Required testing of rape kits removed from bills

Hundreds of rape kits that have sat on the shelves of police storage facilities untested for years will likely remain there — at least for the near future — after House and Senate committees deleted requirements in proposed bills that would require county police departments to test the evidence kits.

Lawmakers also removed a requirement that police departments submit new rape kits for testing to a lab within 10 days of receiving them and that tests be completed within six months — a mandate that many advocates for victims of sexual assault say is critical to ensuring that backlogs of untested rape kits don’t continue to accrue.

Rape kits contain DNA evidence collected by medical staff from the bodies and clothes of victims after an alleged sexual assault, such as hair samples and swabs of bodily fluids, which are then submitted to law enforcement agencies. Increasingly, cities and counties throughout the country have been clearing out backlogs of thousands of rape kits and uploading the results to the Federal Bureau of Investigation’s national DNA database, known has CODIS, which has helped solve cold cases and identified serial rapists.

Both House Bill 1907 and Senate Bill 2309 were amended this week, at the request of the Honolulu prosecutor’s office, to instead require the Attorney General’s Office to compile a report on untested rape kits throughout the counties to determine how many there are, why they weren’t tested, potential funding sources and how best to reduce the inventory of kits.

The changes have frustrated a number of victim advocates, who in recent weeks fought back against the proposed amendments during legislative hearings.

Ann Freed, co-chairwoman of the Hawaii Women’s Coalition, which advocates for issues affecting women and girls in Hawaii, said during a Thursday hearing at the state Capitol that delays in testing kits have gone on for too long.

“We in the women’s advocacy community have been talking about this issue for decades and I can only conclude that some of the attitudes I hear from law enforcement are that our problems are trivial because they are women’s problems,” Freed told the Senate Public Safety, Intergovernmental and Military Affairs Committee, led by Sen. Clarence Nishihara (D, Waipahu-Pearl City).

“The argument that this is costly — OK, find the money. This is a public safety and health issue,” Freed continued, citing research showing that most rapists are serial rapists.

Debate over how to handle rape kits erupted earlier this year after the Honolulu Police Department revealed that it had 1,500 untested kits in storage, some dating back to the 1990s.

Lawmakers subsequently amended legislation requiring law enforcement agencies to report on the number of untested kits, instead requiring them to actually test the kits.

But there has been pushback from the county prosecutors, the Honolulu Police Department and the Attorney General’s Office. Officials from the departments have presented various arguments in recent weeks as to why the state shouldn’t move forward with testing mandates at this time.

They’ve raised concerns about a lack of money to test the kits; whether testing could retraumatize some victims; whether it makes sense to test all kits or just some; and whether there are constitutional issues when it comes to kit testing when there is insufficient evidence to charge the accused or if the sexual encounter was later determined to be consensual.

Dave Koga, a spokesman for the Honolulu prosecutor’s office, emphasized earlier this month that the office supports reducing the backlog of untested rape kits, but is particularly concerned about the potential harm a mandate to test all kits could have on some victims.

“Primarily, we are concerned about the potentially traumatizing effect of mandating testing without knowing … whether the victim wishes to proceed, especially in cases that may be very old or involve persons who did not want to press charges in the first place,” he said by email.

Adriana Ramelli, executive director of the Sex Abuse Treatment Center at Kapiolani Medical Center for Women and Children, has also raised concerns about the testing mandates and has supported the amendments proposed by the Honolulu prosecutor’s office.

She has emphasized the need to first work out the complicated issues surrounding victim notification when it comes to testing rape kits that date back years, such as whether all victims should be notified or only those who have hits in the DNA database. She said that the issue of testing rape kits has been oversimplified.

“If you are going to think about just jumping in and mandating and testing kits without thinking about the victim notification process, you are going to do a great disservice to what is going on here,” she told members of Thursday’s Senate hearing.

Ramelli noted a Detroit study, involving a large backlog of rape kits, that found that 16 percent of alleged victims who were notified that their kits had been tested reacted negatively, some angry that an old trauma had been reopened. Some 29 percent of those notified had positive reactions, including relief or happiness, and 55 percent didn’t have strong reactions either way.

Ramelli’s stance has divided the advocacy community, however.

Kata Issari, executive director of the Joyful Heart Foundation in Hawaii, said that a victim notification process is indeed important, but that it should be included as part of a mandate to move forward with testing kits, rather than hamper it.

“It’s time to establish a legislative mandate to make sure that we don’t get into this situation again and that we bring justice to those that have a kit in the backlog,” Issari said.

The Joyful Heart Foundation, based in New York, has advocated nationally for processing untested rape kits, concerned that the backlogs have accrued because law enforcement has not prioritized the cases, doubted the reports of victims or don’t fully understand the power of DNA.

Issari and others also stressed rape victims expect that their kits will be tested by law enforcement when they undergo the exam, which can be painstaking and last for hours.

Sen. Will Espero (D, Ewa Beach-Iroquois Point), vice chairman of the Public Safety, Intergovernmental and Military Affairs Committee, suggested that the larger problem may be that victims aren’t notified that their kits go untested.

“Knowing that there could be a sexual assault and there is a victim and nobody gets back to you on whether that was tested or not — what does that say about the system?” Espero said during Thursday’s hearing. “It says that I don’t care that much about this crime, which is primarily against women. That is the way I read it.”

Still, Espero voted in favor of striking the testing mandates, though “with reservations.”

He said after the hearing that the important thing is that the bills are still alive and open to continued amendments as they move through the Legislature.