Yesterday Governor Terry Branstad signed a bill requiring a statewide inventory of untested rape kits. The Iowa Attorney General’s Office pushed for House File 2420, which passed the Iowa House and Senate unanimously with the support of various groups representing law enforcement, crime victims, and attorneys.
I enclose below background on the provisions, benefits and limitations of the bill State Public Defender Adam Gregg described as a “significant step toward justice in Iowa.”
In a fiscal note on House File 2420, Alice Wisner of the Legislative Services Agency explained the origins of this bill.
In September 2015, the U. S. Department of Justice awarded a $2.0 million grant to the Iowa Attorney General’s Office (AG) to identify the number of untested sexual abuse evidence collection kits existing within Iowa law enforcement agencies. Half of the grant funds ($1.0 million) is directed to testing kits and the remaining funds ($1.0 million) is directed to support law enforcement investigations and prosecutions derived from kits tested. This grant will be available for three federal fiscal years (FFY2016–FFY2018). A steering committee within the Crime Victim Assistance Division (CVAD) of the AG’s Office was formed to administrate the grant.
The funds were received in February 2016 and a survey was immediately sent to 414 Iowa law enforcement agencies. Responses were requested within 90 days. The experience in other states has been a compliance rate of approximately 40.0% with a nonmandated survey. This bill requires a survey response by January 1, 2017. The CVAD is to compile the results of the survey and submit a written report to the General Assembly by March 15, 2017. The report is to include the names and contact information of each law enforcement agency that fails to submit answers to the survey as required. The survey includes specific questions on the storage of each kit, and an inventory of each kit including the reason for not submitting the kit for analysis.
It is not possible at this time to estimate how many untested sexual abuse kits will be reported statewide. The city of Des Moines has already completed an inventory and identified 870 untested kits. It is also unknown at this point how many kits will be viable for testing. A kit must yield five samples to be viable for laboratory testing.
Barbara Rodriguez of the Associated Press reported on February 17,
Janelle Melohn, director of the Crime Victim Assistance Division within the state attorney general’s office, noted that her staff has already received some feedback from law enforcement agencies, which have 90 days to respond.
“As of right now what we know is about 1,500 (untested) kits, and that’s with less than a quarter of our law enforcement agencies responding,” she said, noting that the Des Moines Police Department reported more than 800 untested kits. […]
“This is a national issue,” said Rep. Marti Anderson, D-Des Moines, who is a co-sponsor of the bill. She brought to the [House Public Safety Committee] meeting a typical kit, which can cost up to $1,000 each to test.
The state attorney general’s office has also received information about at least one hospital that is storing untested kits. Robert Hamill with the Crime Victim Assistance Division said the office is ready to expand its reach if needed.
“If we are hearing that hospitals have them, then we’ll go to where we think they exist and survey them,” he said.
Jessie Hellman reported for the Cedar Rapids Gazette on February 8,
Iowa law remains silent on how police should handle kits, as do many other state codes, leaving when and if kits should be tested to the discretion of local investigators, prosecutors and police departments. This results in non-uniform standards state and nationwide.
Advocates for testing backlogged rape kits argue doing so will cut down on cases of serial rape. DNA profiles taken from sexual assault kits are loaded into CODIS, the FBI’s national database, to search the DNA profile taken from a rape kit against the profiles of convicted offenders throughout the country.
While the Attorney General’s Office can’t require law enforcement agencies participate in the audit, the Iowa Police Chiefs Association and the Iowa Department of Public Safety will encourage responses, Melohn said.
A Gazette analysis in November showed that more than 350 rape kits, some dating back to the early 1990s, remain untested in the evidence rooms of Linn and Johnson counties’ eight law enforcement departments.
Like victims’ advocates, attorneys who represent those accused of sexual assault also support a better process for cataloguing and testing rape kits in Iowa. State Public Defender Gregg explained his office’s interest in House File 2420 in an op-ed published in several newspapers, including the Cedar Rapids Gazette:
[Michael] Phillips, a black man, was convicted and served twelve years for a sexual assault on a sixteen-year-old white woman in 1990 — a crime he did not commit. The victim had picked Phillips out of a lineup, erroneously identifying him as her attacker. Rather than go to trial and gamble with a hefty sentence, he hedged his bets and pleaded guilty to a lesser crime. The rape kit went untested — that is, until the Dallas [Texas] District Attorney’s Office took another look at untested rape kits. When the kit was finally tested, the evidence pointed to another man. In 2014, Phillips was awarded $80,000 for each year he was wrongly incarcerated.
Another example can be found in the story of Luis Vargas in California. Vargas was convicted of three sexual assaults, and sentenced to fifty-five years in prison. Like Phillips, Vargas had been erroneously identified by the victims, who recognized a teardrop tattoo on his face. However, when attacks fitting the “Teardrop Rapist’s” modus operandi continued while Vargas was incarcerated, lawyers from the California Innocence Project got involved- including Audrey McGinn, the director of our new Wrongful Conviction Division here in Iowa. They worked with prosecutors to get them to agree to DNA test the rape kits. The results showed that the victim’s attacker was not Vargas, but instead matched the profile of the real Teardrop Rapist, who was obviously still at large. Presented with the results and the cooperation of both the prosecution and CIP lawyers, Judge William Ryan of the Los Angeles County Superior Court took less than a minute to overturn Vargas’s convictions for which he was wrongly incarcerated for sixteen years.
Gregg’s office worked with the Attorney General’s staff on an amendment, which House members adopted before passing the bill on March 3. James Q. Lynch reported,
House File 2420 was amended on the floor to require that, if a conviction were obtained in a case where a rape kit was not tested, the information shall be provided to the public defender for further consideration.
In addition to obtaining convictions in cold cases, [State Representative] Anderson said, “we want to look at exonerating people convicted without DNA evidence.”
“This adds to the other side of justice,” she said.
Before being elected to the Iowa House, Anderson ran the victims’ assistance division of the Attorney General’s Office for many years.
It’s worth noting that House File 2420 does not require processing of all untested rape kits. Law enforcement will report data to the Attorney General’s office, which will report some findings to state lawmakers and to the State Public Defender’s Office by March 2017. Half of the $2 million federal grant will be allocated for testing rape kits, but at $1,000 per kit, that funding may not cover all of the evidence that merits processing.
Maridith Morris, the Democratic candidate in Iowa House district 39, commented on House File 2420 last week from her perspective of working with many victims.
Ending the backlog of sexual assault forensic testing kits is an issue I feel very passionately about. As a sexual assault nurse examiner I care for patients in their most vulnerable time. I am privileged to help them on their journey of healing and to serve justice by gathering evidence.
Unfortunately, much of that evidence is relegated to storage areas. Survivors of sexual assault trust that their kits will be handled with care and tested in a timely manner. I’m proud of our state for taking positive steps to address the backlog by passing a bill mandating inventory of all untested sexual assault forensic kits through both the house and senate.
This is an excellent first step, but more work will need to be done. Including ensuring victim’s right to notification and expeditious testing of new kits.
Some kids remain untested because the alleged victim decided against pressing charges. Still, those from whom evidence was collected deserve to be told if that evidence was never processed.
UPDATE: Responding to my request for comment, the Iowa Attorney General’s Office released this statement on behalf of Attorney General Tom Miller.
“We think it’s really important that all of our law enforcement partners across the state respond to this survey so we can get a handle on the scope of the issue. This bill will help us achieve that. As soon as we have a better understanding of our untested sexual assault kit inventory statewide, a team of experts will determine how best to move forward with testing.
“Eventually, we’d like to develop comprehensive recommendations that address potential procedural changes, best practices, and training. Our goal is to ensure that Iowa’s justice system serves the best interests of victims, holds offenders accountable, and helps keep Iowans safe.”