Virginia Addressing Sexual Assault Kits on Multiple Fronts

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Source: Linda C. Jackson, AAFS Member, Criminalistics Section

For the past three years, Virginia has been working to completely overhaul the way sexual assault kits or Physical Evidence Recovery Kits (PERKs) are handled in the Commonwealth. Through bipartisan legislative efforts, multidisciplinary stakeholder work groups, sexual assault kit grants, and state funds, Virginia is pursuing multiple approaches to enhance the state’s response to sexual assaults.

Legislation enacted in 2014 mandated the Department of Forensic Science (DFS) to conduct an inventory of untested PERKs in the custody of state and local law enforcement agencies across the Commonwealth of Virginia that were collected but not submitted for analysis prior to July 1, 2014. The inventory, completed in 2015, identified 2,902 untested kits still in the custody of law enforcement. In response to the inventory, Governor Terry McAuliffe convened a PERK Work Group of interested stakeholders to develop recommendations to ensure the appropriate handling and testing of these kits. The Governor’s PERK Work Group recommended legislation to establish a comprehensive procedure for the consistent handling of PERKs collected from victims of sexual assault. The bills passed the 2016 General Assembly unanimously and became effective July 1, 2016.

Governor Terry McCauliffe signs PERK bill

Governor Terry McAuliffe signs PERK bill

Law enforcement agencies in Virginia are now required to submit all PERKs received to DFS for analysis within 60 days, with four exceptions:  anonymous PERKs (i.e., the victim has not reported the offense to law enforcement); PERKs collected in a routine death investigation in which the medical examiner and the law enforcement agency agree that analysis is not warranted; PERKs connected to out-of-state offenses; and, where law enforcement determines that the PERK is not connected to a criminal offense. These mandatory submission provisions are designed to ensure that law enforcement appropriately and timely submits kits for analysis. To assist with the expected growth in PERK submissions, DFS was provided funding for additional resources and staff to increase its capacity.

Anonymous PERKs must be sent from the collection sites to the Division of Consolidated Laboratory Services (DCLS), a non-law enforcement-based state agency tasked with storing the kits for a minimum of two years. Revisions to the law, effective July 1, 2017, provide that the victim may object to the destruction of the anonymous kit, which will require DCLS to extend the retention period for an additional ten years.

To address the untested kits identified through the 2015 PERK Inventory and other untested kits collected prior to the comprehensive PERK legislation’s effective date, DFS worked with staff from Virginia Attorney General Mark Herring’s office to seek grant funding to pay to outsource the analysis of these untested kits. Virginia was awarded $1.4 million by the New York County District Attorney’s Office to pay to outsource the testing of more than 2,000 untested kits identified through the 2015 PERK Inventory. Attorney General Herring and DFS secured $2 million in additional funding through the United States Department of Justice’s Bureau of Justice Assistance 2016 National Sexual Assault Kit Initiative (SAKI) Grant, which will fund the outsourced testing of more than 1,200 additional untested kits collected prior to July 1, 2016.

DFS will be implementing a new PERK tracking system using SAKI funds. With this system, PERKs will be tracked at each step in the process, including their distribution as uncollected kits to the collection sites (e.g., hospitals) through collection, transfer to law enforcement, submission to the laboratory for analysis, and return to the law enforcement agency for storage. All agencies handling kits will be granted access in order to update the status of each kit, and victims may use the system to check the status of the analysis of their kits. By tracking the status of kits entered into the system, DFS will be able to notify stakeholders when collected kits have not been appropriately submitted for analysis. This will build on the multidisciplinary response to this devastating crime and align the resources of the many agencies who respond to sexual violence.

To supplement the addition of new staff, DFS is implementing laboratory policies and processes to expedite the analysis of PERKs. DFS is triaging PERK contents to prioritize the most probative samples to more quickly report results and search profiles in the data bank. SAKI funds allowed DFS to hire a research assistant in its Forensic Biology Section to assist with the development and validation of a streamlined method for testing evidence from sexual assault cases. The method, which will include testing of samples for male DNA followed by extraction and testing of the DNA with robotics, will replace the current labor-intensive process of identifying spermatozoa through microscopy and testing for seminal fluid through chemical methods.

DNA Microscope

DNA Microscope

The new paradigm in Virginia also focuses on providing resources and information to victims of sexual assault. At the time of PERK collection, victims who have not reported their offenses are provided information on how long their kits will be stored and how to subsequently report the offense so their kits can be submitted for analysis. The comprehensive PERK legislation also provided victims the right to request and receive information from law enforcement regarding the submission, status, and results of the analysis of their PERKs, provided releasing such information will not interfere with the investigation or prosecution. Training for Virginia law enforcement will be offered using SAKI funds, including “Trauma-Informed Sexual Assault Investigation” and “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence.” Additionally, a dedicated survivor-support specialist in the Attorney General’s Office will provide resources and support to survivors as they work through the often-difficult process of participating in a criminal investigation while beginning to heal from their experience. This victim advocate will also provide support to localities to enhance their victim notification protocols.

Overall, Virginia has made great strides to empower victims and give them closure through its multidisciplinary, collaborative approach to addressing the trauma of sexual assault.