County prosecutors oppose legislation calling for rape kit evidence to be processed

Key lawmakers are wavering on whether they will require law enforcement agencies to test hundreds of unprocessed rape kits that have sat in county storage facilities for years and sometimes decades.

Rape kits contain forensic evidence collected from the bodies of sexual assault victims, such as hair samples and swabs of bodily fluids.

After the Honolulu Police Department disclosed earlier this month that it had 1,500 rape kits dating back to the 1990s that have not been tested, lawmakers amended Senate Bill 2309 to not only require law enforcement agencies to report to the Legislature on the number of untested kits, but also to actually test the kits.

The measure is now garnering resistance from county prosecutors who say the state needs to be cautious in how it proceeds when it comes to testing old kits, saying in part that it could result in unintentional harm to victims.

State Sen. Laura Thielen, who has championed bills pushing for testing requirements, said Friday that it might be easier to pass a bill this year that requires counties to report the number of untested kits they have in storage and provide a better accounting of why some kits are tested and not others.

“Maybe we are not going to get to the point of a bill ordering all kits be tested,” said Thielen (D, Hawaii Kai-Waimanalo-Kailua). “But HPD has a lot of explaining to do.”

SB 2309 would also require rape kits to be sent to a lab within 10 days and require labs to process the kits within six months, provided there are sufficient resources.

Honolulu Prosecutor Keith Kaneshiro, with the support of prosecutors’ offices on Maui and Hawaii island, says that the state should defer the bill and instead require the attorney general’s office to conduct a study on untested kits to pinpoint how many there are, why they haven’t been tested and how much it would cost to process them.

“While well intentioned, we believe (Senate Bill 2309) would impose sweeping changes without first understanding the issue that it is trying to address; we are particularly concerned that the potential benefit and/or harm to victims has not been fully considered,” wrote Kaneshiro in testimony on the bill. “Before any unilateral changes are made — and unknown amounts of funding, time and resources dedicated to carry them out — we strongly urge the Legislature to gain a full understanding of the issue first.”

Kaneshiro says that disclosing the number of untested kits could also be detrimental.

The numbers alone “have little or no meaning” without a “full understanding of all relevant factors,” he wrote. “In fact, without a true understanding of the complete picture, numbers alone may actually give rise to unfounded speculations, misdirected alarm, and ineffective (or worse, detrimental) action that may, in fact, unintentionally harm the very victims that we are trying to protect.”

His office did not respond to the Honolulu Star-Advertiser’s request asking Kaneshiro to elaborate on the potential unintended consequences for victims.

It can take hours to collect the evidence that goes in a rape kit.

“It’s a really exhausting and invasive exam,” said Kata Issari, Hawaii regional director of the Joyful Heart Foundation, which advocates for victims of sexual assault.

Issari said that the only reason a sexual assault kit shouldn’t be tested is if the alleged victim doesn’t want it to be. Sometimes victims have kits filed anonymously with law enforcement agencies and stored in case they decide to move forward with a case.

There has been increasing momentum nationally to process untested rape kits that for years have languished in evidence rooms in cities and counties throughout the country and upload the information to the Federal Bureau of Investigation’s national DNA database, known as CODIS.

The testing has helped identify serial rapists and solved dozens of cold cases.

POLICIES VARY BY COUNTY

Kauai is the only county that has cleared out what it described as a backlog of untested rape kits. Since 2012 the county has applied for and received $48,000 annually in federal grant money under the Violence Against Women Act, said Kauai County spokeswoman Sarah Blane.

The funding has helped test 65 kits.

The county uses a private lab, Sorenson Forensics, based in Salt Lake City, to test the kits. Eligible DNA information is uploaded into CODIS by the Honolulu Police Department’s Scientific Investigation Section.

Blane said that all kits are tested unless an assailant confesses, which is rare.

This policy contrasts significantly with those of Honolulu, Maui and Hawaii county police departments.

Officials for both Maui and Hawaii county said they don’t know how many sexual assault kits they have in storage that have not been tested.

“The rape kits are sent to the Honolulu Police Department for testing on an ‘as needed’ basis. Meaning when our prosecutors are ready to try the case, they have our detectives send the kits to the Honolulu Police Department lab for appropriate testing,” said Maui Police Department spokesman William Juan by email.

HPD operates the only crime lab in the state. The director of the lab said earlier this month that the lab lacks sufficient resources, is struggling with an overall backlog of forensic tests for violent crimes and accepts neighbor island sexual assault kits when it can.

Juan said that some cases “just haven’t been screened by the prosecutor’s office yet.” In cases where a perpetrator has already been identified, he said there is sometimes no need to test the kit.

“In another twist, ‘victims’ may ask to have a rape examination performed on them, yet not make a police report,” he said. In these cases the kits are stored in case the person decides to pursue prosecution.

Juan said MPD has not applied for federal funding to test any of the kits it has in storage.

Robert Wagner, a captain with the Hawaii Police Department, said that his department doesn’t test kits if the victim decides not to go forward with prosecution or if a victim files a kit anonymously and hasn’t decided yet whether she wants to pursue a case.

But he said the Hawaii Police Department doesn’t have a set policy.

“As for a department policy, we do not have one specific to testing of kits, we go by how we investigate cases in general, which is do what it takes to solve it,” he said by email.

HPD has provided inconsistent responses in recent weeks about the status of its untested kits. But the department has signaled that it’s taking a closer look at the hundreds of kits it has in storage and plans to begin testing some of them with the help of federal funds.

“We are going to go one by one through all those 1,500 cases,” said Deputy Chief Marie McCauley during a press conference earlier this month. “We are going to find out what the reason was, why the case didn’t go and why there was no request to have it tested.”

THE POWER OF DNA

Advocates for victims of sexual assault have spent years prodding law enforcement agencies throughout the country to process sexual assault kits that have sat on the shelves of evidence rooms untested, sometimes unbeknownst to the victims. Media investigations have estimated that nationally the number of untested rape kits is in the hundreds of thousands.

Those efforts have been increasingly successful, with a number of cities clearing out backlogs of rape kits.

Between 2000 and 2003 New York processed 17,000 untested kits. The results led the Manhattan District Attorney’s Office to file 49 indictments based on DNA cold-case hits, according to information from the New York County District Attorney’s Office. Combined, the offenders are serving more than 900 years in jail.

Law enforcement officials in Los Angeles discovered more than 12,000 kits that hadn’t been tested. An inventory of the cases found that in hundreds of them the perpetrator was unknown to the victim, according to a report by Human Rights Watch. The city finished testing the kits in 2011 and found 753 matches in the FBI’s database.

As of the end of last year, Detroit was in the midst of processing 11,341 untested rape kits that were discovered in a Detroit Police Department storage facility, according to the website End the Backlog, which is run by the Joyful Heart Foundation. Out of 10,000 kits that had been tested, there were 2,616 DNA matches. The testing also identified 652 potential serial rapists.

While three cities have now processed their untested kits, according to information collected from End the Backlog, more than two dozen cities and counties, including San Francisco; San Antonio; Nashville, Tenn.; New Orleans; and Flint, Mich., are currently conducting testing.

Sixteen states have passed laws reforming how sexual assault kits are handled, and 18 others, including Hawaii, are considering reforms, according to the website.

The Obama administration has also provided tens of millions of dollars to local jurisdictions to assist with inventorying and testing kits.

Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation’s New York office, has been working on the issue of untested rape kits for 15 years. She said law enforcement officers sometimes don’t believe the victims of sexual assault and that there’s been an unwillingness to prioritize the cases.

“When you mandate the testing, you are sending a powerful message to survivors that what happened to them matters and that their case matters,” said Knecht. “It’s also a pathway to safer communities and a more effective criminal justice program.”

Knecht said local officials don’t always fully understand the power of DNA databases as a crime-fighting tool.

“These criminals are often serial criminals, they are not just rapists. They commit all sorts of crimes,” she said. “And we are just starting to see of course in many communities that are taking on this policy of testing all of the kits, that they are connecting crimes that they wouldn’t have before.”