It’s been nearly two years since a state audit found that less than half of all rape kits at three California law enforcement agencies were actually analyzed.

Since then, two of the agencies – the Oakland and Sacramento police departments – have made it a practice to test all sexual assault kits. The third agency examined in the audit, the San Diego Police Department, is doubling down on its decision to leave many kits untested.

SDPD said it has roughly 2,400 sexual-assault kits that haven’t been sent to the crime lab for testing.

The 2014 audit, a response to scrutiny over why so many kits were never analyzed as evidence, underscored how little was known about why some sexual assault kits were never tested while others were — and, more important, whether testing more kits would help solve more crimes.

“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,” the audit found, though “the extent to which analyzing more kits would improve arrest and conviction rates is uncertain.”

It’s only been in the last several years that victim advocacy groups have started to get a handle on how many sexual assault kits are gathering dust on evidence room shelves. The kits hold the forensic evidence gathered through an invasive, lengthy exam of a victim after a sexual assault — hair, semen, saliva, blood — that crime lab technicians use to develop a DNA profile of the assailant. But many kits go unanalyzed.

Groups like the California Coalition on Sexual Assault and the Joyful Heart Foundation have long argued that all kits should be analyzed. Even in cases where a victim knows her assailant, uploading DNA evidence generated by a kit to the federal Combined DNA Index System might yield matches to cold cases in other jurisdictions, they argue.

California law encourages testing, but doesn’t require it. It’s costly — roughly $1,500 per kit — and, depending on the circumstances of a case, sometimes unnecessary. CODIS, the federal database, has strict rules about when a DNA profile can be uploaded — chief among them is that investigators must be sure that a crime occurred.

Since the audit, both Sacramento County and Alameda County — which includes the Oakland Police Department — have made it a practice to test all sexual assault kits. I contacted both agencies to see if testing more kits has led to better outcomes for crime victims.

A spokeswoman for the Sacramento County DA’s office didn’t respond to multiple emails. Teresa Drenick, spokeswoman for Alameda County District Attorney Nancy O’Malley, who’s become a vocal advocate for testing all sexual assault kits, said that while they don’t have empirical data to prove their approach is best, “the testing of all kits and the upload, when possible, into CODIS certainly increases the numbers of crimes we solve, and, we believe, prevents future sexual assaults from occurring.”

Drenick said that of the first 319 kits tested using funds from a federal grant — kits that had previously been shelved — 124 yielded profiles that were uploaded to CODIS and 55 of those profiles resulted in a “hit,” meaning a match to a known offender.

San Diego, on the other hand, defends its  approach, which it says is smarter and more efficient: Do the investigative work first to determine whether the kit will help the case.

“By the time a kit gets to the laboratory, it’s been vetted as a piece of evidence that’s meaningful, as a piece of evidence that could yield a profile that we would be able to upload into a database at a national or state level,” said Jennifer Shen, manager of the San Diego Police Department’s crime lab.

In other words, SDPD’s argument goes: Why spend time and money testing a kit that ultimately can’t be uploaded to CODIS or might not be the best source of DNA evidence in a particular case?

Still, the department has been criticized for having so many untested kits. According to a public records request submitted last year by the Joyful Heart Foundation, there were 2,873 unanalyzed kits. Shen said the current number is around 2,400.

Earlier this year, during her bid for mayor, former Assemblywoman Lori Saldaña told the Union-Tribune that the Police Department had an “appalling backlog of unprocessed evidence.” And, in May, during city budget talks, San Diego City Councilman David Alvarez asked police to provide information on kits booked into evidence since 2014, including details on why kits aren’t being tested, something the state audit recommended the department start providing.

According to the department’s response, of the 812 kits booked into evidence, 417 were sent to the crime lab for analysis. Of the 395 kits not sent to the lab, in roughly 7 percent of the cases it was because the department lacked jurisdiction. Another 10 percent of cases were deemed unfounded, meaning investigators couldn’t find evidence of a crime. Roughly one-third of the cases fell under the “other” category — for example, a known suspect had been arrested, which under California law, meant it was likely the person had already provided a DNA sample to authorities.

The largest category, involving roughly 40 percent of all untested kits, includes kits from victims who were deemed “uncooperative” and victims who declined prosecution but had identified a suspect.

“Uncooperative” is a term victims’ advocates find troubling since it can be so subjective.

“There can be a real concern and hesitation in moving forward with the criminal justice process because sometimes people feel it won’t yield the justice they’re looking for,” said Shaina Brown, spokeswoman for the California Coalition on Sexual Assault.

“[Uncooperative], to me, is a red light going off,” said Ilse Knecht, director of policy for the Joyful Heart Foundation. “There was something about the way that they were treated that caused them to decide I’m not going to do this. We know that often survivors are not treated with respect, they’re not believed more than any crime and that causes them to pull out of the justice system.”

Alvarez said he appreciated the department’s thorough response, but echoed Knecht’s point.

“The one that raises a red flag and remains a concern to me is where the reason given is ‘uncooperative.’ You go through the process and from all that I’ve … read on this, it’s a very invasive process, it’s very personal. … It should concern us all that they’re willing to go through that and the information doesn’t get used.”

Alvarez said he plans to continue to request annual reports from the Police Department similar to the one he asked for in May.

Shen, the crime lab director, said the department’s sex crimes unit is currently doing a review of all untested kits to make sure an analysis isn’t warranted.

“We’re giving [detectives] information about the kits and they’re doing the research on each and every kit to see if there is any kit that should be tested and wasn’t.”

California cleared its backlog of untested kits in state-run crime labs in 2012. But out of the state-level changes the audit recommended that could impact individual agencies like SDPD, nothing’s really been done.

In 2015 — and specifically in response to the audit — the California Department of Justice created the Sexual Assault Forensic Evidence Tracking database, or SAFE-T, to track the progress of rape kits. Law enforcement agencies, though, aren’t required to participate. A bill introduced earlier this year by San Francisco Assemblyman David Chiu, AB 1848, and co-sponsored by state Attorney General Kamala Harris, would have required law enforcement agencies to annually report to the state how many kits they collected, how many were analyzed by a DNA lab and, of those that weren’t analyzed, why.

Chiu’s bill failed. A related bill, AB 2499, written by Assemblyman Brian Maienschein, a former San Diego city councilman, sought to give victims the ability to log into SAFE-T and track the status of their kit. The bill passed and currently awaits the governor’s signature, but the death of AB 1848 led to it being watered down. The final version says only that the DOJ needs to come up with “a process” for victims to check the status of their kits.

But Joyful Heart Foundation’s Knecht said AB 2499, if it becomes law, still has value and could help move untested kits off the shelves.

“[It] will give victims more access to information about their case, where their kit is, was it tested, what were the results, etc., thereby pushing more testing of the old kits.”

Kelly Davis

Kelly Davis is a freelance journalist focusing on criminal justice and social issues. Follow her on Twitter @kellylynndavis...

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