Thursday, April 12, 2018

Myths and dilemmas surrounding DNA testing backlogs

The Fair Punishment Project has a good roundup in its In Justice Today Texas newsletter of stories on Texas' efforts to reduce the so-called "rape kit backlog," and I was pleased to see among them this item identifying "5 myths" surrounding the controversy over un-tested rape kits from the co-founders of People for Enforcement of Rape Laws.

I agree with most of that commentary, but there's one other "myth" they didn't cover: That every un-tested rape kit has the potential to identify a criminal. Many times, the reason rape kits go un-tested is that the identity of the alleged assailant isn't the issue. Rather, the issue is whether a sexual act was consensual, and the existence of DNA doesn't prove culpability.

For more context, check out the lab director from the Los Angeles Sheriff's Office discussing the cost-benefit issues surrounding testing of rape-kit backlogs at a National Institute of Justice event in 2010. They spent $1.7 million to analyze their rape-kit backlog to find just two viable suspects.

In Houston, by contrast, they found many more un-solved cases when old rape kits were tested. IMO that's because HPD was doing a much poorer job of investigating sexual assaults than the Los Angeles Sheriff. This speaks to one of the main critiques of the authors of the "5 myths" article:
The failure of law enforcement to properly investigate rape is not limited to testing rape kits. Too often, investigations are closed before a kit is even taken. Investigating and solving a rape case takes actual police work. Detectives must find and interview witnesses, interview the victim, track down evidence, corroborate the account of events with both the victim and witnesses, and compare the case details to unsolved cases to try to detect patterns. Yet instead of doing this necessary legwork, police unfound, downgrade, and “disappear” rape cases. 
Take the Detroit police department, which, “under nine chiefs, both male and female, sustained a culture in which officers routinely neglected rape complaints or actively discouraged victims from seeking redress, all without fear of consequence,” according to Detroit Free Press columnist Nancy Kaffer. The department, like others, has a long history of underreporting rape. In 2001, the department admitted that the statistics it reported to the FBI for rape arrests — which were at least twice the national average throughout the 1990s — were seriously flawed.
That's a fair analysis, but it doesn't apply to every agency. The examples of HPD and the LA County Sheriff illuminate how widely that can vary from department to department. Not every agency suffers from a culture of neglected rape complaints, but when it happens, it compounds tragedy in bunches.

At one point, the National Institute of Justice had issued a grant to Houston PD (also Detroit) to develop protocols regarding when it was and wasn't appropriate to perform DNA testing on rape kits. There is a detailed website illuminating all sorts of interesting aspects about this project, but Grits has still never seen any final recommendation regarding exactly under what circumstances law enforcement should choose not to have a rape kit processed at the crime lab. (If I've just missed them, please, somebody point them out; once my job ended as the Innocence Project of Texas policy director, I stopped tracking these topics closely.)

Grits mentions this not to discourage testing of rape kits, nor to make excuses for those in the past who allowed rape cases to languish un-investigated. But because there are, in fact, viable circumstances under which the expense of rape-kit testing isn't justified - particularly in cases where the principle issue is consent, not identity - until such protocols are promulgated, law enforcement will continue to make decisions about whether to test rape kits on a case by case basis.

Better to just create a set of reasonable best practices then pressure everyone to follow them, than to insist that every rape kit be tested and backlogs always = zero. Then, police will know what's expected of them and the public will better understand why an un-tested rape kit isn't per se evidence of police negligence or incompetence.

Another question raised by such test-or-no-test protocols: Might there be rape victims who are unnecessarily subjected to invasive evidence-gathering procedures who needn't be? It's not fun to go through that (I'm told), and in cases where it's clear from the get-go it's not necessary, maybe a lot of these women needn't go through the experience in the first place. Stranger rape is pretty rare, after all. If police were trained up front when rape-kit evidence might be pertinent to an investigation and when it's unnecessary, maybe you could chip away at the number of un-tested kits from that direction.

Finally, having mused over this recent spate of reporting on the topic, Grits should point out a related, recent article from the Washington Post that raises the fraught and difficult question looming over all these rape-kit backlog debates: What happens when the results come back? Nothing simple, is the short answer.  Houston's approach seems as reasonable as any:
Houston tried a different model. A hotline was set up and publicized, so that any victim who wanted information about their old kit could ask for it. Then, police and prosecutors combed through the CODIS hits and decided which cases actually had a chance of moving forward in the criminal justice system. Victims were notified only if their cases seemed “actionable.” “What’s at stake is the well-being and mental health of sexual assault victims,” says Noël Busch-Armendariz, a researcher who was involved in Houston’s process. “You never know where people are in their lives and what support systems they have or don’t have ready for them.”
Louisville, by contrast, notified every woman on the list her kit would be tested, even if there turned out to be no one else's DNA in the sample. "In Virginia," according to the Post, "this dilemma would ultimately pit police, prosecutors, advocates and lawmakers against one another, making the situation far more complicated than they ever intended. Everyone wanted to do the right thing for victims; there was just no way to know what that was."

Ironically, for a situation in which everyone wants to "do the right thing for victims," often victims opinions in the process are either unsolicited or roundly ignored.

These are incredibly difficult questions which won't be resolved anytime soon. The USDOJ under the Trump Administration has issued a recommendation that every rape kit associated with a criminal complaint be tested, reported the Post, but law enforcement agencies on tight budgets likely will balk at truly unnecessary testing, especially if it becomes required in volume.

Your correspondent doesn't have solutions to these issues, but there's a growing urgency to confront them.


Steven Michael Seys said...

Of course the sensible thing, establishing a good policy on when to collect DNA evidence in a potential rape case as you suggest, Scott, will be the least likely action taken because it would work. For a better understanding of the reasons this is so search for Murphy's Law and the Peter Principle on your favorite engine

Anonymous said...

You're correct that many rape kits aren't tested for DNA because a suspect confesses to having sex with the victim. But that's not a good excuse for not doing an analysis. Certainly, in many of these cases the only issue is consent. The problem with not doing the test is that prosecutors then have to use a suspect's self serving statement at trial to corroborate the victim's allegation that sexual penetration occurred. This can create a scenario where a defendant gets to have his statement put before the jury without having to testify or be subject to cross examination in court. With a DNA identification derived from a SANE exam, the prosecutor has the ability to prove penetration without having to use a defendant's statement. Unfortunately, as you suggest, in all too many cases law enforcement doesn't go the extra mile to get all available evidence. In a prosecution, where the only dispute is consent, I also worry that many of these cases become undervalued by prosecutors who may develop some skepticism regarding a victim's account that there was no consent. Without a test, there may event be an implicit suggestion incorporated into the case that the victim's claim of forcible penetration is not credible. Thorough and complete investigation with the gathering of all relevant evidence could help avoid this circumstance. In any event, you're correct that good investigative protocols would go a long way toward addressing this issue.

Anonymous said...

Are you advocating that the kits from non-stranger (i.e. consent in question) not be submitted to the crime laboratory at all or that they be submitted and screened for biological evidence but not forwarded on for DNA testing? Under SB1636, law enforcement is required to submit sexual assault evidence to a crime laboratory within 30 days of receipt.

I'm not saying that I disagree with your position, just want clarification. If the position is that not all kits need to be analyzed at all, then the legislature would have to rescind the directives set forth under SB 1636.

Gritsforbreakfast said...

"Advocating" is strong, 10:51. I'm saying that, once the never-issued protocols are developed, then it might be worth having a conversation about whether it's necessary to require rape kits in cases where the protocols say they are not needed. 6:57's comments aside, there are a significant number of LEOs which don't believe testing in every case is necessary - which is what I was told repeatedly by cops, prosecutors and lab directors when I was at IPOT and this backlog issue first came up. To me, that raises "then why do them?" as the next logical question. The NIJ grant was supposed to answer that question, but as mentioned, I can't tell if they ever issued formal recommendations on that score.

I'd be curious if SB 1636 is being strictly followed. I'm pretty sure there's no enforcement mechanism for monitoring and punishing agencies that don't submit every SAK. And for agencies that don't send them to DPS, that's an unfunded mandate. For them that do send them to DPS, their crime-lab budget wasn't fully funded.

Maybe 6:57 is right and there are reasons to process rape kits when the identity of the assailant is not in question. That's why I said it's a complicated issue, I don't have the answers, and couched my comments on that question in mights and maybes. These are emerging issues I've flagged for consideration, I didn't and won't here take a hard stance on the topic.

Carl Fox said...

Crime labs need to have a "backlog" of rape kits so they can justify asking the Feds for millions of dollars in grant monies. This is a money thing, not a justice thing. How much money has been pumped into the crime labs to solve these problems in the past decade? How much headway has they made? Is there accountability for wasted money?

Anonymous said...

A couple comments on the issues related to consent cases.

The intent of SB1636 was to get assailant DNA profiles into the CODIS database as quickly as possible.

In stranger-on-stranger cases, this would potentially have two investigative outcomes: (1) It might identify a suspect through a CODIS hit to a convicted offender; or (2) It might link the assault to one or more other unsolved assaults or other crimes.

In consent cases, outcome (1) is foregone; the suspect is already identified. However, outcome (2) is still a legitimate investigative need. When there is a conviction in a consent case without DNA testing, then outcome (2) will still happen, but at a later time - when the now-convicted assailant’s known DNA profile is put into the database as a convicted offender profile. However, if the suspect is acquitted then outcome (2) won’t happen. So, there is an investigative need to get the suspect’s DNA profile into CODIS during the investigative stage, even in consent cases.

There is a separate mechanism for getting suspect DNA profiles into CODIS, separate from analysis of kit evidence. Many states allow for DNA databasing of arrestee DNA profiles in all sexual assault cases. Texas law allows for this, but with restrictions. Texas law allows for the DNA databasing of suspects upon indictment, or at the time of arrest if the suspect has certain prior convictions.

There is a move afoot to put booking station DNA testing of arrestees in place. The idea is that this would allow for CODIS database searching of an arrestee’s DNA profile while he is still in custody. If Texas law were expanded to allow for the DNA testing of all arrestees in sexual assault cases (similar to the approach in other states), then the investigative need for DNA testing of kits in consent cases would be eliminated. The need for DNA testing for trial purposes would still remain, however.

While I understand the prosecution’s need to do DNA testing in consent cases (for the reasons laid out by @6:57), the purpose of the up-front DNA testing required under SB1636 was not to ensure that the prosecution gets all the testing it needs for trial. The best way for that to happen is still for the prosecutor to review the evidence that was collected, make decisions about what testing is needed for trial, and then communicate that need to the detective and/or the laboratory so that the testing gets done.

Oprah, not her said...

Is placing DNA testing back into law enforcement's hands (next to a booking station) a good idea? That was part of the gist of the NAS Report 2009 -- to NOT have scientists and cops mix, keep them independent.