Police in Maryland should test nearly all rape kits, notify victims of the results and store the kits for a fixed period of time, Maryland Attorney General Brian E. Frosh said.
A report issued to lawmakers by Frosh's office Tuesday said a lack of statewide guidelines on when to test rape kits and how long to keep them has resulted in police departments adopting inconsistent policies. Some keep the kits indefinitely, but others throw them out.
About 3,700 rape kits in Maryland have never been tested — not because crime labs were backlogged, but because police decided not to submit them for testing, according to the attorney general's report.
The report stems from a state law that required an accounting of untested rape kits in Maryland. The Governor's Office of Crime Control and Prevention surveyed 135 law enforcement agencies about their kits.
The attorney general's recommendations include enacting a state policy that kits will be tested within a certain time frame and establishing a fixed period of time for retaining untested kits.
"The policies in the different counties are all over the map," Frosh said in an interview.
Rape kits contain evidence collected during a medical examination, such as blood and semen samples.
A recent investigation by The Baltimore Sun found that police departments have discarded evidence in hundreds of sexual assault cases, and that policies vary widely between agencies.
The investigation featured the story of a woman who said she was sexually assaulted in Baltimore County in 2013. She initially decided not to pursue charges, but when she changed her mind in 2016, she learned that the county Police Department had destroyed her rape kit.
County Police Chief Jim Johnson said Tuesday he has now directed the department to keep all rape kits indefinitely. Previously, the department kept kits in first-degree rapes indefinitely, but discarded those in other cases.
Under Maryland law, first-degree rape includes such elements as the use of a deadly weapon or serious physical injury to the victim and can be punishable by life in prison.
Johnson said the 2013 case "caused me pause to look at how that case was handled."
"We have to be sensitive regarding the victim's desire in these cases," said Johnson, adding that the change is part of a larger review by the department of how it handles sexual assault cases.
Both Johnson and County Executive Kevin Kamenetz said they support the idea of statewide guidelines. In a statement, Kamenetz said that "victims of sexual assault need a more consistent application of the law."
Frosh said victims of sexual assault should be able to expect fair treatment. He said he would support legislation in the coming General Assembly session that would require testing within a certain period, setting a fixed time period for retaining untested kits, and notifying victims when their kit is sent for testing and when the results are ready.
Police departments' reasons for not testing kits included situations in which the alleged perpetrator's identity was known, or a prosecutor declined to pursue charges.
But the attorney general's report said kits should be tested in most circumstances, except when there is "clear evidence disproving the allegation" or the victim does not consent to testing.
"We think there are kits that have not been tested that probably should have been," Frosh said.
The report noted that "implementation of some of these recommendations will be costly," and said police likely will need to seek grants from the federal government.
Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault, said that if the state enacts uniform guidelines, she hopes that there will be monitoring to determine whether police comply. One of the attorney general's recommendations is to create an oversight committee.
"At this point in Maryland, there is no one in charge," Jordan said.
She added that some victims in Maryland lack access to sexual assault examinations, in part because not all hospitals offer them.
Ilse Knecht, director of policy and advocacy for the Joyful Heart Foundation, an advocacy group for sexual assault victims, said there is currently a "patchwork" of policies around the country and within states. The national nonprofit advocates for testing of all kits, except those in which the victim wants to remain anonymous.
"The kind of response that you get to sexual assault is dependent on your ZIP code," she said. "And that's not fair and it is not a way to achieve a very solid system of justice."
Knecht said she is concerned that the Maryland report recommends that police not have to test a kit if they find that an allegation is unfounded. Knecht said police could mischaracterize an allegation as unfounded when it is not.
"I would hope they're not going to have that language in the law because we think that it's a huge loophole," she said.