Citing victims' wishes, cost, agencies aren't rushing to test old rape kits

One year after revealing the existence of thousands of unprocessed sexual assault exam kits, most law enforcement agencies in Minnesota are deciding not to test them.

The Minnesota Bureau of Criminal Apprehension (BCA) reported late last year that there were 3,482 untested rape kits in police storage around the state. Since then, only about 70 of the old evidence kits have been submitted to crime labs for DNA analysis.

Several agencies told the Star Tribune that they reviewed their stored kits and didn't see a problem. At least two police agencies — St. Cloud with 306 old sex assault kits and Rochester with 145 — decided not to test any of them.

"Each of those cases, nothing fell through the cracks," said Capt. John Sherwin of the Rochester Police Department.

The Legislature mandated the inventory last year, the first tally of its kind in Minnesota, but the law did not require kits to be tested.

Minnesota's measured approach contrasts sharply with states such as Ohio, whose attorney general pushed to ship all old rape kits for DNA analysis several years ago. More than 500 defendants have been indicted as a result.

It's possible more evidence kits remain in hospitals and clinics around Minnesota, since last year's inventory only covered law enforcement.

About one-third of Minnesota's untested kits, or 1,056 kits, came from victims who didn't want to report the assault or pursue a case, according to the BCA inventory, and so those kits wouldn't be tested. But law enforcement gave other reasons for declining to test, such as that a case was unfounded, or prosecutors rejected it because the suspect said the sex was consensual and there wasn't enough evidence to prove otherwise.

The Burnsville Police Department said that six of its 63 old kits were never tested because the suspects were convicted without it.

DNA analysis costs about $1,000 per rape kit.

Of nearly 500 unprocessed kits, the Anoka County Sheriff's Office decided to test just four. Eighty-nine of the kits were from victims who didn't want them analyzed.

Lt. Bryon Fuerst said he didn't tell the women involved in those four cases that their exam kits were finally going to the crime lab because he didn't want to generate false hope. The results did not register hits in the FBI's national criminal DNA database, called CODIS.

News stories about the inventory last year frustrated his agency, Fuerst said, "because the story made it look like we were lazy and not doing a proper job when in fact we take investigating criminal sexual assault cases very seriously."

Lawmakers who spearheaded last year's inventory law said they aren't surprised there's no flurry of testing. The intent of the inventory was open-ended, said Sen. Vicki Jensen, DFL-Owatonna. Departments have the discretion to test or not, and they focus on prosecutable cases.

State law doesn't specify when police should forward kits to crime labs. The BCA's written guidelines are largely focused on collecting the biological material. Kits should be handed to law enforcement or stored until they pick it up, but it doesn't set a time frame.

The BCA would not provide an official for an interview. In e-mailed responses to questions, spokeswoman Jill Oliveira said the BCA does not dictate how law enforcement agencies do their jobs. The BCA's crime labs only accept kits from assaults that have been reported to police, she said.

A bill to require testing of all rape kits in Minnesota from victims who agreed to it was introduced too late last spring for action.

Now, a new "kit testing work group" is hammering out rules for handling the kits. Likely sponsors for the legislation are Jensen and Rep. Marion O'Neill, R-Maple Lake.

Caroline Palmer, legal affairs manager for the Minnesota Coalition Against Sexual Assault, agrees with leaving kits untested if the victim didn't report the assault and agree to test. Victims must be given control over the intrusive exam or it will discourage them from seeking medical help, she said.

That's the view the National Institute of Justice advocates in its new draft of best practices for sexual assault kits. It recommends all kits be submitted for DNA analysis if the victim reported the assault to law enforcement.

Not everyone agrees with the selective approach.

Dr. Steven Miles, a University of Minnesota bioethicist, said he thinks all rape kits should be analyzed so the DNA profile of suspects gets entered into the national CODIS database.

"In public health policy, we are always balancing individual interests and community interests," Miles said. "We don't give hospitals the option of not reporting gunshot wounds."

Miles said he's analyzed the success rate of testing rape kits and estimates that Minnesota's nearly 3,500 untested kits would produce 350 to 700 matches in CODIS, and 15 to 140 prosecutions.

He calls the lack of testing "ridiculous": "Basically, Anoka is allowing serial rapists loose on Minnesota."

Miles points to Cuyahoga County, which encompasses Cleveland, Ohio, as a success. In 2011 Ohio Attorney General Mike DeWine strongly urged testing all kits where there was a reasonable suspicion a crime occurred, and then paid for it. Cuyahoga County tested nearly 5,000 old rape kits. So far it has resulted in 520 indictments and 210 convictions.

One of those indicted, a former probation officer named Nathan Ford, has been linked to 17 rapes around Cleveland.

"This is a gold mine in terms of criminal leads," said Joseph Frolik, spokesman for the Cuyahoga County Prosector's Office. "You need to throw the net out as far as you can."

That's the approach in Duluth, where Mary Faulkner culls cold cases hoping for justice. A victim advocate, she's one of three people hired with the $1 million Justice Department grant to work through the police department's 578 old kits.

It deemed 399 of them eligible for testing. So far, 51 went to the BCA crime lab and 18 have been tested to completion. Only 10 old kits can be submitted at a time to prevent overloading the BCA.

The FBI's national crime lab in Quantico, Va., will take a batch of 30 kits but can't fit them in until next March.

Faulkner gives top priority to cases where the suspect denied contact with the victim or had a history of sexual assaults or accusations, or where the victim was a minor, or American Indian.

So far they've scored two hits on DNA profiles in the national CODIS database.

"We're excited," Faulkner said. "That definitely felt like progress, like what we're doing can lead us somewhere."

Jennifer Bjorhus • 612-673-4683