Hawaii lawmakers are moving closer to resolving the thorny problem of hundreds of untested rape kits sitting on the shelves of the state’s only crime laboratory at the Honolulu Police Department.

Although minor differences between bills passed in both the Senate and House last week must still be resolved, if the legislation becomes law rape kits gathering dust for years will be counted and many of them eventually tested. Specific deadlines for submitting and testing new rape kits also will be established.

The House Human Services Committee was slated to hear Senate Bill 2309 on Tuesday. A companion measure, House Bill 1907, is scheduled to be heard Thursday in the Senate Public Safety Committee.

What the final bill will almost certainly include is the creation of a rape kit tracking program requiring an inventory of all untested rape kits collected before July 2016 and mandating those kits subject to criminal investigation be analyzed.

Beginning July 1 law enforcement agencies receiving a rape kit related to the investigation of a criminal case would be required to submit the kit to a crime lab within 10 business days and the laboratory would have to complete its analysis of the evidence within six months, provided “sufficient staffing and resources are available.” The law would also require annual reports on the number and status of rape kits.

Hawaii lawmakers have passed bills that would put in place new requirements for testing rape kits.
Hawaii lawmakers have passed bills that would put in place new requirements for testing rape kits. Cory Lum/Civil Beat/2016

Much of the responsibility for implementing these requirements will fall on the shoulders of the state’s attorney general.

But Joshua Wisch, special assistant to the AG, said, “it’s premature to say exactly what form that will take until all the parties have agreed on the final wording of a bill” or what resources will be needed. The AG, he said, continues to discuss the best approaches with lawmakers.

Final wording will be hammered out after another round of hearings in both House and Senate during the coming weeks. Lawmakers also must decide how much money will be appropriated to implement the law.

With the six-month testing requirement, for the first time Hawaii is attempting to establish its definition of what is considered a backlog for untested rape kits – a definition that so far has eluded standardization in America.

The U.S. Justice Department “suggests” rape kits would be considered backlogged if they hadn’t been analyzed within 30 days of being received from police. But some crime labs consider a backlog to be 90 days while others consider cases backlogged until a final report has been issued.

Kata Issari, the Hawaii executive director for the Joyful Heart Foundation — a national organization advocating for sexual assault, domestic violence and child abuse victims that was founded 12 years ago in Kailua-Kona by television actress Mariska Hargitay — said her organization would prefer to follow the Justice Department definition “because six months is very slow.”

“Mandatory and swift testing of every kit logged into evidence is the best-practice standard and mandatory submission and testing eliminates the discretion of law enforcement officers and assures victims their cases will be taken seriously,” Issari said.

What Is A Backlog Anyway?

This lack of a standardized definition for backlog means nobody really knows how many rape kits remain untested across the country — not the FBI, Justice Department or any of the 18,000-plus state, county and local law enforcement agencies. Currently the numbers are anybody’s guess.

National statistics on untested rape kits are months, if not years, out of date due to the lag time in reporting and tabulating data – if police report the data at all. The most comprehensive statistics on untested kits currently available are at least five years old.

Estimates of untested kits nationwide range from 100,000 to 400,000, according to the National Conference of State Legislatures. In 2009 the National Institute of Justice reported the backlog was slightly under 112,000 and that number has not been updated since.

“Untested rape kits are a failure of the criminal justice system.” — Kata Issari, Joyful Hearth Foundation

HPD estimates it has 1,500 untested rape kits and is currently conducting an inventory to determine the exact number. So far the department says 30 of these kits are being shipped to the FBI laboratory as part of a program where law enforcement agencies may request the testing of up to 30 kits. Separate requests for additional batches of untested kits must obtain FBI approval.

An HPD spokeswoman said the department expects to complete the inventory of untested kits by fall of this year.

But this inventory isn’t simply a matter of counting kits on a shelf. It’s a more detailed review of what evidence the kits contain and the circumstances in each case where the kit was collected.

Wisch said this process requires a determination on which kits contain DNA material that can or should be tested.

“Some kits may contain material that can be tested,” said Wisch. “Other kits may contain material from victims who have withdrawn their complaints or do not want the material tested. Some kits may be from cases that have already resulted in convictions.”

Changes In The Law

The number of untested kits in Hawaii, and the nation, may be greater today because the definition of rape itself has been revised. For purposes of its Uniform Crime Reporting Program, in 2013 the FBI dropped the category of “forcible rape” and substantially increased the number of crimes considered to be rape while removing incest and statutory rape from the tabulations. That revision has increased the number of reported rapes and, presumably, the number of untested kits.

The impact of this revision on Hawaii is illustrated by the FBI’s crime statistics for 2014, the latest complete annual tally available. Under the old legacy definition Hawaii law enforcement agencies reported 314 rapes to the FBI. The new definition increased that number by nearly 42 percent to 445.

Issari said Joyful Heart supported the change in the federal definition of rape, but it is too early to tell what impact that might have on the number of untested kits in the state.

Whatever that number, eliminating the backlog takes time and money.

crime scene tape police rape assault

Wayne Kimoto, HPD crime lab director, in written testimony submitted to the state Senate Public Safety Committee last month, supported the intent of the legislation, but said the law would pose a financial hardship on his laboratory, estimating the cost of simply complying with the reporting requirements alone at $48,500.

Without additional funding, Kimoto said lab personnel would have to be diverted from other duties, something that would adversely affect the laboratory’s ability to process forensic evidence for non-rape cases and trials.

In subsequent written testimony to the House Human Services Committee, Kimoto laid out a litany of additional concerns, most of them dealing with dollars. He estimated the costs to hire and train new personnel, purchase equipment and then process and analyze the rape kit backlog — or outsourcing the work if necessary — would be at least $7.2 million through 2018 and $800,000 annually thereafter.

During the past 14 months HPD says it has received $630,000 in state and federal funds with “some” of the money being used to reduce the number of untested rape kits. In 2015 HPD received $102,367 under a 1994 federal law providing funding for the investigation and prosecution of violent crimes against women.

This money, the department said, was split between its crime lab (officially called the Scientific Investigation Section) and the department’s criminal investigation division.

Another $464,000 in grant money is being used to reduce the backlog of untested DNA samples from a variety of crimes including not just sexual assaults but homicides and non-violent crimes as well. Some of this money is being used to hire new DNA analysts and acquire additional equipment. In January HPD received $64,830 to inventory its untested kits.

HPD’s Scientific Investigation Section is part of the department’s Investigative Bureau responsible for criminal investigations, narcotics/vice and the traffic division. The SIS is the state’s only full-service forensic laboratory, providing services to Hawaii, Kauai and Maui counties and well as other city, state and federal agencies.

This competition for the spectrum of forensic laboratory services provided contributes to Hawaii’s rape kit backlog. Besides rape kit analysis the SIS also analyzes evidence for murder, burglary, drug and even fraud cases.

Currently SIS has six people assigned to performing all DNA analysis. An HPD spokeswoman said the department is in the process of hiring three additional analysts, but it takes almost two years before a new hire is fully trained.

A Problem Nationally

Unquestionably HPD’s estimated 1,500 untested kits are mere molecules in the proverbial drop of water in the national bucket of kits awaiting testing. But for sexual assault victims seeking some measure of justice and closure even one untested kit is too many.

“Untested rape kits are a failure of the criminal justice system,” says Joyful Heart’s Issari.

According to FBI crime statistics, between 2009 and 2014 almost 2,400 rapes were reported to police in Hawaii including 220 categorized under the new revised definition. Preliminary tabulations for the first six months of 2015 increased the total by 147. How many rape kits were generated and actually tested during this period is unknown.

An important aspect to testing rape kits in a timely manner is to build a DNA “profile” of unknown attackers that local law enforcement agencies upload to the FBI’s National DNA Index System, a vast computer database that’s part of Combined DNA Index System – or CODIS — as it’s known to millions of television viewers.

The FBI, in turn, compares these profiles to those already on file in hopes of finding a match. At the end of December CODIS contained more than 12.1 million profiles of convicted offenders, detainees and others, 2.2 million profiles of individuals who had been arrested and nearly 675,000 profiles created from crime scene evidence waiting for matches with future suspects.

Since the program began in 1998 the FBI says it has produced more than 315,000 “hits” providing assistance to over 302,000 investigations.

According to the FBI, Hawaii has provided 32,440 offender profiles to CODIS and island law enforcement agencies have been aided in 414 investigations.

The SIS is the state’s only full-service forensic laboratory, providing services to Hawaii, Kauai and Maui Counties and well as other city, state and federal agencies.

Other states, too, are taking action to reduce their own backlogs of untested rape kits. Lawmakers in at least four states are currently considering legislative solutions to the problem. Besides Hawaii lawmakers in at least two other states are considering or have approved legislation designed to reduce the backlog in untested rape kits.

In Florida, legislation to prevent future backlogs was approved handily last month and lawmakers included $2.3 million in the state’s proposed budget to fund the testing of older rape kits and pledged more than $8 million to pay for clearing the entire backlog.

In California, six bills are being considered in the Legislature’s current session that would require the state to upgrade its rape kit tracking system, improve monitoring of untested kits and require law enforcement agencies to explain why a kit was not tested. Another bill would eliminate the statute of limitations on rape and other sex crimes. Oregon has already extended its statute of limitations for rape cases to 12 years.

Across the country more than half of the states have enacted laws covering sexual assault evidence issues in the past few years, with many addressing untested rape kits and requiring testing to eliminate backlogs. In 2013 Colorado lawmakers provided $6 million and required its Department of Public Safety to include money for testing in its annual budget requests. Michigan provided $4 million to reduce its backlog and Tennessee provided funds for additional analysts.

In Congress, legislation introduced this month that would establish a “bill of rights” for sexual assault survivors that, among other things, would require rape kits or evidence they contain be preserved at no cost to the victim until the statute of limitations on prosecution had expired. The action came the same day The Huffington Post reported that some states were throwing out untested rape kits.

If the federal legislation becomes law, Wisch said there would be little, if any impact because Hawaii victims are charged nothing for processing or storing rape kits.

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