Big Backlog of Evidence in Rape Cases Targeted in New Bill

By Bay City News Service and Patch Staff

New legislation aimed at reducing a backlog of untested DNA evidence in rape cases could potentially nearly double the number of arrests in sexual assault cases, State Assemblywoman Nancy Skinner, D-Berkeley, said Tuesday.

Skinner spoke with Patch following a news conference Tuesday morning at the state building on Clay Street in downtown Oakland where the legislation was announced. 

She said after similar legislation was enacted in New York in 2004, the arrest rate for rapes jumped from 40 percent to 70 percent in about two years. 

At the news conference, Skinner called the backlog of rape kits sitting untested on police evidence shelves in Alameda County and statewide "a second assault" on victims. 

She said that the victims have to undergo an invasive physical exam following an attack, and that it is unacceptable that the evidence then "languishes" on a shelf.

To expedite testing, Skinner has written Assembly Bill 1517 with state Assemblyman Rob Bonta, D-Oakland, and other legislators. (Skinner's Assembly district includes Piedmont and other northern Alameda County cities, while Bonta's district includes Alameda).

The bill sets time limits for law enforcement agencies and forensics labs to process evidence collected from victims after sexual assaults.

The bill stipulates that sexual assault forensic evidence must be sent to a crime lab within five days after it is booked into evidence by a law enforcement agency.

The crime lab would then have to process the evidence and upload DNA profiles to the Combined DNA Index System, or CODIS, within 30 days. 

At the conference, Bonta called the backlog "an affront to our justice system" that allows perpetrators of sex assaults to remain on the streets.

Alameda County District Attorney Nancy O'Malley is already working with local law enforcement agencies to ensure that proper and timely testing occurs after a rape.

"We need to change police culture," she said.

She said many police departments train their officers to prioritize rape kits when the suspect is unknown.

However, O'Malley said it is also important to process rape kits in cases where a suspect has been identified, because often a suspect in one case can be linked to other cases through DNA evidence — especially since many sex offenders tend to be repeat criminals. 

O'Malley has partnered with county law enforcement agencies since June 2011 to keep track of how many untested rape kits their evidence rooms contained, according to the district attorney's office.

An initial audit turned up more than 1,900 untested rape kits in Alameda County alone, O'Malley said.

She said that now, by keeping tabs on the rape kits, "we are eliminating the backlog."

The Natasha Justice Project, a New York-based nonprofit that works with sexual assault survivors, has teamed up with the district attorney's office to provide funding to test those nearly 2,000 rape kits, O'Malley said.

Skinner said  in a phone interview that the new legislation would still give law enforcement agencies some say in what evidence is tested.

"But there's a provision that if they decide a rape kit isn't worth testing, they must inform the victim," she said. 

That provision alone could influence how many kits are sent to labs for testing, Skinner said.

Currently there's no legal requirement that victims be informed whether evidence in their cases is being tested, she said.

The high cost of lab work, understaffing in many police departments and decisions by investigators that some evidence isn't worth testing all contribute to the present backlog, Skinner said.

Skinner said it's too early to identify where the money for more testing will come from "but we will be doing that as we work the bill through the legislature."

She said when similar legislation was vetoed in 2011, California was still deep in a recession. She's hopeful that improving economic conditions in the state will bring a different outcome this time.

It's possible that law enforcement agencies could tap into money raised by Prop. 69, a measure approved by California voters in 2004, that increased financial penalties for many crimes, Skinner said.

Heather Marlowe, a sexual assault survivor who spoke at Tuesday's news conference, said her rape kit took more than two years to be processed.

She said she was drugged and raped at the Bay to Breakers race in San Francisco in 2010. After a year, she hadn't heard back from police about the DNA from her case, even after a suspect had been identified.

Marlowe, an actor and playwright, later wrote a play about the long wait.

"I felt absolutely powerless," she said.

Eventually, her kit was tested after two years, she said.

She has since gone before the San Francisco Police Commission and requested an audit of her case to examine how it was handled.