North Carolina unsure how many rape kits are left untested

ASHEVILLE — Andrew Grady Davis will call the Avery-Mitchell Correctional Institution home until at least 2041. Were it not for a rape kit, his crime would've gone unpunished.

Early one morning in 2001, he broke into a UNC Asheville student's apartment, shoved her down and raped her at knifepoint. Years later, Davis was arrested in Oklahoma after he ran a roadblock while possessing drugs. 

Police added his DNA to a Federal Bureau of Investigation database that tied him to the rape through a sample taken from his victim years ago. That led to Davis’ conviction in 2013 in what had been a cold case.

Similar stores of rape convictions — won with DNA evidence years after cases dead-ended — aren’t uncommon, but they’re not as common as they should be, crime victim advocates say.

Legislation approved in the N.C. General Assembly last year could help change that.

More:Law: NC police must inventory untested rape kits

The state Department of Justice is preparing a report to go to lawmakers next month detailing to what extent DNA evidence has been left untested in rape kits statewide. Depending on its contents, the report could eventually translate into policy reform, reshaping the way police agencies handle evidence collected from rape victims. 

DNA evidence, which medical professionals collect and file in rape kits, is one of the most powerful tools at the disposal of district attorneys prosecuting rape cases. But in spite of their utility, it's estimated hundreds of thousands of these kits sit untested in police evidence lockers across the country.

In Asheville alone, police have 573 untested rape kits.  

"This really is about a process that isn't being taken seriously, that's being ignored," said Monika Johnson Hostler, executive director of the North Carolina Coalition Against Sexual Assault.

As technology has improved — and tolerance for sexual assault has declined — lawmakers have sought to chip away at the massive backlog of about 400,000 untested kits, according to a 2015 White House estimate. 

North Carolina last year mandated that local law enforcement agencies inventory their untested sexual assault evidence collection kits — a more formal name for rape kits. 

Police forces statewide were required to submit their findings last month to the Department of Justice, which will present them to the General Assembly no later than March 1.

The State Crime Lab hasn’t finished compiling the data, but it’s likely North Carolina's rape kit backlog is substantial, according to state Rep. Billy Richardson, a Cumberland County Democrat behind the state legislation.

"You can't fix something unless you know it's broke, and the only way to do that is to take an inventory," Richardson said. "I’m hoping that there’s not much, but my gut tells me there’s going to be a big stack, and the SBI can’t test what they don’t know is there.” 

The State Bureau of Investigation is no longer part of the State Crime Lab, which handles all rape kit testing, but neither entity — nor any other state agency for that matter — knows how many rape kits go untested in North Carolina.  

'It's going to be a big number'

Rep. Jonathan Jordan, a Republican representing Ashe and Watauga counties, cosponsored Richardson’s rape kit inventory bill, which the General Assembly adopted by way of the budget during its last session. Jordan described the rape kit backlog as a nonpartisan issue.

He was more hesitant than Richardson to speculate what the State Crime Lab’s report might entail, but he acknowledged if each of the state's hundreds of police forces have even a few untested kits, the state will have a significant backlog. 

"I'm sure that with the number of law enforcement agencies out there, if they all have a few, it's going to be a big number," he said.

There are at least 80 independent law enforcement agencies operating in the state's 22 westernmost counties. And if the Asheville area is any indication, law enforcement agencies have more than a few untested kits in their care. 

The Department of Justice isn't releasing the data it received from police until after it reports findings to the General Assembly. But several area law enforcement agencies provided their inventories to the Citizen Times.

The three agencies responding to public records requests had 830 untested rape kits. 

Big numbers

The legislative mandate requiring law enforcement agencies to inventory their untested rape kits asked that they sort the data into categories. Police had to report how many kits hadn't been tested for each of the following reasons:

• The victim didn't report the assault to police.
• The matter was already resolved in court.
• The suspect admitted guilt.
• The allegations were determined "unfounded."

The Asheville Police Department reported 573 untested kits. Excluding the kits that fell into one of the four categories set forth by the legislature, the department has 352 untested kits. 

Most of those 352 kits can be explained, spokeswoman Christina Hallingse said. Some are untested because people reported assaults but didn't want to pursue charges.

In that event, the department holds onto the rape kit in case the victim changes his or her mind.

The rest of the untested kits didn't initially meet minimum standards for testing set forth by the State Bureau of Investigation. The bureau has since changed its standards regarding testing, prompting an ongoing review of untested kits, Hallingse said.

 "We are currently in the process of re-evaluating each of the untested kits to determine if they meet the new standards for testing," she wrote in an email.

The Buncombe County Sheriff's Office reported 167 untested rape kits, 93 of which fell outside the categories defined by the legislature. In an email, sheriff spokeswoman Natalie Bailey said that 18 of those haven't been tested because the district attorney declined to prosecute and 46 weren't tested because the "victim refused to cooperate."

The Henderson County Sheriff's Office reported 90 untested kits, 49 of which didn't meet any of the four classifications set by the state. 

Between 2006 and 2016, there were 575 reported rapes in Buncombe County and 250 in Henderson County, according to SBI statistics. The two counties are the region's most populous.

Buncombe County recorded more rapes in the last 11 years than any other in the region. 

The county’s District Attorney Todd Williams said his office hasn't felt the effects of a rape kit backlog. He and his staff haven't yet handled a case for which they needed a rape kit that was untested, he said. 

More:In unusual step, victims told of destroyed NC rape kits

'Left in a box'

In the early '80s, Rep. Richardson served as a prosecutor in Fayetteville, where he tried plenty of rape cases. For more than 35 years, one case in particular has haunted him, he said.

"It was really tragic," Richardson said. "It broke my heart." 

A young, severely mentally disabled man was raped and sodomized by a curtain rod. Richardson said he didn't have access to the DNA evidence that goes into rape kits today. Instead, he relied on blood samples to convict the young man's assailant. 

"They're not near as good as DNA," he said. "We've come so far with the testing since then. It's crazy we're not taking advantage of it. When you have the technology, it would be a shame not to use it."

DNA evidence is "critically important to hold offenders accountable," Williams said.

Charlotte police earlier this month arrested a 49-year-old man in connection with two rape cases, one of which is nearly 20 years old. Zellie Edwards was charged with raping a 16-year-old girl in 1988 and a 17-year-old girl in 1994. 

Like Andrew Grady Davis, the man who raped a UNCA student in 2001, Edwards was tied to the Charlotte cold cases by DNA from rape kits.

Edwards had attained habitual felon status, requiring that a sample of his DNA be taken. That sample was submitted to the FBI's national database, where it matched that of his two victims, Lt. Melanie Peacock of the Charlotte-Mecklenburg Police Department told The Associated Press. 

For this reason and others, Johnson Hostler, of the North Carolina Coalition Against Sexual Assault, said she believes that every rape kit should be tested.

The process of compiling these kits is not simple. Only specialized medical professionals are allowed to conduct rape kit examinations, which are highly invasive procedures that can take several hours.

"It's important to the victim that we test these kits because it's who they are," Johnson Hostler said. "It's their DNA being kept in these kits. Who they are is on a shelf, in a box, not being processed. A large part of protecting their safety is ensuring those kits are used and not left in a box."  

Priorities

The State Crime Lab, which tests all North Carolina's rape kits, acknowledged the legislature's effort to inventory the backlog in three paragraphs of its annual report last year.

"This one-time inventory will address any (sexual assault evidence collection kits) currently in existence; however," the report continues from here in bold lettering, "there is no statewide SAECK inventory and tracking management system to prevent unknown inventories of SAECKs reappearing in the future."

The Crime Lab concludes that "it is imperative" that the state invest in such a tracking system if it's goal is to make sure no future rape kits go untested.

Richardson and Jordan said it's too early to say exactly what policy reform will be needed to address the state's rape kit backlog. But both legislators said that the state will likely need to take steps to make sure kits aren't being neglected in the future.

"The main thing is to see if we need to get some kind of process in place to keep track of this going forward," Jordan said. "The best way to take care of a backlog is to make sure we take care of it each year so that there is no backlog."

Richardson said he thinks the state will eventually need to invest in an electronic tracking system or some other mechanism to monitor the status of each rape kit. He initially wanted to include funding for such a system in the bill that started this statewide inventory. He said he pulled that for fear that the $1.5 million fiscal note would kill the measure. 

Texas has one of the nation's largest collections of untested rape kits, about 20,000 in all. During the Legislature's most recent session last year, lawmakers passed a bill allocating $1.5 million to a tracking system like the one that Richardson thinks North Carolina needs. 

In addition to tracking kits, Johnson Hostler said the General Assembly needs to pass legislation that ensures all rape kits make it to the crime lab for testing so that no police force finds itself sitting on hundreds of untested kits.

"Putting these kits aside feels like you're putting the person and their case aside," she said. "It means that you haven't made survivors of sexual assault a priority."