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How processing of rape kit backlog is helping prosecutors
04252018 GBI

Two years after the Georgia General Assembly passed a law to eliminate a backlog of untested rape kits, those new tests already helped prosecutors for the Northeastern Judicial Circuit covering Hall and Dawson Counties.

Chief Assistant District Attorney Wanda Vance said none of the kits, which include potential DNA samples in a suspected sexual assault, resulted in a new prosecution, but a tested kit has been used as evidence in an existing case.

“It was kind of decided because maybe that victim didn’t want to have to go forward necessarily, because of different issues in the case, that it would be better used to get a prison sentence and a sex offender sentence,” Vance said.

Senate Bill 304, known as the “Compassionate Care for Victims of Sexual Assault Act,” requires law enforcement agencies gathering sexual assault nurse examiner kits to submit the evidence to the Georgia Bureau of Investigation “within 30 days of it being collected.”

The GBI then processed all of kits for a hit against the Combined DNA Index System, known as CODIS.

“That means, running the DNA evidence through the federal CODIS database to determine if there is a potential DNA match. After testing, GBI notifies the submitting jurisdiction of the result and CODIS upload. DNA profiles are stored in CODIS and may result in future hits,” according to the Criminal Justice Coordinating Council.

GBI officials said 177 kits were submitted by Hall County-area law enforcement following the law change.

Vance and other members of the local Sexual Assault Response Team, comprising prosecutors, law enforcement and advocates such as those with the nonprofit Rape Response, said they have received a list of roughly 30 cases that have been referred for investigation.

Vance said in October that several are still in investigation, and some could be prosecuted.

“Some of the issues we’ve seen with some of the cases are, obviously, witnesses moved out of state or we don’t have good contact info so we’re trying to see if witnesses are still available,” she said.

The use of the kit in an existing case came under Rule 404(b) of the Georgia Evidence Code, in which prosecutors are allowed to present in certain circumstances evidence of other crimes.

“It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” according to the Georgia code.

Vance said there is also another decades-old case in which authorities have tried to track down the victim.

“They’ve spent hours going through every single case and pulling out all those files and looking at all the details,” said Jeanne Buffington, executive director of the Gainesville-area nonprofit Rape Response.

Regarding the list of referred cases, District Attorney Lee Darragh said “the likely availability of witnesses was a significant factor” on cases that “might be successfully pursued.”

The GBI confirmed that local jurisdictions were notified of cases with a CODIS hit.

“I think there was a long-time-ago policy that has not been the policy for several decades that if you didn’t have a suspect to match up the kit to, they weren’t going to test the kit. But that was long ago, and I think a lot of law enforcement agencies believed that was still the policy, and therefore they weren’t turning in the kits,” Darragh said.

In March 2015, the GBI issued a bulletin alerting law enforcement agencies that it would accept and perform DNA analysis on the kits “regardless of whether or not a suspect has been identified in the investigation.”

Darragh and Vance said they have not run into any Fourth Amendment issues or pushback recently regarding evidence suppression in relation with these tested kits.

“Any defense attorney worth his salt will explore whether or not there might be search and seizure problems. We haven’t seen anything on test kits,” Darragh said.

Vance said her hope is for the community to become more aware and understanding of survivors of sexual assault, who may not speak out for years.

“Victims don’t talk about this, and so it’s not unusual for us to have cases that are cold with delayed disclosures that may have some age. It’s not unusual for us to try those and win those to a jury, depending on the facts and the circumstances of the case,” she said.