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‘Failure of the criminal justice system.’ State moves to clear backlog of 10,000 rape kits

Washington state officials say they have the solution to the massive backlog in untested rape kits.

The bill that the Senate passed Thursday, combined with funding in the upcoming two-year state operating budget, will enable the State Patrol to clear the backlog by December, 2021, an aide to Gov. Jay Inslee said.

“We believe that if we can get the kits tested, not only can we do what we are responsible to do, but we may also potentially prevent future crimes from happening,” Sonja Hallum, senior policy advisor for public safety in the governor’s office, told a Senate committee recently.

The state has a backlog of about 10,000 untested rape kits, according to Capt. Monica Alexander, spokeswoman for the State Patrol.

“Every one of those kits is a survivor whose voice hasn’t been heard,” said the lead sponsor of HB 1166, Rep. Tina Orwall, a Des Moines Democrat. Her bill, which passed the House on March 6, moves to Inslee for his signature.

The Joyful Heart Foundation — an advocacy group that provides support and programs to survivors of sexual assault, domestic violence and child abuse — said untested rape kits are a national problem with common causes.

“The backlog of untested rape kits represents the failure of the criminal justice system to take sexual assault seriously, prioritize the testing of rape kits, protect survivors and hold offenders accountable. There are several key contributing factors that create a backlog,” the group said in a statement.

They include lack of policies and protocols for rape kit testing, lack of employee training, whether the perpetrator is known and a lack of resources, according to the Joyful Heart Foundation.

Four years ago, the Legislature required local law enforcement agencies to submit rape kits they receive from hospitals to the State Patrol crime laboratory for testing.

The House and Senate have included $10 million in the two-year state operating budget that starts July 1, so the State Patrol can hire more forensic scientists, buy more higher-tech equipment and continue to use a Utah-based company to help eliminate the backlog.

Starting May 1, 2022, the State Patrol is required to complete testing of a rape kit within 45 days of receiving it from local law enforcement agencies under Orwall’s bill.

“They’re trying to give us time to clear the backlog first,” said Alexander, the State Patrol spokeswoman. “So then we’re starting fresh and when we finally get the backlog cleared, now this is the new norm — a 45-day turn around.”

At a recent meeting of the Senate Law and Justice Committee, Sen. Mike Padden, R-Spokane Valley, questioned whether the 45 days should be moved up to 30 or 25 days, given Orwall’s testimony that states including Oregon and Ohio have made significant progress in reducing their backlogs.

Orwall said she considered moving up the 45-day time line but said the state will know whether kits can be tested quicker once the State Patrol remodels its Vancouver lab to add a “high-throughput lab.” That type of lab specializes in analyzing less complex evidence like swabs and uses technology that enables a state forensic scientist to complete 14 cases per month compared to seven at other State Patrol labs.

The bill also extends the statute of limitations for prosecuting a rape case. Currently, state law sets the time limit for sex offenses at one year after the date of the crime or one year from the date on which DNA testing or photo evidence identifies the suspect — whichever is later. The bill increases the extension based on DNA testing or photo evidence to two years.

Local law enforcement agencies, prosecutors, and hospitals are required to provide data to the State Patrol’s system that tracks the location and status of rape kits. The tracking covers the evidence from when it was collected to its use in the criminal justice system.

A “bill of rights” section for rape victims says information must be provided to victims when they ask about the status of their kit and other evidence involved in the crime and whether the test yielded a DNA match — as long as providing that information doesn’t compromise an investigation.

Rep. Gina Mosbrucker, R-Goldendale, is the co-chair of the task force with Orwall. She said HB 1166 addresses several of the concerns outlined by rape victims.

“This is the final bill, hopefully, to make Washington state become a state with zero backlog and send a strong message to people that we apologize for this horrific act and this abandonment of these kits that they were brave enough to go through the testing on,” Mosbrucker said.

The State Patrol, which supports the bill, often is asked how the backlog of 10,000 untested rape kits happened, said Alexander.

Before 2015, all rape kits were not tested. Prosecutors and law enforcement agencies decided which ones would go to the State Patrol for testing. The state had limited funding to test them and took two years to train forensic scientists, Alexander said.

Four years ago, the Legislature required local law enforcement agencies to submit rape kits they received from hospitals on or after July 24, 2015 to the State Patrol crime laboratory for testing. Alexander said there shouldn’t be discretion in whether rape kits are tested if victims consent to the testing.

Nicole Stephens, who is among the rape survivor representatives on the task force, referred to the backlog of 10,000 untested rape kits in urging legislators to support the legislation.

“Every piece of this bill is absolutely required in order to heal the 10,000 wrongs that the state has done and that is the only tangible number we have; think of the perception, though, if I have a friend, a sister or a mother that has gone through this and the test was not taken seriously. The kit was not tested. That’s a huge part of why these (crimes) are so under-reported,” Stephens said.