DENVER - The CALL7 Investigators have learned thousands of backlogged rape kits submitted under a new state law still may never be tested.
According to the Colorado Bureau of Investigation, the law, which was prompted by a CALL7 investigation, is already having an effect. CBI officials said so far in 2014, police in Colorado have submitted three times the number of rape kits as they did before the law passed.
"This new law is and has been successful, and it's been a good thing for the victims in the state of Colorado," said Jan Girten, Director of Forensic Services for CBI.
But the same law also requires analysis of any previously-untested kits that were part of an active investigation. CALL7 Investigator Keli Rabon has learned so far, that is not happening in thousands of cases.
The revelation surprised the sponsor of HB13-1020, State Representative Frank McNulty, a Republican from Douglas County.
"Is that what you intended?" Rabon asked.
"No, we intended to have all of these backlog kits tested," McNulty said.
Rules don't define "active" cases
The law required Colorado's Department of Public Safety to come up rules for testing all "active" backlogged cases. But the rule-making committee, made up of about a dozen law enforcement officials and two victim advocates, never defined "active." Meeting minutes show members discussed leaving "discretion to the agencies" and said, "ultimately it will rest on local agency decisions."
"The idea that they're defining and redefining terms to narrow the scope of the kits that are tested is troubling," said McNulty. "And if we're not casting that net wide, then they're keeping bad guys on the street. And that's not why we passed the law."
Backlog kits held to different standard
What's more, of the thousands of kits that Colorado law enforcement agencies did decide to submit, the CALL7 Investigators have learned more than half still may never be tested.
As of March 1, 2014, state law requires nearly every newly-submitted rape kit be analyzed, though victims are allowed to opt out.
But the more than 6,000 older kits listed in the state's backlog inventory are being held to a different standard. CBI decided not to test certain kits, according to six criteria developed after the law passed:
· Not eligible if case was adjudicated or dismissed with prejudice.
· Not eligible if victim verbalized they did not wish to pursue case/charges.
· Not eligible if previously sent for forensic DNA analysis.
· Not eligible if it was a corroborated false report.
· Not eligible if case was out of statute of limitations. (10 years for adult).
· Some cases sealed by the court were not submitted.
"Why not just test them all?" Rabon asked Girten.
"Well, in the outsourcing project we are limited by money and time," Girten said.
In the end, 56 percent of backlog kits that law enforcement listed did not make the cut.
McNulty said, that's not what lawmakers wanted.
"Certainly the idea of having half of the tests be made ineligible for testing was not the intent of the legislation and certainly wasn't my intent," he said.
Girten agrees that many of the kits being excluded, including those that have passed the statute of limitations, could still have value.
"If that particular case is already run out, but this is a repeat offender and we develop a profile from that case and uploaded that profile and it matched to other open, forensic cases and other cases throughout the state or country, then a district attorney or a prosecutor in another jurisdiction can certainly use that information that this person is a serial offender, and that can be used in sentencing for their case that is going on now," she said.
The criteria CBI set for the backlog are not listed anywhere in state law, including the regulations developed by the rule-making committee. Girten said given time and money, those criteria could still change.
"If we have funds available and we determine there are enough cases that maybe we do need to go back and ask for more money from our legislators, then we will do that," she said.
McNulty said if funding is the problem, both CBI and lawmakers need to act.
"If CBI needs the resources, the financial resources, the manpower resources, to do this, they need to ask for the money, and the legislature needs to appropriate that money," he said. "Otherwise there's simply no excuse. We need to make sure that these kits are being tested."
McNulty said such action would not have to wait until the 2015 legislative session. He said the joint budget committee, which meets year-round, does have the power to appropriate additional funding. State law requires CBI to finish testing Colorado's rape kit backlog by June 2015.