‘I Am Evidence’ examines law that changed sex assault evidence processing

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By Belen Ward

 The Brighton Police Department teamed up with the 17thJudicial District Assault Response Team to host a screening of an HBO documentary, “I am Evidence” at the Armory Performing Arts Center Nov. 29.  It showed how rape survivors felt and sharing their stories to end the backlog of rape kits. 

The directors were Trish Adlesic and Geeta Gandbhir, and the producers were Mariska Hargitay and Trish Adlesic. It explained the way sexual assault cases are processed in the United States and archived. It is estimated that hundreds of thousands of rape kits are left untested in police storage units every year. 

In the documentary, some of the cited reasons for the untested kits were a lack of money, police officials categorizing the cases as not believing the victims or it was not that important. Investigators, prosecutors, advocates and journalists have fought on behalf of the victims to change how the kits are processed. 

The documentary brought to light the power of DNA contained in these kits that have been unprocessed. Once the kits started to be tested, matches were detected of serial rapist that have been free. If law enforcement started testing years ago, there would have been fewer rape victims, and most of these cases would have been solved, according to the film. 

Two cities were featured in the documentary. In 2009, Wayne County, Michigan, prosecutor Kym Work processed 11,000 backlogged cases. Fifty rapists have been identified based on DNA evidence.  Cuyahoga, Ohio, County prosecutor Tim McGinty processed 15,000 cases involving 410 suspects who have been linked to more than 1,127 victims. 

Colorado passed a law in 2014, requiring current kits submitted to the Colorado Bureau of Investigation be processed within 21 days. 

 “When we had our push to deplete the backlog of sex assault kits back in 2014 as a result of House Bill 1020, we had over 3,500 kits submitted to CBI, and we worked through that backlog,” said Gosia Schmitz, team coordinator 17th Judicial District Sexual Assault Response. 

According to SART, one in seven men will be assaulted in their lifetime. 

 “What we also know is that it can take, on average, up to 20 years for males to report sexual assault. A majority of these occur when a male is a minor; however, we certainly do see it with adults,” said Schmitz.

When Gov. John Hickenlooper signed the bill, the Commerce City Police Department had about 80 untested kits, all of which were submitted. There are no backlogged assault examination kits now.

“One kit did develop evidence which led to an arrest and conviction. It should be noted, the majority of those previously untested kits were not tested because an arrest or conviction had already been achieved,” said Greg Sadar, police department commander of the investigations. 

Sadar explain the process of the kit once it contains the evidence in a sexual assault.

 “When we receive a kit from a hospital, we book it into evidence and send it a forensic laboratory at the Colorado Bureau of Investigation within 21 days. We usually submit them within just a few days, well ahead of the deadline,” Sadar said. “We generally get results within 60 to 90 days, but we are not in control of that timeframe. If a DNA profile is developed, CBI enters that into CODIS, a national DNA database unless there is some prohibiting factor. 

It is law that the only kits which are untested, is where the victim has notgiven consent for it to be tested.”

The power of DNA helped the police with a cold case. 

“We have had some tremendous success, including a major conviction last year from a DNA hit on a cold sex assault attempted murder from 1992. Please understand. The submission of a kit and getting enough evidence for an arrest or conviction are two vastly different things,” Sadar said. “A kit is a very important part of many sex assault investigations, but is only one component of those investigations.”

The exam is consent- driven. Victims who have diminished mental capability, children and Alzheimer’s can consent or decline, according to SART.

 “Victims in a coma are done on a case by case basis. Because these victims are unable to consent to the exam in the first place, there is great care taken to whether or not the kit should be done at all. I have really only seen this happen when both the legal and medical power of attorney have signed off on it or a judge has signed off on it. However, this is very rare,” said Schmitz. 

The five panelist were Commerce City Police Chief Clinton Nichols, Brighton Police Department Chief Paul Southard, The Blue Bench Executive Director Karmen Carter, Dave Young 17th Judicial District Attorney, and Nanette Delancey, Sex Assault Nurse Examiner Program Supervisor at St. Anthony Hospitals. 

DeLancey, said the new law does three things. One is to call law enforcement. Another option is the medical report, giving the right to victim if they want the kit tested or not.  Before it was up to law enforcement. 

     “The victim can file and remain anonymous, the kit will be labeled with a case number, if the victim wants it process, we will. Having these options in place gives the victim time to process what happened on whether to report or not,” she said. “The kits are to be held up to two years. By giving these options, we say it’s your choice.” 

Carter said the bill law made processing the kits faster. 

 “The victim has options to consent on whether the kit will be tested or not.  The only time it doesn’t move forward that there is no significant evidence,” said Carter.

Brighton, unlike much larger agencies, did not have a backlog. Between Dec. 1, 2005, and Feb. 9, 2013, it had 19 cases in which sex assault was the first or second offense and evidence was collected in a kit. Nineteen cases listed a suspect, seven cases were closed due to a lack of prosecution, eight cases were declined prosecution by the DA, two cases the suspect pled guilty, one was found not guilty and one case was dismissed due to competency.

“Of the 19 cases sent to CBI, six resulted in CODIS entry. All 19 kits had already been submitted to CBI. Brighton Police Department had zero kits that we failed to send. We do have five kits in evidence that were not. The victims consented to evidence collection, but not to testing. That is the victim’s prerogative,” said Southard.

Nichols directly managed the O.J. Simpson kidnapping and robbery investigation in Las Vegas, Nevada. He said reporting options provide a level of comfort. 

 “My experience has been when victims are comfortable with reporting. You usually get better information. The criminal justice system requires facts and information. The more information and facts we can get from these kits or from a testimony, the better our case is for conviction,” he said. “We are able to catch the offenders. As far as victim having options, it allows the victims to control the investigation. If they stop talking, call back in certain amount of time or six years later and want to talk, we will be prepared to move forward.  We had tremendous success with that.”

Young said sexual assault cases are very difficult to prove. 

  “If you can imagine any case that we filed, we have to convince 12 individuals that something happened. We have to prove beyond a reasonable doubt,” he said. “Most cases where DNA comes into play, the offenders can say it was consensual. So, the constitutional rights of the defendant – sometimes or all the time – it seems that it trumps the rights of the victim. The victims, as you saw in the film, they are having to answer questions, like did you talk about money- its money.”