A recent rise in sexual assault cases is adding to a staggering backlog of rape kit testing that a 2019 law was supposed to help combat.

The number of rape cases reported to police has been steadily rising since 2011 when 1,459 cases were reported. In 2019 2,364 cases were reported, according to OSBI statistics.

Passage of Senate Bill 975 in May 2019 forced all law enforcement to send rape kits for testing within 20 days of collecting physical evidence, but the law meant to ensure the testing of every kit has created a new logjam. And some police departments have responded by prioritizing testing based on the violence of the alleged rape.

The Tulsa Police Department did that with a four-tiered ranking system, said lieutenant Darin Ehrenrich of the Tulsa Police Special Victims Unit.

The first tier is what the department considers the most violent rapes, typically by a stranger and with the use of a deadly weapon; those kits can be tested within a day or two. The second tier includes cases involving multiple victims or an element in the investigation that has shown a need for a rushed test. Those kits are tested in about a week, Ehrenrich said.

The third tier includes cases commonly known as date rape, those in which both accuser and accused agree there was sexual contact but the victim reports that it was not consensual. Kits from those cases take six to seven months to get tested.

“Our lowest tier is going to be cases with uncooperative victims, where they make the report but don’t want to follow through with an investigation or prosecution, and those are put in line at our lowest priority level, and those are generally by now probably about a year out,” Ehrenrich said.

The Norman Police Department was recently told to try to find third-party testing labs as the OSBI continues to be backed up, NPD spokesman Eric Lehenbauer said.

Ehrenrich said the Tulsa Police Department has been partnering with an outside lab to help test the kits in their backlog as well as the ones that are continuing to roll in. Tulsa has been able to pay for outside testing thanks to a four-year national grant the department received in 2018.

The Making of a Backlog

Police departments also have to look for storage as the statute of limitations on each kit is 50 years, meaning they have to find a place to store all tested and untested rape kits.

The problem of backlogged rape kits has been going on for years, leading  Gov. Mary Fallin to sign an executive order in 2017 to create a task force to combat the issue.

By 2018 more than 7,000 untested kits were uncovered, according to the organization End the Backlog. Of these kits, 3,300 are still in the original backlog, with 2,657 having never been tested and 673 only partially tested. Partially tested kits were processed with old technology that didn’t allow a DNA profile to be made from the test, according to research from the Manhattan District Attorney’s office.

Melissa Blanton, director of the task force, said the work behind testing the original backlogged kits has begun to create a new logjam, forcing the task force to look at their work in two phases.

“By addressing these old kits we’re looking at one issue, and clearing up anything from the past and changing, maybe those attitudes and going back and making sure we haven’t missed something really big,” Blanton said. “Throughout the project, we’re including training and resources and so I think that will change a lot of things, but right now we’re looking at evaluating resources…. I think we’re all realizing how many more sexual assaults are occurring and are being reported than we ever imagined.”

For those victims, the need to see test results is similar to any person wanting to see the results of a medical exam, said Amanda Kemp, the senior director of violence prevention and response at the YWCA in Oklahoma City.

But for years, police didn’t bother to process rape kits if they thought there would be no benefit to the criminal investigation, part of what Ehrenrich described as the old way of thinking.

“In a lot of cases it may mean that law enforcement wasn’t trained to understand the dynamics of sexual assault, so they thought that maybe it was something that couldn’t be investigated or the victim was not credible,” Blanton said.

The Economics of Rape Kits

For some police departments, the decision not to test the kits was driven by the cost.

“It is very expensive,” Ehrenrich said. “I think right now it’s upwards of $600 a kit to test and when you have hundreds and hundreds of cases coming in a year that is a huge budget allocation for any department, any law enforcement or state agency.”

The task force was given a $2.4 million federal grant to address the startling number of kits. The task force divided the money, giving $1.2 million to begin testing the 1,300-kit backlog.

The rest of the money went to expanding the task force, giving them an opportunity to hire help to advocate for new legislation  That resulted in the passage of multiple pieces of legislation including:

  • SB 971, a law requiring training on how to handle sexual assault cases and the rape kits for law enforcement led by the Council on Law Enforcement Education and Training;
  • SB 975, which requires law enforcement to submit kits for testing within 20 days of collection, maintaining the kits for 50 years and added a protocol for processing the untested kits;
  • SB 16, giving victims of sexual assault the ability to receive compensation through an amendment to the Oklahoma Crime Victims Compensation Act.

The Impact on Victims

The goal of the task force was initially to end the backlog. Blanton said they are now focused on creating meaningful change in the handling of sexual assault cases.

“Prior to the legislation being passed that all individuals that reported to law enforcement that their kits would be tested, kit testing was just dependent on whether they felt like the case would move forward,” Kemp said. “So it was just dependent on ‘is this case going to go to trial or not?’ and that shift has been a major step forward for the state of Oklahoma.”

Kemp said the backlog has given victims a reason to not report sexual assaults for fear waiting for results will keep the incident at the front of their minds.

“Unfortunately we know in Oklahoma, about 25% of women will be raped in their lifetime, and there are health care providers out there, like the YWCA to provide free medical forensic examinations,” Kemp said.

“If you or someone you know has been sexually assaulted, please call our hotline at 405-943-7273. That’s our rape crisis hotline and someone answers that 24/7. I would just say that there’s help out there, there are agencies out there that would be willing and able to assist and to get the survivors all of the things that they need.”

Jonathan Kyncl is an investigative reporting intern with a focus on criminal justice and policing and he’s a journalism senior at the University of Oklahoma. Contact him at (405) 436-4546 or jkyncl@oklahomawatch.org. Follow him on Twitter @Jdkyn.

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