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3 INVESTIGATES: More than 250 sexual assault kits never sent to crime lab

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The numbers of untested rape kits in Chattanooga, Cleveland and Hamilton County. WRCBtv.com graphic The numbers of untested rape kits in Chattanooga, Cleveland and Hamilton County. WRCBtv.com graphic

More than 250 sexual assault kits were never sent off to the state's crime lab at three of the area's largest law enforcement agencies.

The oldest case in the backlog dates back to 1993, making it too late to prosecute. The statute of limitations is eight years.

A Channel 3 Eyewitness News investigation reveals that detectives sometimes wait months before sending off evidence in rape cases even though the state does not charge departments for testing.

READ MORE | Expert says unfounded rape cases can lead to attackers going free

Sometimes the kits never make it to a lab if detectives determine cases are unfounded.

But what experts are now learning is that when investigators choose not to test every kit, it comes at a high price. In some cases, it has allowed predators to keep preying.

“Throughout history, Tennessee law enforcement departments have collected these sex assault kits and then they, for one reason or another, decided they don't need to be sent for immediate analysis,” says Josh DeVine, spokesman for the Tennessee Bureau of Investigation. “This is a backlog of untested kits that are currently sitting in evidence rooms across the state of Tennessee and law enforcement departments.”

Hopes for justice lost?
Research has shown as many as 90 percent of rapes are committed by rapists who have committed the crime more than once.

“Offenders in some cases would have been off the street and wouldn't be able to commit more crimes,"says Corey Rayburn Yung, a University of Kansas associate law professor, who has studied America's hidden rape crisis.

 There's "incredible danger that there's still rapists out there and evidence linking them to rapes -- potentially in those the untested kits,” he says. “I think it makes sense to test them all. Even if there is some cost and resources involved.” 

Hamilton County Sheriff's Office already has destroyed 80 of 104 untested kits. The department won't say why. And they have plans to destroy more citing a court order. The department has a total of seven kits that are still being reviewed. 

In the last year, victims across the state have expressed frustration about delays in justice, according to media reports. State lawmakers took notice and requested each department in Tennessee to inventory the kits. The sheriff's office did not immediately respond to a December letter from TBI asking how many kits they plan to test. It only sent the state's law enforcement agency a response after Channel 3 began asking questions and announced an upcoming story on air.

Hamilton County Sheriff's Capt. Bill Johnson, who oversees investigations, did not respond to an email asking additional questions about the untested kits including questions about why the department chose to destroy the kits.

Chattanooga police logged a total of 99 untested rape kits. In 18 cases, arrests were made by police without testing the kits. Only four cases required officials to review why the kits weren't tested. Case notes did not explain why. However, officials at the department say it's unlikely that most of the kits will ever be sent to the state's crime lab.

District Attorney: Test every kit
Hamilton County District Attorney Neal Pinkston says all the kits need to be tested, even ones that are no longer prosecutable because the statute of limitations has expired.

Rape charges can be filed within eight years of a crime. For victims of aggravated rape, the timeline expands to 15 years.

At the sheriff's office, the oldest untested kit dates back to 1993. Pinkston argues in case the statute of limitations ever changes those kits should be kept.

"Even if those cases can't be pursued now, there could be a serial perpetrator that did something in the future,” Pinkston says. “That profile would be known and be available for testing in the future."

In the end, law enforcement departments test kits at their discretion. Pinkston only can advise them if they ask.

In a letter sent to a New York district attorney last week, Pinkston says "every inventoried kit, except for those cases where the victim will not consent to testing, or those where it can be determined that no crime was committed" will be tested.

The testing comes thanks to a $35 million grant using seized money from the Manhattan District Attorney's Office. "To have hundreds of thousands of rape kits untested is unacceptable. Rape victims nationwide deserve to know that the invasive examination they underwent had a purpose, and the resulting kit was not left to gather dust on a forgotten shelf," says Manhattan District Attorney Cyrus Vance in a released statement. "But more than that, DNA evidence, consistently prosecutors' most reliable tool, solves crimes across state lines."

The office is willing to foot the bill to test all backlogged cases nationwide. Applications for the grant are due June 1 and jurisdictions will learn if they receive any funds later this summer.

Even if grant dollars aren't awarded, the state lab still would like departments to test kits. Lawmakers already added funding to the budget to create more lab positions in Memphis and Nashville.

“Send us your kit, we'll get them taken care of and wipe the slate clean,” says DeVine of the TBI .

Keeping evidence until victims are ready
For some victims, who spent hours on an exam table as a nurse collected evidence and asked probing questions, they go through the process with little chance of getting justice.

A look at cases in Hamilton County show in the last several years, between 60 percent and 80 percent of reported rapes remain open without an arrest.

Victims have to decide if they want to pursue charges, which results in public testimony and trial. Sometimes victims are not sure if they want to immediately file a report when an attack happens, says Amy Griffin, nursing director at the local rape crisis center.

“Here's the thing: A lot of times they are unsure whether they want to report or not. And a lot of times it's someone they know, and that can add a whole other emotional dynamic to it. So it's very understandable,” she says. “Here we can say, ‘You know what? That is OK. You don't have to make that decision right now.' But this buys them time.”

The rape crisis center, housed under Partnership for Families, Children and Adults, has a policy of keeping untested sexual assault kits for a minimum of 60 days.

“Truthfully, we hold it a lot longer than that. I have kits that I have had for two years,” she says.

When asked, Griffin says she did not know how many untested kits are at the rape crisis center in storage.

Kits belonging to victims who have not filed charges are kept at the center. However, they are not stored for the statute's entire eight years.

“We do have finite storage capabilities. We make every effort to get in touch with the victim to say, ‘Have you made a decision on what you want to do?,'” Griffin says.

Law to reduce backlog
State lawmakers have taken steps to ensure the backlog will become a thing of the past. This past session, lawmakers passed a bill that will require law enforcement departments to send the kits off within 60 days from the day it is received.

For victims who chose not to immediately report, they will have three years to decide whether to move forward with the case and still have their kit for police to use as evidence.

Providers, like the rape crisis center, will have to inventory and create numbers to track the kits on hold. Those kits will not be tested until the victim files a police report, according to the bill.

Griffin, who supports testing of all reported cases, is hopeful the law will help.

“I think testing of those [untested sexual assault ] kits can certainly be beneficial,” she said. “Again, this new legislation is going to address that and correct that so all kits that been reported will be mandated to be tested.”

The new law says nothing about how the testing within 60 days will be enforced or what the penalties will be if a provider or law enforcement agency breaks the rules.

“It will be great if it's enforced. I think 60 days is a good window,” Yung at the University of Kansas says. “It ensures the investigation at least moves a step forward, and I think it will make a big difference.”

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