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EVAWI > Resources > Best Practices > FAQs > Non-Investigative Reports
Q Should evidence associated with a non-investigative report be sent to a forensic laboratory for testing?
Q How many victims initially have an exam without law enforcement involvement, and then “convert” to participating in a standard reporting process?
Q How long does it take for victims to “convert?”
Q What about the number of victims who “convert” during the exam?
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.

A How many victims initially have an exam without law enforcement involvement, and then “convert” to participating in a standard reporting process?

Currently, there is only limited data on the number of victims who are initially unsure about participating in the criminal justice system but ultimately decide to do so. This is a process often described as “converting.” Published data from the U.S. military indicate that approximately 14% of service members who initially filed a restricted (confidential) report in 2008 later converted to an unrestricted (standard) report (U.S. Department of Defense, 2008). However, it is worth noting that at least some of these reports were not converted voluntarily by the victim. The exact percentage remains unknown.

In civilian agencies, the data suggest that the number of cases that convert may be smaller. For example, one statewide assessment conducted in Texas found that 228 “non-report evidence kits” were stored by the Department of Public Safety between June 2010 and May 2011. As of that date, a total of 11 (4.8%) converted to standard reports and were returned to local law enforcement for investigation. A second study was conducted with 496 professionals registered to participate in a webinar on the topic of forensic compliance. Of these, most indicated that fewer than 10% of the victims in their community who had a medical forensic exam but were unsure about criminal justice participation ultimately converted to full participation (Archambault, Lonsway, & Day, 2012). In other words, the estimates for how many victims convert to a standard reporting process range from approximately 5 to 15%.

Archambault, J., Lonsway, K.A., & Day, K. (2012). Forensic compliance update: Where do we stand in 2012? Webinar hosted by End Violence Against Women International and the International Association of Forensic Nurses. February 17, 2012.

U.S. Department of Defense (2008). Report on sexual assault in the military. (No. FY07). Washington, DC: Author.

A How long does it take for victims to “convert?”

The authors of the Texas report also noted that the average amount of time it took for “non-reporting” victims to convert to a standard report was 9.6 weeks. The time period ranged from as little as one week to as much as eight months (Busch-Armendariz & Cook Heffron, 2011).

Busch-Armendariz, N. & Cook Heffron, L. (2011). Non-report sexual assault evidence program: Forging new victim-centered practices in Texas. Published by the Institute on Domestic Violence and Sexual Assault at the Center for Social Work Research, School of Social Work, University of Texas at Austin.

A What about the number of victims who “convert” during the exam?

Yet these statistics do not take into account the unknown number of victims who enter the health care system to obtain a medical forensic exam precisely because they have been given the option of taking their time to decide about criminal justice participation. Surely some of these victims would not have agreed to have an exam if they were forced to make the decision about criminal justice participation at the same time.

Moreover, many practitioners have described an organic process of conversion that often occurs with victims who begin the exam feeling unsure about criminal justice participation but decide by the end of the exam that they are willing to do so. Such cases clearly represent “conversions” that are made possible by the environment of forensic compliance, but they will not show up in the type of statistics that are cited above; these statistics record the number of victims who leave the exam still feeling unsure about whether or not to participate in the criminal justice process.

It is therefore logical to believe that by increasing victim access to a medical forensic exam, and allowing victims to take their time to decide about participation in the criminal justice process, we will actually increase victim reporting and participation, sometimes in ways we will not see reflected in our statistics.

For more information on this topics, please see the OnLine Training Institute Module entitled: The Earthquake in Sexual Assault Response; Implementing VAWA Forensic Compliance.

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