Four years after Maryland lawmakers passed legislation requiring police to count untested rape kits, they are considering a proposal that would require authorities to test them.
The bill comes after the mandated statewide audit found more than 3,700 untested rape kits in 2016 — a number that has since grown to more than 6,500. The audit found a patchwork of inconsistent testing practices among police agencies. And a Baltimore Sun investigation uncovered rape kit destruction policies that had led to hundreds of destroyed untested rape kits, despite no statute of limitations for most sex offenses.
The legislation now under consideration would require law enforcement to test nearly all kits. Exceptions would be granted if, for instance, the victim declines to consent to test the kit or evidence clearly shows the incident was not a crime. The House Judiciary Committee has approved the bill, and a preliminary vote by the House of Delegates is scheduled for Monday.
"This is a bill about ensuring access to justice for survivors of rape,” said Del. Shelly Hettleman, a Baltimore County Democrat who sponsored the bill. “It's about making sure that their stories are heard, their evidence is tested, and their rapists are held accountable. And it's about making sure that a rape kit is handled as consistently as possible — no matter what your Maryland ZIP code is or who your state's attorney or police commissioner are."
Rape kits are the result of a highly invasive hospital examination that can last four or more hours and include blood test results and swabs of DNA samples from semen. There has been a national push to test more of them.
If the legislation becomes law, Maryland would join 22 other states and the District of Columbia in mandating testing, according to the Joyful Heart Foundation, a national rape survivors advocacy organization.
Angela D. Wharton was among several rape survivors who told the Judiciary Committee Wednesday why it is important to pass the law. She was 24 years old when she reported being raped at gunpoint in the woods by her apartment in Baltimore in 1996. After years of inquiries to police, she didn’t learn until last year that her rape kit had been destroyed untested less than two years after she reported her rape.
“I was utterly and completely devastated,” she said upon learning about her evidence. She said she was still hoping her perpetrator would be found. “It was as if someone drop-kicked me in my stomach with a steel-toed boot. I felt and still feel re-victimized, violated all over again.”
Wharton, now founder of Phynyx Ministries, an organization that helps sexual assault survivors through ministry and professional counseling, said, “That was me on the shelf in the Evidence Control Unit at the Baltimore Police Department.” The destruction, she said, made her feel like “garbage.”
The Baltimore Sun typically does not identify victims of sexual assault, but Wharton has been among those who told their stories publicly to lobby for legislation on rape kits.
The proposal now being considered by lawmakers is a result of the committee’s year-and-a-half study. Among its recommendations is a $3 million grant funding stream to help test the additional rape kits. The dedicated funding would be operated out of the Governor’s Office of Crime Control and Prevention and is the subject of a separate bill sponsored by Sen. Sarah Elfreth, a Democrat from Anne Arundel County, and Hettleman. The House has passed that bill unanimously, sending it to the Senate.
“If they don’t pass the grant bill, then this bill means nothing,” Shellenberger told The Sun.
He testified that as a prosecutor, he had limited funding and needed the flexibility to prioritize DNA evidence from rape kits among other types of evidence. Shellenberger said he had typically not tested rape kits when the suspect’s identity was known and the primary question was consent.
Prince George’s County State’s Attorney Aisha N. Braveboy testified that such testing was “vitally important” to help find repeat offenders.
She decribed how Detroit found up to 800 serial offenders after it tested thousands of backlogged rape kits — including those whose identity was known — and how New York City increased its rape arrest rates after processing all rape kits.
A 2017 Department of Justice report recommended testing most kits including those of known offenders in part to link cases within and across jurisdictions and also to help establish trust between communities and law enforcement.
Shellenberger and other Baltimore County authorities are defendants in a class action lawsuit alleging they have discriminated against women for years, denying women “equal access to justice and of equal protection under the law” by not appropriately investigating and prosecuting sexual assault cases.
A Baltimore Sun investigation found Baltimore County police destroyed at least 231 rape kits between 2010 and 2015. A recent investigation found the police had asked hundreds of women to sign waivers relieving police of the duty to investigate their sexual assaults.
A 2016 investigation of the Baltimore police by the U.S. Department of Justice found that police “seriously and systematically under-investigates reports of sexual assault” as evidence by its substantial backlog of rape kits. The city now tests the vast majority of its rape kits and is under a court-enforceable consent decree to improve its practices.