How long must Idaho police hang on to rape evidence? Bill would set agency standards

Legislation revolving around how long evidence from a sexual assault exam should be preserved brought questions Tuesday but moved forward without serious opposition in the Idaho Statehouse.

The House Judiciary, Rules and Administration Committee passed the bill unanimously to move it to the floor for a vote.

The legislation, pitched by Rep. Melissa Wintrow, D-Boise, outlines how long sexual assault kits, commonly called rape kits, should be kept in evidence.

The kits are collected during a forensic exam on an alleged sexual assault victim. The exams involve swabbing and examining a victim for any potential evidence.

Wintrow said the legislation is designed to hold perpetrators accountable, send a message to victims who have suffered trauma and provide a resource to law enforcement who might be frustrated by inconsistent state guidance.

“Victims who have suffered a trauma are more likely to be retraumatized by a system they feel has forgotten them, and law enforcement may be frustrated with ‘what timeline should we utilize?’ ” Wintrow said. “Sexual assault is one of the most underreported crimes in our country; thus I do think it’s important to create the most transparent and accessible system when it comes to reporting and accountability.”

Preservation and disposal

The bill would create new regulations for how long each kit must be preserved, depending on the type of crime.

▪  For death penalty cases, a kit must be preserved until the convicted person’s sentence is carried out and until police are sure all suspects in the case have been accounted for.

▪  For felony cases, a kit must be preserved for 55 years from the kit’s collection date or until the convicted person’s sentence is complete — whichever comes first. This also includes inactive cases in which a charge has not been filed but the sexual assault case isn’t closed.

▪  The legislation would mandate preserving a kit for 10 years in cases in which no evidence is found to support a crime, an incident is no longer being investigated as a crime or a victim indicates no further forensic exams may occur.

At least 60 days before disposing of a rape kit, authorities would have to notify the victim; the parent or guardian of a minor victim; or relatives if a victim has died.

Twin Falls Police Chief Craig Kingsbury, vice president of the Idaho Chiefs of Police Association, testified in favor of the new bill. He said legislation last year helped law enforcement create guidelines for collecting and testing the kits.

The 55-year preservation time was selected in part because some victims are children and some perpetrators may be serial rapists, he said.

Canyon County Sheriff Kieran Donahue spoke on behalf the Idaho Sheriffs’ Association, stating that although his group agrees with the principle, it feels 55 years in felony cases is excessive. Instead, he suggested the kits be kept for 20 to 25 years.

Audit: 56% of Idaho kits tested

Last year, the Legislature mandated that all law enforcement agencies in the state perform an audit of how many kits each agency had in its custody and why each agency chose not to test certain kits. That audit was presented to lawmakers Tuesday by Idaho State Police Forensic Services Lab Director Matthew Gamette.

Idaho had 2,538 kits on law enforcement shelves and only 1,422 had been tested.

Those 1,116 other kits do not just represent evidence, Gamette said — each of those cardboard boxes represents a human being.

Gamette explained that of the untested kits, 191 are cases in which no crime was committed, 271 are no longer being investigated as a crime and 66 involve victims who requested the kit not be tested. There are about 541 kits that will now be tested, pursuant to the 2016 legislation’s regulations.

The mandated audit also educated law enforcement agencies on their peers’ policies.

“We found through doing this audit that different agencies were doing things very differently,” Kingsbury told legislators. “Now we have some good guidelines and this amendment we’re asking for, currently, will help to solidify that.”

The legislation came after the Idaho Press-Tribune published an investigation that found wide discrepancies in the tracking of rape kits.

The newspaper pulled records on evidence collected at 22 law enforcement agencies in Idaho and found that each had different policies on tracking the kits. Nampa police, for example, submitted about 10 percent of their collected rape kits. Meridian police, by comparison, submitted about 80 percent.

Much of the decision on whether to test a kit is left up to one detective.

The 2016 legislation, also pitched by Wintrow, outlined when a kit may not be tested and addressed how a decision not to test is made. The two reasons a kit may not be tested are: a victim specifically requests his or her kit not be tested, or law enforcement determines no crime has been committed. For the latter, a prosecutor must sign off on the decision.

CORRECTION: If it moves forward, the 2017 legislation would no longer require prosecutors to be involved in making notifications of a rape kit's disposal, as they aren't involved in evidence collection or destruction to begin with. They still must sign off on decisions not to test kits in cases where no crime is committed.

This story was originally published February 21, 2017 at 6:30 PM with the headline "How long must Idaho police hang on to rape evidence? Bill would set agency standards."