Report 2014-109 Summary - October 2014

Sexual Assault Evidence Kits

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Although Testing All Kits Could Benefit Sexual Assault Investigations, the Extent of the Benefits Is Unknown

HIGHLIGHTS

Our review of the processing and analysis of sexual assault evidence kits highlighted the following:

RESULTS IN BRIEF

In the last few years, questions about why sexual assault evidence kits are not sent to crime labs for analysis have been raised at the state and national levels. For example, multiple news media outlets have covered stories about unanalyzed sexual assault evidence kits that exist across several jurisdictions in the country. Several major metropolitan areas, including Detroit, Michigan; Memphis, Tennessee; and Los Angeles County, have been the subject of national attention focused on the number of sexual assault evidence kits that law enforcement agencies in these jurisdictions did not send for analysis. In a May 2011 special report titled The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases, the National Institute of Justice—the research arm of the federal Department of Justice—stated that untested sexual assault kit evidence is being discovered at law enforcement agencies across the country. While the report acknowledges that there may be legitimate reasons why a sexual assault evidence kit is not sent for analysis, it concludes that more information is needed about why agencies decide to send some kits but not others.

Victims of sexual assault can choose to provide the law enforcement agencies investigating their cases with biological evidence by undergoing a sexual assault examination. The evidence collected during this exam is stored in a sexual assault evidence kit, and local law enforcement keeps the kit as evidence in the investigation. The local law enforcement investigator (investigator) may request that a crime lab analyze the sexual assault evidence kit in hopes of finding the DNA profile for a suspect in the investigation. The lab can then upload the profile to the Combined DNA Index System (CODIS), a network of local, state, and federal databases that allows law enforcement agencies (agencies) to match DNA profiles against one another. Through this process, labs will sometimes obtain the name of a previously unknown suspect or match multiple cases where the suspect remains unknown. Therefore, analysis of sexual assault evidence kits can be instrumental in furthering the investigations of sexual assaults, especially if the analysis of this evidence occurs within two years of the date of the offense.1 However, we identified no state or federal law that requires agencies to request analysis of every sexual assault evidence kit.2 During our review of three agencies—the Oakland Police Department, the San Diego Police Department, and the Sacramento County Sheriff's Department (Sacramento Sheriff)—we found that these agencies and their associated crime labs analyzed varied proportions of the sexual assault evidence kits they collected from 2011 through 2013, the period we reviewed for this audit. Of the combined total of about 1,900 kits that the three agencies received during this period, they analyzed nearly 850, and almost 140 were still in progress at the labs, leaving about 910 kits unanalyzed.

Investigators at the agencies we visited base their decisions about whether to request a kit analysis on the specific circumstances of an individual case. In place of formal policies, these agencies allow their investigators to use their discretion in making those decisions. Supervisors at each of the agencies we visited described the circumstances in which an investigator might not request a kit analysis. These circumstances include situations in which victims choose not to participate in the investigation of their case, which can sometimes make it difficult to continue the investigation, or when the key issue in an investigation is not about whether sexual activity occurred between two individuals, but rather whether it was consensual. When focused on the individual cases we reviewed, we found these explanations to be reasonable because it is unlikely that sexual assault evidence kit analysis would further the specific investigation when one or more of those circumstances are present, meaning that the investigation reached a conclusion that was unlikely to have been changed by kit analysis. However, our conclusion that these explanations appear reasonable does not consider the potential benefits that analyzing a kit could provide to apparently unrelated sexual assault investigations through the use of CODIS. Nonetheless, in California, adults arrested for specific felony offenses (arrestees) must provide DNA samples, which the California Department of Justice (Justice) then uploads to CODIS. Therefore, CODIS will already contain the DNA profiles of arrestees in sexual assault cases. As a result, unanalyzed sexual assault evidence kits in cases where law enforcement investigators are able to arrest a suspect for certain felony offenses do not negatively impact either the original case or any other investigation because the assailant's DNA profile will be available for matching to other unsolved cases despite the decision not to analyze the sexual assault evidence kit.

Across the agencies we visited, we reviewed 45 cases in which the investigators did not request a kit analysis. In our review, we did not identify any negative effects on the investigation of those cases that resulted from the decisions not to request analyses. Based on the files for each case we reviewed and discussions with investigative supervisors, the circumstances of the case made it unlikely that requesting kit analysis would have furthered the investigation. However, we noted that investigators rarely documented the reasons they decided not to request an analysis—none of the 15 case files we reviewed at either the San Diego Police Department or the Sacramento Sheriff and only six of the 15 cases we reviewed from the Oakland Police Department contained such an explanation. Unanalyzed sexual assault evidence kits have become an issue of state and national discussion, and we believe that the public would benefit if investigators documented why they did not request a kit analysis. With documented reasons for the decisions, agencies would be able to clearly demonstrate to victims, policy makers, and other interested parties why they did not request such analyses. However, since January 2014, the Sacramento County District Attorney's (Sacramento District Attorney) crime lab has been analyzing all sexual assault evidence kits within the Sacramento Sheriff's jurisdiction, eliminating the need for the Sheriff's investigators to document their reasons for not requesting kit analysis.

Even though kit analysis can aid investigations of sexual assaults, the extent to which analyzing more sexual assault evidence kits than are currently being analyzed would improve arrest and conviction rates is uncertain, and additional information is required to determine the true benefit and cost to California of such a policy change. Although investigators at the agencies we visited stated that they make decisions about requesting kit analysis based on the circumstances of individual cases, some groups have argued that all kits should be analyzed regardless of case circumstances. Those who argue for this approach highlight the fact that the evidence in a kit could influence the outcome of other cases because agencies using CODIS can link a suspect in one case to multiple investigations if the suspect's DNA profile is already in CODIS. Proponents of expanded analysis also argue that victims who participate in an invasive examination should feel assured that the evidence they provide will be used to prosecute their attackers.

A state-run program has existed since 2011 that could provide more information about the benefits of analyzing all sexual assault evidence kits. According to the chief of Justice's Bureau of Forensic Services, Justice's Rapid DNA Service (RADS) program tests every sexual assault evidence kit that hospitals collect in the nine counties that the program serves. The primary goal of RADS is for analysts to obtain usable DNA profiles to upload into CODIS in order to find links to suspects or convicted felons in other cases. In addition, the program is designed to provide the results of this analysis no more than 30 days after the lab receives the kit. However, Justice does not currently know the investigative outcomes for the cases associated with those kits such as the number of arrests or convictions. Such information would be valuable as the Legislature considers whether to require an increase in the number of sexual assault evidence kits analyzed in California. Additionally, no comprehensive information is currently available about the number of sexual assault evidence kits that local law enforcement agencies collect annually or how many of those kits are analyzed. Further, no comprehensive data exist about the reasons some sexual assault evidence kits in California are not analyzed. This information would also assist policy makers as they consider whether law enforcement agencies' current approaches in this area need to change.

As the Legislature considers the many issues involved in kit analysis, it could change the statewide approach to analyzing kits in one particular type of sexual assault case: cases with unknown assailants. While it is not known how often kit analysis would aid the investigations of these or other cases, because these cases involve unknown assailants and because a kit analysis could result in a match in CODIS, we believe that kit analysis for these sexual assault cases is a prudent step regardless of most case circumstances. Still, if the Legislature were to consider such a step, we believe that it should exempt some unknown assailant cases from such a mandate. For example, we believe that cases where victims specifically request that law enforcement not analyze their kits should be exempt from any required analysis.

RECOMMENDATIONS

To ensure that the reasons sexual assault evidence kits are not sent for analysis is clear, the Oakland Police Department and the San Diego Police Department should require investigators to document the reason they do not submit a request for kit analysis.

Justice should amend its agreements with the counties participating in the RADS program to require those counties to report case outcome information, such as arrests and convictions, for the sexual assault evidence kits Justice has analyzed under the program. Justice should then report annually to the Legislature about those case outcomes.

The Legislature should direct law enforcement agencies to report to Justice annually how many sexual assault evidence kits they collect and the number of kits they analyze each year. The Legislature should also direct law enforcement agencies to report annually to Justice their reasons for not analyzing sexual assault evidence kits. The Legislature should require an annual report from Justice that details this information.

The Legislature should require law enforcement agencies to submit sexual assault evidence kits to a crime lab for analysis in cases where the identity of the assailant is unknown, with some limited exceptions, and it should require the labs to complete analysis of those sexual assault evidence kits within two years of the date of the associated offense.

AGENCY COMMENTS

The Oakland Police Department, the San Diego Police Department, and Justice agreed with the recommendations we made to their agencies. The San Diego Police Department expressed concerns with our method for determining how many sexual assault evidence kits it processed and how long it took to process them. However, we used the best available information to reach our conclusions. The Sacramento District Attorney provided a response to the audit report that disputed our conclusions about how long its lab took to analyze sexual assault evidence kits; however, our conclusions are correct and we stand by them.

1 If biological evidence in a sexual assault case is analyzed for DNA type within two years of the date of the offense, but the name of the suspect is not known before the regular 10-year statute of limitations on sex crimes expires, state law gives investigating agencies one additional year from the time they conclusively identify the suspect to file charges.

2 In September 2014, the governor signed legislation that will take effect January 1, 2015 that encourages but does not require local law enforcement agencies to analyze all sexual assault evidence kits they collect.