By Lynda Cohen Atlantic City Press
Should all rape kits in New Jersey be tested?
Two legislators think so.
But those who try cases and those who work with victims say there is more to the story.
A bill introduced in both the state Senate and Assembly would require reporting to the Attorney General’s Office the number of untested rape kits in the state. The bill would also require any rape kit taken to be submitted to the state lab for analysis. Current guidelines don’t require the evidence from the kits to be tested unless the victim files a criminal complaint.
The topic of untested rape kits has become a national issue as victims’ rights groups and law enforcement debate ways to reduce a massive backlog of untested evidence.
In March, the Obama administration unveiled a $41 million Sexual Assault Kit Initiative to help reduce a backlog of 400,000 untested rape kits nationally.
But in New Jersey, law-enforcement officials say there is no backlog.
Lynne Rybicki, president of the New Jersey chapter of the International Association of Forensic Nurses, said the number of untested kits doesn't tell the story. The individual cases do.
“We deal with cases, we deal with (victims’) feelings, we deal with their wishes,” said Rybicki, coordinator of the Cape May County Forensic Nurse Examiner Program.
Prior to 2000, a criminal complaint had to be filed for evidence to be collected in a forensic sexual assault examination, commonly known as a rape kit.
But since 2000, New Jersey has allowed for anyone alleging they were a victim of a sexual assault to have evidence collected without going to police. The evidence is taken by a trained sexual assault nurse examiner who is part of a sexual assault response team.
That evidence is then held for at least five years. If the victim is a minor, the five-year countdown begins after they turn 18.
That way, Atlantic County Prosecutor Jim McClain points out, if the victim decides to file a complaint, the evidence has not been lost. The standardized sexual assault evidence collection kits include swabs, boxes and envelopes to collect and preserve biological specimens from the victim’s body.
The sexual assault response team includes a crisis advocate, a law-enforcement officer and the sexual assault nurse examiner, who is specially trained to collect this evidence. Only medical personnel are present for the examination, which could take two to four hours.
Even if police are part of the response, that doesn’t automatically trigger a police investigation, McClain said.
New Jersey’s approach to sexual assault investigations is considered “victim-centered.”
“I can’t imagine someone who has been raped and has gone to the point of being taken to the hospital to get a rape kit in the first place to then not want to have that rape kit analyzed and processed appropriately,” said state Sen. Nellie Pou, who is sponsoring the Senate bill.
“That means cases are going unsolved,” said Carol Cuadrado, Pou’s chief of staff. “This rapist could be going on and on and on, and no one’s going to put it together.”
At first, legislators were concerned about a backlog causing kits to sit untested, but that was not the case. The state laboratory completes testing in less than 60 days, according to State Police, with rape cases taking priority.
In Cape May County, municipalities are audited to make sure there is no backlog.
“All the rape kits that need to be tested have been tested,” said Cape May County Prosecutor Robert Taylor.
But Assemblywoman Valerie Vainieri Huttle, the sponsor of the bill’s Assembly version, said the concern is “why so many survivors do not request for their kits to be tested.”
“A sexual assault forensic exam is difficult for the survivor. It can take up to four to six hours and is physically invasive,” Huttle said. “Why a survivor then does not feel empowered to move forward with a criminal case is troubling.”
The Atlantic County Prosecutor’s Office has 74 kits of victims who did not release them for testing dating to 2002, while Cumberland County’s prosecutor has eight dating to at least 2013, when the minimum hold time was 90 days.
Both Huttle and Pou have been working closely with the New Jersey Coalition Against Sexual Assault, or NJCASA, to find out what the issues are.
“CASA contends that, with a survivor’s consent, all sexual assault forensic exam kits should be tested in a timely manner, whether the victim is named or chooses to remain anonymous,” NJCASA Executive Director Patricia Teffenhart wrote in an article on the group's website.
But some victims sign a form saying they do not want to file a complaint.
So to submit the kits as evidence, as the legislators propose, would go against their wishes, explained Lois Worth, Atlantic County’s forensic nurse examiner coordinator.
Victims can speak with a crisis advocate before making their decision to file a complaint or even have the exam done.
“How do you tell a victim, ‘We’re not going to investigate the case, but we’re just going to send this to the lab for testing?’” McClain asked.
Cultural beliefs, fear and self-blame were among the reasons some choose not to pursue a case, said those who work with victims. Often, if alcohol is involved, victims are less likely to come forward.
Huttle said she believes finding the discrepancy between kits that are collected and those that are tested will highlight “potential gaps in the system for survivors of sexual assault.”
There is also concern about putting someone’s DNA into the Combined DNA Index System as a sexual assault suspect when there is no victim making the complaint.
“That would be overreaching, and that would be really harmful to a lot of innocent people,” said local defense attorney John Zarych, who handles many sexual assault cases. “If a woman goes and says, ‘I’ve been sexually assaulted,’ but she (doesn’t want to file a complaint), you’ve typically got a very, very weak case. To snatch people into the system under those circumstances, I think, is unconstitutional and really improper.”
Testing those kits also could mean putting a case that will never become a criminal investigation ahead of one that is in an already busy state lab, McClain pointed out.
The #EndTheBacklog program, an initiative by The Joyful Heart Foundation, has focused on identifying the extent of the nation's rape kit backlog. The group believes every test connected to a criminal case should be tested.
“Each untested kit represents a missed opportunity to bring justice and healing to a survivor and increased safety to a community,” said Ilse Knecht, senior policy and advocacy adviser.”We must keep our promise to survivors of sexual assault to allow them to decide the path to healing and justice that works best for them. It is critical to the survivor’s well-being that their wishes and choices about engaging in the criminal justice system are honored.”