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EVAWI > Resources > Forensic Compliance > FAQs > Non-Investigative Reports
Forensic Compliance Frequently Asked Questions

Note: The information on this website is designed to: (a) communicate the requirements of the Violence Against Women Act (as reauthorized in 2005 and 2013), and (b) offer recommended practices for implementation. The goal is to highlight examples of communities striving to achieve a higher standard of the “spirit of the law,” rather than simply meeting the “letter of the law” for VAWA forensic compliance.  It is critically important that readers consult state laws and regulations, as well as local policies and protocols, because they may have additional requirements beyond those included in VAWA 2005 and VAWA 2013. For more information specific to your state or territory, contact the STOP Grant Administrator or coalition of advocacy organizations providing services for sexual assault victims.  A listing is available from the website for the Office on Violence Against Women, U.S. Department of Justice.

Q Should evidence associated with a non-investigative report be sent to a forensic laboratory for testing?
A Should evidence associated with a non-investigative report be sent to a forensic laboratory for testing?

For victims who choose to participate in a medical forensic examination without reporting to law enforcement – or pursue another alternative reporting method such as anonymous or non-investigative reporting – one question that is often asked is whether any evidence collected during the exam should be submitted to a crime laboratory for analysis. In short, the answer is no; this evidence should not be submitted to the crime laboratory for analysis.

This is clearly the position of the U.S. Department of Justice, Office of Violence Against Women (OVW):

Submitting non-investigative SAKs to a forensic laboratory for testing, absent consent from the victim, should not be standard operating procedure for a law enforcement agency (OVW, 2017, p. 4).

Three reasons are given for this position:

  1. Testing a kit before the victim has made a report to law enforcement undermines the victim’s prerogative to decide if and when to engage with the criminal justice system.
  2. Testing a kit without the victim’s express consent either to submit the kit or to report the assault to law enforcement is not an advisable way to cultivate community trust.
  3. Funding for testing SAKs is not unlimited, and grant funds should be directed to activities that promote accountability for offenders and justice and healing for victims (OVW, 2017, p. 5, 7 & 8).

Beyond the issues of forensic compliance and victim consent, there is also the question of CODIS eligibility for DNA profiles. According to Anthony J. Onorato, Chief of the FBI Nuclear DNA Unit, the evidence in a sexual assault kit could potentially be tested by a forensic laboratory without victim consent, but any DNA profiles that result will not be eligible for CODIS. Chief Onorato made this point at a conference hosted by NIJ:

Without victim consent, we can do the testing, the laboratory can do the testing, but that is not going to be eligible for inclusion in the National DNA Index System [CODIS]. Short and sweet. We can certainly have discussions about how even testing it’s not even appropriate. But certainly what is not going to happen, is that profile will not – or any potential perpetrator profile from that kit – is not going to go into the National DNA Index System (Onorato, 2016).

As Chief Onorato explained, two key criteria must be met for CODIS eligibility. First, is it reasonable to believe that a crime occurred? Second, is there reason to believe that the item being tested has something to do with that crime and that it is linked to the perpetrator of that crime? In forensic compliance cases, these criteria are not met.

For one thing, the elements of a criminal offense have not been established in a crime report documented by law enforcement. It is beyond the scope of the role of a health care professional to determine whether or not a crime occurred. Second, law enforcement cannot document a reasonable belief that the DNA belongs to the perpetrator(s), because no steps have been taken to exclude any consensual partners.

Rather, all evidence collected in an anonymous or non-investigative report should be stored in accordance with established standards for the length of time established by policy. This should also be emphasized in the informational materials given to victims, so they know what will happen. All too often victims believe that, if a medical forensic examination was conducted, then there is evidence to prosecute their case. This leads to the assumption that the case will definitely be prosecuted if they convert to a standard report at a later point in time. Evidence storage procedures can be briefly explained, along with the caution that prosecution will become less likely as time goes on and also that it is virtually impossible without victim participation.

For more information, please see the archived recording of Chief Onorato’s presentation at the NIJ conference, taking place September 8-9, 2016. The symposium was entitled, Looking Ahead: The National Sexual Assault Policy Symposium. His presentation was included on Panel 7, entitled “In the Lab – Testing Sexual Assault Evidence.”

Also please see our OnLine Training Institute module, Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations. In addition, we offer a Training Bulletin addressing the question: Should We ‘Test Anonymous Kits?’

OVW’s position paper is entitled, Sexual Assault Kit Testing Initiatives and Non-Investigative Kits, and it offers a great deal of helpful guidance in this area.

To help implement this policy, the Texas Department of Public Safety offers a variety of template materials, including a form to submit evidence to the crime lab for non-investigative sexual assaults reports. Instructions and other forms are also available.

This project is supported by Grant No. 2013-TA-AX-K045 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed on this website are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
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