State Sen. J.P. Morrell, D-New Orleans, requested a statewide inventory last year for all agencies acting as custodians of untested rape kits. Morrell expected to find more than 1,000 sitting in evidence lockers around the state. The results revealed 1,069 untested rape kits in law enforcement custody — and another 94 in pediatric health care facilities in New Orleans.
"The backlog of pediatric kits completely threw me for a loop," Morrell told Gambit.
Children's Hospital of New Orleans and its Audrey Hepburn Children at Risk Evaluation Center had in their custody 94 untested kits — meaning a physician collected sensitive evidence, including swabs for body fluids and hair and fibers, all taken from survivors of sexual assault who are minors, as part of a pediatric evidence recovery kit. But no agency had picked up the kits to be tested for evidence in cases, which could lead to prosecution and conviction of an offender.
Rape kits are not processed in some cases, usually when an arrest or conviction for a related crime already has been made, or if a victim recants.
"None of those things apply here," Morrell said. "A child can never consent to sex ever."
Eleven of the 94 kits involved cases in Orleans Parish, according to New Orleans Police Department (NOPD) Communications Director Tyler Gamble. Following Morrell's report, NOPD picked up its kits and brought them to Central Evidence & Property for storage before submitting them to the state crime lab for testing.
The 94 kits represent cases in 62 of Louisiana's 64 parishes. Dr. John Heaton, chief medical officer at Children's Hospital, clarified to Gambit that the hospital can only act as a custodian for the kits; it cannot test them. (Children's Hospital CEO Mary Perrin said the hospital treated 1,479 survivors of sexual assault in 2014.) Morrell requested the rape kit information last August, but a majority of the responses came within the last week of December (and some at the beginning of January, past a Jan. 1 deadline).
"Either law enforcement agencies are terrible at keeping track of evidence in custody, or they didn't take sexual assault seriously," Morrell said.
Rape kits contain sensitive DNA evidence collected by an emergency room nurse and secured in storage. The acting law enforcement agency for the case is supposed to pick up the kit and submit the contents for testing (usually through the Louisiana State Police crime lab). Test results are entered into an FBI database that can link DNA that appears in more than one crime or case around the country. Prosecutors then can use that evidence to put away repeat offenders.
Though Morrell's request for a report was made law last year through his Senate Bill 296, the bill did not include an enforcement component or penalty for noncompliance. Gov. Bobby Jindal signed Morrell's bill in May, making it effective Aug. 1, 2014. While all parish sheriffs' offices responded, only 185 of 315 police departments did. (Kenner Police Department was among dozens of noncompliant agencies that did not report their inventories.)
Morrell said he has not ruled out requesting a legislative auditor investigate those police departments' inventories "to find out what the hell is going on."
Last year, the New Orleans Office of Inspector General (OIG) released a disturbing report revealing a culture of reclassifying rapes, ignoring DNA and other investigative failures among five NOPD sex crimes detectives over a three-year period. In December, Cmdr. Paul Noel — who is heading an NOPD task force re-investigating the cases — revealed that NOPD had "in excess" of 400 untested kits in its custody. NOPD Superintendent Michael Harrison later clarified that it had 209 untested kits that require testing, and 220 that did not.
"Either law enforcement agencies are terrible at keeping track of evidence in custody, or they didn't take sexual assault seriously,"— State Sen. J.P. Morrell
Of the 220 rape kits that no longer require testing, 16 were connected to homicides and were completed in the course of those investigations; 12 were assigned to the Orleans Parish Sheriff's Department; two were from Jefferson Parish; and 35 were from cases cleared by arrest, a warrant or death. Another 130 kits were from cases in which the victim asked police not to investigate, while 25 kits revealed that the victim wasn't sexually assaulted, according to NOPD.
Those kits (and kits at Children's Hospital) remain in cold storage. In a statement to Gambit, Perrin said Children's Hospital "has never destroyed any kits to [ensure] that potential evidence of a pediatric sexual assault is preserved."
Morrell plans to introduce legislation this year requiring officers to receive "basic working knowledge in areas where law enforcement is lacking," including how to handle sexual assault and domestic violence cases. Morrell says officers in smaller parishes still have "no idea how to handle sexual assault cases or talk to victims," and in many domestic violence cases, officers arrest both parties. Morrell also wants legislation mandating all criminal justice and law enforcement agencies have a point person for sexual assault and domestic violence, with a continuing education component that keeps all procedures up to date with best practices, including interrogation and witness interview techniques and — starting immediately — tracking, properly storing and processing rape kits.
Morrell also wants to eliminate the term "simple rape." In Louisiana, simple rape involves rape in which a victim is unconscious or inebriated, thus unable to respond or consent.
"It makes more people more comfortable ignoring it," he said. "We're the only state that does that."
Morrell's point is underscored by the OIG's investigation of NOPD sex crimes detectives, which found then-Detective Damita Williams, who was assigned 11 simple rape cases in the three-year stretch contained in the report, had told her colleagues that she didn't believe simple rape was even a crime. Williams also failed to submit one victim's rape kit for testing because she determined the sex was consensual.
Morrell said law enforcement often "cherry-picks" rape cases to avoid pursuing difficult cases involving simple rape. "But the reality of that type of rape is that it's a crime to have sex with someone who can't give consent," he said. "Officers don't have discretion as to what [law] you should follow or not follow. If law enforcement is making a judgment call to follow charges, they might as well be legislators."
The cases in the OIG sample audit also included children. In the report's three-year time period, then-Detective Akron Davis was assigned 13 cases of possible sexual assault and child abuse, but the cases didn't receive any follow-ups or have any supplemental reports. Davis also didn't investigate the case of a child under age 3 who doctors found had a sexually transmitted disease following an alleged sexual assault, nor did Davis investigate the case of another child who was brought to the emergency room following an alleged sexual assault. During a forensic interview, that child pointed out that a registered sex offender was living in his house — but Davis closed the case anyway.
Morrell's efforts are part of a national "End the Backlog" initiative, led in part by The Joyful Heart Foundation, to reduce backlogs of rape kits in evidence lockers nationwide. Morrell says there's an endemic disconnect between law enforcement and district attorneys' offices.
The National Institute of Justice's 2011 report The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases found that 18 percent of unsolved sexual assaults between 2002 and 2007 contained forensic evidence still in police custody — while 50 to 60 percent of kits test positive for biological material that did not belong to the victim.
More than 44 percent of law enforcement agencies nationally didn't send evidence to a lab for testing because they didn't identify a suspect, and 15 percent didn't submit evidence because prosecutors didn't request it. But even if a prosecutor gets a successful conviction without a test, those kits contain valuable information that could link an offender to serial offenses.
"Rape kit testing sends a message to survivors that they — and their cases — matter," said Maile M. Zambuto, president and CEO of The Joyful Heart Foundation. "It sends a message to perpetrators that they will be held accountable for their crimes. It demonstrates a commitment to survivors to do everything possible to bring healing and justice."