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SATI e-News: June 16, 2004

  

 
In This Issue:
      
     Sexual Assault News

SATI News

Forensic News
  • Congressional Record
     
  • DNA Funding
    • Secretary of Defense Directed to Eliminate Rape Kit Back Log in the Military
    • Senate Budget Resolution for FY 2005 includes $175 million for the DNA initiative
    • MI Legislature requests increase in federal funds available to the states for DNA testing.
       
  • DNA Challenges
    • Judge Orders Court of Inquiry Into Former Houston DNA Lab Director
    • Justice Finds Oversights at FBI DNA Unit
       
  • Exonerations/Innocence Project
    • Prosecutors Push Self-Policing Plan
       
  • DNA Hits
    • DNA Match Solves 18 year-old rape case in Missouri
    • UK Identified Rape/Murder Suspect after a “Familial Search of the national DNA Database

Promising Practices: From the Desk of the Training Director

  • From the Desk of the Training Director: Release Waivers: A Question of Intent
 

  **Sexual Assault News**

 
     
  Army Report Finds Increase In Sexual Assault
     
  Feminist Daily News Wire http://www.feminist.org/news/newsbyte/uswirestory.asp?id=8482
June 4, 2004

An internal Army report released yesterday (June 3, 2004) acknowledged the alarming increase in numbers of rapes and sexual assaults within its ranks and indicated that these crimes may have been facilitated by faults and oversights within the system. According to The New York Times, the Army found that reported cases of sexual assault within the Army rose from 658 to 822 between 1999 and 2003. During the same period, the number of reported rapes increased from 356 to 469 cases.
 
The Army’s internal study follows the release of a Department of Defense (DoD) report, commissioned in response to feminist groups and lawmakers who have expressed concerns about the hike in numbers of reported assaults against servicewomen abroad in Iraq and Afghanistan, according to The Washington Post. The DoD report as well as the Army internal investigation found that the military's existing policies lacked basic medical care procedures for rape and assault victims. The Army’s internal report also acknowledged the often-stigmatizing environment victims experience when reporting a peer or even a superior. Former Army Captain Jennifer Machmer, a three-time assault and rape victim, told Salon, “The aftermath of reporting has been terrifying.”
 
In response to these findings, the Army plans to assign a “unit victim advocate” to help victims through the reporting process and to provide counseling and support, said the Army News Service. The Army also anticipates incorporating a more explicitly outlined sexual assault policy in their handbook, developing training programs for the prevention of sexual assault and installing a standardized system of reporting crimes and tracking punishments, according to the Army News Service. Currently, about 20 percent of offenders do not even have their crimes on permanent record. There is also no systematic way of tracking what aid victims received, if any at all.

Additional Source:
http://www.washingtonpost.com/wp-dyn/articles/A10959-2004Jun2.html

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  Iraqi Women Raped at Abu Ghraib by both U.S. and Iraqi JailersI
      
 

SBS - The World News
 
Reports have emerged that Iraqi women held at the notorious Abu Ghraib prison were raped by both US and Iraqi jailers, according to human rights groups, following the reports of abuse of Iraqi prisoners by US troops there.
 
However coalition spokesman Brigadier-General Mark Kimmitt said the prisons department is unaware of any such reports at Abu Ghraib, and the reports have not been confirmed.
 
The International Occupation Watch Centre, an NGO that gathers information on human rights abuses under coalition rule, said one former detainee has told of the alleged rape of her cell-mate.
 
"She claimed she had been raped 17 times in one day by Iraqi police in the presence of American soldiers," said Iman Khamas, head of the IOWC, adding the victim had allegedly been rendered unconscious for 58 hours. And another group, the Iraq-based Union of Detainees and Prisoners, has told of a mother of four, arrested in December, who killed herself after being raped by US guards in front of her husband at Abu Ghraib. According to the group's head Daham al-Mohammed, the woman's sister who helped in the suicide told of how the woman had been taken into a cell where she saw her husband attached to bars. A US soldier reportedly held her by the hair to force her to look at her husband while he stripped her, then raped her.
 
A former male prisoner, Amer Abu Durayid, 30, who was released on May 13, reported seeing women taken into a room. "They had to pass in front of our tent and cried out, 'Find a way to kill us'," he said.
 
Human rights groups say in a conservative society like Iraq, women are made to feel that rape dishonors the whole family and would prefer to die.
 
Mr. Khamas, Mr. Mohammed and Baghdad University professor Hoda Nuaimi all separately said three young rural women from the Sunni Muslim region of Al-Anbar had been killed by their families after leaving Abu Ghraib pregnant.
 
Most of the women arrested by coalition forces are accused of holding senior positions in Saddam Hussein's Baath party or assisting the insurgency against the occupation forces.
 
The International Committee of the Red Cross says about 30 women were housed in the prison in October. According to prison management, there were five at the beginning of May.

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  Taking Felon’s DNA in Dispute—Inmate linked to rape via database challenges collection of material; Court of Appeals to hear case; rights violations claimed; state rebuts complaint  
     
 

BY ANDREA F. SIEGEL
SUN STAFF, The Baltimore Sun
ORIGINALLY PUBLISHED JUNE 7, 2004
 
Maryland's DNA databank, a potent tool of police and prosecutors, will be tested today when defense lawyers for a rape suspect ask the state's highest court to rule that forcing felons to give DNA samples is unconstitutional.
 
At stake is the growing bank of what now holds 29,000 genetic profiles - a database that Maryland State Police say has yielded 131 apparent matches to other cases or people, and 149 more that aided investigations.
 
Convicted armed robber Charles Raines is challenging the state law that landed his DNA in the state databank and enabled Montgomery County prosecutors to allege last year that he raped a woman in 1996.
 
"There has to be some objective measure that the individual has committed a crime before you can do a search," said Stephen B. Mercer, the Rockville lawyer defending Raines.
 
Defense lawyers say this is a cutting-edge issue. DNA databanks encompass an increasing number of people. Advances in DNA analysis and information-sharing open the possibility that DNA collected for one purpose will be used for another.
 
But the state attorney general's office argues that DNA collection is constitutional. There is a strong governmental interest in maintaining the database but only minimal intrusion on felons, a group that has reduced privacy rights, the office argues in court documents.
 
Prosecutors say losing any part of the databank would be troubling for police, prosecutors and crime victims - as well as for people exonerated of crimes by DNA.
 
For example, DNA testing in 1993 exonerated Kirk Bloodsworth of the 1984 killing of a 9-year-old girl in Rosedale, and last year the databank identified a convicted sex offender, Kimberly Shay Ruffner, as the attacker. The first cold-case match within the Maryland database was in 2001, tying Robert Marshall Eiseman, imprisoned for a Montgomery County attack, to the 1988 rape of a woman near Annapolis.
 
Historically, general warrants - allowing nearly unrestricted seizure authority - have not been popular in this country. They grated so much on American colonists that they contributed strongly to their break from the British crown.
"And those concerns probably still exist today in a high-technology world with more intrusion capability," said Jose F. Anderson, a University of Baltimore law professor and former supervising attorney of the appellate division of the Maryland Public Defender's Office.
 
"I think there are lots of well-reasoned ideas that all intrusions should be preceded by some level of justification. The question is: Is his status as a felon enough?" Anderson said.
 
It absolutely is, says former federal prosecutor Abraham A. Dash, a law professor at the University of Maryland. People convicted of crimes can be told what to wear, where they can go and more.
 
"Once someone has been convicted, their expectation of privacy is very limited," he said.
 
The defense contends that taking DNA for the databank violates Fourth Amendment constitutional protections against unreasonable searches and seizures and rights to privacy.
 
DNA, Mercer said, can be the basis of discrimination: "It contains information about a person's pedigree, propensity for disease, race, ethnicity. There are studies that suggest it may reveal a person's sexual orientation."

'Potential for misuse'
 

"The court cannot decide this case without seeing the potential for misuse," Mercer said.
 
The Electronic Privacy Information Center, a civil liberties advocacy center in Washington, has weighed in. In its brief, the center contends DNA collection amounts to a slippery slope that could turn a databank into a paternity testing service, a research gold mine for scientists, a health-information source and more. The military's DNA collection, designed for identifying soldiers lost in combat, has since been opened to law enforcement, the center notes.
 
The Maryland attorney general's office disagrees.
 
In its written arguments, the office described what has become an increasingly common scenario - a "hit," or apparent match, in a cold case.
 
On July 14, 1996, a woman was raped and robbed in Wheaton. Police had no suspect. Raines, who had been convicted of a 1982 armed robbery, had his cheek swabbed for DNA in 1999.
 
In October 2002, Montgomery County police submitted DNA from the Wheaton rape case to the DNA databank. They got an apparent match to Raines. They took a fresh sample from him and concluded that the likelihood of the DNA from the rape coming from anyone other than Raines was one in 6 billion. Raines was charged with rape, according to court records.
 
Raines, now 40, challenged it. He scored a victory when Montgomery County Circuit Judge S. Michael Pincus ruled in January that keeping the DNA databank for general "what if?" law enforcement purposes violated the Fourth Amendment.
 
Pincus cited a 2000 U.S. Supreme Court ruling that said roadside police checkpoints to look for drugs were unconstitutional because they lacked a specific crime-control purpose and because police had no reason to suspect individuals they stopped of breaking the law.
 
An 'essential' tool
 
"He overturned one of the most powerful law enforcement tools available to us today," said Montgomery County State's Attorney Douglas F. Gansler. "It has become essential in the past few years and will become even more important in years to come."
 
Prosecutors looking to salvage their case appealed, although state law will require that the charges be dropped if they lose. Their appeal marks the first time Maryland's highest court has been asked to rule on the DNA databank issue. The Maryland attorney general's office is handling the appeal.
 
Arguments against databanks have failed elsewhere. Every state has a criminal DNA databank. The only court to rule against one is a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco - but that case was reargued before the full court in the spring and it has yet to rule.
 
Maryland's DNA databank got its start in 1995 and was broadened in 1999. In 2001, it was expanded again to include all felons and some people convicted of misdemeanors.
 
Gary E. Bair, Maryland's solicitor general, said felons have reduced privacy rights because they are not ordinary citizens.
 
"Our position is that it doesn't matter that there is no individualized suspicion."
Taking DNA is not for the purpose of uncovering a crime, but to obtain information for use if other evidence shows a crime has been committed, his brief argues. Maryland's databank strictly limits the use of its DNA, the brief states.
 
Swabbing a cheek is no more intrusive than taking a fingerprint, and with a recidivism rate of 67 percent nationwide, the government and the public have an overwhelming interest in maintaining the databank, Bair said in his brief.
 
A decision in Raines' case is expected by July 16. Because the case is a pretrial appeal by prosecution, by law the judges have 120 days to issue a ruling.
 
But a ruling in Raines' favor would not spell the end of genetic criminal databanks, said Steven D. Benjamin, president of the Virginia Association of Criminal Defense Lawyers. Instead, he said, laws would be reworked to keep them in line with the Fourth Amendment.

 
 

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  O.J. lashes out at Nicole  
     
 

By MICHELLE CARUSO
DAILY NEWS WEST COAST BUREAU CHIEF
Friday, June 4th, 2004
 
LOS ANGELES - O.J. Simpson marked the 10th anniversary of his ex-wife's death with a series of crass and hurtful comments about Nicole Brown Simpson, her family and the accusers of Kobe Bryant and Michael Jackson.
 
His outbursts ranged from anger at his slain ex-wife for not being around to help with the kids to a flippant remark that Fred Goldman - whose only son died next to Nicole - "got such opportunity from this with TV exposure."
 
The disgraced former football great also revealed he may get his own practical-jokes reality show - a takeoff on MTV's "Punk'd" that might be called "Juiced."
Simpson talked with Fox News Channel in anticipation of the upcoming anniversary of his ex-wife's murder. His unfeeling comments reopened old wounds with Nicole's family and left Goldman stunned with fury.
 
"No one should give any credence to a lying...low-life like he is," Goldman told the Daily News.
 
Some of Simpson's most inflammatory remarks were made in defense of Bryant and Jackson, saying both would win their cases. He said Bryant, who is charged with bending a 19-year-old hotel receptionist over a chair and raping her after she came to his room at night, may be a victim of his NBA fame.
 
Many high-profile athletes "have found themselves in a situation like that before. I have, certainly, in my life," he told Fox's Greta Van Susteren.
 
"And when I was a kid growing up, just about every girl said 'No,' once," Simpson said with a laugh. "You know they had to because you'd think they were a slut or something." In his politically incorrect outburst, Simpson even made light of the rape allegation. "In my opinion, 'date rape' and 'stranger rape' are two different things entirely," he said.
 
In an apparent reference to the sexual positions of Bryant and his accuser during the alleged rape, he said, "Any adult who has an active sex life understands that you can't have sex that way without both parties helping out. It's impossible."
 
Simpson also doubts his weirdo pal Jacko, who often invited him and his children Sydney and Justin to his Neverland Ranch in the 1990s, is a child molester.
 
"I just have never seen that in him. ... I think Michael is just an affectionate guy toward kids."
 
He predicted that Jackson, whom he considers "asexual," will be acquitted because his accusers won't hold up in court.
 
"I think the credibility of the parent, the mother, will probably set him free."
 
Simpson, 56, was found not guilty of hacking his ex-wife and Goldman to death but a civil jury found him responsible for their deaths. He also said that at times he is bitter at his slain ex-wife:
 
"There are times I am angry at her. ... There are things that she could [have been] doing with the kids better than I, you know?"
 
He had harsh words for his former sister-in-law and fierce critic Denise Brown, prosecutor Marcia Clark and Fred Goldman:

  • "I don't think anyone's bills have been paid more than Denise's from what came from that trial."

  • "People like Marcia and Fred Goldman got such opportunity from this. People signed them to contracts."

  • "I don't think Marcia was a nice person. ... I was there in the court when she told Johnnie [Cochran] she wasn't wearing any panties. ... It typifies Marcia Clark."

Told of Simpson's comments, Goldman said he simply was not worth reacting to, but Denise Brown was outraged that her former brother-in-law claimed to get angry at her slain sister.
 
"He's angry at her? That's a typical batterer, who won't take responsibility for his own actions." she told The News. And she was furious that Fox and other television networks, including NBC, are giving Simpson air time on the 10th anniversary of Nicole's brutal death.
 
"Shame on you, Greta! Shame on all of you who put him on."

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**SATI News**

 
     
  Office of the Assistant Secretary of Defense Responds to EVAW International’s letter  
     
 

On March 23, 2004, both SATI and EVAW International submitted letters to the Honorable Donald Rumsfeld expressing concerns about sexual assault within the U.S. Armed Forces. Specifically, we asked the Department of Defense to reform policies of the military departments and establish standardized responses for the protection of victims and to improve offender accountability. Ellen P. Embrey, Deputy Assistant Secretary of Defense, Force Health Protection and Readiness responded to EVAW International on April 15. Ms. Embrey states that a task force was convened to review how the Department handles the treatment and care of sexual assault victims. She states they have performed extensive literature reviews from published civilian experts as well as drawing on the expertise of medical personnel, social sciences, legal and criminal investigative subject-matter experts within the Department, as well as experts at DOJ and Veterans Affairs. They conducted focus sessions at 15 installations in the U.S. and overseas, hearing first hand accounts from over 1,300 individuals serving at all ranks. In addition, the DoD established a hotline for anyone wanting to provide input to the task force. Hotline staff has documented the personal accounts of more than 60 survivors. The task force is currently reviewing all the information gathered. Ms. Embrey concludes by stating that the Army is keenly aware of the importance of the findings and committed to making a positive difference in the lives of those who serve our nation.
 
Although SATI has worked with a number of military branches within the U.S. Armed Forces for many years, both Army and Marine Headquarters in Virginia recently contacted us. Because of the sheer number of personnel and logistics, the communication and training challenges are significant. However, we believe that improvement is possible so that, as Ms. Embrey states, the Department can “ensure that all who serve their country can do so with honor and dignity and without fear of betrayal by those with whom they serve.”

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  88 Teams Submitted Applications for the U.S. Making A Difference Conference  
     
 

EVAW International received an overwhelming response to the Making a Difference Conference scholarship opportunity. The competition was taken very seriously throughout the United States. EVAW International received 88 scholarship applications demonstrating the commitment and desire by so many to effectively address sexual assault and the prosecution of sex offenders.

The multi-disciplinary selection committees have a challenging task in front of them. 8 communities will be selected in the U.S. and 8 in Canada. The community contact person will be notified via e-mail by June 30. EVAW International hopes to identify other funding opportunities that will allow us to pursue collaborative relationships with some of the teams who submitted an application but are not chosen. Much of the work done by the 8 participant communities in the United States and the 8 communities in Canada will be accessible via NAPASA and EVAW International’s web sites and the Making a Difference Conference pages. We encourage you to check both web sites frequently as the work progresses.

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  NSVRC Requests Information About Polygraphing Victims of Sexual Assault  
   
The NSVRC has received a request from the Justice Department asking for anecdotal accounts where law enforcement personnel requested or required a sexual assault victim to submit to a polygraph examination. Please include details such as
  • Whether the polygraph was required in order for the investigation to begin or proceed,
  • If the victim was threatened for refusal to take the polygraph
  • Any adverse actions after the exam
  • The use of other interrogation techniques such as voice stress analyzers
  • Positive or strategic use of the polygraph with victims of sexual assault

Please do not include the victim’s name or other identifying information. Please forward any information available to joanne@mysati.com or cnardo@nsvrc.org

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**Forensic News**

 

 The following news summaries in this section are reprinted with permission from the
DNA Legislation & News, published by Smith Alling Lane.

 
     
 

Congressional Record

 
     
 

U.S. House of Representatives. Amendment to the National Defense Authorization Act for Fiscal Year 2005 directs the Secretary of Defense to eliminate the backlog in rape and sexual assault evidence collection kits, reduce the processing time of those kits, and provide an adequate supply of those kits at all domestic and overseas military installations and academies. Offered by Rep. Maloney.

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DNA Funding

     
 

Senate Budget Resolution for FY 2005 includes $175 million for the DNA initiative, as proposed in the President’s budget.
 
Presentation of a resolution adopted by the House of Representatives of the Legislature of the State of Michigan relative funding for DNA testing. Memorializes Congress to increase the level of federal funds available to the states for DNA testing.
 
Forensic Casework DNA Backlog Reduction Program Funding
Deadline: June 16, 2004. NIJ announced that funding is now available through the fiscal year 2004 Forensic Casework DNA Backlog Reduction Program. Funds are to be used by existing State and local crime laboratories that conduct DNA analysis to identify and test backlogged forensic DNA casework samples. (NIJ) Access full text at: http://www.ojp.usdoj.gov/nij/pdf/backlog_reduction.pdf
 
Funding Available Through DNA Capacity Enhancement Program
Deadline: June 14, 2004. NIJ announced that funding is now available through the fiscal year 2004 DNA Capacity Enhancement Program. This program seeks to improve the infrastructure and analysis capacity of existing State and local crime laboratories that conduct DNA analysis so they can process DNA samples efficiently and cost-effectively. (NIJ) Access full text at: http://www.ojp.usdoj.gov/nij/pdf/capacity_enhance.pdf
 
“DNA Leads to Rape Arrests.” News & Record (Greensboro, NC), May 28, 2004. In North Carolina, the Attorney General has pledged to devote the state’s forensic lab to working rape cases statewide, regardless of whether there is a suspect in the case. The announcement came when the AG credited DNA with cracking an 11-year-old Greensboro rape case and turning up a suspect in a series of other rapes in the area. The announcement means that thousands of closed rape cases could be reopened. Evidence in 6,000 rape cases remains unprocessed across the state, according to the State. In Greensboro alone, evidence in more than 300 rapes has never been compared with the more than 42,000 DNA samples in the state’s databank.

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DNA Challenges

 
     
 

“Judge orders court of inquiry into former Houston DNA lab director.” The Associated Press State & Local Wire, June 1, 2004. A Texas district judge ordered a court of inquiry into whether a former DNA analyst at the Houston police department’s lab committed aggravated perjury. The inquiry, however, will not move forward without approval of a county judge who presides over state court administrative matters as presiding judge of the Second Administrative Judicial Region of Texas. The State District Judge found probable cause exists for an allegation that the former DNA lab director allegedly perjured himself by testifying at a trial in 2002 that he had a doctoral degree. Harris County prosecutors said the court reporter made an error in transcribing the testimony. The former analyst does not have a doctorate and did not lie about having one, prosecutors said.
 
“Chief constables face sack over poor records.” The Times (London), June 1, 2004. In England, six chief constables could face dismissal for failing to cut crime and win public confidence in the police. Under new Home Office assessment powers, forces that are continually graded “poor” face the prospect of having their most senior officer replaced. Among criteria used in grading the forces is whether they make the best use of forensic science such as DNA to solve crimes.
 
“DA widens inquiry into FW crime lab.” The Dallas Morning News, May 28, 2004. In Texas, the Tarrant County district attorney’s office has broadened its investigation into the Fort Worth Police Department’s crime lab after former employees said testing at the facility cannot be trusted. The chief of the criminal division of the district attorney’s office said he was about to conclude an investigation of the lab’s DNA and blood-testing sections when two people contacted his office. Prosecutors have been assigned to look in to the former employees’ numerous allegations. The lab stopped its DNA testing more than a year and a half ago and has not resumed. It is still analyzing ballistics, seized drugs and other evidence in criminal cases.
 
“Justice Find Oversights at FBI DNA Unit.” Associated Press Online, May 27, 2004. A US Justice Department investigation of an FBI lab where a biologist admitted falsifying DNA reports in more than 100 cases found employee oversight problems but no evidence of flaws in the scientific techniques used. The Justice Department inspector general warned in a report that the DNA unit at the FBI laboratory will remain vulnerable to employee errors or noncompliance with proper procedures unless changes are made. The review makes 35 recommendations, which it said will “help the FBI develop additional safeguards to preserve the integrity of its DNA testing process and reduce the potential for errors or willful misconduct.”

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 Exonerations/Innocence Project

 
     
 

“Prosecutors push self-policing plan.” The Boston Herald, May 26, 2004. In Massachusetts, state law enforcement officials announced the formation of the Justice Initiative—a group including the Attorney General and district attorneys from across the commonwealth. By August 1, the group will compile a preliminary report examining how and why nearly two dozen innocent men spent years in prison for crimes they did not commit – and how those mistakes can be avoided in the future. The group will focus on ways police, prosecutors, defense attorneys and others can improve eye witness identification and expand the use of DNA testing and criminal justice training. The group is also pushing the legislature for better funding for crime labs and the Massachusetts medical examiner, as well as the creation of a statewide undersecretary for forensic sciences.
 
“Man freed by DNA evidence sues.” The Associated Press State & Local Wire, May 29, 2004. In Oklahoma, a man who was freed from prison after nearly two decades in prison is seeking $45 million from Oklahoma City, a former prosecutor and a fired police chemist. He was released from prison in October 1999 after DNA testing showed it was not his semen collected from the victim of a l982 kidnapping and rape. He alleges that between 1988 and 1997, the Oklahoma County District Attorney’s control over the Oklahoma City police lab blocked efforts to test the semen that eventually freed him. Additionally, the chemist lied when she told the man’s lawyer in l988 that the evidence had been destroyed.
 
“No New Trial in ’80 Slaying, Court Rules.” Wisconsin State Journal (Madison), May 28, 2004. In Wisconsin, a court has ruled that a man convicted in the l980 strangulation of a college student will not receive a new trial despite DNA evidence that contradicts some testimony from his trial. The inmate argued that incriminating semen and hair evidence presented at his trial was critical to the prosecution because it linked him to the crime scene. Evidence testing was not as sophisticated then as it is now, and experts then could only say that the hair was “consistent with’ the defendant’s and that he could have produced the semen on the victim’s robe. Recent DNA testing found that none of this evidence matches the inmate. However, the court said while the DNA evidence made the man’s explanation of his whereabouts that night more credible, there was too much other circumstantial evidence against him. Also, the man never denied being at the victim’s apartment. The defense plans to appeal to the state Supreme Court.

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DNA Hits

 
     
 

“DNA match solves 18-year-old rape case.” The Associated Press State & Local Wire, May 27, 2004. In Missouri, a man was charged with breaking into a woman’s apartment and raping her at knifepoint after DNA evidence linked him to the 18-year-old crime. Swabs obtained during a sexual assault examination were kept in storage until advances in DNA technology allowed crime lab workers to retest them in 2003. The test revealed the genetic profile of an unknown man. The profile was put into the FBI’s DNA database, and the crime lab learned in March that it matched the suspect’s genetic profile. The suspect was scheduled to be released from prison after completing a sentence for a 1991 conviction. The man also had been convicted of crimes ranging from indecent exposure to phone harassment to burglary.
 
“Convict Charged in ’85 Anaheim Death.” Los Angeles Times, May 27, 2004. In California, a drifter within days of completing a prison sentence for a l988 kidnapping and molestation has been arrested in the l985 murder of a teenager. The man was identified as a murder suspect after he provided DNA for the state database. Because the state DNA database has a two-year backlog of samples, the results of the man’s tests were not known to prosecutors until a week before his scheduled May 18 release from the state prison. Other than DNA, there was no evidence linking the man to the crime.
 
“Moms meet official in cases of slain girl.” San Jose Mercury News, June 1, 2004. In California, Alameda County investigators believe an unidentified body may be that of a Mexican girl missing from Northern Mexico. The California detectives recently flew to El Paso to collect DNA samples from the probable victim’s mother and six other mothers of missing or slain girls from the cities of Chihuahua and Juarez who roughly fit Jane Does’ description. “We originally were just going to ask to do the DNA testing but were told by a source that they would probably sabotage it for us”, one detective said of the Mexican police. Community organizations on both sides of the border are trying to pressure both countries to put more resources into solving the grisly deaths. This investigation marks the first time Mexican women have been allowed into the United States to give DNA samples to homicide investigators.
 
“He may never have been caught.” Nottingham Evening Post, May 28, 2004. In the U.K., a man who brutally beat and murdered an elderly woman was identified after a “familial search” of the national DNA database turned up an innocent relative who led police to the killer. The search initially came up with around 2,000 names of innocent people whose DNA had similar characteristics to the sample found in the victim’s flat. These were whittled down until the finger of guilt pointed towards the current suspect. He was caught because one of his relative’s DNA was already in ‘the system’ – although police have not said which relative.
 
“DNA links inmate to 2 sex assaults, Ware sheriff says.” Florida Times Union (Jacksonville), May 28, 2004. A Georgia prison inmate awaiting trial in a homicide case has been linked through DNA analysis to the rapes of two women in 2002. One of the victims was an elderly woman with Alzheimer’s disease whose caretaker reported the assault when she discovered multiple injuries to the woman. Detectives uncovered evidence including DNA showing that the attack occurred after someone illegally entered her home. The rape was linked to a previous rape of a 17 year-old, and eventually to the suspect who is in prison for a 2002 burglary.

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  Promising Practices: From the Desk of the Training Director:  Release Waivers: A Question of Intent  by Joanne Archambault, Training Director, SATI, Inc.  
     
 

In February 2004, I received a telephone call from a reporter from the Gazette in Montgomery County, Maryland. The reporter criticized the police for closing some sexual assault cases too quickly and the use of a “Release Authorization” that she faxed to me. When I received it, I saw that the Release Authorization form is on the Montgomery County Police Department’s letterhead and it is in fact filed in Records Division as an official department document. This was important because as I explained to the reporter, this practice is not about “an officer” but about the Administration of a police department.
 
I spent almost an hour and a half talking to the reporter explaining the complexity of the issue. The last two issues of SATI’s e-News have been dedicated to understanding and responding to the too common perception that “many, if not most, sexual assault reports are false.” Unfortunately, the hour and a half conversation boiled down to a couple of quotes that didn’t really sound too literate on my part. The story, “A Question of Rape” was published in the Gazette on February 11, 2004. This Promising Practices issue is dedicated to examining this issue in the hopes that we can promote better practices and understanding when responding to victims of sexual violence.
 
In this case, Amber, a twenty year-old woman reported that she had been gang raped. The victim had been drinking and was still “slightly” drunk when police interviewed her. This is an all too familiar scenario. No one will argue that these cases are difficult to investigate and prosecute because we know that jurors and others in the community have a tendency to exonerate the offender if they view the victim as engaging in activity that increased her risk of sexual assault. Many times, those responding to sexual assault fail to even see the assault as a crime unless the offender is a stranger, the victim immediately reports to authorities, and there is injury to substantiate force.
 
In addition, victims of non-stranger sexual assault are often treated as though the assault is not as severe or as serious as an assault by a stranger. Often, the community doesn’t see non-stranger sexual assault as a threat to the health and safety of the community at large. Many view non-stranger sexual assault as something that couldn’t happen to them because they wouldn’t be in “those places”, engaging in “that behavior”. Prosecution of non-stranger sexual assault is infrequent. As a result, some officers and departments may be reluctant to invest significant resources in a case that doesn’t appear to have a chance.
 
The reporter explained that the victim asked what would happen if she didn’t want to prosecute. Apparently, someone said it was her duty to go forward. Amber was ashamed and embarrassed. Typical of the majority of victims of sexual assault, at that point she “just wanted the whole thing to go away.” She said, “I was scared. I felt like it would ruin everybody’s life if I pressed charges.” The detective explained that if she didn’t want to press charges, she needed to sign a form. She was then handed Form 208. Amber signed it and as a result, no one spoke to the suspects, no forensic examination took place, witnesses weren’t interviewed, nor was the crime scene processed.
 
Form 208 is a Release Authorization. It says,
 
I_______________________residing at ___________________________, do hereby request and release the Police Department from any further investigation or inquiries into this matter at my own insistence. I affirm that I will not pursue this matter further, nor will I initiate any criminal prosecution against any persons involved in or responsible for this offense. I will make no further inquiries as to any subsequent investigation conducted by the Police Department, nor will I voluntarily appear as a witness in any potential criminal prosecution resulting from this complaint. I further affirm that this decision is made of my own free will and is not the result of any threats, promises, or inducements made by the police department.
 
The form is signed and dated by the victim and a witness, presumably the officer who presented the form to her.
 
Law enforcement has been trained to inquire about prosecution too early. At this point, the investigating officer doesn’t even know if there is enough information to successfully present a case to the prosecuting attorney, let alone whether the prosecuting attorney can successfully prosecute.
 
Officers and deputies properly trained to understand the dynamics of sexual assault know that most sexual assault victims are afraid of reporting, often times ashamed and embarrassed of events that occurred before or after the assault. Many victims never disclose their assaults to anyone, let alone law enforcement. We know that sex offenders often have numerous victims because of their ability to go undetected for many years. These are truly serial offenses, in that offenders who victimize persons who are acquainted with them, know that most victims won’t report and even if they report, they often aren’t believed by those they go to for help.
 
The DNA revolution and our increased access to DNA laboratories over the last decade have revealed just how little we knew about the behavior of sex offenders. Many of us used to think that if an offender molested children, they didn’t rape adults or if they molested within the home, they wouldn’t rape a stranger. DNA has been so important and successful, 23 states have successfully enacted legislation since 2000, abolishing or expanding the statute of limitation allowing investigating agencies more time to conduct the investigation and obtain laboratory results. In 1998, only five states required all felons to provide a DNA sample. In 2003, 31 states include all felons in their DNA databases and it is estimated that by 2006, the number will include 45 states.
 
The Montgomery County prosecutor’s office knows how valuable forensic evidence is. Maryland’s DNA databank now holds 29,000 genetic profiles. Maryland State Police states the database has yielded 131 apparent matches to other cases or people and there were 149 more hits that aided the investigating officer. Convicted armed robber Charles Raines is challenging Maryland’s law that allowed his DNA profile to be entered in the State databank resulting in a match with the forensic unknown from a 1996 rape of a woman. Stephen B. Mercer, the lawyer defending Raines argues “there has to be some objective measure that the individual has committed a crime before you can do a search”. Raines scored a victory when a Montgomery County Circuit Judge ruled in January that keeping the DNA databank for general “what if?” law enforcement purposes violated the Fourth Amendment. Douglas F. Gansler, a Montgomery County State’s Attorney stated the judge “overturned one of the most powerful law enforcement tools available to us today. It has become essential in the past few years and will become even more important in years to come.” The case was argued in the state’s highest court on June 7, 2004. A decision is expected by July 16, 2004.
 
Clearly most everyone understands the importance of conducting a thorough investigation and the value of a forensic examination. So, given what we know and understand, why would any agency use a 208 form, and in more than 25% of their cases? (The form was signed in 25 of the 91 rape investigations involving adult women investigated by the Montgomery County Police Department in 2003.) Although I had not seen a Department approved form written with such strong language before, I know that “waivers” are used by law enforcement agencies across the country. Just last week, a police chief in one of our training sessions said that his agency has a similar form. Although he said he doesn’t like it, it was being used when he took over as chief. He said he feels the form is used to shut down an investigation and that it allows officers to justify not doing their job. Other tactics are also used, i.e., some agencies require victims to take and pass a polygraph examination before an investigation or prosecution will be pursued, some are using interrogation tactics like SCAN (Scientific Content Analysis) or voice stress analyzers to determine if the victim is being truthful and whether scarce Department resources should be expended before a victim proves she or he is truthful and committed to seeking prosecution. In many cases, if a victim immediately declines prosecution, she is never again contacted by anyone.
 
All victims of sexual violence should be provided with every opportunity to contact the police to initiate a criminal investigation or prosecution against the persons responsible for the offense and they should be encouraged to make inquiries as to the status of the follow-up investigation.
 
In keeping with best practices, we would want to see the responding officer demonstrate to the reporting victim that he or she understands:

  • The victim is most likely afraid of reporting and the consequences of the disclosure on their life and the lives of those they love

  • The victim may be ashamed and embarrassed

  • The victim may have been involved in illegal activity at the time of the sexual assault, i.e., underage drinking or controlled substance abuse

  • Fear of prosecuting or hesitance doesn’t mean the crime didn’t happen or that the victim is “hostile” to police or prosecution

  • Including an advocate as early as possible will provide the victim with immediate crisis intervention and the support she needs to consider pursuing an investigation

  • Victims should be provided with written referrals for community agencies/resources that work with and support survivors of sexual assault

  • Victims must freely consent to a sexual assault examination. They should not be coerced or intimidated at any time. Officers should explain, however, that the examination is only one part of a comprehensive investigation.

  • Typically agencies use 72-96 hours as the window of opportunity for the forensic examination. However, the decision should be made on a case-by-case basis depending on factors such as the age of the victim, amount of force, sexual experience and whether the case is a question of consent or identity.

  • Although a forensic examination can be helpful and may result in probative evidence, a sexual assault investigation can be conducted and successfully prosecuted without a forensic examination.

  • An investigation can be opened and investigated at any time within the statute of limitations established by state statute where the crime occurred

  • Victims should be encouraged to contact the police if and when they are able to participate in an investigation

  • Investigating a case properly has the best interest and safety of the community at heart

  • Even if the victim is unable to fully participate immediately, the investigating officer still has a responsibility to identify and process the crime scene, interview witnesses and the suspect(s) and complete a comprehensive report with all the information he or she could obtain at the time

  • If victims of sexual violence are supported and validated, they will be more likely able to participate in the investigation and potential prosecution

  • If the evidence reveals that the suspect has committed other crimes, the victim may be willing to be a witness in the other case(s) even if she does not want to pursue prosecution for her own sexual assault

  • What a comprehensive investigation looks like and what it may involve.

  • Decisions about prosecution should not be made until the investigation is complete and all the evidence is evaluated to determine if the allegations can be corroborated and proved in court beyond a reasonable doubt.

The following is an alternative agency response and a waiver that would be more appropriate and in keeping with law enforcement’s responsibility to “protect and serve”.

  • Waivers are only used by detectives or officers responsible for evaluating and submitting the case to the prosecuting attorney.

  • Sexual assault victims who ask to have their investigation terminated or decline prosecution should sign an affidavit of suspension of investigation.

  • Detectives who are unable to meet with a sexual assault victim to obtain a signature should document at least three attempts to contact the victim in their written report.

  • In unusual cases, i.e., allegations involving law enforcement personnel or whenever a conflict of interest or bias could be argued, detectives should send the affidavit of suspension via certified mail

Sample Waiver:
 
I have been informed by _____________________ that the _______________ Department is actively investigating my complaint preparatory to making a formal presentation of the facts to the District Attorney. However, I do not wish to pursue this matter and I request that the ___________________ Department terminate its investigation.
 
Date: ________
Victim’s Signature: ____________________________
 
This alternative waiver still allows the Department to document why the investigation was suspended without coercing the victim or indicating that the investigation could not be pursued if the victim changes her mind. In this way, we believe the needs of the Department, the victim and the community can all be met.
 
Sources:
 
Blum, Agnes, “A Question of Rape,” Staff Writer, The Gazette, February 11, 2004
 
Siegel, Andrea. R., “Taking Felon’s DNA in Dispute—Inmate linked to rape via database challenges collection of material; Court of Appeals to hear case; The Baltimore Sun, Originally Published June 7, 2004.

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