Amid heavy criticism over a seemingly lack of urgency to process 6,000 untested rape kits throughout Wisconsin, the state’s Department of Justice has pursued a goal of collecting and processing all kits while maintaining a survivor-centered approach.
In comparison to other efforts around the country, many cities but rarely entire states have taken on the challenge of processing all untested kits. In Detroit alone, there are over 11,000 untested kits. Michigan overall has 15,000 untested kits.
By respecting survivors’ wishes and implementing a process with empowerment in mind, Wisconsin has emerged at the forefront of creating a solution to a system-wide challenge.
Backlogs
When an individual goes to a hospital facility after being sexually assaulted, a sexual assault evidence kit, also known as a rape kit, is usually created. The kit consists of samples of DNA and other pieces of evidence. Unlike most criminal cases, the evidence in sexual assault cases comes from the survivors’ bodies.
After a traumatic crime like sexual assault, people would go to the hospital without knowing whether they wanted to report the assault to law enforcement. In those cases, and in cases where a victim absolutely did not want to report, hospitals would keep those kits or send them to law enforcement agencies in case the victim changed their minds.
Oftentimes, for a variety of reasons, those kits go untested. These untested kits occupy shelf space in hospitals and law enforcement agencies that don’t want to throw the evidence out. Over time, the number of untested kits heads toward the thousands, a problem in every state.
To tackle this problem Wisconsin’s former attorney general, J.B. Van Hollen, created a Sexual Assault Response Team in 2011, known as AG SART. The team discovered that hospitals and police agencies used different protocols to collect these kits, causing confusion about the whereabout of some kits.
The gradual increase of untested rape kits caused what is now referred to as a backlog. A 2014 survey revealed that throughout Wisconsin’s 550 law enforcement agencies and various hospitals, there was a total of 6,000 untested kits.
First steps
SART’s solution to the rape kit system's flaws incorporated changes from when the survivor visits the hospital until a conviction is reached. SART created a universal form for all hospitals that helped them sort kits depending on the survivor's wishes. Kits were redesigned with privacy in mind by matching each person with a barcode on their kit. For individuals who have a kit created but don’t decide to report until months or years later, they can call the number on their form and their kit will then be tested.
The new protocol preserves the evidence in the kit for up to 10 years, allowing people to decide how they want to proceed on their own time. Some states can only hold kits for 30 days. Wisconsin has one of the longest holding periods in the country.
SART also designed a campaign to get survivors who have had a kit created but don’t know its status to come forward. Instead of directly contacting all survivors who have an untested kit, some of whom were assaulted several years prior and didn’t want to know the results of their examination, SART created a “By Your Side” campaign which formally launched last month.
“We have unique protocol where we are respecting victims wishes,” said Audrey Skwierawski, assistant attorney general and violence against women resource prosecutor. “We may not test all 6,000 because we don’t to violate victim’s trust in the system.”
Despite the DOJ’s new protocol, the issue of how to test all 6,000 kits remained. DOJ’s crime lab tests nearly 900 kits a year for ongoing cases.
“There is no ‘backlog’ there. We are right on top of every case being sent to us,” Skwierawski said. “The issue is 6,000 were never sent to us.”
Skwierawski explained the crime lab couldn’t handle the influx of kits while testing 900 recent kits at the same time. If the crime lab hired additional staff it still took two additional years to train them.
In places like Detroit where all kits were tested regardless of survivors’ preferences, it has taken seven years and testing is still not finished.
Grant money
To be able to test all the kits and hire more staff, the DOJ applied for two grants in 2015, each offering $2 million. Wisconsin was one of a handful of states that received funding from both grants. Some cities with major backlog challenges, such as Houston and Detroit, received both grants but for a state to receive the funding was fairly unprecedented.
One grant from the New York County District Attorney allocated money solely for testing kits. The Bureau of Justice Assistant gave half of the funds for testing kits and the other half for putting together a committee of prosecutors and advocates.
The grant also required the DOJ to take inventory of every kit in the entire state before they released their funds. Most grant recipients are cities or counties where this process can go quickly. To take inventory of a whole state, however, is more difficult.
Criticism
The DOJ finished Wisconsin’s kit inventory this month. The process to collect data on every kit in the state’s 550 law enforcement agencies and various hospitals started in March 2016.
During this process of collecting inventory with $4 million in funding, USA Today reported only nine out of the 6,000 kits have been tested. The DOJ received severe backlashes for Attorney General Brad Schimel’s apparent lack of leadership and the copious amount of time the whole process has taken.
“At this point in the backlog, the bottleneck is in the lab,” Skwierawski said. “We’ve sent two batches, one batch of 200 [kits] in January when the lab was ready and 200 in February. The next batch will be sent in March.”
Four Democratic lawmakers sent Schimel a letter in February demanding answers from the DOJ while state Rep. Melissa Sargent, D-Madison, requested an audit of the kit backlog testing policies.
Schimel, who announced that a few hundred kits had been tested when only nine had, has not responded to the letter.
“First of all [lack of testing is] inexcusable and it’s hard to understand after 16 months of federal funds and $4 million there’s still 6,000 rape kits that haven’t been tested,” said state Rep. Katrina Shankland, D-Stevens Point, one of the authors of the letter.
Another author of the letter, Rep. Gordon Hintz, D-Oshkosh, said he recognizes these kits have special circumstances depending on the survivor’s wishes but said that doesn’t justify the thousands that are untested.
“A different narrative behind some might make sense [to not test] but not for all 6,000,” Hintz said. “For every kit that’s not tested you could have a serial rapist out there.”
Skwierawski told The Daily Cardinal that Schimel was referring to the 200 untested kits sent to the crime lab in January and the phrase “kit testing” encompasses a multistep process.
“It would make me angry if I didn’t know all the details,” Skwierawski said. “We don’t want people to feel like we aren’t taking this seriously and that it’s not important to us because it’s super important.”
Future efforts
With the kit process’ past problems resolved, a sexual assault kit sent to the crime lab will typically be processed in two to six weeks depending on how long it takes the lab to find a usable profile. If that profile leads to a conviction the perpetrator’s DNA will be uploaded to a statewide and national database. The database can link violent crimes from around the country or state back to the perpetrator.
The need to test these kits has received bipartisan support. Everyone wants to help survivors receive the closure and justice they deserve. This session, Shankland is planning on proposing legislation that would help survivors on college campuses throughout the state receive resources and information about what a rape kit is and how to navigate the legal process.
Shankland also explained the need to pass legislation to allow survivors to track where their rape kit is immediately and years down the road.
In the first week of March, the DOJ applied for a 2017 grant to continue their effort to process all untested kits. Part of that grant request included money for a kit tracking program.
Other legislation from the Capitol that could help survivors include making it legally mandatory to test all backlogged kits, to test all kits presently and in the future, notify survivors the status of their cases and allocate funding for testing kits.
Wisconsin has work to do, as does the rest of the country. Wisconsin, however, is at the forefront of a victim-centered approach in every procedure surrounding sexual assault, according to Skwierawski.
Wisconsin is one of 15 states with a violence against women prosecutor and one of the earliest states to pioneer statewide initiatives to reach out to survivors to tackle the backlog using a flexible three-step hospital form to sort kits and a decade-long holding period. With protocols in place to ensure a backlog never happens again survivors also have more choices as to what happens after they seek help from a health care facility.
“If you have the opportunity and courage to come forward and have a kit collected we are going to respect and we are going to make sure the right thing is done with that kit,” Skwierawski said.
