It took years of advocacy to ensure every backlogged rape kit in Washington is tested. Now, it will take years to investigate the results

The DNA evidence tying Eugene Young to a 2007 rape sat on a shelf in the Spokane Police Department’s storage facility for more than a decade.

In February, Young is scheduled to stand trial for luring an acquaintance-of-an-acquaintance into a Spokane home, where he allegedly violently assaulted her and threatened to cut her with a knife if she attempted to resist. That charges were finally brought in Young’s alleged assault is thanks to a new state requirement that police submit every sexual assault evidence kit in their possession for DNA testing, no matter how old the case.

In Young’s case, his identity was unknown and police had exhausted all of their leads, although they never sent the evidence away for testing. The case went cold.

Amid a purge of untested evidence, Spokane police sent in a sample that was ultimately matched to Young in 2019. He was already sitting in prison for an unrelated crime.

In response to the statewide mandate, the Spokane Police Department has worked through the hundreds of sexual assault kits it holds in storage, submitting evidence for DNA testing in Washington State Patrol laboratories in hopes it could reveal the perpetrator of an unsolved sexual assault.

Now, the department has potential leads in at least 90 of what were once cold cases, but it does not have adequate resources to thoroughly investigate them.

The city will apply for a small grant from the Washington Association of Sheriffs and Police Chiefs that, if awarded, will pay for a detective and sergeant to focus solely on the cold cases through June.

Still, officials acknowledge the $26,742 grant will only provide a cursory run through the cases, the complexity and age of which can make them difficult to prosecute.

Working through all of the cold cases, even if the funding were extended, would likely take a couple of years, according to police, as forensics labs continue to test backlogged evidence kits and let local police sort through the results.

So far, dozens of previously unsubmitted sexual assault kits collected in Spokane have returned DNA linked to a sample already logged in the federal government’s DNA database, and that number is only expected to increase as more kits are tested in the coming months.

That development is the result of a cohesive, statewide effort to work through more than 10,000 previously unsubmitted sexual assault evidence kits – evidence taken from sexual assault victims that can be used to identify and prosecute their attacker – that has steadily evolved since 2015.

Sexual assault evidence kits

The collection of a sexual assault evidence kit, commonly called “rape kit,” has two purposes: ensuring the immediate health of the patient is not in jeopardy and collecting potential evidence of the crime.

Even in the best situation, replete with trauma-informed care, the process can be “highly revictimizing” and not everyone chooses to undergo it, noted Jenn Davis Nielsen, a victim advocate who supervises Lutheran Community Services Northwest’s Community Sexual Assault Program.

“People have this expectation that you’re going to be doing something with this kit. You took samples in the most intimate parts of my body, and to know that it’s just sitting on a shelf somewhere is just beyond upsetting,” Davis Nielsen said.

Even before complications brought on by the COVID-19 pandemic, sexual assault victims are not guaranteed an immediate room at a hospital emergency department. They may or may not be treated by a certified sexual assault nurse examiner, or SANE. Lutheran Community Services has a part-time SANE, but that person isn’t always available.

“It’s not just a matter of the poking, prodding and how scary that exam can be. They’re typically understaffed and you may or may not get a person who is trained in this,” Davis Nielsen said.

If drugs or alcohol were involved in the assault, victims may still be under the influence. They may not have been able to eat since the assault took place. They might be placed on HIV-preventive medicine, be given an emergency contraception pill and tested for sexually transmitted illnesses.

Collection of the kit can last between two and four hours, longer if the nurse isn’t well-trained in sexual assault examinations. It can include oral, anal and vaginal swabs, as well as a pelvic exam.

Emptying the backlog

Washington’s effort to address the estimated 10,370 backlogged sexual assault kits began after an upswell in advocacy more than five years ago.

In 2015, the state legislature enacted a bill that requires police departments to submit kits within 30 days, as long as the victim consents. The legislature simultaneously provided funding to the Washington State Crime Lab to test the deluge of old kits.

In 2018, after receiving a $3 million grant from the U.S. Bureau of Justice Assistance, the state launched the Sexual Assault Kit Initiative to inventory and test backlogged kits.

A 2019 law signed by Gov. Jay Inslee required that all backlogged sexual assault kits collected before the 2015 change also be submitted for testing.

The state has also lengthened the statute of limitations in certain sexual assault cases and ensured victims can track the testing status of their sexual assault kit, no longer leaving them in the dark.

As of the end of November, the state had received 10,311 previously unsubmitted kits and completed testing on 5,096 of them, according to the attorney general’s office.

In Spokane, there were 1,579 untested kits dating back to the 1980s, about half of which have been tested.

Washington State Patrol has labs capable of testing sexual assault kits in Seattle, Marysville, Tacoma, Vancouver and Cheney. Kits taken before the passage of the 2015 law are outsourced to private labs for testing in order to meet the target of clearing the backlog before Dec. 1, and clearing the docket of more recent cases by December 2022.

The process of submitting a kit happens in two phases. First, the department files the paperwork associated with a kit. When the state lab is ready, it notifies the city to send out the physical kit for testing.

The city has filed paperwork on all of its rape kits, but not all have been accepted and tested, according to Spokane Police spokesperson Julie Humphreys.

Even when it comes to years-old cases, Humphreys said the term “backlog” is a “bit of a misnomer.”

“It’s not like we just haven’t turned these in for years and years, it’s just that it wasn’t required until the Legislature changed and said you need to send in any sexual assault kit from all time,” Humphreys said.

There are several reasons a kit may not have been submitted for testing, said Sgt. Glenn Bartlett, who supervised the department’s Special Victims Unit from 2018 until Monday, when he took command of the Major Crimes Unit.

Each kit costs about $700 for local departments, the Seattle Times reported in 2017, forcing investigators to prioritize which cases could benefit the most from testing.

In some cases, survivors may have made clear they did not want to pursue charges. In others, the DNA evidence may not have been necessary to ensure a successful prosecution, he said.

According to the End the Backlog – a program founded by the nonprofit Joyful Heart Foundation that aims to do exactly what its name suggests – stereotyping, police bias and victim-blaming can also play a role in why a kit is not submitted.

“The backlog of untested rape kits represents the failure of the criminal justice system to take sexual assault seriously, prioritize the testing of rape kits, protect survivors, and hold offenders accountable,” End the Backlog says.

It’s not always clear whether a kit was submitted.

Ultimately, Bartlett is less interested in second-guessing the work of his predecessors than pursuing justice based on new results, whatever that entails.

The results

In Spokane, about 90 tests have identified DNA that matches samples already in the federal DNA database called the Combined DNA Index System, or CODIS.

CODIS contains DNA profiles that are either linked to a known offender or to a specific incident in which the perpetrator remains unidentified, WSP Forensic Laboratory Services Bureau spokesperson Mary Kellar said.

“A report of the match in CODIS will be provided to the law enforcement agency to notify them of the match, who will then use that as investigative information,” Kellar said.

For investigators, a CODIS hit is not necessarily a surefire lead. There’s a spectrum of possibilities in the returned results – most haven’t resulted in a DNA match – but Bartlett is adamant that all of them deserve a fresh look.

In some cases, the department simply did not have the correct name of the suspect, but a CODIS hit can set things straight and help officers track down the perpetrator. Or the DNA may match a person who is not the named suspect, but who has a similar physical description.

If the DNA returned is that of a known consensual partner, Spokane Police Maj. Mike McNab noted it may not “speak to the issue of the crime” – essentially, that a rape could come down to a question of consent, not identity.

In Spokane, police hope to use the grant funding to perform a “triage” of the CODIS matches and determine which cases might be viable for prosecution, McNab said to the Spokane City Council’s Public Safety and Community Health Committee this month.

With the department’s current resources, screening every test result that comes back – they often come in bunches – is a challenge, Bartlett said. Each detective in the Special Victims Unit can be assigned more than 100 new cases in a year.

“By no means was this a comprehensive review of every one of these cases,” Bartlett said. “It’s a full-time job by itself, and I really don’t want to impact or adversely affect any of our current cases (just) because we’ve got this additional work that comes forward.”

Bartlett stressed that it’s important the cases be reviewed by experienced, “victim-centered” investigators who understand what to look for, such as potential similarities and connections between unsolved crimes.

“Typically, these people that commit these crimes, this isn’t a one-time deal, that’s why we get CODIS matches,” Bartlett said. “If someone is a predator, they’re going to continue to offend.”

Impact on survivors

Police realize not every case will result in a successful prosecution, but they are hoping to offer what McNab described as “some modicum of closure.”

“There’s a spectrum of closure that occurs, and what this sergeant will do is go through these cases and figure out which ones need to be investigated and which ones don’t,” McNab said.

Mark Kloehn has been a victim advocate at Lutheran Community Services for a decade and will partner with police as they reconnect with survivors of sexual assault. He’ll often be accompanied by Walker, an oafish courthouse facility dog trained to help ease victims’ tension.

“It’s something that’s easier for them to deal with and live with, just to know that we tried and that they were believed, and that we just didn’t have the evidence, which can often be the case,” Kloehn said.

McNab pledged to work with victim advocates to use a trauma-informed approach with people “when it’s been a long time since they’ve heard about the case.”

It’s important survivors understand the legal process, but also know they will be supported regardless of the legal outcome or whether they decide to aid in the prosecution, Kloehn said.

In the years since their post-assault exams, many survivors try to carry on with their lives.

“A lot of them just stuff it down deep inside. Some of them get help, but a lot don’t because there wasn’t any follow-up,” Davis Nielsen said.

Davis Nielsen recently worked with a survivor whose sexual assault kit was finally tested, resulting in a CODIS match. The assault took place eight years ago in a different state, but the person had since moved to the area.

“It rocked this person’s world,” Davis Nielsen said.

At the time of the assault, the person was homeless, struggling and treated poorly by law enforcement officers, who did not believe the victim. They didn’t receive the support of a victim advocate or counseling.

Contacting the victim again was “reopening that scab, and it was pretty retraumatizing,” Davis Nielsen said.

“Thankfully, having victim services present, we’ve been able to engage with this person and they’ve been wanting to engage with services … it’s an empowering decision, where often they are not empowered,” Davis Nielsen said.

The department’s commitment to a trauma-informed approach was lauded by Stephanie Widhalm, Children’s Advocacy Center program director at Partners with Families and Children, which serves young adult victims of abuse and sexual assault.

Some of the victims police could contact about a new lead in their investigation may have been children when the assault took place, and could process their childhood experiences differently as an adult, Widhalm said. Some may have not received the support they needed as a child victim, and hearing from police could be traumatic .

“I think the best thing that we as a community can do for those that may have received that phone call from the (police) is no matter what choice they make, we support them 100%,” Widhalm said. “When we think of sexual assault, one of the biggest impacts, really, is that loss of control, so any way that we can give that back to a survivor, the better.”

Investigators have to approach survivors with care, Bartlett said, and aim to minimize harm. If the victim is still local, it’s a conversation he tries to avoid having over the phone.

“Sometimes they just don’t want to open up that wound again, and it’s something we always have to be cognizant of,” Bartlett said. “We’re not sure what the best process is, to be honest with you, but we do think advocates should be there to offer resources.”

“It may just be something simple as, ‘We have this DNA profile, do you know this person?’ Even that in itself is going to retraumatize them; to some degree, obviously, it’s going to bring back those memories they’ve suppressed for years, sometimes decades,” Bartlett said.

If evidence leads to new charges, the victim’s involvement is likely far from over, and sometimes going through the criminal justice process is more traumatizing or as traumatizing as the initial event, Kloehn said.

Testifying at trial, Kloehn said, is a big ask, and “your name is going to get dragged through the mud.”

“Everything you did leading up to what happened to you, how you reacted to it, what your life was like before that … the defense attorney can use that against you,” Kloehn said. “There’s a spotlight put on victims in these crimes.”

Resources

At the council meeting earlier this month, Councilwoman Betsy Wilkerson asked McNab what happens when the grant funding runs out.

That, he answered, is a question for the state legislature.

“I would love to be able to keep this cold case unit going and be able to focus not only on sexual assault cold cases, but also homicide cold cases,” McNab said.

Thus far, the backlog effort in Washington has relied on a patchwork of funding from the state Legislature and federal grants.

City Councilwoman Candace Mumm suggested the council could consider funding the cold case work itself.

Mumm noted the grant doesn’t allow the city to actually hire a new detective or sergeant. It relies on paying existing personnel overtime to work the cases – which is expensive. She suggested the council keep the matter in mind when it budgets for the police department.

Funding the cold cases unit would be “a dollar saver, because we’d get on top of this and get ahead of it, so we’re not having to use overtime hours, plus solving these cases more quickly, which is better for the victims and better for the community to put some of these folks away,” Mumm said.