Minnesota drafts new rape kit protocols with timetables for testing

Minnesota law enforcement agencies would get clear, mandated timetables for testing rape kits under a plan drafted by House lawmakers to improve the state's investigation and prosecution of sexual assaults.

The legislation, introduced this week, seeks to standardize the handling of sexual assault evidence in the wake of a 2015 audit that revealed 3,482 untested rape kits in police storage across the state — some dating to the early 1990s. The bill does not mandate testing of old kits but sets statewide standards for processing new kits.

Police would have 10 days to obtain a finished sexual assault evidence kit from a hospital or clinic after a rape is reported and another 60 days to ship it to a forensic laboratory for DNA testing.

The bill, co-authored by Rep. Marion O'Neill, R-Maple Lake, calls for testing kits only in cases where the victim agrees to report the assault to police and to have the kit tested. Police must pick up these "unrestricted" kits and send them for testing under the new timelines, and the kits must be stored for a minimum of 18 months.

The bill does not address what to do in cases when victims do not want to report their assault to police, which applies in a significant share of sexual assaults.

"That's one of the most challenging aspects of this conversation," said Caroline Palmer, legal affairs manager for the Minnesota Coalition Against Sexual Assault (MNCASA).

On Tuesday, Palmer and other members of a work group that drafted the new legislation gave the House Public Safety Committee an overview in an informational hearing. The bill will likely have its first formal hearing in the committee next week.

Police will maintain some discretion in the process, since the bill requires testing only when law enforcement agencies determine that the rape kit result would add evidentiary value to the criminal case. If police decide not to submit a kit, they would have to consult a county attorney and provide a written explanation.

"It's very clear that that kit has to have evidentiary value to move forward," O'Neill said at Tuesday's hearing.

Defining "evidentiary value" was a point of discussion as the hearing proceeded. O'Neill said the state Bureau of Criminal Apprehension, which runs two of the four Minnesota crime labs that conduct DNA testing, can handle about 1,000 kits a year, and she said she does not want to overwhelm it.

The legislation also requires law enforcement agencies to provide assault victims with basic information on their kit within 30 days of a written request, including the date it was submitted to a lab and whether a DNA profile was obtained.

On Tuesday, Palmer appeared before the committee with several members of the special state task force, which included about 35 professionals from law enforcement, medical facilities and victim advocacy groups, county prosecutors' offices, state agencies and laboratories.

Linda Walther, a sexual assault nurse examiner, walked lawmakers through the steps of a sexual assault exam, a highly invasive procedure that takes two to four hours. She said nurses record what happened in the assault, document injuries, and collect any evidence left behind such as body fluids, hair or skin. They also provide medications to prevent sexually transmitted infections.

If the victim wants to report the assault to police, the nurses call law enforcement to pick up the rape kit. If the victim does not want police involved, hospitals and clinics store the kits. Hold times vary widely across the state, Walther said. It's not known how many of these "restricted" kits are being stored in hospitals because Minnesota's audit didn't include medical facilities.

Walther held up the tools of the trade for the committee members, including a speculum, and passed around a sample kit.

"Opening the kit was eye-opening for me," O'Neill said. "There's 12 swabs in there."

If the kit contains enough material for a DNA profile of a suspect, it's entered into a group of criminal justice databases known collectively as CODIS, which store data on people who have been convicted of or arrested on charges of sexual assault, as well as DNA profiles from other sexual assault exam kits and other evidence. Such hits can be critical to cracking cases and linking suspects to other assaults.

If they get a hit from any of the databases, lab staff send the information to the submitting law enforcement agency for follow-up.

Lab testing of a sexual assault kit costs about $1,000, an expense borne by the Bureau of Criminal Apprehension for kits submitted to its two labs.

The new legislation does not allocate money for testing kits in the future — or for testing kits now in storage. MNCASA and other groups plan to apply for a U.S. Department of Justice grant to pay for a full inventory of the state's old kits, developing protocols for testing them and the actual tests. The federal program has distributed about $111 million nationally since the start of fiscal 2015 to address untested kits.

The Duluth Police Department, which had one of the state's largest caches of untested kits, has received $2.1 million from the federal program to work through its backlog of more than 500 rape kits. So far, the department has produced at least 19 CODIS hits and referred nearly a dozen cases for prosecution.

Jennifer Bjorhus • 612-673-4683