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Lawmakers seek standards on 'rape kit' testing; bill sent to Dayton

ST. PAUL—In the wake of a years-old report of thousands of untested "rape kits" sitting on the shelves of Minnesota's sheriff and police departments, a bill that sets a time frame for testing future kits has sailed through the Legislature with bipartisan support.

"What are we going to do to make sure this doesn't happen again?" asked the bill's sponsor in the House, Rep. Marion O'Neill, R-Maple Lake. "Because we don't have justice."

The bill was unanimously approved Tuesday, May 15, in the House; it passed through the Senate earlier this month, and now heads to Gov. Mark Dayton's desk.

The bill would mandate that any health care professional who processes a kit from an alleged survivor of sexual assault, and gets permission from the patient, must inform their local law enforcement agency of the evidence — which must then be picked up by the agency within 10 days.

The agency then has 60 days to submit the kit to a forensic lab for testing — with a caveat: "Unless the law enforcement agency deems the result of the kit would not add evidentiary value to the case."

That's a distinction that's been debated in recent years. Some states, including Michigan, require agencies to forward all kits for testing, no matter what.

Why would they not submit the kits? In many cases, authorities know that intercourse occurred during an alleged assault — suspects admit it, but say it was consensual. Thus, testing the DNA in the rape kit would be a moot point.

But advocates of the "test everything" approach say getting that DNA on file may help authorities find serial rapists, or provide leads for cases they assumed were unrelated.

Additionally, "We all operate about these myths and biases about everybody, and rape is no different. ... Not all investigators view sexual assault the same way," Linda Walther, a registered nurse and experienced sexual assault examiner at Regions Hospital in St. Paul, said in an interview on the topic last year.

Still, "This is the language we've agreed upon at this point. It does say if they (police) decide not to test it, they have to make a record of that. We're hoping that more kits will be tested," said Caroline Palmer, public and legal affairs director for the Minnesota Coalition Against Sexual Assault.

During discussion of that point last year, O'Neill said in an interview, "I do trust law enforcement to make that decision (of whether to forward the kits). ... I don't want to take that authority away from law enforcement and say, 'No, all of them have to be tested,' and I don't want to inundate the system."

"It's a good first step," Palmer said of the bill in general this week.

The bill also allows sexual assault survivors to request information on when their kit was submitted for testing, and whether the test produced a DNA profile. Still, police could deny the request under the law if they believe it would interfere with an investigation.

Understanding the numbers

In 2015, a Minnesota Bureau of Criminal Apprehension report found that roughly 3,500 kits were sitting on police and sheriff department shelves, untested. That's not counting those sitting in hospitals, or in the 25 departments that didn't respond to the BCA survey.

But even survivor advocates noted that not many people understand that number, what it means: In fact, only a small fraction of those thousands — 92 — pertained to active investigations. A big chunk of the kits were "anonymous," belonging to people who didn't want police involvement, at least not yet — and police couldn't touch them. There were cases where complainants drifted from police contact.

And an even bigger portion were closed — found to be either unfounded, or "unprosecutable."

Sexual-assault survivor advocates say they would like a closer look at the kits in that last category — and they're helping the state apply for federal funding to do just that. The Department of Public Safety is applying for a $3 million grant that would add staff and set up a better testing protocol for the kits — as well as figure out how many of the 3,500 kits should be tested, or not.

Bill focuses on future cases

The bill that passed through the legislature does not address the backlog; it addresses future cases.

Kits deemed a priority are sent to the BCA, which conducts the DNA testing.

And ever since the 2015 report, that agency's turnaround times have jumped: from 33 days in 2015 to 60 days last year. It's one reason legislators are hesitant to mandate that kits be forwarded to the BCA en masse. And it's not just rape kits: last year BCA officials noted cases requiring DNA analysis had increased 57 percent over a five-year period, as the technology becomes more widely used.

The BCA received funding for eight more lab staff, but O'Neill said it was her understanding that not all the positions had been filled. A BCA official did not immediately return a call for updated numbers.

O'Neill said the next step, legislatively, is to address which jurisdictions should pay for the kits to be conducted, and where they should be stored.

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