HUNTINGTON - Elated with the conviction of a 2004 rapist identified through the testing of a local sexual assault kit backlog, staff at the Marshall University Forensic Science Center, in conjunction with the West Virginia State Police, are continuing their efforts in ending the state's backlog of untested kits.
Convicted was Oswald Ryan Gibson, 52, of Ashland, Ohio, who last month entered a Kennedy plea, which allows a conviction without the defendant admitting guilt, to three counts of sexual abuse in a 2004 Huntington rape.
His victim was just one of thousands whose kits went untested for years.
End the Backlog, a Joyful Heart Foundation initiative, estimates more than 200,000 untested kits have been uncovered nationwide. Although there are several reasons for the backlog, the problem began as a result of a lack of policies and protocols for testing, resources, tracking and knowing who the perpetrator is, the organization said.
In West Virginia, the number of untested kits had been expected to be about 2,500, but Sarah Brown, West Virginia Division of Justice and Community Services and team leader for the state's Sexual Assault Kit Initiative project, said more than 2,800 had been counted as the inventory nears completion. Besides making progress on the inventory of untested kits, the state also is making headway in testing them. Testing on nearly 700 kits that were in the backlog has been completed to date.
While there is plenty of testing to be done, those working to end the backlog said policies put into place in recent years and bills introduced this year in the West Virginia Legislature are steps in the right direction to make sure it doesn't happen again.
Conviction bittersweet to analysts
Gibson wasn't the first hit to be returned by the national Combined DNA Index System (CODIS), but the kit involved in his case was the first in West Virginia to lead to an indictment and conviction.
Marshall's forensic center has tested sexual assault kits and other crime evidence throughout the country, and its staff often are left in the dark about any successes that may result from their work.
DNA technical leader Jason Chute said unless the kit analysts are called to testify at a trial, they rarely know the outcome of the cases for the kits they test.
"A part of it is bittersweet," he said. "There's a part of excitement, but then the other side of you know this crime happened many years ago and your thoughts go to the victim. Are they happy? Are they satisfied? It's been 10 or 20 years."
Once a victim saw the facility testing her kit led to the conviction of her attacker and she reached out, senior DNA analyst Misty Marra said.
"When we worked with New Orleans, we got an email randomly," she said. "The only reason the victim knew we tested her kit was because it was in the newspaper article. She sent us an email thanking us for testing her kit and told us what he got."
Marra said she ran through the facility hallways after receiving the thank you, telling her co-workers the news. She said although the conviction came from a terrible situation, she was happy to know her work had led to putting a rapist behind bars.
Kit inventory nears completion
Until recent years, the odds of catching an attacker based on DNA testing in West Virginia were much lower, due to the fact that many test kits went untested. The same was true in many states, although most states now are making concerted efforts to eliminate the backlogs.
West Virginia's effort to end its backlog started in 2013 when the West Virginia State Police requested law enforcement agencies send their kits into the facility for testing, starting with Cabell and Monongalia counties.
That led to the testing of 558 kits dating back at least 16 years in those two counties. The forensic center's lab received 315 cases from Cabell County, with 167 of those yielding DNA and only about 39 matching other cases in the database.
The movement to end the backlog started with the goal of 16 counties, but was expanded with the state receiving grants from the U.S. Department of Justice in the past few years.
The effort to end the backlog was propelled in 2015 with the creation of the West Virginia Sexual Assault Kit Initiative, which was started after the state received funding from the New York County District Attorney and Bureau of Justice National Sexual Assault Kit Initiative (SAKI) projects to help fund the testing and prosecution of ending the backlog.
Brown said inventory is completed in the first 16 counties, with about 96 percent of counting completed in the rest of the state.
Through the WV SAKI project, 2,807 kits have been identified as part of the backlog. Of those, 2,237 have been determined to need DNA testing. Reasons for a kit not being tested would include previous testing having been conducted, a victim recanting or an investigation determining a crime did not occur. About 63 percent -1,402 - of the known kits have been sent for testing, with 682 completed.
Testing has resulted in 26 DNA samples being entered to the FBI's CODIS, which are currently waiting for a "hit," which is a match to another case or a name.
A returned match to another case does not necessarily mean an assailant's name will be known, but it does allow agencies to compare notes. Once the perpetrator is known, it's up to the victim to decide if he or she wants to press charges.
To date, testing has been completed in Cabell, Berkeley, Brooke, Fayette, Greenbrier, Harrison, Jefferson, Kanawha, Marion, Marshall, Mason, Mercer, Monongalia, Ohio, Raleigh, Randolph, Upshur and Wood counties.
Lawrence Messina, spokesman for the West Virginia Department of Military Affairs and Public Safety, previously said the federal SAKI funding is helping with the improvement of kit storage at WVSP's forensic lab and covering expenses associated with victim notification, transportation of the kits and investigations.
Kits collected before Jan. 1, 2015, are tested by Marshall's forensic center, with those after going to the West Virginia State Police forensic lab.
The reach of Marshall's sexual assault kit testing is not limited to West Virginia. The Associated Press reported last week that the facility has been contracted by the state of Wisconsin to help end its backlog of about 4,000 kits.
Testing of kits a difficult task
A sexual assault kit looks like a simple white box about the size of a shoe box, but it's the complexity of what's inside that can help lead to a conviction, even years later. Inside a kit are paper bags to place evidence - clothing, bedding, etc. - and swabs ready to daub many surfaces of the victim's body. Blood and urine samples are also taken.
It's the paperwork inside of the box that takes the most toll on the analysts. The paperwork graphically details the assault and the time before and after, revealing the most personal and intimate details about the victim, Marra said.
"We have to worry about our analysts because they're in there reading those papers every day and reading horrible things that happened to people close by," she said. "We have to worry about their self-care as well."
However, the more analysts know about the case, the better chance they have at finding an assailant, Marra said.
"All that factors in to how we are doing our testing," she said. "If she was awake and aware the whole time and knows it was one guy and she hadn't had any other sex, when we are testing this kit we are going to be looking for one guy."
Getting a clear history cannot only help solve the case, but also makes sure an innocent person's DNA is not placed into the CODIS database by the West Virginia State Police when they receive that information, Chute said.
"We are the first line of defense to keep somebody that shouldn't be going in there, like a consensual partner or someone like that," he said. "That's why the medical report is very important to us for the very beginning."
Marra said it's important for analysts to help train Sexual Assault Nurse Examiners (SANE), who have specialized education and training on how to care for a patient who has experienced sexual assault or abuse. If the information and samples aren't correctly taken, the entire case could fall apart.
Marra and others at the facility take their 120 combined years of experience internationally to help train nurses, prosecutors and others on how to properly collect the sample.
West Virginia prevention efforts
The state has until 2020 to use the grant funding for the project, but could request an extension depending on the amount of kits found as inventory continues, Brown said.
Forensic Science Center professor emeritus Dr. Terry Fenger said this year's legislative session will have a great impact on the future of the testing.
Sen. Mike Woelfel, D-Cabell, introduced bills last month to establish numerous rights for assault survivors, like having someone accompany a survivor to a health care facility, the right to have an assault evidence collection kit tested and preserved for up to 20 years, and the right to a 60-day notice prior to the disposal of any evidence.
A second bill addresses the problem of assault evidence kits being shelved and going untested. Woelfel said it takes an average of 460 days between evidence being collected in a kit and it being processed before being returned to law enforcement.
Even without the bills, Fenger said he feels West Virginia is being proactive in its testing compared to other states, an opinion inverse to his view back in 2016, because a lot of other policies are already in place to prevent a future backlog.
For example, West Virginia currently has the Sexual Assault Forensic Examination (SAFE) commission, which was created in 2014 to better manage and monitor sexual assault cases throughout the state.
The SAFE commission comprises about a dozen representatives from a prosecutor's office, state crime lab, hospitals and victim advocates tasked with the job of identifying areas of the greatest need to help better train and retain community members in caring for victims of sexual assault.
In 2016, the West Virginia Division of Justice and Community Services and the West Virginia State Police Forensic Laboratory developed the Sexual Assault Evidence Collection Kit Information System to ensure the tracking of new kits.
CONTACT Rape Crisis Center provides free and confidential services to victims of sexual assault and stalking in Cabell, Lincoln, Wayne and Mason counties. CONTACT can be reached at 866-399-7273 or 304-399-1111.
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