05.29.02

A Report on the Potential for Apprehending Rapists in Washington State Using DNA Analysis

Prepared by the Office of Senator Maria Cantwell

With the assistance of: The Washington State Office of Crime Victims Advocacy Smith Alling Lane, P.S. Forensic Laboratory Services Bureau, Washington State Patrol International Association of Forensic Nurses Sexual Assault Nurse Examiners of St. Peters Hospital Washington Coalition of Sexual Assault Programs

EXECUTIVE SUMMARY

This report details an opportunity to apprehend and convict more rapists in the state of Washington through the use of DNA evidence, especially in "no-suspect" rape cases.

Across the country, local hospitals and police offices are filled with forensic evidence from rapes that have not been analyzed for DNA, often because there are no obvious suspects and to date resources simply have not permitted testing of all rape kits. Additionally, many DNA crime scene samples cannot be analyzed due to poor collection or handling of the evidence. No one is certain just how many untested samples are in this backlog as the samples are spread throughout the case files and evidence rooms of local police stations across the country. However, in jurisdictions that have aggressively worked to first get samples tested, and second to cross check the samples against expanding linked state databases of convicted felons’ DNA profiles, results have been dramatic. Particularly in cases of rape where no suspect existed, rates of apprehension have been as high as 25 percent.

The purpose of this report is to estimate the size of the backlog in Washington state, and to propose solutions for eliminating the state backlog and to apprehend more rapists.

Key Findings:

• There is a huge discrepancy between the number of victims undergoing rape examinations to collect evidence and filing charges in Washington state, and the number of cases where samples sent to the state crime lab for testing. In the past five years, 17,115 cases of forcible rape have been reported to law enforcement, while DNA samples have only been sent to the lab for testing in 4,165 cases. That means that in the past five years alone at least 12,950 women in Washington state have submitted to humiliating and traumatic exams for the collection of evidence that has not been analyzed to help solve their rape.

• In the two years since the Washington state lab began performing DNA analysis on evidence gathered in rape cases where police had no known suspect, 348 analyses have been performed and cross-checked against the Washington state felon database. Of those 348 samples, 28 samples, or 8 percent have resulted in a match, and a rape has been solved.

• If this 8 percent number is applied to the 12,950 cases where DNA analysis has not been performed, 1036 of the rapes that have occurred in Washington state in the last five years could be solved.

• Based on the experience of other states, Washington state’s 8 percent "cold-hit" rate is likely to increase as the state’s new law to expand the criminal database to include all convicted felons takes effect on July 1, 2002, and the number of felons in the database is increased.

• The number of rapes where women undergo an initial physical examination but do not file charges is also likely to increase if more hospitals are able to implement programs taking advantage of trained Sexual Assault Nurse Examiners (SANEs), as this program helps to increase both the likelihood that a testable DNA sample of forensic evidence will be preserved, and that a victim will file charges.

Key recommendations:

• Fund DNA testing on the estimated 12,950 samples collected, but not tested, throughout Washington state over the past five years.

• Fund additional SANE programs in Washington state and throughout the country to increase the number of cases where trained forensic examiners perform the evidence collection and provide simultaneous compassionate care to victims.

• These recommendations form the backbone of S. 2055, the Debbie Smith Act, Senator Cantwell’s bill to eliminate the rape evidence kit backlog.

EXAMPLES OF DNA EVIDENCE SOLVING "NO-SUSPECT" RAPE CASES

Debbie Smith - 1989

In March 1989, Debbie Smith was brutally raped by a stranger in the woods behind her Virginia home. As her attacker placed his gun to her head, he told her that she should not tell anyone because he knew where she lived and could return to kill her. At the urging of her husband, Debbie went immediately to the hospital after the assault. Trained professionals at the hospital were able to collect samples of the assailant’s DNA by performing a physical examination. However, due to funding constraints, local law enforcement was not able to analyze these critical samples at the time. Over six years later, when funding became available, Debbie Smith’s assailant's DNA profile was entered into the Virginia DNA Databank and was found to match the DNA of a current prison inmate. He was convicted of the rape and was sentenced to two life terms plus twenty-five years.

Jeffrey Paul McKechnie: The I-5 Rapist – 1997

Across the country, in Olympia, Washington, Nancy Young-Diaz was called to the St. Peter Hospital Emergency Room to perform her duties as an advanced Sexual Assault Nurse Examiner (SANE) one evening in 1997. An obviously frightened and physically shaken woman walked into the ER that same evening. Within minutes, she was ushered into a private room with nurse Nancy Young-Diaz and other members of the all-female SANE staff. The victim quietly told her story: alone at home waiting for her husband to return, an intruder forced his way into her home and proceeded to bound and rape her at gunpoint. Telling this difficult story was made easier by the presence of the SANE nurses. Days after the visit to the ER, she commented, "They [the SANE nurses] made me feel at ease, more confident, and more comfortable." After the initial interview, Nancy took the women to an exam room where she performed a full physical examination and collected vital DNA evidence. The evidence gathered by Nancy was intrinsic to the conviction of the victim’s attacker. When the assailant’s profile was entered into the state felon databank, it was found to match the already convicted serial rapist Jeffrey Paul McKechnie, the "I-5 Rapist." McKechnie is responsible for raping at least nine women in Washington state.

Seattle, WA – 1997

In February 1997, a 21-year-old Seattle woman was assaulted when a man grabbed her and forced her down into a loading dock area. He put his blue flannel shirt over her head, punched her several times, and proceeded to rape her. Evidence from this case was received at the Seattle Crime Laboratory in 1997 and DNA samples were analyzed. The DNA profile was run against the RFLP Felon Database but no matches were found. In August 2001, after the implementation of the new STR/DNA technology, a new DNA profile was run against the new STR Felon Database. This time a match was found, and a suspect was apprehended four and a half years after the crime was committed.

THE PROBLEM IN WASHINGTON STATE

Washington State’s Sexual Assault Rates Are Higher than National Average

The rate of forcible rape and sexual assault of women is higher for Washington state than figures obtained by national studies. According to a study released by the Washington State Office of Crime Victims Advocacy (OCVA) in December 2001, 23 percent of Washington women report having been victims of rape and 38 percent of Washington state women report being sexually assaulted at some point in their lives. This statewide study, the first on the subject, was conducted by the Harborview Center for Sexual Assault and Traumatic Stress at the request of the OCVA using the same wording in interview questions as studies at the national level in order to maintain scientific integrity.

National Rates of Forcible Rape

Reporting Organization Percent National Violence Against Women Survey (2000) 15% National Women’s Study (1992) 13%

OCVA Sexual Assault Survey Results (Washington State: 2001)

Sexual Assault Type and Characteristics of Assault Percent Rape 23% Total Sexual Assault 38% Threats by assailant 23% Use of a weapon involved 8% Victim suffered injury as result of assault 20% Perceived life threat 32%

Because of the nature of sexual assault, victims often choose not to report their assault to law enforcement. Fear of repercussions by the assailant, fear of the intrusive nature of evidentiary collection and further legal investigation, and personal embarrassment are a few of the reasons victims do not report their assault. According to the National Center for Crime Victims, only 16 percent of sexual assaults are reported to police.

National Rape Evidence Backlog

According to a September 1999 survey conducted for the Attorney General’s National Commission on the Future of DNA Evidence, an estimated 150,000 rape kits are awaiting analysis in the U.S. However, the process of collecting and analyzing DNA evidence makes determining the actual number of unanalyzed samples difficult. Rape evidence is collected both at crime scenes and through physical examinations of victims at hospitals. If a woman does not decide to report her assault to law enforcement, local hospitals usually keep collected DNA evidence on file at the hospital for several years. If a woman does file charges with local law enforcement, DNA evidence samples from the hospital will be transferred to the local police station. At that point, resources permitting, evidence samples will hopefully be sent to a crime laboratory for analysis.

Because rape evidence samples are spread between hospitals, local police stations, and crime laboratories, the true rape evidence kit backlog is uncertain and media reports have estimated the national backlog of rape kits to be as high as 500,000. While media attention has focused on the rape kits sitting on storage shelves, much of the rape evidence that must be examined is sitting in police property lockers or labs in the form of bed linens, clothing, and/or abandoned property from a crime scene. Funding must be allocated to trained investigators who can analyze these items and collect valuable DNA samples from them.

Washington State Rape Evidence Backlog

Just as the national backlog is uncertain, the number of unanalyzed rape evidence samples in Washington state is unknown. However, what is clear is the large discrepancy between the number of rape victims who undergo physical evidentiary examinations and file charges with local law enforcement, and the number of rape evidence samples sent to the state crime laboratory for analysis. In the past five years, 17,115 cases of forcible rape have been reported to law enforcement, while DNA samples have only been sent to the lab for testing in 4,165 cases.

This discrepancy –12,950 cases – represents the best possible estimate of the backlog of rape evidence kits currently sitting in cold case files in police stations throughout the state.

Year Rape Exams Conducted Rapes Reported to Law Enforcement Evidence Kits Analyzed by State Crime Lab 2000 3,535 2,737 802 1999 3,427 2,711 844 1998 3,670 2,740 721 1997 3,641 2,885 582 1996 3,606 2,828 615 1995 4,112 3,214 601 TOTAL 21, 991 17,115 4165

While the 12,950 figure represents the best estimate of the rape evidence kit backlog in Washington state for the past five years, this estimate presumes that testable DNA samples have been preserved in all 12,950 cases. In fact, many of these samples are probably not testable due to poor collection or handling of the DNA evidence. Additionally, many victims choose not to follow their case through to judgment even after initially reporting their assault to law enforcement. In these cases, law enforcement may choose not to preserve the evidence kits.

It should be noted that the Washington State Patrol Crime Lab has done a commendable job processing the evidence received at the lab, analyzing well over 90 percent of the kits it receives. Including 2001 and 2002 figures to date, the Washington State Patrol Crime Lab has received 5,606 total cases since 1999, 5,263 of which police had identified a viable suspect. Of these 5,263 suspect cases, only 300 have not yet been analyzed.

THE SOLUTION

STEP 1: Collection of DNA Evidence

Sexual Assault Nurse Examiner (SANE) programs provide communities with nurses trained specifically in how to collect and handle forensic evidence as well as how to treat the physical and emotional needs of sexual assault victims.

In communities without a SANE program, a victim who reports to the emergency room after an assault can expect to spend anywhere from 4 to 6 hours in the ER from triage to counseling and undergoing an the internal exam, a head-to-toe physical, evidence collection, and STD preventative measures. In the majority of ER rooms across the country, the victim can expect these processes to be administered by a male doctor or male law enforcement officer – a difficult prospect to accept by any woman who has just survived a sexual assault by a male attacker. SANE programs can provide multiple benefits including:

• Speeding up the evidentiary examination process by reducing the time victims have to wait in a hospital's emergency department and the time it takes to complete the examination;

• Increasing the quality of the examination because an experienced SANE is adept at identifying physical trauma and psychological needs and ensuring that victims receive appropriate medical care; and

• Uncovering important evidence as SANE staff have increased knowledge of what evidence to look for and how to document injuries and other forensic evidence thereby ensuring a more thorough and effective criminal investigation. While there are over 200 SANE programs known to be operating nationwide, many communities are left without the necessary services SANE can provide. Washington state currently only has seven official SANE programs serving the Vancouver, Olympia, Tacoma, Everett, Bremerton, Seattle, and Wenatchee areas. Funding remains the largest hurdle to the expansion of SANE programs as many communities are able to secure start-up grants, but often have to close because they do not have the funding to maintain the program.

STEP 2: Analyzing DNA Samples

In her testimony before the Senate Judiciary Committee on May 14, 2002, Debbie Smith stated that she would be "much more (likely)" to submit to the invasive physical examination and evidentiary collection process and report a sexual assault to law enforcement if she knew that there was an extensive, efficient system in the United States that could analyze DNA information in a timely fashion and match it to the profile of convicted criminals.

Women who have the courage to come forward and report a sexual assault deserve the peace of mind of knowing the information they provide will be analyzed and checked against a database of convicted felons in a timely fashion. In order to guarantee this peace of mind, state and federal governments must make analyzing all outstanding DNA evidence, including no-suspect cases, a national priority. As Ms. Smith’s comments indicate, increasing the efficiency of this process could very likely encourage other rape victims to come forward and report a sexual assault. Increasing the rate of reporting will increase the number of sexual offenders we prevent from assaulting again.

• The Structure and Function of the Combined DNA Index System (CODIS)

Although many states were already operating searchable databanks of convicted violent felons, it was not until 1994 that Congress granted the FBI authority to establish a national DNA index for law enforcement purposes with the passage of The DNA Identification Act. In October 1998, the FBI's National DNA Index System (NDIS) became operational. CODIS is implemented as a distributed database with three hierarchical levels (or tiers) - local, state, and national. Local law enforcement and state law enforcement can enter searchable DNA information on convicted offenders into LDIS and SDIS respectively. Information from these two systems can be uploaded into NDIS, the highest level in the CODIS hierarchy, and enables the laboratories participating in the CODIS Program to exchange and compare DNA profiles on a national level. The tiered approach allows state and local agencies to operate their databases according to their specific legislative or legal requirements. The Convicted Offender index contains DNA profiles of convicted felons. However, the federal government and each state independently decides what offenses qualify for entrance into the databank. The Forensic index contains DNA profiles developed from crime scene evidence including rape evidence kits. CODIS does not store criminal history information, case-related information, social security numbers or dates-of-birth and therefore does not raise major privacy concerns.

• Apprehending Sex Offenders

CODIS utilizes computer software to automatically search these indexes for matching DNA profiles. Matches made among profiles in the Forensic Index can link crime scenes together; possibly identifying serial offenders. Based on a match, police can coordinate separate investigations and share leads developed independently. According to a study by the National Institute of Justice, the average rapist commits 8-12 sexual assaults. This means that if law enforcement could immediately apprehend the rapist after the first offense, a minimum of seven women would be saved from the trauma of sexual assault. CODIS technology has also given new hope to solving "no-suspect cases," cases without suspects, witnesses, or any other clues. Prior to the introduction of this technology, rape victims who reported their assault by a stranger to local law enforcement and even furnished DNA evidence were often told there was very little chance of apprehending the assailant. With CODIS, DNA samples from no-suspect cases can be tested and often yield a match that points to the sexual assailant. Up until two years ago, the state crime lab could not accept any no-suspect cases from local jurisdictions due to funding restrictions. In the last two years, the Washington state crime lab has tested 343 no-suspect cases, identifying the attacker in 28 cases; thereby yielding an 8 percent cold-hit rate. PART 3: Expanding Criminal Databases As was mentioned above, the federal government and each state independently determines which offenses qualify criminals for being included in the database. In 1990, Virginia expanded their database to include all convicted felons. This expansion dramatically increased their rate of cold-hits, with estimates ranging as high as 25 to 40 percent. Other states were inspired to follow suit and, as of publication, 21 states have expanded their databases to include all convicted felons. These rates are a sharp contrast to the current situation in Washington state where the Washington State Patrol Crime Lab reports a cold-hit rate of 8 percent. However, in March 2001, the Washington state legislature passed legislation to expand the state database to include all adults and juveniles convicted of any felony, plus misdemeanor stalking, harassment, or communicating with a minor for immoral purposes. The law will become effective on July 1, 2002, and will retroactively apply to all incarcerated convicted felons. This new law is expected to increase the number of felon samples submitted each month from 300 to 2,250 and will therefore require significantly more financial resources in order to maintain the database.

Washington State Convicted Felons in State Database New Law Implemented – July 1, 2002

Pursuant to the implementation of this law, the size of the Washington state convicted offender database, which has taken ten years to build, will double in less than one year. As the experience of other states has illustrated, the larger database will result in a higher success rate in identifying rapists in "no-suspect" rape cases.

TERMINOLOGY

Rape Victim: Based on conversations with SANE nurses and consultation with the SANE Development and Operation Guide, a decision was made to refer to the victim of rape in this report rather than the survivor. According to our sources, many victims request recognition of the fact they were victimized.

SANE: Because of the independent nature of their function, forensic nurse examiner programs have several different names. All references to SANE program in this report should also be applied to Sexual Assault Nurse Clinician (SANC) programs, Sexual Assault/Forensic Examiner (SAFE) programs, and/or Forensic Nurse Examiner (FNE) programs.

Sexual Assault: The definition of "sexual assault" varies greatly between states. According to Washington state law, sexual assault includes rape, attempted rape, indecent liberties, lack of ability to consent due to disability, unconscious state, or the influence of alcohol or drugs, child rape, and child molestation.