Testimony on bill to require retention of rape kits

State Police Forensic Laboratory Director Timothy Pifer, with a rape kit on the table, testifies on a bill that would require law enforcement to retain such evidence “in perpetuity.”

CONCORD — New Hampshire will soon have an automated system to track the handling and testing of sexual assault evidence as part of an initiative to ensure that all “rape kits” collected by law enforcement are “handled in accordance with sexual assault survivors’ rights,” according to Attorney General Gordon MacDonald.

The Executive Council on Wednesday approved acceptance of a $104,215 grant from the National Institute of Justice to implement the program, and authorized the Department of Justice to hire a new specialist to manage it.

On the same day MacDonald received Executive Council approval to launch the project, the House Criminal Justice and Public Safety Committee held a public hearing on HB 306, a bill that would prohibit the destruction of sexual assault evidence collection kits.

National media in recent years have documented the lax procedures that surround the collection and preservation of rape kits in several jurisdictions.

A CNN investigation into the destruction of rape kits in dozens of agencies across the country, broadcast in November, found that “police trashed evidence in 400 cases before the statutes of limitations expired or when there was no time limit to prosecute.”

MacDonald told the Executive Council that a DOJ review of the issue in New Hampshire did not find widespread disregard for the need to preserve such evidence, which can be traumatic for victims to provide.

But, he said, the state doesn’t really have a good system to determine whether it has a problem or not.

In 2017, the DOJ contacted local police departments in an attempt to quantify the number of rape kits they were holding.

“The object was to determine how many kits had not actually been tested,” said MacDonald, “and in the course of that, we detected that there is really no systematic way to keep track of these sexual assault kits through the various points of contact.”

The review churned up 582 untested sexual assault kits held in more than 90 police departments throughout the state.

Police departments submit about 300 rape kits a year for analysis, according to State Police Forensic Laboratory Director Timothy Pifer.

“Nationally this issue has attracted attention because in other jurisdictions there are large stockpiles of kits that have not been processed,” said MacDonald. “That is not a concern that I have in our state. I regard this as more of a proactive effort.”

The state already has a law on the books, passed in 2018, titled “Sexual Assault Survivors Rights.”

Those include the right to have rape kits preserved, without charge, until the statute of limitations on the charge expires, or 20 years, whichever is shorter.

A bill filed by Dover Democrat Sherry Frost, HB 306, would amend that law to require the kits be stored “in perpetuity.”

“With this bill I was hoping to be proactive,” Frost testified, echoing MacDonald. “There has been a lot of news about rape kits being destroyed or not being tended to in recent years, and I was hoping to address that in New Hampshire.”

Frost said the kits have been beneficial to rape victims, even years after the crime. She told of a case in which DNA collected from a cigarette butt left recently at the scene of a robbery in Rochester was linked to a 1994 rape and homicide in Alaska, ultimately leading to an arrest.

Hollis Police Chief Joseph Hoebeke, representing the state Police Chiefs Association, said police support the premise of the bill, but would not have the resources to comply.

“In order to accommodate the wording of the bill, many departments would acquire a fiscal burden,” he said. “As the bill stands now, it would be an unfunded mandate.”

Janet Carroll, one of the sexual assault nurse examiner coordinators at the N.H. Coalition Against Domestic and Sexual Violence, said that group also endorses the premise of Frost’s legislation, but recommends the state look at the resources necessary to implement it.

“A policy change dictating that kits be held indefinitely could be crippling to local law enforcement agencies that simply do not have the capacity to properly store these kits,” she said. “The change would require additional funding to those agencies, or the creation of a new facility to house this evidence.”

The key issues are lack of secure space with refrigeration and appropriate ventilation for perishable biological evidence.

“Unfortunately, many police departments in New Hampshire do not have adequate refrigerated storage space for all these samples,” said Carroll. “Many have, at most, a mini-fridge.”