Expanding the rights of sexual assault survivors once again lies in the hands of the D.C. Council. Introduced by Ward 6 Councilmember Charles Allen on June 26, the Ensuring Safe Forensic Evidence Handling for Sexual Assault Survivors Amendment Act of 2023 aims to seal a gap in survivor care by requiring the District to indefinitely preserve evidence collected after a rape and most sexual assaults, regardless of whether the survivor decides to report the crime to police.
Survivors of sexual assault have the right to seek out medical care, including evidence collection—frequently referred to as physical evidence recovery kits or rape kits—without reporting the assault to local law enforcement. In 2019, D.C.’s Sexual Assault Victims’ Rights Amendment Act also made it possible for those survivors who don’t want police involvement to receive support from a trained sexual assault advocate. But there is currently no law in place that protects and preserves these kits after evidence is collected from survivors who don’t talk to police.
“All of our protections and rights around SAVRAA for victims and survivors kick in when that report to MPD takes place,” says Allen, who introduced the 2019 law and its 2014 predecessor. “We don’t make a judgment about why that’s not happening, we just know there’s a myriad of reasons [survivors don’t want to involve police]. And what happens is, that rape kit—the chain of custody, the preservation, the DNA that could get uploaded into the national database, the ability to prosecute—is really compromised.”
Although sexual assault cases have notoriously low prosecution rates, rape kits can play a major factor in whether a perpetrator is held accountable or if a case goes to trial. Specially trained nurses, known as sexual assault nurse examiners, perform the forensic exam, which makes up a large part of a rape kit, documenting any physical evidence of violence and collecting DNA samples. For adult survivors in the District, those exams are done exclusively by DC Forensic Nurse Examiners; the organization partnered with Allen to draft the Ensuring Safe Forensic Evidence Handling for Sexual Assault Survivors bill.
DCFNE currently holds on to the majority of the city’s non-report kits. According to the organization’s executive director, Erin Pollitt, each year DCFNE provides “medical forensic care to approximately 150 sexual assault survivors who do not consent to law enforcement involvement.” If any of those survivors want a kit to be collected, DCFNE has relied on an internal process to store them, despite a lack of legal guidance from the District. As City Paper reported earlier this year, the organization can currently store non-report rape kits for two years, leaving survivors a window of time to decide if they’d like to pursue charges.
But storing kits requires adequate space. As a small nonprofit, Pollitt notes, DCFNE’s “capacity is consistently stretched for how many kits we can maintain.”
Under the proposed bill, D.C.’s Department of Forensic Sciences would be tasked with storing untested, non-report kits in addition to the kits from assaults reported to law enforcement that it already stores. DFS would also need to “develop and implement a plan for being notified that anonymous kits are available for pickup, the protocol for the collection, storage, and properly documenting the chain of custody,” and notifying survivors of their kits’ whereabouts, according to Allen’s office. Survivors have the right to request the destruction of kits at any time.
DFS has a complicated history. In 2015, the DNA lab lost its accreditation. But by 2018, the lab reported that it had eliminated its backlog of kits awaiting DNA testing for reported sexual assaults. According to the national campaign End the Backlog and Allen, D.C. continues to test rape kits as they come in.
“Years ago, DFS did have a backlog,” Allen says. “They are now completely caught up. There is no backlog. We do not have issues at DFS with the maintenance, with the testing as it relates to PERKs or rape kits.”
The lab’s current troubles revolve largely around its ballistics department. In April 2021, the lab again lost accreditation and was forced to stop all of its in-house evidence testing. But Allen points out that ballistics is “a very different part of DFS.”
“Our DFS has a solid track record and experience and trust that they have managed [when it comes to maintaining] PERKs,” he says.
DCFNE also supports the decision to have DFS hold on to non-report kits. Pollitt cites the National Institute of Justice recommendation that “law enforcement and/or laboratories” should be responsible for long-term storage of rape kits—reported and unreported. This, according to NIJ, promotes both a consistency of practice and effective tracking. The institute also states that hospitals, rape crisis centers, and clinics are not ideal for long-term storage.
“One of DCFNE’s utmost priorities is respecting the wishes of our patients,” Pollitt says. “Of the two NIJ recommended storage locations, the option for storage that most respects a survivor’s wishes for an assault to remain unknown by law enforcement, would be to store their unreported sexual assault kit at the laboratory, away from law enforcement.”
Survivors behind non-report kits might worry about a government agency storing their evidence as opposed to an independent organization. But Allen notes that DFS is completely separate from law enforcement, prosecutors, and defense attorneys. “They have the expertise and the experience of being able to maintain and store PERKS to then be used in court,” he says.
The ability to guarantee court usability is crucial when it comes to storing physical evidence, since a clearly documented chain of custody is required. Although Allen says that hasn’t been an issue with DCFNE, there are circumstances where the custody chain can become murky in non-report cases. It’s especially complicated when a survivor in a non-report case seeks care across state lines because “a formalized legal process does not exist to transfer the kit back to the District for storage,” Pollitt says.
If a Maryland resident is raped while in D.C. but receives a forensic exam back at home, for example, the Metropolitan Police Department won’t retrieve their rape kit until a report is made. Non-report kits collected outside the District are often held at hospitals or by that jurisdiction’s law enforcement, but because required preservation duration, conditions, and storage facilities differ from one entity to the next, the risk of evidence being lost, damaged, or destroyed is greater.
“We were finding, as we talked with other jurisdictions, that there’s not good coordination that takes place between Maryland, Virginia, and the District when a report’s not made,” Allen says. In 2017, Maryland passed House Bill 255, which requires all rape kits to be transferred to an investigating law enforcement agency within 30 days. The law highlighted a gap for state residents whose assaults took place in D.C, but whose non-report kits were stored in Maryland. “That’s kind of what drove us to really dig in, identify where this gap exists, and then kind of map out a legislative solution,” Allen explains.
Lisae C. Jordan, the executive director of the Maryland Coalition Against Sexual Assault, is supportive of Allen’s bill. “Current laws and practices led to uncertainty about whether and how long some forensic evidence of sexual assault was preserved,” Jordan says via email.
Although the bill was introduced last month, it won’t get a hearing until the fall when Council returns from its summer recess. The ten co-introducers—councilmembers Brianne Nadeau, Anita Bonds, Matt Frumin, Vince Gray, Christina Henderson, Janeese Lewis George, Zachary Parker, Brooke Pinto, Robert White, and Trayon White—signal broad support for the bill that needs seven votes to pass.
“We’ve worked really hard to build out a strong continuum of reporting, and rights and protections for survivors,” Allen says. “This is one more step in that continuum of recognizing that we’re going to have survivors who aren’t ready to report and bring in law enforcement, but that we don’t want to lose or devalue the crucial evidence that is going to be needed [to consider prosecution].”
Felony cases in D.C., such as sexual assaults, are prosecuted by the U.S. Attorney’s Office, which the local government has no control over.
“That will always present a challenge, even with the best laws and rights and protections, so I can’t sit here and make any promise about prosecutions,” Allen says. “But what I can do is build out a system by which crucial evidence is maintained, preserved, protected, that will allow for a greater success and prosecutions of people who commit violence, sexual violence, and sexual assaults.”
Pollitt is more succinct: “This bill fixes a system-wide issue and tells survivors that their sexual assault kit, and what happens to it, matters.”