PHOTO: rape kit

IN 2014, the Virginia General Assembly ordered a count of the untested rape kits that had stacked up in offices and warehouses across the state. Lawmakers already had an inkling that a significant backlog of Physical Evidence Recovery Kits, or PERKs, existed.

The number that came back was around 3,000, though a subsequent Attorney General’s Office survey reduced the backlog through 2014 to 2,000. They dated as far back as the 1980s, when DNA technology was in its infancy. But over the ensuing decades, it would become the most advanced forensic crime-fighting tool since fingerprinting was developed a century earlier.

The ongoing project to clear the backlog in Virginia, through extensive legislative and forensic legwork, represents an important and impressive cooperative effort.

But when it came to one of the most important aspects of the process—determining exactly when, how and under what circumstances the victims of these possibly decades-old crimes would or would not be notified of the status of their individual rape kits—the decision making fell short.

The failure to think the process through, to set a clear policy for conveying test results to the victims, was so egregious that it takes a bite out of the good intentions of eliminating the PERK testing backlog. The upside, of course, is that adding DNA to the database could eventually help identify, implicate, or exonerate a sexual assault suspect.

But what about the victims? The initial grant to pay for backlog testing stipulated that a kit would not be tested if an investigation had determined that no crime had been committed, or if the victim did not want it tested.

When legislation was passed calling for the old PERKs to be tested, however, a victim’s current wishes on testing or notification 10, 20, or 30 years later couldn’t be known. What the legislation did specify is that all victims (or responsible parties or next of kin) “shall” be notified once their kits were tested. Disagreement also remains on whether notification was to be limited to those tests that resulted in a DNA database “hit.”

Repeated attempts to seek clarification on these issues from Attorney General Mark R. Herring’s office were unsuccessful.

In any event, according to published reports, there have been instances of decades-old wounds being reopened when victims were notified out of the blue. Blanket notifications were blind to any personal circumstances that made unearthing an old incident the last thing a victim would want. Maybe they had finally put the nightmare behind them for good, or so they thought. Was the victim now in a relationship with someone unaware of that episode in her past?

Herring’s office reported recently that the first phase of testing kits collected through 2014 had been completed. The number of Virginia kits actually tested came to 1,770. Testing has brought new links to 140 sexual assault suspects. According to the Associated Press, 568 DNA profiles from the Virginia cases were added to CODIS, the national Combined DNA Index System.

From the beginning, the backlog situation was appalling. The public was outraged. Each of the more than 100,000 PERKs gathering dust across the country could represent an unsolved case—perhaps the work of a serial offender who could have been stopped, but wasn’t.

Each case involved a woman (or possibly a man) who, while already traumatized by the event that prompted the testing in the first place, was suffering the indignity of having assault-related evidence being collected from her (or his) body.

Instead of being used to pursue possible criminal prosecutions, however, the kits were set aside without being tested, for whatever reason, and largely forgotten.

An updated count of PERKs collected between 2014 and 2016 added another 1,247 untested kits to the backlog. Herring’s office says testing of those should be completed in 2020.

To prevent a recurrence, legislation was approved that requires PERKs to be sent for testing within 60 days of the evidence being collected.

To improve the notification process, officials are looking to establish and publicize a hotline that would allow victims to seek out rape kit information if they want to. The law requiring that all victims be notified will have to be amended.

It is commendable that the backlog is being eliminated, but there’s a lesson to be learned in making sure victims don’t find themselves victimized once again.

Twitter: @FLS_Opinion

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