Hundreds of Charlotte rape kits untested
The victim did everything she should have: She called the police and allowed a sexual assault kit to be taken.
That kit, often referred to as a "rape kit," never saw the light of day until five years later, when it was found in a police storage facility along with about 11,000 others.
After the victim's kit was tested, Joshua Brooks was identified as the rapist.
In the five years it took to get the kit tested, Brooks had been arrested on a number of charges and was already serving a lengthy prison sentence.
This is not an isolated instance.
Across hundreds of law enforcement agencies nationwide, records obtained by USA TODAY and its TEGNA news partners show thousands of sexual assault kits containing forensic evidence from rape, sexual battery and other crimes have never been sent to crime labs for testing.
Those figures, drawn from a small sample of 18,000 U.S. police agencies, indicate the nation's count of untested sexual assault kits likely reaches well into the hundreds of thousands.
The exact number isn't known. In most states, local law enforcement agencies are not required to inventory untested evidence kits in their custody to determine the scope of the problem, and many haven't done so on their own.
When tested, the DNA evidence inside the kits, often known as "rapekits," has proven to be an effective method to solve and prevent crimes.
So why aren't they being tested?
CHARLOTTE, N.C. -- Changes are coming to the Charlotte-Mecklenburg Police Department after a national investigation uncovered hundreds of untested rape kits.
NBC Charlotte dug deeper and now we're the only ones who can tell you that CMPD leaders are working to get every single rape kit tested after admitting there were some dating back to 2004 that should have been tested and weren't.
It didn't look good: Charlotte thrust into the national spotlight, leaders admitting there were more than a thousand untested rape kits at CMPD-– some dating back 10 years.
NBC Charlotte sat down with Sergeant Darrell Price, the former head of the sex assault unit and asked, "A thousand cases where the kits had not been tested?"
"Correct," he replied.
It all started when the group called the Joyful Heart foundation did a nationwide investigation last year, asking CMPD for stats.
"Up to this point there was no system keeping track of which kits were tested and which were not?"
"No. Has that changed? No, no that hasn't changed," Price admitted.
It didn't change even after we partnered with USA Today to do our own investigation.
But CMPD leaders say they did do an extensive audit and determined 650 cases were considered closed; no need, they say, to test the kits.
That left 350 open cases with untested kits.
"Each of us started pulling these cases up and reading them," the sergeant explained.
"We came up with a little over a hundred that we all agree, yes, these cases should be submitted. So we went back and contacted detectives, said why are these cases not being submitted, they should be submitted. Some of them were recent. It's like, 'I just hadn't gotten around to it yet.'"
"So there were about a hundred cases that should have been submitted and weren't? Why did that happen?"
"I can only throw this out here. Detectives get busy working on other cases."
"But you can imagine rape victims hearing this, that might not sit so well with them?"
"I do understand that."
A Charlotte 57-year-old mother of two was one of the ski mask rapists victims from 1979.
She finally got closure in 2012 when an old DNA match nailed Jerry Brooks as her attacker.
He's now serving time for raping her and at least 10 other women.
"Without that DNA evidence, he would never be behind bars right now," she said.
And yet detectives admit some of the untested rape kits at CMPD date back more than a decade.
"Isn't even a handful of cases that date all the way back to 2004 that haven't been tested, isn't that too much?"
"Oh absolutely think so, but our system of checks and balances now with our evidence management system is going to alleviate that going forward," said Lt. Melanie Peacock with the Major Crimes unit at Charlotte-Mecklenburg Police Department.
In fact, they say a lot could be changing.
There is a national push to test every kit, whether a case is closed or not, because of the possibility of matching DNA to other cases-- like in the case of the ski mask rapist.
The problem is, even having their own lab, like many across the country, CMPD's lab is backlogged and cases have to be prioritized.
Sgt. Price said, "If I had all the money in the world, I would process those because, yes, it could link a case down the road-- it could. The potential is there, but is that worth bogging our lab down and letting violent felons walk the streets?"
"How do you make the decision? Is there a set policy in place?"
"Currently we do not have a written policy."
Police say they're working on that, and they say the department is in the process of applying for grants, money that could make it possible to test every rape kit– closed case or not.
The rape victim has strong opinions.
"Do you think they should test every rape kit?"
"I think they should because you just never know."
"If there was the ideal family, I guess we had that life," Debbie told WVEC-TV. "There were no problems that we couldn't handle as a family.
That would be tested on March 3. Rob, who had just gotten off the midnight shift, was asleep upstairs. Debbie was busy checking off items on her to-do list. She ran out the door, leaving it unlocked for just a minute.
"I just said, 'He got me, Rob. He got me,'" she recalled.
Rob called the police as she headed for the shower to try, like many victims do, to wash away what had happened to her— but her husband, the Williamsburg cop, knew they had to go to the hospital for a rape kit.
"He said, 'Honey you have to, you just have to. That's the only way we're going to find him. You need to do this,'" Debbie said.
It is a four-to-six-hour long exam, which Debbie says destroys what you have left of your self-esteem.
"But you do it because you know it will give you hope, that there's hope in them taking that evidence from your body," Debbie said.
For six long years, the Williamsburg mom said she lived in fear and always looked over her shoulder. But on July 26, 1995, the Smiths were told Debbie's kit had a cold hit.
Norman Jimmerson's DNA was collected when he was arrested for a different crime. A cross-check matched the sample to Debbie's rape kit. It was only the fourth cold hit in the entire nation.
"That was the day that I took a deliberate breath," Debbie remembered. "I really wanted to live again."
She says DNA gave her her life back.
Jimmerson will spend the rest of his life behind bars.
Debbie Smith became an advocate for the testing of rape kits -- and her advocacy became federal law. The "Debbie Smith Act" provides grants to local and state law enforcement to process their rape kit backlogs.
After a sexual assault or rape, a victim is asked to undergo an examination to collect any forensic evidence left behind from the assault. The examiner, usually a doctor or nurse, preserves the evidence in a medical kit.
The kits have proven to be successful in sexual assault investigations and prosecutions. The kits can also lead to new DNA matches in the criminal database and the identification of serial rapists. For example, the White House said that a testing of 2,000 kits in a pilot program resulted in 760 DNA matches, identified 188 serial offenders and led to 15 convictions.
According to the White House, the kit consists of swabs, tubes, glass slides, containers and plastic bags. Those items collect and preserve forensic evidence left behind by the perpetrator, including clothing fibers, hair, and bodily fluids. Those can be used to identify DNA and other evidence left behind by the attacker. After collection, the evidence is carefully packaged and labeled.
According to EndTheBacklog, a program from the non-profit group Joyful Heart Foundation, contents of the kits can vary by state. Most kits include:
- Detailed instructions for the examiner
- Forms for documenting the procedure and evidence gathered
- Tubes and containers for blood and urine samples
- Paper bags for collecting clothing and other physical evidence
- Swabs for biological evidence collection
- A large sheet of paper on which the victim undresses to collect hairs and fibers
- Dental floss and wooden sticks for fingernail scrapings
- Glass slides
- Sterile water and saline
- Envelopes, boxes and labels for each of the various stages of the exam
Under the Violence Against Women and Department of Justice Reauthorization Act of 2005, states must ensure that victims have access to the forensic medical exams free of charge (or with full reimbursement) -- even if the victim decides not to cooperate with law enforcement investigators, according to the Rape Abuse and Incest National Network.
The backlog exists for a number of reasons.
According to the National Institute of Justice, the demand for DNA analyses has increased without a corresponding growth in forensic lab capacity. In 2011, the NIJ estimated that about 350,000 rape and homicide cases awaited DNA testing. Many of those samples were in control of law enforcement agencies rather than in crime labs.
The NIJ's DNA task force says state and local crime labs lacked sufficient numbers of trained forensic scientists. Those governments lack the resources to hire trained scientists. Even when funds are available, the pool from which to hire scientists is often small. That shortage is due, in part, to college forensic science curriculums that lack the basic science courses for the job. Newly-hired scientists must often undergo significant training before they are able to conduct DNA analyses. Contributing to the shortage is the fact that public crime lab salaries are often below those offered in the private sector, according to the NIJ.
Additionally, most state and local crime labs lack the equipment needed to complete the task, according to the NIJ. They also lack the space to store that equipment even if they did have it.
Costs play a role in the backlog. It costs between $500 and $1,200 to test each kit, according to the National Center for Victims of Crime.
A USA TODAY investigation found that sexual assault kit testing practices are often arbitrary and inconsistent between law enforcement agencies -- and even within agencies themselves.
In most states and at most law enforcement agencies, there are no written guidelines for processing sexual assault kits. Testing decisions in each case are left to the discretion of investigating officers, leading to widespread inconsistencies in testing practices.
Despite the fact that adding the DNA information of an offender into state and national databases can help identify predators moving across jurisdictions, USA TODAY's investigation found that many police agencies treat sexual assault kits only in regards to individual cases.
In interviews with USA TODAY, officials said the most common reasons why kits are not tested are because there is not a prosecutable case, usually due to a lack of cooperation from sexual assault survivors.
Some law enforcement officials have even defended leaving the kits untested, citing the costs could deflect from other needs of the departments, and saying that testing all kits could slow down the process for those needing urgent testing.
In some cases, the sexual assault survivor's cooperation is not at issue. Records reviewed by USA TODAY show dozens of untested sexual assault kits come from cases involving children. Records from the Dallas Police Department show 43 of the agency's 4,140 untested sexual assault kits dating back to 1996 were collected from children, some as young as 12 years old.
Check back later this week for an interactive database where you can check and see how many untested rape kits are in your community.
Forty-four states have no laws stipulating when police agencies should send kits for testing. In 34 states, no statewide inventory of untested kits has been conducted, the USA Today investigation found.
Many state oversight agencies and authorities have initiated efforts to count the number of untested sexual assault kits in their jurisdictions.
State laws requiring department-by-department audits or inventories of untested sexual assault kits have been enacted in recent years in Colorado, Hawaii, Illinois, Kansas, Louisiana, Michigan, Minnesota, Ohio, Tennessee, Texas and Virginia. Some of these audits have been complete, while others are ongoing.
Additionally, informal counts have been conducted, or are being conducted by agencies in Kansas, Massachusetts, New Mexico, Washington, Wisconsin and Wyoming — even though there is no official state legislation on the books requiring inventories or setting the parameters for them.
New York's Department of Criminal Justice Services conducted a limited, informal survey of 213 law enforcement agencies after receiving a request from USA TODAY for this report.
For the rest of the county, including Florida, Arizona, and North Carolina, the number of untested sexual assault kits isn't known.
Advocacy groups say an inventory in every state is one of the most important steps toward solving the nation's untested rape kit problem.
The nation needs to know the extent of this problem," Mai Fernandez, executive director of the National Crime Victims Center, a Washington, D.C.-based non-profit told USA Today. "Otherwise we cannot put a plan together to really address it."
With new attention being focused on the rape kit backlog, efforts are being mounted to tackle the problem.
President Obama's fiscal year 2015 budget proposed the creation of the Sexual Assault Kit Initiative, which secured $41 million to help state, local and tribal law enforcement and prosecutors' offices take action to reduce the backlog.
In June, the U.S. House approved included $45 million in the proposed fiscal year 2016 spending bill to address the backlog.
Many state legislatures have proposed or passed legislation requiring sexual assault kit audits or mandatory submission guidelines, according to EndTheBacklog.
In states where action has been taken, results have been seen, according to USA Today's investigation.
In Colorado, more than 40 cold hits have been found since the Bureau of Investigation began requiring local police to submit sexual assault kits for testing. Ohio Attorney General Mike DeWine's effort to collect and test the kits has resulted in 2,285 Combined DNA Index System (CODIS) hits as of November 2014. Testing in the Cleveland, Ohio area has linked more than 200 alleged serial rapists to 600 assaults, according to USA Today's investigation.
Still, there is much more to be done.
On July 16, TEGNA Media broadcast affiliates and USA TODAY will come together to raise attention to the issue. Between the hours of 5 p.m. and 7 p.m. (EDT), we ask you tweet using #testthekits to help spread the word.
Contributing: Steve Reilly, USA TODAY (will publish a full-length investigative piece online and in the print edition on July 17); Rochelle Riley, Detroit Free Press; John Kelly, USA TODAY; Christine DiStado, KHOU-TV; Phillip Kish, WXIA-TV; Laura Geller, Charlie Hatfield, WVEC-TV.
Material used from EndtheBacklog.org, WhiteHouse.gov, National Criminal Justice Reference Service and the Rape, Abuse & Incest National Network.
We invite you to join in on the conversation using #testthekits on social media platforms.