By Ken Stone
More than a year into a highly touted effort to test backlogged San Diego County rape kits, a Virginia lab has found less than half could ever lead to prosecutions.
About 60% of the 966 kits tested and returned by last week had no male DNA, said Deputy District Attorney Kate Flaherty.
“None of us were surprised,” said Flaherty, a 24-year veteran local prosecutor who was assistant chief of the Sex Crimes and Human Trafficking Division from 2016 to 2018.
She also disclosed that the DA’s Office has sent 1,178 kits to Bode Cellmark Forensics in Virginia at a cost of $801,780 (as of April 30).
(District Attorney Summer Stephan in April 2018 vowed $1 million toward testing backlogged kits from the Sheriff’s Department and police agencies other than San Diego’s — Escondido, Chula Vista, National City, SDSU, Oceanside, Carlsbad and Coronado. Completion was expected by summer 2019.)
But Flaherty recalls the 1990s, when defense attorneys challenged the admissibility of genetic results as not scientifically reliable, so she’s glad to see male DNA turn up even 40% of the time.
“Whether DNA can be found [depends] greatly on the described assault, how far it went, how much time elapsed between the assault and the exam, and so many other variables,” Flaherty said.
“This is consistent with what labs across the country have seen, whether outsourced or worked in-house,” Sudkamp said Tuesday while attending the ASCLD annual symposium in St. Louis.
“There may have been a condom used, he may not have ejaculated, it could have happened a few days before the exam and no sperm present, the victim may have showered, foreign objects [were used], he may be aspermatic due to a vasectomy or other health issue, etc.,” she said via email.
Flaherty says the vast majority of kits with male material show DNA from “identified” suspects — relatives, neighbors and others familiar to the victim.
“If it was a stranger, that’s one thing. But the vast majority of these cases involved identified perpetrators,” she said. “It doesn’t go to the ultimate question — was she too intoxicated?”
But she says it’s too soon to say how many sex-assault cases have been “energized” by the discovery of “stranger” DNA by the Bode lab.
The Sheriff’s Department’s crime lab has been doing the “heavy lifting” since the Bode testing project began, Flaherty said.
“We’ve only recently begun to get information back regarding the uploaded DNA profiles,” she said. “Any number would be so speculative and subject to almost daily change. But the investigative members of our team are meeting frequently on everything we get back from the lab to brainstorm the action implications from that point, and we all discuss it weekly.”
So far, no announced prosecutions have resulted from the nearly 1,000 kits tested.
Flaherty says she wishes that all backlogged kits had been tested as they came in, but understood why many weren’t. She explained how:
- Some cases didn’t require DNA because other evidence was sufficient or perpetrators known.
- Some “righteous victims,” meaning clear victims, didn’t want to cooperate, so testing wasn’t pursued.
- Prosecutors, thanks to experience, thought they couldn’t prove guilt beyond a reasonable doubt, especially in cases involving drinking.
- And testing was expensive for already cash-strapped agencies.
“I never expected when we started [testing backlogged kits] that we’d be issuing a whole bunch of cases out of this — because those cases were already analyzed to some extent by somebody,” Flaherty told Times of San Diego.
“Either it was never submitted to us because the victims said ‘Stop it right now; I’m not going any further with this’ … Or it was submitted to us and rejected. Or we did not ask for the kit to be tested, because [guilt] was already provable.”
Flaherty says she knows how it “looks from the other side” — to critics of the untested backlog — and she’s sorry more wasn’t done in intoxication cases, where DNA testing can’t determine guilt.
“There’s anecdotal evidence out there that there’s a certain group of people who have figured out how to spike drinks,” she said. “They know what drugs will put them out without killing them and they know the drugs that are amnesiacs — the drugs where you literally do not remember anything at all. I think that happens all the time.”
Lab people also tell prosecutors that evidence is gone on the first urine void.“It’s very hard to prove that case beyond a reasonable doubt when all the woman has is no memory and the guy can come in and fill in the blanks however he wants,” Flaherty said. “And we are powerless to refute it. Those cases are losers … unless we have a pattern.”
Helping show patterns is the federal CODIS database, but not every Bode-tested rape-kit result with male DNA will go into it.
“You have the very rare situation — a total fabrication,” Flaherty says. The purported victim may be mentally ill or have other issues, or ultimately confess to sex with someone else.
“You aren’t going to put that guy into CODIS because it’s a consensual hookup,” she said.
Lori Saldaña, the former Assembly member and San Diego mayor candidate, is an outspoken advocate for testing of backlogged rape kits.
She acknowledges that assailants are most often spouses/partners, family members, friends and acquaintances of friends.
“It is the people known to the survivors who are most likely to assault and kill them,” she said. “Most abusers go on to repeat their crimes, and/or have committed assaults against others before a report has been filed. They count on women NOT reporting attacks, and authorities NOT testing [sexual assault kits], and people NOT holding them accountable for their actions.”
For those reasons, Saldaña says, the San Diego Police Department and DA’s testing criteria “have it backwards.”
(San Diego police officials didn’t respond to a request for their latest data on rape-kit testing, but a January 2018 report said 57% of 4,532 backlogged kits had been tested.)
“Not testing SAKs because a survivor knows their assailant (which is most often the case) will result in missing DNA ‘hits’ from previous assaults — up to and including murders,” Saldaña says.
In other words, “the current criteria and refusal to test ALL SAKs has made our communities less safe and has put people at higher risk of violence from repeat offenders.”
She also commented on the finding that 60 percent of tested kits show no male DNA, saying experienced offenders learn how to avoid leaving trace DNA behind.
“And ‘saving money’ by not investigating a sexual assault seems just the opposite: Survivors have a lifetime of higher medical costs, PTSD, illnesses and other problems associated with their assault,” she said. “Is that factored into the accounting in their offices?”
Saldaña noted a recent surfer-assault case in which DNA testing failed but still resulted in a prison sentence.
“So long as journalists and authorities treat sexual assault differently from other violent crimes, we will have an epidemic of intimate partner violence,” she said.
“As another advocate reminded me: Testing rape kits will often reveal serial rapists. Many times, the defendant will gladly take a guilty plea to avoid having law enforcement find out about their previous attacks.”
Finally, she’s worried that testing delays could mean loss of DNA from damaged kits. (She shared a story about a sprinkler system accident in a Houston Police Department property room.)
Sudkamp, the Kentucky lab director, notes that before creation of CODIS, the FBI DNA database, “if you didn’t have a suspect to compare a kit to, there wasn’t a push to analyze them.”
“You might find semen or saliva, but without a suspect … the results didn’t assist the investigation,” she said. “Once the DNA database existed, you could analyze kits and any profiles obtained could be searched in CODIS to match to a convicted offender or another open case.”
In earlier times, if victims balked at proceeding, prosecutors would typically not continue, Sudkamp said. (But that’s changed since the advent of CSI-type TV shows, she said, “where juries expect to see lab testing on everything.”)
Sudkamp is solidly in the camp of testing kits — even where prosecution has been declined or “No true bill” is returned by a grand jury.
“If the same offender in that case matches to other cases, the case changes and prosecution may go forward,” she said. “For cases where the victim does not want to go forward, if the kit produces a profile that hits to other victims of a serial rapist, maybe the victim chooses to go forward with the other victims at her side. Testing all kits is important.”
She also noted a recent study, summarized in a forensic science trade journal, that the benefits of eliminating rape kit backlogs “could be staggering.”
“Between the benefits to the victim, the prevention of repeat crimes from serial rapists, the savings from security and in the justice system, and also the productivity losses that are staved off, going through the backlog would represent a societal return on investment (ROI) of anywhere from 9,874 percent to 64,529 percent,” said Forensic Science International: Synergy.
Deputy DA Flaherty says testing of the old county kits will be completed this year.
“Our best projection is end of summer,” she said, “but I have pretty good confidence by the end of the year.”
Is District Attorney Stephan satisfied with results?
“Satisfied is maybe not the right word,” Flaherty said. “She’s very grateful and thankful for the cooperation of the [sheriff’s] crime lab and its contract agencies to actually do all of this work and get it all together.”
Flaherty says the program is working out as hoped.
“[Stephan] is very glad that this backlog is ending, and that we can start … fresh with testing all kits as they come in.”
Should the public be happy with the project’s results?
“Yes, I think they should. … I think the public should be very relieved that the backlog is ending and there should be no more backlog after this. And that all of the kits are being dealt with equally and fairly,” Flaherty said.
“We’re getting whatever evidence information that we can out of these and putting it into a very large database that would be used for law enforcement for as long as the people in it are alive.”
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