Illinois is moving to reform the way DNA evidence from sexual assaults is processed after a Tribune review found that many rape kits were being placed in police storage untested, robbing the state of opportunities to solve crimes and exonerate the wrongfully convicted.
The changes – some put forward in proposed legislation, others crafted by a working group of state and local law enforcement officials – come as the scope of the problem widens.
After reporting that police were not submitting many of the kits to the Illinois State Police crime lab for testing, the Tribune found that even when kits are submitted, the lab sometimes refuses to analyze them. For example, since 2007 the crime lab has returned at least 88 kits to the ChicagoChicago reviews
Police Department untested, according to the department.
The crime lab now has agreed to analyze DNA from sex crime cases that were previously rejected. Also, under legislation drafted by the attorney general’s office, police would be required to submit every rape kit for testing, including those that have been gathering dust in storage, a number that could total more than 4,000 by one count. A second bill would require that all kits be tested within six months.
“After the Tribune story, it became clear that we needed a state protocol for the handling of rape kits,” said Mike Hood, deputy attorney general for criminal justice and a member of the working group.
The stakes are high for victims, law enforcement and public safety. With rape kits, those alleging sexual assault or abuse allow a nurse to secure semen, saliva and other potential DNA samples from their bodies. The exam is invasive, and the process can take up to eight hours, but the results have proved to be a powerful investigative tool. DNA has provided links between crimes and revealed the identity of attackers.
Robert Rejda, of Oakbrook Terrace, for example, was swiftly arrested in 2007 when DNA taken after a felony DUI linked him to the Christmas rape and murder of a childhood friend and the sexual assault of an Aurora woman.
The Tribune review found that over the last two years large suburban police agencies have stored untested kits with potential DNA evidence from nearly 100 alleged victims of sexual assault or abuse. They include a woman who claimed she was sexually assaulted in Downers Grove by a stranger who dragged her to the ground and bit her; a 6-year-old Bolingbrook boy who told investigators an older child had forced him to perform oral sex; and an Aurora woman who reported being sexually assaulted by an acquaintance who later made a taped confession, according to police records.
The suburban departments said they do not send kits to the lab if a prosecutor has declined to press charges; the accused has acknowledged the sex but claimed it was consensual; or the victim has recanted the allegations, doesn’t want to sign a complaint or is found not to be credible.
Arlene Hall, commander of the state police crime lab, said the lab had a practice of returning kits untested for many of the same reasons given by the suburban departments.
But in recent months the agency has re-examined its views, Hall said. Since October, state police have been working with the offices of the attorney general and the Cook County state’s attorney and Chicago police on ways to change the handling of DNA from sexual assault and abuse cases.
Its work is not yet complete, but the group is reaching agreement on important points, participants said. While the proposals face legal questions and financial concerns, key players agree change is necessary – and imminent.
“We are getting really close,” Hall said.
The group agrees that DNA analysis is required even when the accused admits to the sexual encounter but claims it was consensual, participants said. Such analysis is required for any sex crime case to move forward in court, according to prosecutors. And it may reveal details that help confirm one person’s side of events.
Also, by not uploading genetic profiles from acquaintance rapes into state and federal DNA databases, law enforcement loses the opportunity to link offenders to unsolved crimes.
The group also sees missed opportunity in cases in which authorities believe sexual assault or abuse likely occurred but that it would be impossible to prove because of the victim’s questionable lifestyle, a lack of witnesses or other challenges common in rape cases.
Many untested kits fall into this category, such as the case of the Aurora woman who was allegedly sexually assaulted by an acquaintance who later made a taped confession. Joe Birkett, the DuPage County state’s attorney, said his office declined to press charges because the victim had initially expressed interest in having sex with the accused.
“I’m not suggesting the victim wasn’t a victim of sexual assault, but what her versions of events are and what we can prove in court are two different things,” Birkett told the Tribune.
In the case of the Bolingbrook boy, the alleged offender left the state so authorities didn’t pursue charges. The woman in the Downers Grove case did not want to pursue charges.
Police, prosecutors and the crime lab had taken the position that DNA in such cases can’t be analyzed and uploaded because federal law requires DNA profiles in databases come from a “crime.” Their view has been: no charges, no crime.
But that interpretation is overly narrow, the FBI says.
“If a prosecutor declines to press charges but determines that a crime has been committed, the sample is eligible to be uploaded,” said Ann Todd, a spokeswoman for the FBI.
Members of the working group now agree that analyzing DNA in these types of cases and comparing it to DNA taken from convicted felons and other crime scenes could help produce valuable findings, such as the work of a serial rapist.
“If a prostitute makes a report of rape and then disappears, a prosecutor may say I’m not going forward with a case because I can’t win it,” said Lisa Friel, a chief sex crimes prosecutor in New York County, N.Y., where she said rape-kit testing is a top priority. “But if you move forward with the DNA gathered from the prostitute’s rape kit and it links to another attack, then you have a totally different scenario on your hands. You know you need to catch this person before they attack again.”
Under the new protocol taking shape, the state crime lab would analyze all rape kits unless the victim recants or law enforcement concludes a crime did not occur, said Cara Smith, deputy chief of staff to Attorney General Lisa Madigan.
In an effort to ensure change, the attorney general’s office has crafted legislation that would require police agencies to submit sexual assault evidence to the state’s crime lab within 10 days of picking it up from the hospital.
The bill, to be introduced this week, also would require police to submit all untested kits in their storage within 30 days of the bill becoming law.
Such mandates could flood the crime lab with work, especially if another bill requiring that every rape kit be tested within six months passes.
There are more than 4,000 untested rape kits in police storage statewide, according to a nine-month investigation by the international Human Rights Watch. And that tally only includes 82 jurisdictions that have reported so far. (The Peoria Police Department, for example, confirmed that only 52 the 253 rape kits it has collected since 2000 have been sent to the crime lab.)
For years, the crime lab has grappled with a backlog of DNA evidence, not just from sexual assaults but also from homicides and burglaries. In some cases, it has taken more than a year for the lab to analyze DNA. Last year, the Blagojevich administration came under fire for falsely claiming the backlog had been cleared at one point.
The lab, which in 2009 received 5,758 forensic biology cases, one-third of them involving sex crimes, has reduced its backlog in recent months with the help of a $2.5 million federal grant and advances in DNA technology, Hall said.
But if the lab is flooded with more rape kits, a six-month mandate and no additional resources, it could be forced to delay testing DNA from other violent crimes, including ones with impending court dates, Hall said.
Shauna Boliker, chief of the criminal division at the Cook County state’s attorney’s office, said those concerns need to be addressed.
“We have to figure out how to prioritize these DNA cases in a way that balances the rights of victims with broader community safety,” Boliker said. “You have to come up with a hierarchy, like stranger rapes before acquaintance rapes.”
There’s also the question of what to do when a DNA profile is uploaded into the database and officials later determine the person is innocent. Federal law requires such information should be removed, but the working group wants the state to address that.
“That’s the last piece, figuring out how to expunge those profiles,” Smith said.
–Megan Twohey
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