New law inspired by a CALL7 Investigation is getting thousands of rape kits tested

DENVER - The Colorado Bureau of Investigation will soon begin testing more than 5,000 previously untested rape kits, as a result of a new state law prompted by a CALL7 Investigation.

Last November, CALL7 Investigator Keli Rabon found police departments throughout the Denver metro area were failing to test hundreds of rape kits -- critical evidence provided by sexual assault victims that can help link cases through DNA.

Kelly Binder says she was raped by a man she met at a bar in Downtown Denver in 2010.

"It was violent. It was humiliating," Binder said. "I believed on that night that I was going to die."

She filed a report with Denver Police and went through the painful hospital examination to provide investigators with forensic evidence that she hoped would help her case. But that evidence was never tested and the chance to potentially link Binder's case to others throughout the country was never pursued.

"I would have never guessed that I endured what I endured for nothing," she said.

Previously, police department officials told CALL7 that testing all rape kits was unnecessary.

"To send them [CBI] kits that have absolutely no use whatsoever would be illogical," Jefferson County Sheriff Department Public Information Officer Mark Techmeyer said.

"We don't test 100 percent of the cases," DPD Cmdr. Ron Saunier said. "Some of those we don't want to test or don't need to test."

But State Representative Frank McNulty saw the issue differently.

"Since you brought this to our attention, it's been concerning," McNulty said.

In response to the CALL7 Investigation, McNulty sponsored and successfully passed legislation, HB13-1020, to require rape kit testing statewide.

The new law forced police to count their inventory of untested kits and to send those numbers to the Colorado Bureau of Investigation by Sept. 5, 2013. Now, for the first time ever, we know there are at least 5,000 untested rape kits in Colorado.

"I think it's higher than any of us could have suspected it would be," McNulty said. "At least we now know, and we can start the process of getting the kits into the pipeline and getting them tested."

According to the data obtained by CALL7 Investigators, some of the totals include:

Greeley - 366 untested rape kits

Aurora - 416 untested rape kits

Denver - 998 untested rape kits

But also alarming - 35 police agencies have not yet reported their numbers to the state as the law requires. Another, Colorado Springs, has data that it is not being made available.

"If they don't send that information to the state, they're in violation of state law and we'll be visiting with the Attorney General's Office to see what action can be taken," McNulty said.

Kris Miccio, a University of Denver law professor and advocate for women's issues, questions the effectiveness of the law if police departments are refusing to follow it. She says the kits represent years of untested justice.

"This is not just about the survivor and the perpetrator, this is about a system that isn't working and is failing all of us," Miccio said.

Additionally, the 5,000 backlogged rape kits may be only a fraction of Colorado's untested kits. The law only requires police to count and submit "active" cases for testing, which leaves plenty of room for interpretation.

"What is the definition of 'active'? Active is what the agency says it will be, and it can literally change from county to county," Miccio said.

CBI instructed agencies that "active" does not include "kits that have been previously submitted" or cases with "corroborating evidence that the sexual assault never occurred."

In Kelly Binder's case, DPD told her because the District Attorney refused to prosecute her case three years ago, her rape kit would not be included for testing under the new law. DPD later changed its position after Binder questioned the decision.

"I don't understand how mine can be considered not 'active' anymore, and my kit may or may not be tested because it might or might not fall into that category," Binder said.

"Victims of assaults shouldn't have to negotiate the testing of evidence that has been collected from an assault," McNulty said.

McNulty may consider clarifying the law's language if needed, but for now, he says Colorado is well on its way to helping thousands of women find justice.

"That's 5,000 women who have been waiting on justice and waiting to have a conclusion to their case," McNulty said. "I'm just pleased that they're going to have an opportunity to get that."

Due to the volume of untested rape kits, CBI will need to outsource the majority of the testing for this phase of the law. Beginning in March 2014, all rape kits submitted to police in new cases are required to be tested.