Maryland legislators consider bills to retain sexual assault kits for 75 years and track testing
By Cassidy Jensen | The Baltimore Sun • March 9, 2023 | Original Source
Before DNA testing was used to solve rape cases, Dr. Rudiger Breitenecker began keeping samples from patients who came to Greater Baltimore Medical Center in Towson for treatment in the 1970s after sexual assaults.
The microscope slides Breitenecker saved containing semen and bodily fluids have been used since to solve dozens of decades-old sexual assault cases. Now, Maryland lawmakers are considering legislation that would ensure biological rape evidence like Breitenecker’s slides are kept long enough to identify perpetrators.
Legislation introduced in both General Assembly chambers would extend the time law enforcement agencies and hospitals must preserve sexual assault evidence kits from 20 years to 75 years and broadens the definition of a kit to encompass evidence such as the slides.
“Senate Bill 789 builds on our prior work, and it protects and preserves evidence that has been around for almost five decades now,” said Sen. Shelly Hettleman, a Baltimore County Democrat who sponsored the bill, at a Thursday afternoon hearing in the Judicial Proceedings Committee.
In response to questions about storage costs, Baltimore County State’s Attorney Scott Shellenberger held up a folder to illustrate how easy it would be for agencies to store the kits for additional years.
Shellenberger told senators about Alphonso W. Hill Jr., who is serving a life sentence for more than a dozen rapes, including a 2010 conviction for the 1989 rape of a 14-year-old that depended on DNA evidence.
“We have an example because of a doctor who did something no one else in the country was doing. We have an example that shows that even 30 years is extremely important,” he said.
A second bill, introduced by Hettleman in the Senate and cross-filed in the House, would create an inventory allowing sexual assault victims and their representatives to track the progress of kit testing and require agencies to report information for that system.
“There’s a lot of mistrust in this system and people should be able to know where their DNA is in the process,” said Hettleman, who has spent years championing legislation related to rape kits, in an interview. “This bill is really meant to make sure all of the different folks who need to be a part of that tracking system do what they’re supposed to be doing.”
Using a bar code on kits, police, prosecutors and survivors would be able to see where a kit is in the testing process as it moves from a hospital to a police station to a forensics lab. The Governor’s Office of Crime Prevention, Youth and Victim Services issued a request for proposals for vendors to create that inventory system in 2022. The procurement process is ongoing.
Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault, said in an interview that the tracking bill matters because in the past, thousands of rape kits belonging to Maryland survivors went untested, leading to a lack of trust in the system.
“They thought they were providing evidence to the prosecution, and they just put the evidence on the shelf,” Jordan said. “One way to combat that is to increase transparency and give rape survivors more control over what’s going on.”
Modern sexual assault kits are the result of an invasive hospital examination and include samples of DNA from semen and other biological material. States around the country are dealing with a backlog of untested kits.
Statewide, there were about 7,500 untested or partially tested kits collected on or before April 30, 2018, according to a January report by the state sexual assault evidence kit policy and funding committee, which the General Assembly established in 2017. In fiscal year 2022, agencies that reported data had submitted about 89% of kits for testing.
Meanwhile, the slides collected at GBMC still are being tested today. Shellenberger said the doctor’s slides are considered medical records, so when a case involves a victim who was a GBMC patient, the county subpoenas the hospital for the slides.
Baltimore County Police spokeswoman Joy Stewart said in an email that the county’s cold case unit determined that GBMC collected slide evidence for 1,779 sexual assault exams related to Baltimore County cases.
Multiple slides may exist for each case, and it costs about $1,000 to analyze each slide, Stewart said. Slides from about 1,295 cases still remain to be tested.
More than 60 convictions have resulted from evidence found on the slides, Shellenberger said in an interview with The Baltimore Sun.
“This is a movement that’s happening everywhere in the country,” Shellenberger said. “The entire country is going through the old kits they didn’t test. The thing that makes Baltimore County unusual is nobody else in the country has GBMC slides.”
The Sun reported in 2019 that county police had destroyed more than 500 rape kits over six years. The destruction of rape kits also was highlighted in a lawsuit brought by sexual assault survivors.
County police now retain biological evidence in rape investigations for 75 years if the suspect is unidentified, Stewart said.
In late January, the police department launched a website showing its testing workflow and how many kits in its possession have been tested, with 60-day reports on progress. Baltimore County Police Captain Brian Edwards called the dashboard the first of its kind in the state in testimony Thursday before the Senate committee.
“My county had a long way to go and I think they’ve made significant progress in this area,” Hettleman said in an interview.
According to the most recently available data from December 2022, Baltimore County Police had 1,609 kits in their possession, of which 618 had been tested. Of the untested kits, 421 were exempt from testing, in the majority of cases because victims wished to remain anonymous.
The recent bills were created by the statewide committee on sexual assault kit testing formed in 2017. That year, lawmakers passed legislation requiring agencies keep kits for 20 years. Previously, agencies had maintained their own policies on how long to preserve sexual assault evidence.
A sponsor-amended version of Senate Bill 789 requires law enforcement agencies to keep evidence obtained from self-administered kits, which companies have started marketing to victims, including college students, said Zenita Hurley, the chief of the Maryland Attorney General’s Office of Equity, Policy, and Engagement and chair of the state committee on sexual assault kit testing.
Although it’s unclear whether material from the controversial do-it-yourself kits would be admissible in court, Hurley said committee members recognized that the kits fill a void for underserved victims who may not be able to access an exam. The amended bill would allow the attorney general to issue public guidance on the kits’ use.
“We’re in no way seeking to endorse the kits,” Hurley said. “We’re really just trying to get ahead of this issue.”
Jordan said the next issue for sexual assault survivors in Maryland is improving access for patients seeking exams from forensic nurses, who collect evidence for kits.
“It’s simply unacceptable that someone goes to a hospital in their community and they’re told they have to be transported tens of miles away to a different hospital,” she said.
Survivors whose previously untested kits have been submitted for testing can opt-in to receive information about their kits by calling the Maryland Coalition Against Sexual Assault’s hotline at 833-364-0046 or emailing firstname.lastname@example.org.