Michigan Attorney General Bill Schuette holds a sexual assault evidence kit at a June 5, 2013 news conference in Lansing, Mich. After taking Detroit's crime lab in 2008, the state discovered more than 11,000 untested rape-evidence boxes dating back 25 years.

Michigan Attorney General Bill Schuette holds a sexual assault evidence kit at a June 5, 2013 news conference in Lansing, Mich. After taking Detroit's crime lab in 2008, the state discovered more than 11,000 untested rape-evidence boxes dating back 25 years.

Tens of thousands of untested rape evidence kits have been found in police storage facilities across the country. Many of these kits contain DNA evidence, like blood, taken from victims of sexual assaults. Some evidence has been sitting untested on shelves for years. When the first 2,300 unprocessed kits from the Cleveland Police Department were tested, it yielded 950 matches in the national DNA database and more than 200 indictments. Similar backlogs have been found in other cities, including Las Vegas and Detroit. Diane and a panel of guests discuss the efforts to address the backlog in untested rape evidence kits.

Guests

  • Sarah Tofte vice president of policy and advocacy, Joyful Heart Foundation
  • Edward Flynn chief of police, Milwaukee, Wisconsin. He has also served as police chief in Arlington, Virginia and Braintree, Massachusetts. He is a former Pickett Fellow at the Harvard Kennedy School of Government.
  • Sen. Barbara Mikulski U.S. senator from Maryland
  • Rick Bell special investigations division chief, Cuyahoga County Prosecutor's Office in Cleveland, Ohio.

The Accountability Project: End The Backlog

The Joyful Heart Foundation studied data from public record requests to locate thousands of unprocessed rape kits across the country. It released the most backlogged cities in a report last month. 

The Accountability Project | ENDTHEBACKLOG

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Several years ago, law enforcement officials in Cleveland discovered thousands of rape evidence kits sitting on shelves. When crime labs tested the evidence for DNA, police were able to solve about 50 crimes, some of them 20 years after the assault. Here in the studio to talk about the backlog in untested rape kits in cities around the country, Sarah Tofte with the Joyful Heart Foundation and Rick Bell, a prosecutor on Cuyahoga County, Ohio.

  • 11:07:33

    MS. DIANE REHMI invite you to be part of the program. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Thank you for being here.

  • 11:07:54

    MS. SARAH TOFTEThank you for having us.

  • 11:07:56

    MR. RICK BELLGood morning, Diane.

  • 11:07:57

    REHMSarah, I understand that the Joyful Heart Foundation helps victims of sexual assaults. Tell me about these rape kits. What exactly are they?

  • 11:08:13

    TOFTEYeah, that's a great question to start with. So when someone is raped, they will often be asked to -- if they report to the police or go to the hospital, they might be asked to submit to a rape kit exam. It's a four to six hour process, ideally done by a nurse trained in forensic evidence collection and they just look over every part of the victim's body where the perpetrator may have left his DNA.

  • 11:08:45

    TOFTEAnd they work very painstakingly, carefully to collect all that DNA. And when they've collected it all, they put it into an envelope or a box and that is what we refer to as a rape kit.

  • 11:08:55

    REHMSo your foundation uncovered a backlog of these untested rape kits. How did that come about?

  • 11:09:07

    TOFTEWell, about 10 or 15 years or so ago, I was working for an organization called the Innocence Project. And one of my roles there -- the Innocence Project works to exonerate innocent defendants through DNA testing and in a number of our cases, the crime in which our client was convicted of involved a rape and so I would be tasked with trying to find the untested rape kit in the case that we might be able to text to exonerate the defendant.

  • 11:09:37

    TOFTEAnd so in the process of trying to find a rape kit in one individual case, I would often find myself in conversation with property managers in evidence storage facilities across the country who would tell me they had hundreds, if not thousands of untested rape kits in their storage facilities, many of them not connected to adjudicated cases like the ones which involved our clients.

  • 11:10:00

    TOFTEAnd so that always stuck with me. And when I moved to Human Rights Watch, which is a human rights research organization, I asked if I could investigate the idea that there might be hundreds of thousands of untested rape kits in police storage facilities throughout the country.

  • 11:10:16

    REHMSo to you, Rick Bell, how do these rape kits get put aside and perhaps not even tested for DNA?

  • 11:10:29

    BELLWell, that's a good question for the listeners to have a very good understanding here. Rape kits go back into the 1970s so we have 1970s, '80s and early '90s where the rape kits were taken by the rape kit examiners or doctors and they weren't testing for DNA because there was no testing for DNA back then. It was tested for seminal fluid or perhaps just tested for the understand that there was an ABO.

  • 11:10:56

    BELLThere was a blood test. So what ends up happening is the rape kits ended up being stored and there was some triaging that was taking place. Some of the tests were made. Other tests were not taken and so the problem the police and the laboratories weren't connecting and they were not having discussions regarding what cases needed to be tested, what cases didn't need to be testing and a backlog ended up occurring because there was not DNA testing.

  • 11:11:30

    BELLThe DNA CODIS system didn't come into effect until 1998 and that is a big reason why these tests and police and the laboratories didn't realize the importance of conducting all of these examinations.

  • 11:11:45

    REHMSo Sarah, you found thousands of these untested kits in police storage in places like Detroit, Los Angeles, Memphis, Seattle. As Rick has just said, until 1998 we did not have the means by which to test that DNA. Are you looking specifically at those collected after 1998 that have been untested?

  • 11:12:24

    TOFTEYeah, that's an important question, important point. Technology was certainly one reason why you have so many untested rape kits in storage facilities. But actually, a lot of these kits were collected well after 1998.

  • 11:12:37

    REHMI see.

  • 11:12:37

    TOFTEThese kits, in a lot of jurisdictions, go up to, you know, present day. Even now, some of these jurisdictions are not sending in all their kits for testing. And I think there's a couple things going on there. Again, technology is a piece of it. Another piece of it is the way in which jurisdictions are investigating sexual assault cases. Oftentimes, you know, very few reported sexual assaults actually lead to an arrest in this country.

  • 11:13:00

    TOFTEWe have a very low arrest rate for sexual assaults, about 25 percent, which is where it was in the 1970s despite lots of judicial and criminal justice reforms since then. And law enforcement, there's just very few cases they move forward, in part because they become, you know, fixated on examining or questioning the victim's story or the victim's credibility or the value of the victim in moving these cases forward.

  • 11:13:23

    TOFTEAnd so if the case isn't going to move forward, you're not gonna move the rape kit forward for testing. And I think what jurisdictions are finding in going back and testing these rape kits in these cases are that perhaps the original decision or the original handling of these sexual assault cases wasn't the right one, that there was a lot of value to these cases and that the victim was telling the truth, had a very credible story.

  • 11:13:49

    TOFTEAnd perhaps law enforcement should focus more energy on examining the perpetrator's behavior and the offender's behavior when they're analyzing whether or not a case is worth moving forward.

  • 11:13:59

    REHMRick, would you agree?

  • 11:14:01

    BELLI would agree totally. The problem is that a lot of the times police and prosecutors would make the decision of whether to test based on whether there was a consent defense. Remember that you test for DNA predominantly back then the thought was to identify an unknown perpetrator. If the rape was an acquaintance rape, if the victim and the defendant happen to know each other, then it was widely believed that why do the test, why do you need to do the test.

  • 11:14:27

    BELLNow, we know and now we have a philosophy that you need to test all of those cases. You need swab all of the defendants because by swabbing everyone, you have a robust CODIS system. By testing everyone, now you can take all of that evidence and you can see if these rape kits are matching up to each other. And we're finding that you have serial rapists out there not only in Cleveland. This isn't a Cleveland issue. This is a nationwide issue.

  • 11:14:51

    REHMSo more than 2,000 of these untested rape kits were discovered in Cuyahoga County, Ohio, which does include Cleveland. So what happened, Rick, after the first 2,000 kits were tested?

  • 11:15:12

    BELLWell, those kits were tested and we cleared off the shelves. The Cleveland police department, in 2010, made a decision to test all of the kits, even if they'd been tested before for serology or for DNA, they wanted to make sure that the testing was done and redone and everything was accounted for. We actually have, in Cuyahoga County, 4,700 kits and now we know that the testing is coming back that we've got a 60 percent chance, when you send in the rape kits, 60 percent of them will come back with a DNA profile.

  • 11:15:44

    BELLWith that DNA, you can now put it into that CODIS system where the inmates, the arrested people, can be matched up against it and those cases need to be assigned to investigators in order to follow up on them, contact the victims, find out what they know. Are they still saying what happened to them happened to them? Letting them know that the kits came back with positive DNA. This empowers them.

  • 11:16:07

    REHMI want to go back to your point about consent because wouldn't it still be valuable to do the testing, the gathering for the kit and then using that DNA evidence against other DNA evidence that's accumulated elsewhere? Why should the assumption of consent make a difference?

  • 11:16:46

    BELLYeah, you are right on point here. The issue is that if you don't test every kit, you don't know what you have. So if you don't do the testing, you don't know that it matches up to other victims' cases. You might have one case that appears to police and prosecutors, as they're reading it, that it's an acquaintance rape, a he said/she said case, that type of a thought is prevalent when police review cases.

  • 11:17:13

    BELLBut then, when you know that it matches up to a stranger rape case and this perpetrator has actually committed another offense, now you can take those two cases, now you have two victims and the police and prosecutors have a very different feel for their case at this point. They know that both of these victims need to be listened to and the cases, we're finding, have a 90 percent conviction rate. So we're being very successful by matching up these cases.

  • 11:17:41

    REHMSo how often are those tests done when a woman walks in and says, I've been raped?

  • 11:17:52

    BELLWell, in our community and I'm sure it's like this across the country, the hospitals have those sexual assault kits and they're provided to them, usually, by the state and they are, in fact, being collected. So the evidence is there and then they do get turned in back to the police department and then it's a matter of whether or not they're sitting on the shelves or the police have actually submitted them all over to the lab and if the lab is willing and able, resources wise to be able to do that testing.

  • 11:18:20

    REHMRick Bell, he's with the special investigation chief. He's in the Cuyahoga County prosecutor's office in Cleveland, Ohio. Sarah Tofte is vice president of policy and advocacy with the Joyful Heart Foundation.

  • 11:19:58

    REHMAnd welcome back. Joining us now by phone from Chicago, Edward Flynn. He's chief of police in Milwaukee, WI. He takes issue with a recent report that more than 2,000 rape evidence kits have not been tested for DNA. Thanks for joining us, sir.

  • 11:20:25

    MR. EDWARD FLYNNCertainly. Thank you for having me.

  • 11:20:26

    REHMThe Joyful Heart Foundation says more than 2,000 rape kits in Milwaukee have not been tested. But you argue that that statement is misleading. Tell us why.

  • 11:20:42

    FLYNNWell, it's misleading. But, you know, let me back up a moment lest this sound like, you know, typical police chief defending himself from somebody's, you know, external allegations. The issue of DNA and rape kit testing and the entire issue of sexual assault are serious ones and we certainly support Joyful Heart's efforts to bring attention to this issue. I don't think you need to create villains here to talk about the importance of rape kit testing and the importance of taking rape seriously.

  • 11:21:13

    FLYNNI was obviously disturbed that the press release that referred to us quoted an actress basically saying not testing the rape kits sends the message that what happened to you and your case, none of it matters. And that's disturbing to me given the fact that Milwaukee is considered one of the national leaders on familial DNA testing as well as the fact that, you know, whenever we do interviews with victims, we have advocates, sex assault advocates there at the interview.

  • 11:21:42

    FLYNNI mean, we take rape very seriously and we have an excellent reputation in our -- in our metropolitan area for being thoughtful and sensitive to this issue. Now, when it comes to the number of kits we're talking about, the misleading part is the context. This covers 17 years worth of kits. And it's got to be, you know, understood that we test every single stranger rape allegation. We test every kit, all right?

  • 11:22:14

    FLYNNWe do not test kits where the victim refuses to give us permission to have the kit tested and we don't routinely test kits when the issue of consent is not part of the case in chief. And in those circumstances, we don't test them unless the suspect is convicted. Now if the suspect is convicted, we take a swab and that evidence goes into the CODIS system and it stays there forever.

  • 11:22:40

    REHMExcuse me just one moment.

  • 11:22:41

    FLYNNSo, you know, our tested issue is for people...

  • 11:22:44

    REHMI'm just wondering why you would wait until a perpetrator is convicted before you test the evidence?

  • 11:22:57

    FLYNNWell, we -- well, when we're doing an investigation, when there is an unknown suspect, we test all of it. If there's a case in which the suspect and the victim are known to each other and the issue of consent is the issue before the court not the identification of the suspect, that information is entered into the system if the suspect is convicted.

  • 11:23:20

    REHMBut let ask you -- let me just follow-up there.

  • 11:23:24

    FLYNNSure.

  • 11:23:25

    REHMWho is claiming consent?

  • 11:23:31

    FLYNNWhat I'm saying is we'll have a circumstance in which obviously the victim is saying there was no consent, where the suspect is asserting there was, but admits to the act. All right? So we have an identified suspect. In that case, we know who did the act. The question is, can we prove beyond a reasonable doubt that this is against the will of the suspect -- excuse me, the victim who is saying this is against my will, this was a sexual assault.

  • 11:23:59

    REHMRight.

  • 11:24:00

    FLYNNThat's the man that did it.

  • 11:24:01

    REHMRight.

  • 11:24:01

    FLYNNAnd the man says, yes, I did it but it was not a rape. We don't...

  • 11:24:06

    REHMOkay, okay.

  • 11:24:07

    FLYNN...send those cases unless he's convicted.

  • 11:24:08

    REHMBut that's why I'm asking the question because there is a division of opinion there. Someone says I've been raped and the perpetrator said, no, I had consent. Why wouldn't you test that material in any case to see whether that perpetrator might have carried out a rape elsewhere?

  • 11:24:40

    FLYNNWell, until very recently, Wisconsin was like an awful lot of other states in which only convictions mandated your DNA be entered into the system, all right?

  • 11:24:52

    REHMIs that...

  • 11:24:52

    FLYNNUntil the last two months.

  • 11:24:53

    REHM...still the case?

  • 11:24:55

    FLYNNIn Wisconsin, no. But during the period of time when these cases were not sent for testing, the law was you had to be convicted of a crime to have your evidence tested. All right? For -- put into the CODIS system. Many states have that law. I mean, it's a public policy question worthy of debate whether or not people who have been declared by the courts not to be guilty should have their evidence placed in the system.

  • 11:25:25

    REHMSo...

  • 11:25:25

    FLYNNSome states…

  • 11:25:25

    REHM...what are you doing now? Tell me what you're doing now.

  • 11:25:31

    FLYNNWell, now, you know, when people are arrested for a crime like this, we take their DNA swab and we submit to the crime lab. But over the course of the years of the buildup of this, we only submitted cases where the identity of the suspect was an issue. Now, we have cleared serial rape cases based on familial DNA testing, where we have identified with our DNA family members who had similar profiles and worked back through those family members to identify a brother or cousin or uncle who, in fact, was the serial sexual assailant.

  • 11:26:09

    FLYNNSo I don't want to send the message for one minute that, A, we don't get how important it is or, B, we have not worked tirelessly to turn this evidence into convictions. But it's also got to be understood that every state does not have identical laws. And it's...

  • 11:26:22

    REHMI understand.

  • 11:26:24

    FLYNN...some states you should be found guilty before we take your DNA from you and put it in the system.

  • 11:26:27

    REHMOkay. And final question for you, Chief Lynn, right now, how do you decide which kits will be tested?

  • 11:26:41

    FLYNNWell, as I say, every single kit that is affiliated with a stranger sexual assault has always been and is entered into the system, because we don't know who did it. The new wrinkle now is obviously people that are arrested pursuant to a complaint for sexual assault in which the issue before the court is consent not identity, we are now permitted to enter the felony arrest DNA database into the system.

  • 11:27:14

    FLYNNBut that's new in our state, and many states don't have that law. They wait for, as I say, either a stranger or they wait for somebody to be convicted if it's a named suspect.

  • 11:27:25

    REHMDo you disagree then that all evident kit should be tested and added to the DNA base?

  • 11:27:37

    FLYNNWell, I believe we should, you know, when the victim gives us consent, that is a key issue for us as well. And that is by no means uniform. But, yes, when the victim consents, we certainly think it's a good idea to put all of this evidence into the system.

  • 11:27:51

    REHMAnd you're saying that there are many victims who would rather not consent to having their data tested or put into the system?

  • 11:28:04

    FLYNNYou know, well, that's really where the advocacy community comes in because there are more a few victims out there who choose not to proceed in the criminal justice system after they've been victimized.

  • 11:28:15

    REHMOther counties and cities, I know, have applied for grants to help test these rape kits. Has Milwaukee done that?

  • 11:28:26

    FLYNNYes, we have and we've been unsuccessful. I mean, it's -- keep in mind, again, the DNA in rape cases is not the only DNA police departments are wrestling with getting processed in a timely manner, all right? DNA is extraordinarily valuable evidence. This is a capacity issue in every single state in the country. I spent three years as secretary of public safety in Massachusetts. One of my many responsibilities was the state crime lab in addition to prisons and state police and so on.

  • 11:28:58

    FLYNNWe tripled the budget of the DNA crime lab and still had an enormous backlog, okay? The DNA rape evidence kits are competing for attention with the homicide kits, with the burglary kits, with the aggravated assault kits, with the child abuse kits. It is an extraordinary and important capacity as well.

  • 11:29:20

    REHMI understand.

  • 11:29:20

    FLYNNAnd so, certainly, we agree with everybody. You know, these -- these, you know, triage, you know, protocols, if you will, developed over time not because people don't care about the victims and not because we don't care about making arrests, it's capacity issues. If I don't know a suspect, that's got to go to the top of the list.

  • 11:29:37

    REHMAll right, and...

  • 11:29:38

    FLYNNAll right, and that's how we...

  • 11:29:39

    REHMAre you saying that among all those issues you've just mentioned that rape would fall sort of low down on the list?

  • 11:29:52

    FLYNNNo, that's not what I'm saying at all, Diane. What I'm saying simply is that we have a lot of violence in this society that produces DNA evidence. And all of that evidence is competing based on the crime and based on the backlog that the state crime labs have for attention and getting analyzed and put into the system. It's simply a harsh reality. This is not a value judgment. You know, there are no villains sitting around saying, let's marginalize the victims of rape.

  • 11:30:19

    FLYNNWe know what a serious problem it is. We know it's a problem that starts with small children and then pursues senior citizens. Believe me, we're the ones there at the crime scene with that victim and with that victim advocate and with that scene nurse trying to do justice for the victims. But in the harsh realities of a criminal justice system that has got limitless pressures put upon it and very finite resources, we should recognize that when people are trying to make good faith judgments between competing serious priorities, that creates protocols to create, you know, a triage effect.

  • 11:30:54

    FLYNNAnd that's simply the reality we live in. We do everything we can in Milwaukee to make sure that those evidence kits get processed and get entered into the system. But I am not going to, you know, pretend that this is a very easy thing to do and that there are limitless state resources to get it accomplished in a timely manner.

  • 11:31:10

    REHMAll right, and last question -- last question for you. How many kits have you got on your shelves now that are untested?

  • 11:31:27

    FLYNNAs of now, I'd say -- we're talking 17 years worth of kits now, okay, including those for which, you know, permission was not given by the victim. It's somewhere around 2,000, which is about, you know, a hundred change a year.

  • 11:31:41

    REHMAnd are you trying to get to or through any of those now? Or will they simply remain on the shelf?

  • 11:31:53

    FLYNNWell, as I say, every one of those cases, you know, is a case in which the permission was not given or the...

  • 11:31:59

    REHMAre you saying all those...

  • 11:32:02

    FLYNNNo, I'm not finished with what I'm saying. I'm not finished with what I'm saying, Diane. I said, all those cases that are on the shelves are where permission was not given to process the case or where there was no conviction in cases in which consent was not an issue or where there was conviction, but consent was not an issue and it was, you know, before the law changed. So, you know, they're cases that we're going to work back through. But in the meantime, it's our current cases that have priority and all of those are going into the system now except those (unintelligible)

  • 11:32:32

    REHMAll right, Edward Flynn, he's chief of police in Milwaukee, WI. Thanks for being with us.

  • 11:32:42

    FLYNNWell, thanks for the opportunity, Diane. I appreciate it.

  • 11:32:44

    REHMAll right. And you're listening to "The Diane Rehm Show." I'd be interested in your comments, Sarah, about what the police chief had to say.

  • 11:32:58

    TOFTEYeah. Well, there's a lot there. You know, one thing I would say, I was thinking as he was speaking was that, you know, we have had the opportunity at Joyful Heart to serve on the task forces in both Detroit and Memphis addressing their rape kit backlog. And I was thinking back to when we first started the process and I was thinking back to when we first started the process in Detroit. Detroit had about 11,000 untested kits that they were struggling with.

  • 11:33:19

    TOFTEAnd there was a real division -- one of our biggest disagreements as a team was whether it was valuable to test all kits or whether you just test the kits connected stranger rapes. And there was a real division of opinion there. And what's interesting is, you know, we sent off 1,600 kits to be tested, both stranger and non-stranger rape and the results we got back from both piles were incredible.

  • 11:33:43

    TOFTEYou know, prosecutor Bell alluded it earlier in Cleveland. But the ways in which we realize that especially in that -- we all understood the value of testing stranger kits because you do need to identify a perpetrator. In the non-stranger cases, you found so much information from testing those kits, right?

  • 11:34:01

    REHMSuch as?

  • 11:34:02

    TOFTEYou established -- one thing you establish was that acquaintance rapists are serial rapists, right? So as Rick mentioned earlier that you can connect -- when you can connect more than one case together, you have a stronger case moving forward because, you know, prosecutors know as well as anyone else that sometimes it's also hard to convince a judge or a jury to believe a victim in a case, especially the defendant is claiming he knew the victim and consent.

  • 11:34:25

    TOFTEIn addition to that, you are able to -- through the DNA testing, if you really looked at it and examined it and then looked at the case, you could affirm the victim's version of events and discredit the suspect. So what's interesting is once we got the first results back, no one at the table disagreed with the idea that we should test all kits. We all came -- became big supporters of it. So in Milwaukee, you know, one of my hopes would be that maybe they look back at least a sample of those cases, where they don't think they needed the kits, test them.

  • 11:34:51

    TOFTEGo back and look at the cases, see what they get. They might be surprised to find they have a very strong case on their hands, where they could have tested the kit.

  • 11:34:59

    REHMAnd here is an email from Alexi in St. Louis, MO who says, "Is the Joyful Heart Foundation pushing for legislation that mandates the testing of rape kits?"

  • 11:35:16

    TOFTEThat's a piece of our advocacy. We think it's really important at a state level and at the national level to have some uniform policies around tracking and testing. But as you've seen here, testing alone isn't enough. You've got to have the will power there at the city level to want to not just test the kits, but to follow through on the results they're getting from those kits. And so, we really push more at the local level first to get the buy-in and commitment to comprehensive rape kit reform.

  • 11:35:40

    REHMRick?

  • 11:35:41

    BELLWell, thank you. We agree with Sarah's thoughts on this. There's a real evolution of a thought, a law enforcement culture change. The city of Detroit, the city of Memphis also recognize this. We had a three-city summit where we talked about the best practices. What should you do in these situations? One of the things we concentrate on is don't worry about the resources. What's the right thing to do? What's the justice for the victims?

  • 11:36:05

    BELLWhat should they expect? One of the things that I take issue with what was discussed earlier by the chief is whether or not the kit should be tested. Not testing is substandard police work. I've been a law enforcement officer for 25 years. We learned through our project that these untested kits are a gold mine of information for police and for prosecutors. The kits are matching to each other.

  • 11:36:29

    BELLIf you have one case that you say it's a consent case, that's going to match to another case and another case. We have one offender who has 15 cases had the police or the prosecutor made a decision not to follow through, we would never have known about the other victims. We would never be able to take that rapist out. Four hundred thousand kits across the country, 100,000 of them can be indicted. We're indicting one-quarter of our cases after we put in to the work, the investigative work.

  • 11:36:59

    REHMIs the problem still, Rick, that rape is not taken seriously enough?

  • 11:37:08

    BELLThis is a -- this is a women's rights issue. This is very important. We're talking about informed consent. The victim doesn't need to give a second statement, a second consent. She's already gone to the hospital. She's already told the police I want my kit to be tested. So let's not make them go through that again. Let's listen to them.

  • 11:37:27

    REHMRick Bell, he is in a special investigations division in the Cuyahoga County Prosecutor's Office in Cleveland, OH.

  • 11:39:52

    REHMAnd joining us now by phone, Democratic Senator Barbara Mikulski of Maryland. As chair of the Senate Appropriations Committee, she's fought for $41 million in grants to reduce the backlog in untested sexual assault evidence kits. Thanks for joining us, Senator.

  • 11:40:20

    SEN. BARBARA MIKULSKIGood morning, Diane, and what a lively and crucial conversation you've been having. To really be able to catch the bad perpetrators of sexual assault, determine guilt or innocence and equally as important to provide care to those who have been victimized.

  • 11:40:42

    REHMIndeed. Tell us about the legislation that aims to reduce this backlog in untested rape evidence kits.

  • 11:40:53

    MIKULSKIWell, I'm ballistic about the backlog and certainly so are the other advocacy groups. And the new program really builds on the lessons learned from an excellent program called the Debbie Smith Program created after a woman was brutally assaulted in 1989 and then her case languished for six and a half years before it was taken seriously and taken to a crime lab.

  • 11:41:21

    MIKULSKIWhat the new program does is provide $41 million to provide -- dealing with the backlog not in the labs, but were sitting in police custody. This was found out because of the leadership of our vice president, Joe Biden, working with Eric Holder that got Justice Department cracking to take a look at this. Thousands and thousands of cases.

  • 11:41:50

    MIKULSKIWhat this program will now do is give local communities the funding they need for enabling them to investigate, prosecute these cases, get the forensic --get the evidence out of desk drawers and out of police lockers into the hands of crime labs and along the way, make sure that there are victim services.

  • 11:42:15

    REHMI gather these are competitive grants, Senator. How are you gonna work that out?

  • 11:42:22

    MIKULSKIWell, first of all, the Justice Department knows how to issue competitive grants and we've been able to do that in other sexual assault programs as well as building on the lessons learned from something called the Coverdell Program and the outstanding Debbie Smith Program. So we're gonna build on the mechanisms with that.

  • 11:42:45

    MIKULSKIAnd what we do know is that local governments do know how to apply. Now, remember, this grant will not go to the police department. It will go to the chief executive officer of local government.

  • 11:42:59

    REHMI see.

  • 11:42:59

    MIKULSKISo they can go to -- they can get it out of these police lockers and so on, make sure it goes to the lab, but then, have a comprehensive program for victims' services. And you know, they're doing it. One of the things we've learned, like in Detroit, there were 11,000 untested rape kits in 2009. They tested the first 1600. They found 127 serial rapists and at the same time, though, victims were getting the counseling they needed to get their life back and get back on their feet.

  • 11:43:33

    MIKULSKIVictims feel doubly assaulted, both by the vile and repugnant perpetrator and predator and then, as they go through the system, they're often under more suspicion than the guy they think that did it.

  • 11:43:48

    REHMIndeed.

  • 11:43:48

    MIKULSKIIt's awful. It's outrageous.

  • 11:43:51

    REHMThe grant program was proposed by the White House, passed in the House. What's the likelihood it's going to pass in the Senate now?

  • 11:44:03

    MIKULSKIWell, thanks to all the advocacy groups on the issues related to sexual assault, we think that we can put together a bipartisan group. Now, not to get into sounding like a budgeter or that I've got more like a green eyeshade on, but there's a difference between a continuing resolution, which would keep everything at the 2014 levels, this program would not get funded.

  • 11:44:31

    MIKULSKIBut I'm working on an omnibus bill reaching out, hands across the aisle, hands across the dome to have an omnibus, which is to fund what we agreed upon already through a due diligent hearing process in 2015. And you know what, both sides of the aisle really do want to get the perpetrators, the predators and get victims' services.

  • 11:44:56

    MIKULSKIWhat we might be arguing about is money, but I think we can put together a really strong agreement on the policy.

  • 11:45:01

    REHMAll right. And Senator Barbara Mikulski, Democrat from Maryland, thank you so much for joining us.

  • 11:45:11

    MIKULSKIDiane, you're welcome. And I just want to thank all those people who stand up for the victims every single day. They're the ones that make these things happen.

  • 11:45:19

    REHMThank you so much.

  • 11:45:20

    MIKULSKITake care.

  • 11:45:22

    REHMBye-bye. And now, we're going to open the phones and hear from you. First, to Ellen in Springfield, Virginia, hi, you're on the air.

  • 11:45:35

    ELLENHello. Hi, first of all, thanks so much for this program and for this topic. And my story is, you know, I was a victim of sexual assault and rape by a stranger so there were no questions asked and all that. And my case was resolved after five years only because of DNA. So long story short, I really appreciate all the effort. I remember my exam that took almost six hours. There was a digital time and I, you know, and all that.

  • 11:46:08

    ELLENSo just wanted to say thank you and how important it is and how valuable the conversation and everything that is (word?)

  • 11:46:16

    REHMI'm glad you called. Thank you. Why does that exam take such a long time, Sarah? It does seem as though a person might opt out rather than be subjected to that kind of an extended exam.

  • 11:46:36

    TOFTEYeah, I think it's so important in this story to understand what a commitment it is for the victim to do the exam. It is lengthy. It's about four to six hours. Part of that is because, you know, the nurses feel like they have this one very important chance to get crucial vital evidence from the crime scene, which, in the crime of rape, is the victim's body.

  • 11:46:55

    TOFTEAnd so, you know, they're going over the crime scene so carefully, as compassionately as they can. They're doing it, but, you know, we want to be so careful to get everything we can. That's what's sort of heartbreaking about all this is that we do so much on the front end to make sure we've gathered everything we can to make a good case and the victim has given so much during the exams.

  • 11:47:18

    TOFTESo for us not to live up to that commitment on the back by testing it is particularly heartbreaking.

  • 11:47:23

    REHMAll right. Let's go to Claudia here in Washington D.C. You're on the air.

  • 11:47:30

    CLAUDIAHi, Diane. I have a question. I understand that in some states there is a statute of limitations on rape. I don't know if that's still the case, but if so, I don't understand that at all because there are many people who are, you know, really traumatized and at the beginning, they're not sure and some people block it out until years later and then it's too late. And I don't understand that, why there's a statute of limitations.

  • 11:48:01

    REHMAll right. Rick?

  • 11:48:02

    BELLThere are different statutes of limitations. In Ohio, it's 20 years. And that was changed in 1999. There's an evolution on that across the different states. In Milwaukee, in Wisconsin, there's a change there. So victims have the right to come forward throughout the entire statute of limitations. We want to make sure that that's clear. Our county prosecutor, Tim McGinty, wants to make sure that everybody understands in our county and the other cities that we're working with, that the victims can come forward at any time during that process.

  • 11:48:34

    BELLThere's a real culture change going on here and, like we talked about before, it's a bipartisan issue. We're working with Kim Worthy and also Amy Warrick, the prosecutors from both Memphis and Detroit, our Ohio Attorney General Mike DeWine, a Republican who was former senator and worked with Senator Mikulski, is working with us and to give us the money in order to do all of this.

  • 11:48:57

    BELLThe changes in the statue of limitations will help us and this is going to help the deterrent effect. If offenders out there know that their victim can come back at any time within 20 years, 30 years, 40 years, whatever the statute of limitations is, our communities will be safer as long as they know that we're following up on each and every one of these.

  • 11:49:15

    REHMAll right. Let's go to Earl in Belfast, Maine. Hi there, you're on the air.

  • 11:49:23

    EARLHi, Diane. I appreciate you taking my call.

  • 11:49:26

    REHMSure.

  • 11:49:27

    EARLMy question goes back to the police officer from Milwaukee and the question amounts to this. If an individual admits to rape, but is acquitted, that person is not guilty of a crime. But yet, your proponents on the program are suggesting that his DNA be entered and kept for future reference in case he is a serial rapist. If I bring this to a police situation where you are stopped for speeding, should we take DNA of every accused speeder and put it into a base so that this person maybe a serial speeder or to take to its last extent and at would be we should perhaps take the DNA of every individual at birth and so that when we can keep a track of any possible crimes they may have committed or find serial speeders, serial rapists...

  • 11:50:32

    REHMAll right. Okay. Rick, do you want to respond?

  • 11:50:35

    BELLSure, I can. There's always internal debate about whether or not you go too far and there's, again, there's been an evolution on this. First, it was felonies, then it's serious misdemeanors. You want to make sure that you're taking the people that are convicted and also who are committing and being arrested for violent crimes. The CODIS system allows for the administration of the CODIS system for taking out those people that are not convicted, for taking out the people that are found innocent.

  • 11:51:03

    BELLOur CODIS project is actually an innocence project in and of itself. Since we're testing every kit, we can go back and look to see if the people who perhaps have been convicted really shouldn't have been convicted. And if we're clearing those people, if we come across any -- of course, we haven't found any. We haven't found that any of them are taxpayers either.

  • 11:51:22

    REHMAll right. To Patricia in Greenville, Tennessee. Hi there.

  • 11:51:30

    PATRICIAHi. Thank you for taking my call.

  • 11:51:32

    REHMSure. Go right ahead, please.

  • 11:51:36

    PATRICIAI just can't tell you how frustrated I am to hear...

  • 11:51:40

    REHMI'm sorry, Patricia, we're having a lot of trouble hearing you. Yeah, I think she's gone. Let's go to Hollis in Washington, D.C. You're on the air.

  • 11:51:56

    HOLLISHi. Thank you for taking my call.

  • 11:51:57

    REHMSure.

  • 11:51:59

    HOLLISI just wanted to echo the sentiments of some of the other callers and also just say how much this discussion resonates with me. I was a victim of sexual assault and consider myself a pretty independent, strong-willed woman and tried to go through with bringing enforcement actions against my perpetrator and the police investigation felt like it turned into an investigation into myself and I got so discouraged and didn't wind up going through with it after nine months of really painful revisits to the experience.

  • 11:52:36

    REHMOh, Hollis, I'm so sorry. Sarah, what can you say?

  • 11:52:40

    TOFTEWell, first, I want to say I'm really sorry about your experience and thank you for calling in. And the other piece of it, this is where we really challenge at times when law enforcement, you know, pushes back on these reforms and they sometimes will say, you know, well, the survivor dropped out of the process anyway so she must not want it to move forward.

  • 11:52:58

    TOFTEAnd I say to them, yeah, I've heard a lot of stories like this, unfortunately, where someone really wanted -- justice was very important to them, but the police made it very difficult, way too difficult in the way that they engaged with the survivor as part of that process. So in a lot of cases, it's not so much the survivor refusing to cooperate or even a survivor dropping out of the process.

  • 11:53:17

    TOFTEIt's really the police forcing them out of the process by, you know, being so unsupportive and hostile. So, you know, when we work with law enforcement, we say you gotta go back and look at those cases where the survivor -- you're saying they refused to cooperate. Perhaps you created an environment where you made it impossible to be a part of the process.

  • 11:53:32

    REHMAnd you're listening to "The Diane Rehm Show." We've got, let's see, Daniel in Waynesboro, Virginia. Hi, there.

  • 11:53:45

    DANIELOh, thank you so much for taking my call. I really appreciate your program.

  • 11:53:48

    REHMThank you.

  • 11:53:48

    DANIELI just have one quick statement, I guess, and then a question. I'm really sensitive to the idea that the problem is so incredibly complex and the task for the police officer involved is extremely difficult. You have the victim concern on the one hand and then also the sort of a sentiment that's echoed by the Innocence Project itself and not trying to convict innocent people.

  • 11:54:20

    DANIELSo they're trying to collect all this evidence in such a complex situation. So I guess my question goes to that and then as well as is there any efforts to alleviate the concern of officers that they might be pursuing an innocent accused person or that they just don't have the means because they're forced to focus on non-violent offenders, such as drug offenses or other things that they can't focus on these women's issues like domestic assault or this rape.

  • 11:55:00

    REHMAll right. Rick.

  • 11:55:02

    BELLWell, if I understand the question right, you're talking about the resources to be able to prosecute and investigate. Of course, when you have DNA, you quickly know whether or not you have the right person or not. You go back, you speak to the victim. You have an identification that's made. You can find out if this was the stranger that raped them or if it was a consent partner, perhaps a husband or somebody that -- at the same time.

  • 11:55:25

    BELLThey're able to, through the DNA process, know if you have an innocent person or not. That's why this testing is so important. It gives confidence to the jurors. It gives confidence to the community that we're going after the right people and it makes the community a safer place.

  • 11:55:43

    TOFTEAnd I wanted to add something about the complexity issue. You know, I know the police chief alluded to this and I know the caller mentioned it. Certainly, these issues are complex, but the fact is that in cities like Detroit and Memphis and Cleveland who are well on their way towards comprehensive rape kit reform, they've come up with model procedures and practices of how to do rape kit reform.

  • 11:56:04

    TOFTESo it's a little bit simpler than I think people realize in the sense that, you know, you come together as a multi-disciplinary team and get all the stakeholders together. You commit to testing all your kits and following through on all the investigations and see where it leads you. And I always to folks if a city like Detroit can do it, which is facing a terrible budget shortfall, a lot of failures in leadership, if they can figure it out and if they can become a model for the country of how to address rape kit reform and how to reform the way they investigate and prosecute sexual assaults then I think any city can do it.

  • 11:56:38

    REHMSarah Tofte, she's vice president of policy and advocacy with the Joyful Heart Foundation. It helps victims of sexual assault. Rick Bell is the special investigations divisions chief in the Cuyahoga County prosecutor's office in Cleveland, Ohio. Thank you both for being here and for your work.

  • 11:57:09

    TOFTEOh, thank you so much for having us.

  • 11:57:11

    BELLThank you very much.

  • 11:57:11

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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