December 15, Kata Issari, Executive Director, Hawaiʻi

Transcription

1 Board of Directors: Mariska Hargitay Founder & President Mark Alexander Chair Christina Norman Vice Chair Sukey Novogratz Secretary Karen Polivka Treasurer Jessica Ambrose Beth Armstrong Durk Barnhill Jenny Belushi Shanna Brooks Andrea Buchanan Jill Eisenstadt-Chayet Linda Fairstein Peter Hermann Danielle Herzlich Mark Herzlich Rachel Howald Valli Kalei Kanuha, Ph.D. Michael King Lynn Lally Andrea McTamaney Rev. Al Miles Heather Mnuchin Tom Nunan Chauncey Parker Stanley Schneider Andrew Schwartzberg Carrie Shumway Amanda Stephens Noelle Wolf Maile M. Zambuto National Chief Executive Officer Kata Issari Executive Director, Hawaii Region December 15, 2016 TO: FROM: Representative Dee Morikawa, Chair Committee on Human Services Senator Clarence Nishihara, Chair Committee on Public Safety, Senator Glenn Wakai, Vice Chair Committee on Public Safety, Members of the House Committee on Human Services Members of the Senate Committee on Public Safety, Kata Issari, Executive Director, Hawaiʻi Thank you for inviting me to give testimony on the Act 207 report. On behalf of the Joyful Heart Foundation, I would like to commend the members of the Act 207 Workgroup and the Attorney General for their hard work and dedication in generating this comprehensive report on rape kit testing in Hawaiʻi. The members of the Workgroup have clearly devoted significant energy to delving deeply into the factors surrounding this complex issue, and we are very appreciative of this effort. As someone who has spent most of the last 35 years working with survivors of sexual assault and other forms of gender based violence, including personally supporting hundreds of rape victims through sexual assault evidence exams, I applaud the thoughtful and victim-centered approach of the Act 207 Workgroup. Joyful Heart was founded 12 years ago in Hawaiʻi for the express purpose of bringing healing and justice to survivors while also supporting the professionals who serve them. Supporting and advocating for survivors is central to our program portfolio, and every year we work with hundreds of survivors here in Hawaiʻi and across the country. Since 2010, we have made rape kit reform our top national advocacy priority, and our work with survivors, communities, professionals and systems are central in this initiative. Our staff, consultants and partners have decades of expertise that allow us to be at the forefront of rape kit reform efforts. It has also afforded us the unique opportunity to support the development and implementation of best policies and practices to address the rape kit backlog in jurisdictions around the U.S., including Cleveland, OH; Detroit, MI; Fayetteville, NC; Las Vegas, NV; Memphis, TN; Portland, OR; Virginia Beach, VA, and the state of Montana We have been instrumental in passing rape kit reform legislation in numerous states including Florida, Georgia, Iowa, Kentucky, Minnesota, and New York and are currently working in 11 states for the 2017 legislative session. Finally, Joyful Heart successfully advocated with the White House, the Department of Justice and Congress to help establish the SAKI grant program

2 in In addition, we worked in partnership with the Manhattan District Attorney to dedicate $35 million in private bank forfeiture funds for a national grant program which is the largest single investment in rape kit testing, prosecution, victim notification and support. Joyful Heart is also proud to be part of a team that provides technical assistance and training to SAKI grantees as they work to end their backlog of untested kits, investigate the resulting cases, prosecute the offenders and re-engage survivors in the justice process. Given that personal and organizational history and expertise, we are incredibly honored to offer the following observations about the Act 207 report (1) First, we commend the Attorney General and the police departments of the four counties for conducting a statewide audit of existing untested kits and making those findings public. The first step on the road to rape kit reform is to get a clearer picture of the scope of the problem. I am proud that Hawaiʻi has joined 17 states and Washington D.C. in passing laws requiring audits of untested rape kits. We encourage requiring an annual audit to ensure that backlogs in Hawaiʻi are eliminated now and in the future. We also recommend an audit of all kits not currently in police or crime lab storage facilities but kept elsewhere. (2) Second, we encourage the Attorney General, members of the Act 207 Workgroup and members of the legislature to continue engaging in dialogue, study and consideration about testing all rape kits collected in Hawaiʻi. Joyful Heart believes that every kit connected to a reported crime should be tested in a timely manner. We are not alone in this belief this is an approach embraced by elected officials, law enforcement leaders, lab professionals, prosecutors and advocates in states, cities, and counties around the country. The federal government under the SAFER ACT guidelines (to be released very soon) also recommends that each and every rape kit be swiftly tested. Testing matters; for the sake of the survivor s individual situation, but also in solving other sexual assaults and crimes. Jurisdictions across the country have begun to witness the benefits of testing every rape kit. When rape kits are tested, communities are able to identify an unknown assailant, link crimes together and identify serial offenders. Testing all rape kits can also confirm the survivor s account of a known suspect, discredit suspects, exonerate the innocent and save communities millions of dollars. To align with emerging national best practice policies, we recommend the inclusion of criteria for the timely submission and testing of all kits. These guidelines require: 1. Submission policies that cover the entire route of the kit from hospital to lab; 2. Hospitals notifying law enforcement within 24 hours to pick up kits; 3. Law enforcement collecting kits from the hospital within 72 hours; 4. Law enforcement submitting kits to crime labs within seven (7) days of collecting them; and 5. The crime lab testing kits and entering the results into the DNA database within 30 days of receiving them. These practices align with the long-term plan to increase the state s capacity for DNA forensic testing described in the Act 207 report. Although it may take time to achieve this level of processing, I believe that we are uniquely positioned in Hawaiʻi to work in a broad-based collaborative effort to accomplish such a framework. (3) Third, we fully support the report s recommendation that kits should not be tested without the survivor s permission if a police complaint has not been made. However, we also encourage additional consideration and attention to how and why survivors officially withdraw their complaint, as well as what factors are used to determine unfounded cases. It is essential that we ensure rape survivors do not withdraw complaints under explicit or

3 implicit duress and/or due to insensitive, disrespectful or biased treatment by those tasked to assist them. In my conversations and collaborations with law enforcement across the state, I have been heartened by the deep commitment to justice for survivors and safety for our communities. Yet, extensive research and my own experience advocating in this community and others, informs us that law enforcement does sometimes erroneously identify cases as unfounded, based on bias, prejudice, and/or lack of knowledge about how trauma impacts a survivor s brain. For example, how one recalls details of the crime can make a survivor appear dishonest and he or she may react in ways that seem unusual to those who are not trained in the neurobiology of trauma. We know from many other places in the country, from Florida to Kentucky to Nevada, that too many cases are labeled as unfounded. Cases that are considered to be unfounded under closer examination are often indicators of cases that were neglected or ignored. These are exactly the kinds of cases where DNA should be tested. Under the best of circumstances and even with the most supportive assistance available, the aftermath of a sexual assault is traumatic. Any sexual assault survivor who consents to the invasive, lengthy, and painful evidence examination has already experienced a significant and life-changing trauma. They have done everything that society asks rape survivors to do: preserve evidence by not taking a shower, though that is the first thing they want to. Most research and clinical reports regarding survivor decision-making about and experience with rape evidence exams find that survivors usually consent to the invasive evidence-gathering procedure because they hope, believe and expect that the evidence will be tested and that their offenders will be brought to justice. Whether or not they agree to participate in the investigatory or prosecutorial process, survivors consent to a rape kit because they believe it is the right thing to do. This trauma can be compounded when survivors experience even unintentional insensitivity and/or bias from law enforcement or helping professionals. Furthermore, the Act 207 report s assertion that kits not be tested in cases where the perpetrator has a DNA profile in CODIS as a convicted felon raises an important question: how do we know whether an assailant has a DNA profile already in CODIS unless we have tested every kit? The survivor may misidentify a particular person as the offender or there could be multiple offenders that the victim does not know. We encourage additional exploration of these criteria for exclusion of testing. (4) Fourth, it was encouraging to read that the Act 207 report recommends that all other kits should be tested and addresses a process that informs survivors about their options, but we offer the following considerations for reforming the use, management, and testing of kits: (A) We recommend that all sexual assault evidence kits be stored at law enforcement facilities. Best practice across the country and federal standards recommend that kits not be stored at any rape crisis center facility. (B) In the area of identifying of priorities, we recommend the following: Category One We agree that any cases that have been screened for Y-chromosomes with a positive yield be screened further for DNA. We also applaud and fully support the report s assertion that multiple suspect cases, serial cases, minor victim cases, and unknown suspects are important kits to be tested. The Act 207 report s suggestion, however, is to test the kits from the newest to the oldest. National best practice in cases where a statute of limitations applies is to test

4 the kits for which the statute of limitations is about to run out (if it can be done in time) to help ensure that these cases may still be adjudicated. Category Three It is crucial to remember that even where prosecution is challenging or improbable, survivors still want answers about their cases, such as: Who is the offender? Where does he live? Is he dead or in prison? Moreover, it is important to clarify the concept of an inferred withdrawal. We cannot infer that a complaint has been withdrawn because we cannot reach a survivor. Having worked with thousands of survivors here in Hawai i for the past 19 years, I resonate with the challenge of contacting survivors who have changed phone numbers, moved and/or changed jobs, but we must continue to try to find them, especially in potential serial cases. (5) With this in mind, we agree with the report s goal of reaching survivors who have formally withdrawn their complaint because we know that there are many reasons why survivors withdraw. It is important to note here that the testing of the kit can be important to survivors whether or not the case can be prosecuted. (6) We thank the Act 207 Workgroup for their attention to the needs of survivors and noting Joyful Heart s research on victim notification. We agree that notification makes sense in actionable CODIS hit cases. We commend the dual approach of Active Outreach and Public Notification as a sound strategy. We encourage the continued focus on the fact that these kits represent survivors, many of whom may have no idea what happened in their case. Given our local values and connections, we are uniquely positioned in Hawaiʻi to ensure survivors right to know the status of their rape kits and their cases. In Joyful Heart s research and regular involvement with survivors, they have emphasized that information is key to their healing. And it s not just the criminal justice process that is important, it is how they are treated during the process, and that they are afforded rights and given options. Survivor agency is key to healing - to believe survivors and honor their courageous decision to report the assault and undergo the rape kit collection process. (7) We further commend the Act 207 report s goal to establish and maintain an effective tracking system that allows all parties that touch a rape kit to somehow log the information about their handling of the kit so that all parties can view it. This allows for transparency and accountability. We encourage the consideration of additional technology and the funds to support such technology that expands tracking capabilities. Please note that there are federal funds available from the National Institute of Justice (SAFER-ITA) to develop such tracking systems. The most successful rape kit tracking requirements include: 1. The implementation of a tracking system using technology that can follow the path of a rape kit throughout the entire process from the hospital, to the responding law enforcement agency, through the crime lab. 2. Rules for law enforcement agencies to participate and ensure that a portal is available for survivors to log in and see where their kit is at all times. Montana and Washington State, for instance, are developing tracking systems that will track a kit from point A to point Z and will have a "victim portal" that will allow survivor s easy and private access to checking on the status of their kits. In our research on victim notification, survivors told us that information is very important to their healing process and that knowing the status of their rape kit is significant.

5 (8) In consideration of future legislation, we support the Act 207 report s suggestion for FY18 funding to test new sexual assault kits that may not be covered by other funding sources, as well as the development of a long term plan to sustain the testing of sexual assault kits by addressing barriers and challenges and increasing resources for HPD-SIS. We encourage that the legislature ensure that sufficient funding is dedicated not only to processing untested rape kits, but also to investigating leads and moving cases forward to prosecution. Hawaii s legislature has been tremendously supportive of rape kit reform and we hope to see continued attention to assisting local jurisdictions with implementing a comprehensive survivor-centered approach for victim notification and support services. The continued transparency evident since the passage of Act 207 must continue through the tracking system as well as making information about the status of the backlog and progress toward reform public. We recommend the following legislative considerations to supplement those identified in the report: (A) In support of the long-term plan to increase the state s capacity for DNA forensic testing described in the Act 207 report, we encourage the establishment of clear guidelines for the local process of testing new kits, including a clearly articulated goal for timelines that reflect national standards. In some places the timeline is 90 days, in others 120 days and still others a year but identifying a stated goal and moving toward it is essential. (B) Timelines are also important for the processing of new kits so that there is consistent accountability and process/policy. We urge that decision-making about processing kits can no longer by discretionary. Timelines are essential. (C) Establishing more intensive training programs for all stakeholders. Our experiences across the country and the state have demonstrated that trauma-informed training is key in this process. It is also important to provide uniform training to ensure that all professionals who work with survivors have thorough training about DNA and DNA databases; investigating cold cases; explaining the complexities of the use of forensic evidence; and sex offender patterns (for instance that that they rape people they know and don't know, and that they commit all kinds of crimes). (D) We encourage attention to addressing victim s compensation for survivors. The analysis of previously untested rape kits and resulting new action in these cases may bring up counseling or other needs by survivors. States should ensure that the survivors in untested rape kit cases are eligible for victim compensation funds by making clear exceptions to time limits for accepting claims. Survivors should not bear the burden of these costs alone due to the passage of time or a delay that was not in their control. In conclusion, ending the rape kit backlog will take a coordinated effort and deep commitment at all levels of our government and in communities across our state. Joyful Heart remains committed to providing our local and national expertise in any way that is welcomed as we move forward together to complete the work necessary for rape kit reform in Hawaiʻi. We humbly request, given our vast expertise in this area, that Joyful Heart be included in this process moving forward, as we believe the legislature originally intended. We believe true change only comes from collaboration and partnership and we stand ready to serve to help the legislature, our Attorney General, the members of the Act 207 Workgroup and other stakeholders bring justice for survivors and increase safety for all communities across Hawaiʻi.