State law enforcement pushes for new rape kit testing protocols

Minnesota law enforcement agencies are pressing for legislation that would create centralized storage of rape kits and establish clearer testing protocols in a push to expand protections for victims of sexual assault.

The bipartisan bill introduced last month seeks to further standardize the handling of sexual assault evidence in the wake of continued backlogs that have left hundreds of untested rape kits sitting in police storage — some dating back 30 years. The draft proposal does not mandate testing of old kits but sets statewide standards for processing new ones.

"Right now, we suffer from an inconsistent patchwork of responses," Ramsey County Attorney John Choi said during a virtual news conference with medical and law enforcement partners Monday morning. "That's not what sexual assault survivors deserve."

The bill, co-authored by Rep. Marion O'Neill, R-Maple Lake, expands on a 2018 law ensuring that authorities process exam kits only in cases where the victim agrees to report the assault and to have the kit tested. Currently, police are required to pick up those "unrestricted" kits from health care facilities within 10 days after a rape is reported. They have another 60 days to ship it to a forensic laboratory for DNA testing. Kits must then be stored for a minimum of 18 months.

However, previous legislation failed to address what to do in cases when victims do not want to report their assault to police, which applies in a significant portion of sexual assaults.

The new measure aims to rectify that. Restricted kits, or those not given explicit permission to test by victims, must be submitted directly to the state Bureau of Criminal Apprehension (BCA), which runs two of the four Minnesota crime labs that conduct DNA testing. The agency will retain that evidence for at least 2 ½ years.

Sometimes victims change their mind about reporting the rape after a period of time has passed, officials said. If those tests are thrown out before they do, it can cause further trauma.

"What this does is preserve their choice," said Ellen Johnson, supervisor of the Regions Hospital Sexual Assault Nurse Examiner (SANE) program. "It's very victim-centered if the kit is held onto."

In 2018, Ramsey County sheriff's deputy Jessica O'Hern received a call from a victim who'd decided to move forward with a formal police report seven months after her assault. O'Hern tracked down the exam kit at HCMC just before it was destroyed. That evidence led to the eventual conviction of her attacker.

Since then, O'Hern has taken it on herself to collect all restricted kits on a destruction schedule from the hospital to store them at the Sheriff's Office so they won't be lost before a victim can seek justice.

"Communities across the state of Minnesota should not be having to rely on the heroics of an investigator to go out and collect rape kits from hospitals," said Choi, whose office purchased a new refrigerator so Regions Hospital could expand its storage capacity last year. "We need to have clear direction."

Under new guidelines, labs that process unrestricted kits would return them to the submitting law enforcement agency, where they would be stored indefinitely.

Revised timetables limit police discretion for holding back certain exam kits by eliminating language that says officers don't have to test kits if they think the results will not add "evidentiary value" to the case.

"This legislation truly makes a lot of common sense," said St. Paul Police Chief Todd Axtell. "All 87 counties need to be on the same page."

The proposed bill would also require Department of Public Safety Commissioner John Harrington to create an online tracking system that provides victims real-time information on the status of individual rape kits — like those used in Iowa, Michigan and Idaho.

The searchable database would be a large step toward transparency and keep victims better informed, said Jude Foster of the state Coalition Against Sexual Assault.

"It holds the criminal justice system — all of us — accountable," said Foster, the agency's medical forensic policy program coordinator. "If we had a statewide tracking system, we could avoid future surprise sexual assault kit backlogs."

Minnesota lawmakers sponsoring the bill, like O'Neill, are advocating for an undetermined amount of appropriations from the general fund to hire and train additional scientists and toxicologists at the BCA, create the proposed database and centralize storage of the kits.

But its fate remains uncertain in a legislative session consumed with the state's emergency response to COVID-19.

The revelation of the untested kits came amid a national reckoning over sexual harassment and assault, as well as a 2015 audit that revealed 3,482 untested rape kits in police storage across the state.

In November, Minneapolis police discovered an additional 1,700 untested rape kits — a number previously estimated at fewer than 200. At the time, Mayor Jacob Frey called the discrepancy an "unjustified mistake" that could take two years to fix.

The disclosure followed a 2018 Star Tribune series, "Denied Justice," which documented widespread failings in the investigation and prosecution of sexual assault in Minnesota, including Minneapolis.

Staff writer Jennifer Bjorhus contributed to this report.