July 7, 2010

V. Untested Rape Kits in Illinois Police Storage Facilities

I would guess that the vast majority of kits I have collected have never been sent for testing. Or, at least, the results were never used, because if they were, I would have been called upon to testify about how I collected the kit. In my 10 years doing this work, I have collected at least 500 kits and only heard back from the police about one of the rape kits.
—sexual assault nurse examiner in Illinois[77]
The day after my rape kit was collected I went to the police for my interview. The police officer spent the whole interview asking me about my character, my actions that night. He didn’t seem interested in hearing about my rapist’s behavior. At the end of the interview, he told me he didn’t think I had a very strong case. I called for months afterwards to see if they were going to test the rape kit, but I never heard back.
—rape survivor in Illinois[78]
We want every one of our rape kits tested. Every kit is evidence, and has so much potential to help a case—potential that you don’t even realize until you get the test results back.
—Tom Byrne, chief of detectives, Chicago Police[79]

As of May 2010 there were at least 3,926 rape kits in Illinois storage facilities that law enforcement confirmed were not tested, based on public records data sent to Human Rights Watch from 148 agencies. This number may be higher, as it only represents those rape kits where law enforcement could confirm their status. There are an additional 2,094 kits in storage that law enforcement could not confirm whether they were tested or untested. The vast majority of these untested rape kits were never requested for testing. But in some instances, the rape kits in police storage were sent for testing, but returned from the crime lab untested because the case was closed by the state’s attorney’s office.

Most individual police department policies that Human Rights Watch reviewed in the course of its research for this report still allowed detective or department discretion in deciding which rape kits to send to the crime lab, a practice which will be remedied by the 2010 Sexual Assault Evidence Submission Act’s requirement that all rape kits collected by police be sent to the crime lab for testing within 10 days of collection.[80]

Law enforcement gave Human Rights Watch various reasons for not sending rape kits to the lab for testing. By far the most common reason was the belief that testing was not necessary in an “acquaintance rape”—when the identity of the alleged perpetrator was known to the victim no matter the history, or lack thereof, in their relationship. Law enforcement held this view despite the possibility that the collected evidence could connect a suspect to multiple rape kits and establish a serial rapist, discredit the suspect’s version of events and affirm the victim’s version of events, or exonerate innocent suspects. As one police official told Human Rights Watch, “We don’t need the DNA test when we know who the suspect is already without it. It would be a waste of everyone’s time and money.”[81]

Police also told Human Rights Watch they would not submit a rape kit unless they thought they had a “winnable” case on their hands. For example, one police official told Human Rights Watch in explaining why his department did not send every rape kit for testing, “I don’t know if you know about our community but we are a university community—98 percent to 99 percent of criminal assaults involve acquaintances and end up without prosecution. That may be where the issue is—a consent issue. A lot of our sexual assault reports [involve sexual assaults that] start out as consensual sex but then turn non-consensual.”[82]

Other officers have pointed out to Human Rights Watch that victim credibility is often the key issue in deciding how to move a case forward, including whether to submit the rape kit for testing. As one officer told Human Rights Watch “In my experience, many rape victims are lying. They come forward to hide from their parents that they had sex with their boyfriend, or they want attention. In other cases, the victim’s story doesn’t make sense, or maybe it does but there is no way a jury is going to believe her over the suspect.”[83]

Backlogs at the state crime laboratory may also influence officers not to send in rape kits. Some officers told Human Rights Watch that they don’t submit the rape kit for testing because they know it could be months, if not years, before it gets tested. An investigative detective told Human Rights Watch, “If the evidence is absolutely crucial to making the case, I will beg the crime lab to test the kit, and put it closer to the top of the pile. But if I am not sure the rape kit test will add anything to the case, I will save up my favors with the crime lab for another case.”[84]

Not sending a rape kit to the crime lab for testing can have a significant impact on a victim’s experience with the criminal justice system. One victim told Human Rights Watch, “I feel so stupid for going to the police. What made me think they would take my case seriously? I would feel better if I had just kept my rape to myself.”[85] Even if law enforcement decides not to test a rape kit, communicating that decision to the victim in a timely and informative way may ease the victim’s experience. As one rape victim told Human Rights Watch, “They may have had a reason not to test my kit, but I wouldn’t know because I didn’t get any information about my case, much less information about why certain investigative decisions were made. Just knowing the reasoning behind the police’s decision not to move my case forward may have helped me a little.”[86]

Even in instances where the police do move an investigation forward, not sending the rape kit for testing to the crime lab in a timely way can have negative consequences for the victim. Human Rights Watch spoke with a family member of a 7-year-old child who was repeatedly raped by her stepfather over a period of two years.[87] When she reported what was happening to her mother, she took the girl to the hospital and the nurse noted the presence of semen. If the police had tested the rape kit and found the stepfather’s semen, the state could immediately move forward with rape charges, as there is no defense for statutory rape. Although the police were moving the investigation forward, and charges were eventually filed against the stepfather, the rape kit sat untested in police storage for more than a year. During that time, the victim’s family had gone to family court to obtain an order of protection against the stepfather. In the absence of the rape kit evidence as proof of the stepfather’s crime, the victim had to testify at the hearing, “which was a very difficult experience for her,” a family member told Human Rights Watch.[88] The daughter also seemed to feel that the rape kit evidence was important. “Although we believed her story, I think she was looking for some outside evidence that what she was saying was true. The stepfather was denying anything had happened, and the daughter seemed to grow increasingly anxious to have proof in her case that what she knew happened had really happened.”[89] After a year, the police finally sent the rape kit to the lab for testing, and the test results showed that the stepfather had raped the child.

The large number of untested rape kits in Illinois storage facilities, and the lack of knowledge on the part of most law enforcement agencies of their true number, make it especially important that Illinois’s response to its rape kit backlog is part of a comprehensive, specific, state-wide plan that is made known to the public and subject to significant monitoring and oversight. The 2010 Sexual Assault Evidence Submission Act, if effectively enforced, will provide such a plan and result in each of these untested rape kits, as well as every future rape kit booked into police evidence, being sent to Illinois state crime lab system (or other designated laboratory) for testing.[90] But as Human Rights Watch’s research demonstrates, the crime lab already has its own backlog. The arrival of backlogged kits from police departments will exacerbate the problem. The crime lab simply does not currently have the capacity or resources to test every booked rape kit in Illinois in a timely manner.

[77] Human Rights Watch telephone interview with sexual assault nurse examiner, Peoria, IL, August 11, 2009.

[78] Human Rights Watch telephone interview with rape survivor, Aurora, IL, April 2, 2010.

[79] Human Rights Watch telephone interview with Chief of Detectives Tom Byrne, January 15, 2010.

[80] Sexual Assault Evidence Submission Act of 2010, http://www.ilga.gov/legislation/96/SB/PDF/09600SB3269lv.pdf, sec. 10.

[81] Human Rights Watch telephone interview with police official, Galesburg, IL, November 4, 2009.

[82] Human Rights Watch telephone interview with police officer, southern Illinois, January 26, 2010.

[83] Human Rights Watch telephone interview with police officer, central Illinois, January 25, 2010.

[84] Human Rights Watch telephone interview with police detective, Joliet, IL, October 12, 2009.

[85] Human Rights Watch telephone interview with rape victim, Evanston, IL, November 6, 2009.

[86] Human Rights Watch telephone interview with rape victim, Chicago, IL, April 4, 2010.

[87] Human Rights Watch telephone interview with rape victim family member, Bloomington, IL, June 16, 2009.

[88] Ibid.

[89] Ibid.

[90] Sexual Assault Evidence Submission Act of 2010, http://www.ilga.gov/legislation/96/SB/PDF/09600SB3269lv.pdf.