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Victims' hopes for justice fade as rape kits are routinely ignored or destroyed
Tens of thousands of boxes have collected in ‘rape kit backlog’ as some states lack rules on how long evidence should be kept while some police departments destroy kits after a year
Tens of thousands of rape kits have created a ‘rape kit backlog’ over decades.
Tuesday 10 November 2015 07.30 EST
Last modified on Tuesday 10 November 2015
Susan Kendrick Shuenemann was on the phone with her sister blocks from her new home in Savannah, Georgia, when a man interrupted and asked for directions. She didn’t know the area, and told him so.
She was watching him walk away when he turned, snapped his fingers and marched back. She turned away from him. Moments later she heard a pistol cock next to her head.
She said he forced her to the backyard of an abandoned house, made her undress, and shot her in the gut. He dragged her under the vacant building and raped her in a filthy crawlspace, she said. Then, he walked away.
She made her way to an ambulance hours later after performing a grim mental calculus: if she died right here, would her family find her?
“Just help me to survive it,” she thought when she passed out in the back of the ambulance. “Now, that would change over the course of time, because you become aware that it would have been easier to not have survived it.”
Shuenemann was just 19 years old then, a beauty school student in Savannah in 1985. She passed out for most of her ambulance ride and some time at the hospital, as doctors worked to remove a bullet that pierced her liver and colon, fragmented and lodged a quarter-inch from her spine.
She wouldn’t find out for nearly 20 years, working on another rape victim’s case at the Barrow County district attorney’s office, that doctors collected evidence in a rape kit that night, and that it made it all the way to the Georgia bureau of investigations. It would be almost two years more before she discovered it was destroyed, discarded by police in 1988. She said she reported her assault to police at the time, but her case was closed less than a year later. Savanah-Chatham police did not comment on Schuenemann’s allegations, despite multiple requests.
“There was always the question, and there’s still the question honestly, could it still exist somewhere? But I do believe that Savannah [police] and the GBI as well as the DA’s office have looked thoroughly,” she said. “I drove myself crazy for a couple years about it, because it was so hard to fathom. To find out it once existed, and to find out it was gone – it was devastating.”
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Her case is not uncommon.
For decades, tens of thousands of boxes of DNA evidence that nurses meticulously gathered from the bodies and clothing of sex assault victims sat stacked in storage rooms, ignored. Later, this mountain of untested evidence would be known as the “rape kit backlog”.
As scrutiny of disregarded rape kits mounted, a portrait of a more difficult to tally sort emerged – rape kits police destroyed. As with the rape kit backlog, there is no national tally of the kits police destroyed. But increasingly, local media have published reports of police destroying rape kits in states as disparate as Utah, Kentucky and Colorado.
In some cases, police destroyed kits because they deemed allegations unfounded, alleged that victims didn’t cooperate or arrested suspects without the benefit of DNA. In others, victims never filed a police report and relinquished DNA to a group of anonymous rape kits known as non-reporting or “Jane Doe” evidence, collected in case they one day decide they can report.
In 2013, in Aurora, Colorado, police department workers derailed a prosecution when they destroyed a rape kit from a 2009 assault. The error was discovered when a detective got a hit on an offender DNA profile, went to pick up the rape kit and was told it no longer existed. Shortly thereafter, police stopped all evidence destruction while they investigated, and found workers destroyed evidence in 48 rape cases between 2011 and 2013.
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In Salt Lake City, 222 of the 942 kits collected between 2004 and 2014 were destroyed. Of those, just 59 were tested and went to court.
In Hamilton County, Tennessee, sheriff’s employees destroyed rape kits with marijuana and cocaine from drug busts, angering the local prosecutor who said he wasn’t consulted.
In Kentucky, the state auditor discovered some police departments routinely destroyed rape kits after a year, even though the state had no statute of limitations for rape. The perpetrators could have been prosecuted as long as they were alive. He wouldn’t hazard a guess at how many kits had been destroyed by police.
“You may have a hit against the national DNA database, and when law enforcement or prosecutors are notified, [they] find out evidence has been destroyed,” said Kentucky state auditor Adam Edelen. “That’s a scandal – it’s a tragedy.”
The destruction of rape kits comes as lawmakers take a keen interest in adding arrestee DNA to CODIS (short for the Combined DNA Index System). That national database was designed to serve as a bank of DNA from both suspects and from crime scenes. Advocates, however, contend that the destruction of rape kits represents the nation’s prioritization of offender DNA over crime scene DNA.
“[What] we are seeing is very retarded movement in the testing of crime scene evidence. In other words, you can collect all the offender evidence you want; if you have nothing to compare it to – in other words, crime scene evidence – you’re going to solve very few crimes,” said Rebecca Brown, policy director at the Innocence Project. Studying evidence retention policies was one of her first projects when she started at the agency in 2005, she said.
Most state lawmakers, she said, fail to provide guidance on when to test and retain crime scene evidence, which in the case of a sexual assault is a rape kit.
Alabama, for example, collects DNA from everyone arrested for any felony, and from people arrested for some misdemeanor sex crimes. But the state has no statute governing how long police should keep DNA evidence collected from crime scenes, such as rape kits, according to the National Conference of State Legislatures and the National Center for Victims of Crime (both in 2013).
“We are seeing huge changes in policy around the collection of evidence from offenders: in other words, a huge increase in the collection of swabs of people,” she said.
Experts said about half of states have laws to tell police how long to preserve evidence, everything from DNA to handguns involved in serious crimes, but even those tend to focus on keeping evidence after conviction. That leaves unsolved crimes in legal limbo.
Contrast Alabama’s lack of a statute with Mississippi: there, evidence must be preserved for the length of time a crime is unsolved or until a convicted person is released from custody, the National Center for Victims of Crime reported. This kind of statute, advocates say, provides greater protection not just for victims of crimes but for the wrongfully convicted.
States lacking evidence retention laws are not split between liberal or conservative, nor are they geographically grouped. They span from Vermont to Tennessee and from Pennsylvania to Utah.
“There is no rhyme or reason,” said Brown. “We can’t even divine a pattern to share with you. We’ve seen good laws in states like Texas … My home state [of New York] has no [evidence] preservation law, so there’s just an incredible mix.”
One kind of kit in particular, called a “non-reporting” or “Jane Doe” kit, is particularly vulnerable to destruction. Beginning in 2009, the Violence Against Women Act required states accepting grant money to provide a way for women to undergo a rape exam without reporting a crime to police. VAWA also allowed states to determine how long to keep those kits, who offers them and where they are kept.
The provision, meant to encourage rape victims to preserve evidence, even if they weren’t ready to report, means that thousands of anonymous kits sit untested in rape crisis centers, hospitals and police departments for as little as a month or indefinitely.
For example, in Florida, policies for how long to keep anonymous rape kits varied widely between crisis centers where they were collected. As of 2009, kits at a Tampa Bay Area clinic were kept for as little as 30 days, but kits from victims in Escambia and Santa Rosa counties will be held for up to four years by the sheriff’s department, according to data collected by the Florida Council Against Sexual Violence.
Shuenemann said her case was closed within nine months of the incident, after she couldn’t identify her perpetrator from dozens of mugshots. A former police chief, Michael Berkow, told the Denver Post in 2007 that the loss of her evidence was a failure.
“Think about all of the cases, not just rape but any form of sexual assault, murder, all the cases where evidence has not