Ohio Attorney General Pushes Statewide Discussion About Testing Rape Kits

Wading into a national debate, Ohio Attorney General Richard Cordray is calling for a statewide conversation among lawmakers, law enforcement and victim advocates about the testing of rape evidence kits.

On one side are those who want all kits submitted to a lab for examination, reasoning that by collecting more DNA profiles, authorities will find links to serial rapists and solve more cases. Others say mass testing is a waste of money and the movement to do so masks the fact that most sexual assaults are committed by someone the victim knows -- not strangers whose identities are in question.

The kits contain evidence collected at hospitals after a sexual assault is reported. Blood, semen, saliva, hair or other evidence can be used to identify or exclude a suspect as an attacker.
Testing policies are inconsistent in Ohio and throughout the country. Here, each law-enforcement entity decides how, and whether, to test rape kits.

While state-run labs in Ohio prefer that cases be vetted for possible useful evidence before the kits are submitted, they won't turn away evidence. And some Ohio cities and counties have locally funded labs that make their own policy or charge by submission. "It's a patchwork quilt," Cordray said in a phone interview last week. "It would make sense to have some kind of universal protocol or best practice."

Cordray began to explore the issue after Cleveland Police Chief Michael McGrath decided to submit all rape kits to state labs for testing this year, a move prompted by questions about how many untested kits the city had sitting on property-room shelves -- and whether testing that evidence could have solved more cases.

Cleveland's shift in philosophy to test all kits is similar to a new law signed in Illinois in July that made it the first state to require that every properly collected sexual-assault evidence kit booked into police evidence be tested within six months. Scrutiny of the process in Illinois was stirred in part after Human Rights Watch, an independent advocacy group, started gathering data last year that eventually revealed that 80 percent of kits collected in that state since 1995 had never been tested. The group's report was part of a series that looked at rape-kit testing and backlogs across the country.

News of the Illinois law re-ignited the national debate among victim advocates, law enforcement and researchers about what makes the most sense: Testing all rape kits submitted to police or only the ones that are needed to investigate and prosecute open cases.
Those in favor of mass testing, including some criminologists, argue that studies show sexual assault to be a pattern offense -- meaning most attackers don't attack only one victim. They believe if more DNA profiles are collected, more crimes are likely to be linked to serial rapists. Anecdotally, that has been reported across the country as more DNA has been loaded into national databases.

Automatic testing might do more harm to victims, critics say Those critical of automatic kit testing argue it is wasteful, irrational and obscures the fact that the majority of rape cases (up to 80 percent, according to national crime surveys) involve people such as relatives, dating partners or acquaintances. Such cases are the least likely to be prosecuted and DNA is not often useful because the issue isn't whether the accused had sexual contact with the accuser, but whether it was forced or consensual.

Wendy Murphy, a former sex-crimes and child-abuse prosecutor who teaches legal seminars at New England Law in Boston, says victims should not be asked routinely to submit to intrusive sexual-assault exams because most of the time they produce little or no useful evidence.
"If we are completely in the dark about who [committed a rape], an exam is absolutely the thing to do," she said. But Murphy said that beyond re-traumatizing victims, most rape kits just muddy the water and cause people to question victims -- especially if they have had other recent sexual partners -- rather than investigate the attacker.

In the majority of rape cases, she said the attacker doesn't even ejaculate or leave semen to be tested. "The reason we have hundreds of thousands of rape kits stacked up in closets all over the country is because they are irrelevant, and even harmful, to cases," Murphy said.
She suggests the idea of throwing money at mass DNA testing is more politically palatable than scrutinizing the reasons that police and prosecutors so often decline to go forward with rape cases. Murphy said that could include such factors as investigations that unfairly focus on a victim's conduct.

Kim Lonsway, a researcher with the nonprofit End Violence Against Women International, said the issue needs further study before more laws are passed or policy created. Lonsway said she has not seen any statistical examination of how many cases are solved or prosecuted based on DNA from rape kits being analyzed en masse. "What we need to keep in mind is that there is also a cost to this," she said. "Women get ground up in this process."

Statewide agreement on issue seen as crucial Bringing the debate back to Ohio, Cordray said the chance to catch more rapists -- and possibly prevent future attacks -- trumps most of the other concerns. "I think it's correct that if we had more testing and more DNA in the database that we could likely catch more rapists," he said. Cordray also said that serial attackers won't respect jurisdictional boundaries of Cleveland or Columbus or any other city, making it vital for all to share evidence and DNA that could solve cases across the state.

Cleveland's decision to send all kits for testing could present an opportunity to examine the effect of wholesale testing of rape kits -- at least on some scale. Previously, the decision about which evidence should be tested was left up to Cleveland's Sex Crime & Child Abuse detectives and supervisors. Evidence collected from victims who later chose not to cooperate with investigators or recanted reports, and from cases lacking investigative leads often was not tested.

In 2009, Cleveland sent the state lab a little more than 40 percent of kits collected in assaults that occurred that year -- 140 of 330. That number is consistent with early results of the city's ongoing kit count, which found Cleveland had more than 6,000 stored kits going back to 1993. A little less than 40 percent of those were confirmed as tested.

Where would Ohio get the money? The big question mark for Cordray -- as for authorities in most other states -- is where to get the money for more testing. Currently, Ohio -- which operates crime labs in London, Bowling Green and Richfield -- does not charge to analyze the kits for forensic evidence or to extract and identify DNA that is used in criminal cases and entered in the databases. And some of the state's larger cities, including Columbus, do their own forensic and DNA testing. Columbus police officials say they currently test all rape kits and Toledo police officials are submitting all their kits to the state lab. Cincinnati police did not respond to calls about testing procedures there.

Cordray hasn't set a timetable for a statewide discussion of the testing issue and faces an election in November. But he worries that hastily throwing together a blanket law, like the one passed in Illinois, could cripple Ohio's crime lab system if not properly funded. Ohio paid out more than $3.5 million in 2009 from its Ohio Crime Victims Reparations Fund to reimburse hospitals for performing and collecting evidence in 6,695 sexual-assault examinations.

About 1,000 kits were submitted to the state lab system for testing last year. How much it cost to test those kits is hard to pinpoint because it depends on how much -- if any-- useful forensic or biological evidence was found in the kit and whether scientists did additional work to identify a DNA profile from the samples.

Nationally, cost estimates for testing range from $250 to $1,500 per kit. In addition to those testing costs, a crime bill passed this year that governs how long police must retain biological evidence and interrogate suspects will force police to collect DNA samples of every adult arrested on a felony charge, Cordray said. Before the bill passed, Ohio collected and entered DNA only from those convicted of certain felony crimes.

The DNA collection part of the bill, which goes into effect in July 2011, did not include a way to pay local law enforcement for the collection of the samples or for the crime lab to analyze them, store them and enter them in databases. That is estimated to cost the lab $1.9 million per year for testing and a one-time million-dollar cost for storage space.
Rachel Dissell, The Plain Dealer