
He said there had been no change in department policy, but the May meeting was needed because some crime lab staff members were confused about the proper protocol.
The sex crimes unit is now alerted through the DNA report’s write-up if the crime lab finds DNA in a kit but cannot upload it to CODIS because it did not definitively say that there was no consensual partner, Takeuchi wrote.
“At that time, the unit will assign a detective to follow up on this information, locate any potential consensual partner swabs, identify the barcode number etc., and ensure we have the correct consent forms,” Takeuchi wrote. “They will then inform the laboratory that further work can be done.”
A third criminalist, though, said that information was never explained to the crime lab, and that they are unaware of any instance in which a sex crimes detective followed up after a kit was tested to say that a consensual partner sample had been located for additional testing.
“I have never seen that happen,” the third criminalist said. “The sense I got was that we would never work the consensual partner swabs, the ones that were already available in our property room. If that’s true, that process was never made clear to us when we were told don’t look at consensual partners, we’re not working consensual partners.”
The first criminalist agreed.
“No, that has never happened,” the first criminalist said. “I’m unaware of that happening at any point for any analyst. If they had ever done that, there would be swabs to be tested, because they exist.”
The first criminalist said the city’s explanation that analysts were spending too much time searching for available swabs didn’t make sense. The criminalist estimated that it would take five minutes to determine whether there were consensual partner swabs available for a given batch of 10 cases.
“They could make a policy that said, ‘Look if there’s a consent form, and if there isn’t, don’t test it,’” the first criminalist said. “But they said, ‘Don’t even look.’”
Archambault advocates for law enforcement to form a team of investigators dedicated to the cold cases found in the untested backlog, who actively engage the victims in the case to see what they can solve.
She said the city’s process of notifying a detective of a kit that found foreign DNA but needs follow-up on a potential consensual partner would be fine if the detectives were “invested in this, and not seeing it as punishment.”
“It comes down to this: It takes time, and are we just trying to tell the public that we eliminated the backlog, or are we trying to make up for past mistakes, getting back to victims to see if they’re ready to participate, testing kits that we should have tested but didn’t?” she said.
Criminalists who spoke to Voice of San Diego have said they could often quickly and easily establish that a consensual partner reference for the kit they were testing had been collected and was in the property room. But when detectives collect a DNA sample from a consensual partner, they’re also supposed to get a consent form.
Takeuchi said it was inefficient and did not make sense for criminalists to locate consensual partner references and determine whether detectives had collected consent forms.
“The analysts do not, and should not, be using valuable laboratory analysis time to be handling these case management issues,” he wrote. “Analysts were spending significant periods of time researching cases to determine if a consensual partner reference had been collected. Again, this is not appropriate use of their time.”
The third criminalist said that was consistent with the message the crime lab received, only they did not get the impression that sex crimes would be doing that work instead.
“What they told us was, ‘We can’t find these consent forms, it’s too much effort, sex crimes isn’t going to go looking for us,” the third criminalist said. “We were told we were never going to work those references because we didn’t know where the consent forms were, and we weren’t going to spend the manpower to go look for them. And if you can see that there is a swab available, which takes five seconds, you still can’t test it, because we don’t want to go looking for consent forms.”
Takeuchi referenced the FBI’s rules for uploading profiles to CODIS , stressing that breaching those rules could mean SDPD loses access to the database, if crime lab staff violated the federal DNA Identification Act by improperly submitting DNA records that were given voluntarily for elimination purposes.
Those rules, though, describe what law enforcement should do when “the victim indicates that he/she has engaged in consensual relations,” whereas the city’s policy includes cases in which there is no indication one way or the other.
And, the rules require only that laboratory staffers request a sample from law enforcement and document that they have made the request before uploading any profile to the database.
In August, crime lab leadership conducted another training  with staff on when foreign profiles from rape kits could be added to the federal database.
One workflow chart in that presentation outlined six hypothetical scenarios for uploading DNA from rape kits. In five of them, the criminalists could simply add the profile to the database. That included instances when the detective indicated that there was a consensual partner, but a reference was not available. It also included instances when it was unclear if there was a consensual partner, but the kit was for an active investigation, in which case the criminalist was told to request a sample and document the request. They could then upload the profile right away.
The only scenario in which the criminalist was instructed not to upload the foreign DNA profile was for instances in which the report in the kit did not mention a consensual partner, but the kit was part of the city’s previously untested backlog.
Archambault said the city’s approach on consensual swabs was similar to its decision to test just one swab from dozens of kits, rather than testing at least six swabs as it did as part of its standard testing procedure. She called it a “shotgun approach” to clearing out the city’s backlog.
“What we’re doing is going for the easiest, which is the cheapest,” she said.
Since Voice of San Diego reported the change in testing procedure on that subset of kits, the department has vowed to follow the same testing standards on all kits going forward.
It also said it would join a countywide effort it had previously spurned to test all rape kits by sending them to third-party labs, after District Attorney Summer Stephan, who is spearheading that effort, criticized the city’s process .