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OFFICE OF THE STATE
AUDITOR

Special Audit of Untested Sexual
Assault Evidence Kits in New Mexico
December 2016

 

 

The Mission of the Office of the State Auditor
Is To Help Government Work Better

OFFICE OF THE STATE AUDITOR
PROJECT STAFF
Timothy M. Keller, MBA, CFE
Sanjay Bhakta, CPA, CGFM, CFE, CGMA
Sunalei Stewart, JD, MA, CFE
Sarita Nair, JD, MCRP
Justine Freeman, MA
Kevin Sourisseau, CPA
Andrew Gallegos, MACCT, CGFM, CFE
Kelly Mercer, CFE
Elise Mignardot, CPA
Karl Hjelvik
Chelsea Martin, CPA, CFE, Cr.FA, CICA
Miles Hirozawa

State Auditor
Deputy State Auditor
Chief of Staff
Chief Government Accountability Officer
Deputy Chief of Staff
Director, Special Investigations Division
Audit Supervisor
Audit Supervisor
Audit Supervisor
Senior Auditor
Senior Auditor
Intern

The Office of the State Auditor acknowledges with gratitude the invaluable contributions of the
New Mexico Coalition of Sexual Assault Programs and its Statewide SANE Coordinator,
Connie Monahan.

An electronic version of this report is available at
www.saonm.org/government_accountability_office
To obtain a hard copy of the report, please call the
Office of the State Auditor at 505-476-3800

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Table of Contents
EXECUTIVE SUMMARY

Page 1

PURPOSE, SCOPE AND METHODOLOGY

Page 4

ABOUT THE OFFICE OF THE STATE AUDITOR

Page 6

SEXUAL ASSAULT IN NEW MEXICO: WIDESPREAD AND
UNLIKELY TO RESULT IN JAIL TIME

Page 7

DNA BASICS

Page 8

CODIS, THE DNA DATABASE

Page 9

SEXUAL ASSAULT EVIDENCE KITS AND THE CRIMINAL
INVESTIGATORY PROCESS

Page 10

LEGAL ISSUES RELATED TO SEXUAL ASSAULT EVIDENCE KITS

Page 13

OVERVIEW OF UNTESTED SEXUAL ASSAULT EVIDENCE KITS IN NM

Page 15

ROOT CAUSES OF UNTESTED KITS

Page 19

BUILDING AND INSTITUTIONALIZING SYSTEMS

Page 25

ENDING THE “BACKLOG” PERMANENTLY

Page 29

APPENDICES

Page 32

Table of Figures
Figure 1: Distribution of Historically Untested Kits

Page 2

Figure 2: Outcomes after Sexual Assaults

Page 7

Figure 3: Path of a Sexual Assault Evidence Kit

Page 10

Figure 4: Distribution of Historically Untested Kits in December 2015

Page 15

Figure 5: Distribution of Historically Untested Kits in November 2016

Page 16

Figure 6: Time Elapsed Between Sexual Assault Evidence Kit Collection and
Submission to a Forensic Laboratory, based on OSA sample

Page 17

Figure 7: Untested Kits in Various States, Total and Per 100,000 Residents

Page 18

Figure 8: Reasons Cited by Law Enforcement Agencies for Not Sending an SAE Kit
to a Forensic Laboratory for Testing, as Examined in the Special Audit

Page 20

Figure 9: Reasons Cited by Law Enforcement Agencies for Not Sending an SAE Kit
to a Forensic Laboratory for Testing, as Reported in the OSA Survey

Page 21

Figure 10: Comparison of Reasons Given for Not Testing Kits to Goals of Testing Kits

Page 22

Figure 11: Percentage of Survey Respondents with SAE Kit Policies

Page 25

Figure 12: Resources Needed to End the “Backlog” Permanently

Page 29

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EXECUTIVE SUMMARY
Sexual assault is a massive problem across the country and in New
Mexico, where one in every four women and one in every 20 men
experiences an attempted or completed sexual assault in their
lifetime and 65% of sexual assault victims are minors. Law
enforcement agencies work diligently on these cases every day and
in every corner in the state, yet it is estimated that for every 1,000
sexual assaults, only 344 will be reported to law enforcement, and
only six offenders will ever be incarcerated.
Of the extensive work that must be done to address this problem, the
timely testing of Sexual Assault Evidence Kits (“SAE Kits” or “Kits”) is
one critical piece. Across the country, state and local governments
have been discovering thousands of untested Kits, and New Mexico
is among those states that recognized the problem.
In December 2015, the Office of the State Auditor (OSA) assisted the
Department of Public Safety (DPS) in completing the first-ever
inventory of untested Kits, which found a total of 5,410 untested Kits
across the State. Through late reporting after the 2015 DPS Survey,
the December 2015 number of historically untested Kits rose to 5,440.
Of those Kits, 3,948 Kits (73%) would ordinarily be tested in the City
of Albuquerque’s Forensic Lab, which tests Kits from Albuquerque
Police Department and tested kits from Bernalillo County Sheriff’s
Department from approximately 2002 to 2014. The remaining Kits
would ordinarily be processed at the Department of Public Safety
Forensic Lab in Santa Fe, which tests Kits from all other local law
enforcement agencies and the State Police.
Immediately it became clear that the State and the City of
Albuquerque had two significant tasks ahead of them: (1) testing the
untested Kits and (2) understanding why those Kits were not tested
sooner so as to prevent this same situation from happening again. As
the only agency with oversight responsibilities spanning state, county
and municipal law enforcement agencies, and the City of Albuquerque
and the Department of Public Safety labs, the OSA was uniquely
positioned to ask the tough questions related to these challenges.

WHAT IS A SEXUAL ASSAULT
EVIDENCE KIT?
A
Sexual
Assault
Evidence Kit (“SAE Kit” or
“Kit”) is a collection of
evidence from the victim
of a sexual assault,
including swabs from the
victim’s body, clothes and
other items that may
serve as evidence.

WHAT DOES IT MEAN TO TEST
A KIT?
Testing a Kit refers to
sending items of evidence
in the Kit to a forensic
laboratory
that
can
perform DNA testing.
Testing SAE Kits is
crucial to solving crimes,
enhancing DNA profile
databases, honoring the
efforts of sexual assault
victims
who
undergo
forensic
exams,
and
instilling public confidence
in the processes for
securing justice for sexual
assault victims.

This was the impetus for the Office of the State Auditor’s statewide special audit of untested SAE Kits.
In May 2016, the OSA prepared and distributed a brief survey in an effort to understand how the large
number of untested SAE Kits came to be. Also in May 2016, the OSA designated various law
enforcement agencies for a special audit in order to perform a more detailed review of policies,
procedures and internal controls related to SAE Kits (the “Special Audit”). The Special Audit included
analysis of survey data, completion of audit procedures of law enforcement agencies across the state,
and interviews and research into the backlogs in other states and academic studies on sexual assault.
Working closely with the New Mexico Coalition of Sexual Assault Programs, OSA staff met with over
75 law enforcement officials and advocates statewide, conducted five public meetings, and
participated in the legislatively established Sexual Assault Evidence Kit Task Force. OSA staff also
had countless conversations with people whose lives have been tragically altered by sexual assault,
and reviewed investigative files describing violence against New Mexicans from infants to the elderly.
The over 5,000 untested sexual assault evidence Kits across the State of New Mexico have been
described as a “backlog,” but that term is a misnomer. The untested Kits were not in a queue waiting
to be tested, as the term “backlog” implies. Instead, when the OSA started this project, the untested
Kits were in the custody of law enforcement agencies across the State. This was either because a
decision had been made not to test the Kit or because the Kit had fallen through cracks in evidence
management systems. Contributing to both of those root causes was a lack of human and financial
resources throughout the criminal justice system.
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EXECUTIVE SUMMARY
Since the December 2015 DPS Survey, largely in response to the Special Audit, law enforcement
agencies sent over 800 Kits to the State Forensic Lab. As of November 15, 2016, the total inventory of
untested Kits has decreased from 5,440 to 5,302, with the entire decrease of 138 Kits resulting from
testing by the Department of Public Safety. In other words, the inventory of historically untested Kits
has not been reduced materially, but many have shifted from local law enforcement to the State
Forensic Lab, where most of them still await testing. The number of historically untested Kits in
Albuquerque remains the same.
The way to prevent this problem from occurring in the future is simple: (1) law enforcement agencies
should submit for testing every Kit for which a police report is filed, as required by law, and (2) the
State and City of Albuquerque must fund the forensic labs to meet these demands. In addition, we
must fund the service providers like SANE programs and rape crisis centers that play a critical role
throughout the processes of reporting, investigating and prosecuting sexual abuse.
Understanding how we got here and fixing those systemic issues are more complicated endeavors.
Over half of the documented reasons for not submitting a Kit for testing were based on the credibility
of, cooperation from or contact with the victim. This suggests a disconnect with the realities of sexual
assault victims and with research indicating that sexual assault is not falsely reported more frequently
than other crimes. When we, as a society, believe victims when they speak of their experiences, Kits
will not sit untested in evidence rooms. Until that time, the law makes it simple: test every Kit.
Both the State and the City of Albuquerque must break the cycle of underfunding law enforcement and
adopting policies to cope with underfunding that institutionalize misconceptions about victims and
result in sexual assault cases not being pursued. The untested Sexual Assault Evidence Kits are a
byproduct of this cycle, which in turn require even more funding to be tested and incorporated into
investigations. In other words, the longer these systemic shortcomings persist, the more expensive
they will be to fix.

Figure 1: Distribution of Historically Untested Kits
Left: December 2015 (total 5,440)
Right: November 2016 (total 5,302)

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EXECUTIVE SUMMARY
The OSA identified 15 Risk Factors that contributed to the amassing of untested Kits, listed in full in
Appendix A. If unaddressed, these Risk Factors may result in Kits continuing to go untested. The Risk
Factors include:


Two root causes led to the untested Kits: (1) the decision of some law enforcement agencies not
to test all Kits as they were received, and (2) shortcomings in the systems used to track and
monitor the testing of Kits.



A lack of financial resources adversely affects (1) law enforcement agencies wishing to implement
stronger internal controls and handle untested Kits, (2) the two Forensic Labs and (3) the service
providers like SANE programs and rape crisis centers that play a critical role throughout the
processes of reporting, investigating and prosecuting sexual abuse.



A lack of standardized tracking systems and institutionalized practices govern SAE Kits. While
guns, drugs and money tend to be subject to specialized handling procedures, SAE Kits do not.

The OSA also identified 11 Best Practices aimed at mitigating these Risk Factors, enhancing public
safety and honoring the victims of sexual assault. They are listed in full in Appendix A, and include:


Adopting policies at every law enforcement agency that require submission of every Kit
associated with a police report to the appropriate lab for testing, within a minimal amount of time.



Training on the handling of Kits, using Kits in investigations, trauma-informed interview
techniques, and sexual assault issues for all law enforcement agencies and district attorneys.



Adopting policies and procedures to ensure that law enforcement agencies pick up Kits when
notified by SANE programs; that there is centralized tracking of all movement of the Kits, the lab
results and Kit destruction; and that victim rights are respected, victim advocates are involved and
agencies are using the best practices for victim notification.



Implementing and financially supporting Multi-Disciplinary Teams, Sexual Assault Response
Teams, and the rape crisis centers and SANE programs that facilitate those groups in order to
continue the progress that has been made in handling sexual assault cases.



Funding the resource needs throughout the steps involved in testing the untested kits, including
the needs of law enforcement agencies, the two forensic labs in the State that do DNA testing,
victim advocates, district attorneys, public defenders and courts.

Without these changes, the state runs the risk of spending substantial resources to test thousands of
Kits now, only to find itself accumulating untested Kits again in a few years. It is encouraging that, due
in large part to increased public awareness of the issue, local law enforcement has been sending
untested Kits to the Forensic Labs. However, despite funding from the Legislature and the U.S.
Department of Justice, resource constraints and personnel challenges remain as barriers to testing all
untested Kits. These challenges are especially pronounced in Albuquerque, where a lack of
resources hampers progress and where more than 70% of the untested Kits reside.
Ultimately, testing the untested Kits and ensuring this problem does not occur again come down to
priorities. During the course of the Special Audit, the OSA witnessed a tangible shift in priorities as
the act of publicly announcing an audit drove hundreds of Kits, some two decades old, from local
enforcement inventories to the state lab. OSA staff was deeply grateful for the cooperation and
gratitude expressed by the audited agencies, who are all striving to do the right thing. Protecting the
public is one of the most basic functions of government. By prioritizing the testing of old Kits and by
funding and implementing practices that will prevent a “backlog” from occurring again, our State can
invest in the safety of its citizens, honor the victims of sexual assault, and take a significant step
towards ending the tragic pattern of unchecked sexual assault.
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PURPOSE
In 2015, the OSA worked with the Department of Public Safety and other agencies and advocates to
identify over 5,000 untested Sexual Assault Evidence Kits (“SAE Kits” or the “Kits”) in the State. Since
that time, law enforcement agencies have been working with the forensic labs to begin processing the
untested Kits. The Legislature appropriated funds to the Department of Public Safety to assist with this
effort. However, in addition to testing previously untested Kits, it is imperative to understand the policies, procedures and internal controls that may have contributed to the accumulation of untested Kits.
Without this insight, our state runs the risk of spending substantial resources to clear the “backlog”
now, only to find itself with a new accumulation of Kits in a few years.
In order to better understand these issues, the OSA conducted a statewide audit of the inventory of
untested SAE Kits. In May 2016, the OSA selected various law enforcement agencies to designate for
a special audit in order to perform a more in-depth review of policies, procedures and internal controls
related to Sexual Assault Evidence Kits. From an accounting perspective, a sexual assault evidence
Kit is a type of inventory, but the OSA team never forgot that a Kit is more than that. Each Kit is a story
of both trauma and courage. Each Kit represents a person who subjected their body to search and examination in order to increase the chances that the community might become safer. Each Kit may become a tool for investigation, for prosecution, or even for exoneration. A Kit is more than inventory, but
because it is also a type of inventory, some standard accounting and audit principles can ensure that a
Kit is subject to appropriate internal controls. This was the focus of the Special Audit.

SCOPE AND METHODOLOGY
In October 2015, the Department of Public Safety (DPS) sent a letter to 126 law enforcement
agencies. The letter asked each law enforcement agency: “How many untested assault evidence Kits
(white envelopes) associated with a criminal case are currently stored by your agency? Please submit
to us whatever the answer is, even if it is zero.” This report refers to this as the “DPS Survey.” A
sample of the letter appears in Appendix B. The DPS Survey received a number of responses, and
the OSA assisted in obtaining the remaining responses. DPS compiled that data and shared it with the
OSA. All data from the 2015 DPS Survey was self-reported and unverified. After DPS announced the
initial results of the DPS Survey, with a statewide total of 5,410 unreported Kits, a number of agencies
revised their responses. This Report takes into account these revised numbers when discussing the
results of the OSA Survey (described below).
In May 2016, the OSA prepared and distributed a brief survey in an effort to understand how the large
number of untested SAE Kits came to be and what strategies might prevent a similar situation from
occurring again. The survey was delivered electronically, or in hard copy when electronic contact
information was unavailable, to the same agencies that received the DPS Survey. The OSA
conducted the survey online using the website Survey Gizmo. This report refers to the results of this
as the “OSA Survey.” All OSA Survey data was self-reported and unverified, except for those
agencies at which survey results were verified in the Special Audit (described below). The response
rate for the survey was 70%.
Also in May 2016, the OSA designated various law enforcement agencies for a special audit in order
to perform a more detailed review of policies, procedures and internal controls related to Sexual
Assault Evidence Kits (the “Special Audit”). The OSA sent designation letters to notify each agency
that the OSA has designated it for the Special Audit. The selection of an agency for the Special Audit
did not indicate that the OSA had identified or suspected any irregularity in the agency’s handling of
Kits. Rather, the OSA selected Special Audit designees based on a variety of factors, including
geographic location and size, in order to obtain a representative sample of law enforcement agencies
across the state.

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SCOPE AND METHODOLOGY
Qualified OSA staff, including certified public accountants and certified fraud examiners, performed
the Special Audit, working closely with the New Mexico Coalition of Sexual Assault Programs.
Although the OSA is authorized to require an agency to bear the cost of the engagement pursuant to
Section 12-6-4 NMSA 1978, the OSA performed the Sexual Assault Evidence Kit Special Audit at no
charge to any agency, and without any additional financial assistance of any kind.
The initial agencies identified for the special audit were Curry County Sheriff’s Office, Las Cruces
Police Department, Hobbs Police Department, Gallup Police Department, Bernalillo County Sheriff’s
Office, Guadalupe County Sheriff’s Office, Farmington Police Department and Albuquerque Police
Department. Due to resource constraints, Hobbs and Guadalupe County were subsequently removed
from the list.
OSA staff performed the following procedures with respect to SAE Kits during the Special Audit:
1.

Document the nature of the entity

2.

Document and obtain copies of the agency policies and procedures utilized to:
a.
Collect or receive completed Kits from hospitals or other sources
b.
Track competed Kits at all stages while in agency custody
c.
Store completed Kits
d.
Determine when to send Kits to appropriate lab
e.
Track Kits that have been sent to the lab
f.
Notify victims and prosecutors at different points in time
g.
Recall Kits in cases where the victim has withdrawn a complaint
h.
Destroy or dispose of completed Kits – why and when
i.
Handle the Kits and information from the lab after testing

3.
Apply audit procedures to the inventory of SAE Kits containing evidence for compliance with
all policies and procedures obtained above. Representative sampling was used when 100% sampling
was impractical.
a.
Document the number of SAE Kits on hand that contain evidence in total and by year
of collection. Create a schedule showing the total number of SAE Kits containing evidence by
reason for retention. (ie: charges dropped, prosecuted with other evidence, no suspect
identified, etc)
b.
Document the number of SAE Kits submitted to the state lab for testing within the last
3 years. Include a schedule of the dates the SAEKs were submitted to the lab and the dates
the results were received from the lab.
c.
Conduct interviews to confirm procedures and ask questions. A list of people
participating in these interviews is attached as Appendix C.
The OSA conducted additional site visits and interviews and participated in the statewide SAE Kit
Task Force. Interviews generally included law enforcement officers working on sexual assault cases,
evidence room managers and personnel, victim advocates, SANE nurses, representatives of law
enforcement from communities neighboring the audited agencies, representatives of New Mexico
State Police, the heads of and personnel from both Forensic Labs and representatives of law
enforcement in Indian Country. These participants are also listed in Appendix C. This Report uses the
term “interviewees” to describe Special Audit participants. The OSA reviewed academic literature
related to sexual assault, from which this report cites sexual assault statistics. A list of key resources
appears in Appendix D.

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SCOPE AND METHODOLOGY
Terminology
Language shapes the way we think about sexual assault and related issues. For purposes of this
Report, the OSA uses the word “victim” to describe a person who has experienced sexual assault.
The OSA recognizes that the word “survivor” conveys a greater sense of empowerment and agency,
and that the advocacy community often prefers this word. However, the OSA chose to use the word
“victim” because of law enforcement agencies’ consistent use of this word to describe a person who
has experienced any type of crime. This Report also uses the phrase “sexual assault.” Unless
otherwise noted, the phrase “sexual assault” includes both attempted and completed crimes of a
sexual nature, including criminal sexual penetration (rape) and criminal sexual contact of both minors
and adults. The phrase “sexual assault” also includes sexual offenses by family members and intimate
partners that may, in other contexts, be described as “molestation,” “incest,” or “domestic violence.”
This Report uses the word “minor” to describe anyone under the age of 18. Statistics and criminal
offenses sometimes distinguish between minors who are 12 or younger and minors between the ages
of 12/13 and 18, and we note this where relevant. Finally, this Report uses the word “their” as a
gender-neutral singular pronoun.

ABOUT THE OFFICE OF THE STATE AUDITOR
The New Mexico Office of the State Auditor is a constitutionally established, separately elected office
in the executive branch of state government. The State Auditor maintains independence from both the
Governor and the Legislature while examining and auditing the financial affairs of state and local
entities. When the State's leaders prepared the New Mexico Constitution in 1911 for impending
statehood the following year, they created a strong, independent Office of the State Auditor to oversee
how government officials spend taxpayers' hard-earned dollars. As the New Mexico Supreme Court
stated in 1968, “the office of state auditor was created and exists for the basic purpose of having a
completely independent representative of the people, accountable to no one else, with the power, duty
and authority to examine and pass upon the activities of state officers and agencies who, by law,
receive and expend public moneys.” Thompson v. Legislative Audit Comm’n, 79 NM. 693, 448 P.2d
779 (1968).
Included in the OSA’s statutory mandate is the requirement that the financial affairs of every agency
be thoroughly examined and audited each year by the State Auditor, personnel of the State Auditor’s
Office designated by the State Auditor, or Independent Public Accountants approved by the State
Auditor. The OSA also has the authority to cause the financial affairs and transactions of an agency to
be audited in whole or in part. These two statutory provisions grant the State Auditor the authority to
conduct both annual financial audits and special audits. The Audit Act, New Mexico Statutes
Annotated 1978, Sections 12-6-1 to 12-6-14, and the Audit Rule, NMAC 2.2.2, are the laws and
regulations under which the OSA operates.
Government Accountability Office
The New Mexico State Auditor established the Government Accountability Office (GAO) to inform and
report to the public statewide issues relating to the use of public funds. The GAO works to bridge the
gap between the technical world of auditing and the general public that the OSA serves. The GAO is a
key step towards fulfilling the Office of the State Auditor’s constitutional mandate to bring transparency
and accountability to the use of public funds.

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SEXUAL ASSAULT IN NEW MEXICO:
WIDESPREAD AND UNLIKELY TO RESULT IN JAIL TIME
Sexual assault is a widespread problem in our society and our nation. In the United States, a
sexual assault occurs every two minutes. One in every six American women experiences an
attempted or completed sexual assault in her or his lifetime. The majority of sexual assault victims are
under 30.
New Mexico ranks 48th out of 50 states in frequency of sexual assault, meaning that our State
has higher rates of sexual assault than the national average. In New Mexico, one in every four women
and one in every 20 men in New Mexico has experienced an attempted or completed sexual assault.
Sexual assault disproportionately affects the most vulnerable members of society. Children
constitute 65% of sexual assault victims in New Mexico. People with disabilities constitute between
27% and 32% of victims in New Mexico.
People are most likely to be sexually assaulted by someone they know. Eighty-seven percent of
sexual assault offenders are known to the victim before the assault. This includes family members
(17%) and current or former intimate partners (24%).
Sexual assault is underreported; arrests are rare, and most cases leading to prosecution are
dismissed. Figure 2 shows the rates of arrest per 1,000 sexual assaults in the United States. A 2014
report from the New Mexico Coalition of Sexual Assault Programs highlights the challenges of
pursuing criminal sexual assault cases in our State:
In 2014, 71% of sexual assault charges disposed in statewide district courts were
dismissed, which resulted in the dismissal of 50% sexual assault cases; and these
percentages do not include cases bound over/transferred, conditional discharges,
remands, or other dispositions that resulted from some prosecution actions. Most of the
charges dismissed include charges of serious sexual assault crimes: criminal sexual
penetration of a child (75%), criminal sexual penetration of an adult (72%), criminal
sexual contact of minor (72%), and criminal sexual penetration of a minor (63%).

Figure 2: Outcomes after Sexual Assaults
(Source: Rape, Abuse & Incest National Network and US Department of Justice)

See Appendix D for the sources of this research
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DNA BASICS
Deoxyribonucleic acid (DNA) is the hereditary material in humans and almost all other organisms.
DNA is a chemical structure that forms chromosomes. A piece of a chromosome that dictates a
particular trait is called a gene. Structurally, DNA is a double helix: two strands of genetic material
spiraled around each other. Each strand contains a sequence of base pairs, also called nucleotides.
The chemical structure of everyone's DNA is the same. The only difference between people (or any
animal) is the order of the base pairs. There are so many millions of base pairs in each person's DNA
that each person has a different sequence. Using these sequences, every person could be identified
solely by the sequence of their base pairs. However, because there are so many millions of base
pairs, the task would be very time-consuming. Instead, scientists are able to use a shorter method,
because of repeating patterns in DNA. These patterns do not give an individual "fingerprint," but they
are able to determine whether two DNA samples are from the same person, related people, or nonrelated people. Scientists use a small number of sequences of DNA that are known to vary among
individuals a great deal, and analyze those to get a statistical probability of a match.
Criminal investigations typically involve many different pieces of evidence. Physical evidence is any
tangible object that can connect an offender to a crime scene. Biological evidence is a type of
physical evidence that is derived from a human body and includes bodily fluids, hair and skin cells.
Biological evidence can be subject to DNA testing. When biological evidence is subjected to DNA
testing, laboratories perform several basic steps. The general procedure includes:


Extraction: The DNA is first extracted from its biological source material and then measured to
evaluate the quantity of DNA recovered. It is not always possible to extract DNA from biological
evidence. When this is the case, the laboratory will report that no human DNA samples were
obtainable from the evidence.



Replication: After isolating the DNA from its cells, specific regions are copied with a technique
known as the polymerase chain reaction, or PCR. PCR produces millions of copies for each DNA
segment of interest and permits very small amounts of DNA to be examined.



Developing a DNA profile: Laboratories then analyze the DNA to look for patterns. This process is
called sample genotyping. Analysts generate a DNA profile, which is a combination of genotypes.



Comparison: The next step is to compare and interpret the test results from the sample to
determine whether a known individual is the source of the DNA or is included as a possible source
of the DNA. This may include comparison to samples from the victim, samples from consensual
partners of the victim, samples from a suspect, or information from DNA databases.

As a Kit is tested, a number of results are possible:
1.
2.

3.
4.

That no DNA was detected, insufficient DNA was detected to obtain and interpret a profile, no
profile was detected, or no DNA foreign to the victim was detected;
There may be a mixture of DNA from two or more individuals. If this is the case, some part of a
DNA profile may be attributable to the victim and/or to persons known to have had a
consensual encounter with the victim, which is determined using reference samples, and/or to
one or more non-consensual perpetrators; or
There may be a non-mixed, single source DNA profile that may be attributable to a single
consensual partner or non-consensual perpetrator; and
DNA profiles from one or more perpetrators in either #2 or #3 above, may be suitable for entry
into a DNA database.

New Mexico has two laboratories that are capable of performing DNA testing. The Department of
Public Safety Forensic Laboratory (the “State Forensic Lab”) processes the Kits for all law
enforcement agencies in the State except for the Albuquerque Police Department, which processes
its Kits at the City of Albuquerque Police Department Criminalistics Laboratory (the “Albuquerque
Forensic Lab”).
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CODIS, THE DNA DATABASE
The Combined DNA Index System (CODIS) is the Federal Bureau of Investigation's national DNA
index system for storage and exchange of DNA records submitted by forensic DNA laboratories. The
National DNA Index System (NDIS) is one part of CODIS—the national level—containing the DNA
profiles contributed by all federal, state, and local participating forensic laboratories. The FBI
Laboratory’s CODIS began as a pilot software project in 1990, serving 14 state and local laboratories.
The DNA Identification Act of 1994 formalized the FBI’s authority to establish a National DNA Index
System (NDIS) for law enforcement purposes. NDIS was implemented in October 1998. All 50 states,
the District of Columbia, the federal government, the U.S. Army Criminal Investigation Laboratory and
Puerto Rico participate in NDIS.
The federal DNA Act specifies the categories of data that may be maintained in NDIS (convicted
offenders, arrestees, legal, detainees, forensic [casework], unidentified human remains, missing
persons, and relatives of missing persons) as well as requirements for participating laboratories
relating to quality assurance, privacy and expungement.
Each state participating in CODIS must have an “Administrative Center” for establishing and
administering CODIS. The New Mexico DNA Identification Act identifies the Albuquerque Forensic
Lab as the Administrative Center for New Mexico.
In order to search in CODIS, the Administrative Center must receive an upload of a DNA record from
one of the two Forensic Labs, which are each considered to be an independent local DNA index
system (LDIS). The record must have been generated by or on behalf of a law enforcement agency
and in accordance with many technical requirements. These include requirements related to the
laboratory conducting the DNA tests, which must be accredited by an approved accrediting agency,
must operate in compliance with the FBI Director’s Quality Assurance Standards as demonstrated by
an external audit every two years, and must comply with federal laws on expungement. The DNA data
must be one of the categories of data acceptable at NDIS, such as convicted offender, arrestee,
detainee, legal, forensic (casework), unidentified human remains, missing person, or a relative of
missing person. There are also technical requirements related to the samples and testing.
In addition, the DNA record for forensic unknown (casework) DNA samples are considered crime
scene evidence. To be classified as a forensic unknown record, the DNA sample must be attributed to
a putative perpetrator, deduced from crime scene evidence. Items taken directly from the suspect are
not considered deduced suspect samples, are not forensic unknowns, and are not eligible for upload
into CODIS. Other types of searches, such as for missing persons or unidentified human remains, are
subject to other standards.
A search for crime scene DNA within CODIS can have three primary results. The first is known as an
“offender candidate match” or “case-to-offender match,” which occurs when a DNA profile
developed from a crime scene matches a known convicted offender DNA profile. A similar match may
arise from a match to a known felony arrestee DNA profile. The second is a “forensic candidate
match” or “case-to-case match,” which is when a DNA profile from one crime scene matches the
profile for profiles developed from one or more other crime scenes. The third is that no match is
located. A CODIS “hit” is the term used when a confirmed or verified match aids an investigation and
one or more of the cases involved in the match is unsolved.

9

 

SEXUAL ASSAULT EVIDENCE KITS AND THE CRIMINAL INVESTIGATORY PROCESS
After experiencing a sexual assault, a person can seek the services of a Sexual Assault Nurse
Examiner (SANE). The SANE cares for the victim at no charge and in a confidential manner.
Even if a victim uses SANE services, the victim is under no obligation to report to law enforcement.
During a visit to a SANE, the examination may include triage and intake, a medical/forensic history, a
head-to-toe medical exam, sexually transmitted infection prevention, pregnancy prevention and
referrals. In addition, a patient may (but is not required to) undergo a forensic examination that
includes the collection of a SAE Kit.
If a patient chooses to undergo the forensic examination, the process can take one to two hours or
more. Depending on the gender of the victim and the nature of the assault, the examination can
include collecting samples and swabs of genitalia and surrounding areas, internal examination,
photographs or the collection of undergarments and clothing. The resulting evidence is placed in a
series of bags and envelopes known as the SAE Kit. If a connection is not already in place with a law
enforcement agency, the SANE program contacts the appropriate law enforcement agency to transfer
custody of the Kit.
A “non-reported Kit” is a Kit collected from a patient who had not, at the time of the exam, filed a
police report. Through an understanding between SANE practitioners and local law enforcement
officials, non-reported Kits are stored for a period of at least one year, and some agencies are working
towards extending that time to 18 months. In the case of minors, the Kit will not be destroyed until one
year after the minor’s 18th birthday. During each SANE exam in which a SAE Kit is completed but the
victim is not ready to file a police report, the SANE gives the patient an informed consent form. That
form explains the Kit will be maintained for one year from the date of assault, with the caveat that
blood or urine samples in suspected drug-facilitated sexual assaults have a shorter window in which
they can be tested. If the victim decides to file a police report within the 365 days, it is their
responsibility to call both the SANE Program and the appropriate law enforcement agency to file a
police report. The form also explains that the Kit will be destroyed in the time frame explained above,
without any further notification to the patient.

Figure 3: Path of a Sexual Assault Evidence Kit

10

 

SEXUAL ASSAULT EVIDENCE KITS AND THE CRIMINAL INVESTIGATORY PROCESS
After a sexual assault victim completes the SAE Kit, the SANE program contacts the appropriate law
enforcement agency to arrange for pick-up of the Kit. Generally speaking, personnel of the law
enforcement agency pick up the Kit and enter it into their agency’s evidence room. The evidence room
logs the Kit into evidence and maintains it in accordance with agency policy and procedures.
At some point, the decision is made to send the Kit to a forensic lab for testing. Throughout most of the
State, the law enforcement agency fills out a request for an acceptance code from the State Forensic
Lab. DPS assigns each Kit sent to the State Forensic Lab a work order number, and the Kit is
delivered to the lab. The State Forensic Lab issues an “Evidence Receipt” that tracks the chain of
custody and contents of the Kit from the time of transfer of the Kit to the Lab to the time of transfer of
the Kit back to law enforcement.
A similar set of steps occurs in Albuquerque. The Albuquerque Police Department (APD) fills out a
“Request for Forensic Service” form from the Albuquerque Forensic Lab in APD cases with the
detective or Lab personnel documenting the movement of the Kit between the APD Evidence Room
and the Albuquerque Forensic Lab. The Albuquerque Police Department maintains custody of the Kits
until they are in the Albuquerque Forensic Lab for testing; there is no separately maintained queue as
there is at the State Forensic Lab. In approximately 2002, the Bernalillo County Sheriff’s Office
(BCSO) and the Albuquerque Police Department entered into a memorandum of understanding that
provided for a number of services, including the testing of BCSO Kits at the Albuquerque Forensic
Lab. Since 2014, however, BCSO has been sending all new Kits to the State Lab. The Albuquerque
Police Department continues to maintain custody of BCSO evidence, including the 472 Kits that were
not tested by the Albuquerque Forensic Lab prior to the change in policy. The Albuquerque Forensic
Lab continues to provide firearms and narcotics testing to BCSO.
At both Labs, the Kits are tested on a first-in, first-out basis with the exception of Kits that are
expedited because of pending court proceedings. During the testing process, there is communication
between the lab and the law enforcement agency, which may include a discussion of the most
appropriate items in the Kit to test or the securing of reference samples.

BEST PRACTICE
The Forensic Labs emphasized that obtaining reference samples from victims
and consensual partners as early as possible can significantly expedite testing.

Generally speaking, the State Forensic Lab tests only the items contained in the “white envelope” and
does not test other pieces of evidence unless the initial testing suggests that testing other items would
be appropriate or necessary. The testing process takes an average of 50 to 55 hours from start to
finish. It is estimated that a fully trained lab employee can test an average of 20 Kits per month.

BEST PRACTICE
The SANE programs have changed the packaging of evidence to include
underpants in the “white envelope” to ensure that those items are tested in the first
round of lab work. This reflects research suggesting that some of the best
biological material samples often come from underpants. In addition, SANE nurses
are considering adding key case descriptors to the white envelope in order to
support work at the Labs.

11

 

SEXUAL ASSAULT EVIDENCE KITS AND THE CRIMINAL INVESTIGATORY PROCESS
Each Kit is then subject to complete technical and administrative review, which requires two additional
technical employees to review the work. After the Kit is tested, the Lab communicates the results and
returns the Kit to the local law enforcement agency, and the results feed back into the processing of
the case.

WHY DO WE NEED TO TEST THE HISTORICALLY UNTESTED SAE KITS?
A SAE Kit has more uses than to identify unknown perpetrators of sexual assault. Because 87% of
sexual assault offenders are known to their victims, this misconception makes it difficult to
understand why testing the Kits is so important. The OSA identified four primary reasons to test
Kits, an understanding of which is critical to comprehending why testing the untested Kits should be
a priority.
1. Aiding with the investigation. Beyond identifying unknown suspects, the results from a Kit can
confirm a victim’s account that the encounter occurred. The Kit may corroborate the victim’s
account of the assault. In cases where the alleged offender admits to the encounter but asserts
consent as a defense, testing a Kit may reveal offender or forensic matches in other
jurisdictions, possibly linking the defendant with other sexual assault allegations.
2. Enhancing public safety by developing CODIS. When a Kit yields a DNA profile that is eligible
for upload into CODIS (see page 9), the national DNA database grows stronger. Testing
backlogged Kits from other jurisdictions has resulted in high CODIS hit rates. In Detroit, 49% of
the tested Kits (785 of 1,595) yielded DNA profiles eligible for upload into CODIS, of which 58%
(455) had CODIS hits. In Cleveland, testing 2,326 Kits yielded 968 investigative leads.
3. Honoring the victims. Special Audit interviewees from SANE programs emphasized the courage
of those undergoing a forensic exam after a sexual assault. Testing the Kits communicates to
those victims that this arduous experience was for a purpose. To put this simply, why are victims
going through this part of the examination if we are not going to test the Kit?

4. Fostering public trust. As OSA travelled throughout the state and spoke to leaders on this issue

across the country, interviewees repeatedly underscored that the public needs to be reassured
that Kits will be tested. As a matter of transparency and accountability, all Kits for which a police
report is filed must be accounted for and tested. This will also encourage the public to continue
to utilize SANE services.

RISK FACTOR
A common misconception is that the sole purpose of a SAE Kit is to identify
unknown perpetrators of sexual assault. When viewed in light of the additional
goals of enhancing DNA databases, upholding the commitment made by law
enforcement to the victims and instilling public confidence, it becomes clear why
all Kits associated with a police report should be tested.

12

 

LEGAL ISSUES RELATED TO SEXUAL ASSAULT EVIDENCE KITS
Key Statutes
Several laws affect DNA testing, generally, and DNA testing within the context of a sexual assault
case, specifically. A thorough legal review is outside of the scope of this Report, but the OSA
considered it critical to an overall understanding of the Special Audit to highlight a few key legal
issues.
Arrestee DNA collection, NMSA 1978, Section 29-3-10
This statute requires any person 18 years of age or older who is arrested for the commission of a
felony under the laws of this state or any other jurisdiction to provide a DNA sample to jail or detention
facility personnel upon booking. These samples are forwarded to the Administrative Center and
destroyed unless the arrest was made upon an arrest warrant for a felony or other conditions are met.
DNA Identification Act, NMSA 1978, Section 29-16-1 et seq.
This Act codifies many of the requirements necessary for New Mexico to participate in CODIS. The
Act also sets forth the procedure for the collection of DNA samples and discusses the confidentiality,
disclosure and dissemination of DNA records.
Criminal sexual penetration statute of limitation tolling, NMSA 1978, Section 30-1-9.2
When DNA evidence is available and a suspect has not been identified, this statute states that the
applicable time period for commencing a prosecution for criminal sexual penetration does not begin to
run until a DNA profile is matched with a suspect.

RISK FACTOR
The law tolling the limitation period in sexual assault cases where a suspect has
not been identified and a DNA evidence is available may be ambiguous as to
whether it would apply to crimes committed prior to its enactment date in 2003.
An opinion from the Attorney General addressing this issue would be helpful
when Kits from before 2003 are tested.

Submission of DNA samples by law enforcement and labs, NMSA 1978, Section 30-9-19.
This statute states: “Samples from biological material collected pursuant to a medical examination of a
sexual assault victim shall be submitted by the investigating law enforcement agency to that agency's
servicing laboratory for DNA testing.” It also requires the Administrative Center to enter eligible DNA
records into CODIS.

RISK FACTOR
Law enforcement agencies expressed a lack of clarity on whether the statute
requiring submission of biological samples for DNA testing applies to all SAE Kits,
or only those Kits related to cases in which an investigation has been open. The
plain language of the statute states that all Kits must be tested, except for nonreported Kits (i.e., Kits from incidents in which the victim has chosen not to file a
police report).

13

 

LEGAL ISSUES RELATED TO SEXUAL ASSAULT EVIDENCE KITS
Legal Issues of concern to law enforcement
Through the survey and site visits, law enforcement agencies identified a number of legal concerns
related to SAE Kit testing. The OSA is not the appropriate agency to give legal advice on these
issues. We encourage the Office of the Attorney General or other appropriate agencies to provide
guidance to law enforcement agencies on these issues.
Confrontation Rights. In June 2016, the New Mexico Supreme Court overturned a conviction in which
the district court allowed a DNA expert to testify over two-way video (Skype). State v. Thomas, 2016NMSC-024. The Court stated, “A criminal defendant may not be denied a physical, face-to-face
confrontation with a witness who testifies at trial unless the court has made a factual finding of
necessity to further an important public policy and has ensured the presence of other confrontation
elements concerning the witness testimony including administration of the oath, the opportunity for
cross-examination, and the allowance for observation of witness demeanor by the trier of fact.” While
this decision does not completely prohibit video testimony, it raises the bar substantially.

RISK FACTOR
Law enforcement agencies, advocates and district attorneys who participated in
the Special Audit expressed concern that the decision in State v. Thomas
compounds issues related to the cost of DNA testing. Forensic lab personnel can
have a high turnover rate, and personnel who leave for the private sector often
demand high witness fees and incur high travel costs to testify live at trial. Some
interviewees stated that their agencies received costly bills for expert witness
testimony that reflected the higher rates of the private forensic industry, and which
their agencies could not afford to pay.

CODIS Concerns. Some interviewees expressed concern that DNA recovered from a Kit would be
wrongfully entered into CODIS. Without a thorough investigation that resulted in corroboration of the
victim’s story, these interviewees suggested, they did not feel confident in submitting Kits to the lab.
They further expressed concern that if such “wrongfully entered” DNA evidence then resulted in a
match, it could jeopardize the prosecution arising from that match. However, the laws and procedures
related to CODIS contain a number of safeguards against wrongful uploads of DNA records. First,
initiating the testing a Kit does not automatically result in a CODIS upload. As described on page 8,
testing the Kit can result in a finding of no biological material. That could be critical information for the
criminal investigation. Second, when a Kit does result in biological evidence, the existence of a
CODIS match may be the corroborating evidence otherwise lacking in the case.
Second Judicial District Criminal Case Management Pilot Project for Criminal Cases. In 2015, in
response to concerns about the length of pre-adjudication detention in the Albuquerque-Bernalillo
County Area, the Supreme Court approved a “special pilot rule governing time limits for criminal
proceedings in the Second Judicial District Court.” LR2-400. The Rule states that judges must hold a
hearing within 60 days after being assigned to a new criminal case, and establishes deadlines for the
parties to make discovery disclosures and pretrial motions. The deadline for disclosing scientific
evidence is 120 days before the scheduled trial date. Interviewees in the Second Judicial District
expressed concern that processing SAE Kits within the time limits set by LR2-400 was very difficult,
especially given the large quantity of untested Kits. Kits that are subpoenaed for trial move to the top
of the processing queue, but may still take significant time to process.

14

 

OVERVIEW OF UNTESTED SEXUAL ASSAULT EVIDENCE KITS IN NEW MEXICO
The number of Kits awaiting testing at any given time is a moving target. Each day, law
enforcement agencies receive new Kits, send Kits to the lab for testing and receive test
results from the lab. For purposes of this Report, we discuss only those Kits that were
identified as untested as of December 15, 2015, and we call these the “historically
untested Kits.” At the time of the announcement of the DPS Survey, 5,410 historically
untested Kits were held in law enforcement agencies across the State. Through late
reporting, this number rose to 5,440. This number does not reflect Kits at the Department of
Public Safety Forensic Laboratory in December 2015. Figure 4 shows the geographic
distribution of the historically untested Kits as of December 2015.

Figure 4: Distribution of Historically Untested Kits in December 2015
TOTAL HISTORICALLY UNTESTED KITS: 5,440

15

 

OVERVIEW OF UNTESTED SEXUAL ASSAULT EVIDENCE KITS IN NEW MEXICO
Since the DPS Survey, largely in response to the Special Audit, law enforcement agencies
sent over 800 historically untested Kits to the State Forensic Lab. As of November 15, 2016,
the total inventory of historically untested Kits has decreased from 5,440 to 5,302, with the
entire decrease resulting from testing by the State Forensic Lab. In other words, the inventory
of historically untested Kits has not been reduced materially, but many have shifted from local
law enforcement to the State Forensic Lab, where most of them still await testing. The
numbers of historically untested Kits in Albuquerque remained the same. Again, none of
these numbers reflect “new” Kits, received after December 2015. Figure 5 shows the new
geographic distribution of the historically untested Kits.

Figure 5: Distribution of Historically Untested Kits as of November 2016
TOTAL HISTORICALLY UNTESTED KITS: 5,302

16

 

OVERVIEW OF UNTESTED SEXUAL ASSAULT EVIDENCE KITS IN NEW MEXICO
During fieldwork for the Special Audit, OSA staff reviewed 176 Kits that the audited agencies had sent
to the Lab for which timeline data was available. Forty-six percent of those Kits were less than six
months old when they were sent to the Lab. The median time it took to send a Kit to the Lab was 330
days, meaning that half of the Kits were sent to the lab in fewer than 330 days and half were sent after
more than 330 days. The oldest Kit sent to the lab was sent 7,338 days (over 20 years) after it was
received by law enforcement. Figure 6 shows the distribution of the ages of Kits at the time when they
were sent by the Lab.

Figure 6: Time Elapsed Between Sexual Assault Evidence Kit Collection and Submission to a
Forensic Laboratory, based on OSA sample

 

RISK FACTOR
Alarmingly, 20% of the untested Kits subject to the OSA Special Audit were from
sexual assaults of minors.

After the DPS Survey, the landscape of untested Kits changed in a number of respects. The
designation of this Special Audit spurred the designated entities to submit their Kits for testing.
Professional groups including the New Mexico Police Chiefs Association discussed the issue with a
view to reducing the number of untested Kits. DPS contacted agencies that reported small numbers
of untested Kits and encouraged them to send the Kits to the State Lab. The State Lab began issuing
blanket authorization codes, which facilitated the transfer of 20 Kits at a time from local law
enforcement.

17

 

OVERVIEW OF UNTESTED SEXUAL ASSAULT EVIDENCE KITS IN NEW MEXICO
STATEWIDE EFFORTS TO ADDRESS UNTESTED KITS


In the 2016 regular legislative session, the New Mexico Legislature passed companion memorials, HB
58 and SM 50, establishing a Task Force to “to assess the progress of processing backlogged sexual
assault examination Kits and to make related recommendations.” The Task Force met in July 2016 and
September 2016.



In addition, in 2016 the Legislature in HB 2 appropriated $1.2 million to the State Lab to “for the
processing of backlogged rape Kits at [DPS].”



In July 2016, the City of Albuquerque announced Project 333, allotting $200,000 to assist in the testing
of untested Kits in the Albuquerque Forensic Lab. Although originally intended to test about 10% of the
historically untested Kits, the Albuquerque Forensic Lab estimates that only 200 additional Kits or fewer
can be tested using these funds, which constitutes closer to 5% of untested Kits that remain to be tested
in the Albuquerque Forensic Lab.

Relative to other states, when viewing the numbers of historically untested Kits, New Mexico ranks in
the middle of the pack. However, when normalized for population, however, New Mexico has the
highest rate of historically untested Kits per capita, as illustrated in Figure 7.

Figure 7: Untested Kits in Various States (Source: www.endthebacklog.org),
Total and Per 100,000 Residents (based on 2015 US Bureau of Census population figures)
State
California
Pennsylvania
Louisiana
Connecticut
Virginia
Illinois
Minnesota
Colorado
Texas
Arkansas
Washington
Utah
Wisconsin
Ohio
Oregon
Tennessee
Michigan
New Mexico

Number of Historically
Total Number of
Untested Kits per 100,000
Historically Untested Kits
residents
8,998
23
3,044
24
1,133
24
879
24
2,369
28
3,770
29
3,482
63
3,542
65
19,018
69
2,217
74
6,000
84
2,700
90
6,006
104
13,930
120
4,902
122
9,062
137
15,217
153
5,302
254
18

 

ROOT CAUSES OF UNTESTED KITS
The OSA identified two causes of the untested Kits: (1) the decision-making that led to not testing all
Kits as they were received by law enforcement, and (2) shortcomings in the institutionalized systems
used to track and monitor the testing of Kits. An underlying factor for both of these causes was a lack
of resources at both the law enforcement and the forensic laboratory levels.
Decisions about whether to send the Kits to the Lab
The process of investigative decision-making is complex and, in many ways, unique to each case. In
addition, resource constraints at law enforcement agencies create a need to prioritize cases. In every
law enforcement agency that participated in the Special Audit, interviewees stated that in an ideal
world they would be able to pursue more sexual assault allegations with more resources. However,
every agency had also seen a cut in resources, a dramatic increase in demands for services, or both.
With that in mind, the OSA inquired in both the OSA Survey and during site visits as to the reasons
why Kits were not submitted to the Lab.

RISK FACTOR
In 36% of Kits subject to the OSA Special Audit, the reason why the Kit was not sent
to the Lab was not documented. The lack of documentation precluded a full
understanding of the significance of each Kit in the context of its case.
Throughout the Special Audit, interviewees reported to the OSA that the widespread existence of
untested Kits was not news, was not unexpected and was the logical result of the way they did
business. Specifically, most law enforcement agencies had policies that required a discretionary
decision as to whether to send Kits for testing. Unfortunately, much of the logic behind these
discretionary decisions was lost, as 36% of Kits subject to the OSA Special Audit did not have
documentation as to the reason why the Kit was not sent to the Lab.

RISK FACTOR
When the reasons for not testing the Kits were documented, over half of the reasons
were based on the credibility of, cooperation from or contact with the victim. These
statistics are particularly troubling because they suggest a failure to understand the
realities of sexual assault victims. In addition, it may be necessary to raise
awareness that research indicates that sexual assault is not falsely reported more
frequently than other crimes, and that DNA testing is an easy way to advance an
investigation independent of victim cooperation.
As illustrated in Figure 8, for 21% of the Kits that the Special Audit reviewed (and 32% of the Kits for
which a reason for not testing the Kit was documented), the reason for not testing the Kit was a
perceived lack of victim credibility. For another 21% of the Kits that the Special Audit reviewed, the
reason for not testing the Kit was loss of contact with or perceived lack of cooperation from the victim.
This means that for over the half of the untested Kits for which the OSA could determine the reason
they were not sent to the Lab, that reason was related to the victim, not the offender. This mirrored the
responses to the OSA Survey, which asked responding agencies to list all the reasons why they might
not send a Kit to the lab. The leading OSA Survey responses were also loss of contact with or lack of
cooperation from the victim, with 19% citing loss of contact and 43% of respondents citing lack of
cooperation, as illustrated in Figure 9.

19

 

ROOT CAUSES OF UNTESTED KITS
Figure 8: Reasons Cited by Law Enforcement Agencies for Not Sending an SAE Kit to a Forensic Laboratory for
Testing, as Examined in the Special Audit

These statistics are particularly troubling because they suggest a fundamental misunderstanding of the
realities of the victim’s experience after a sexual assault. First, victim cooperation and contact can be
particularly difficult for victims of sexual assault. Sexual assault victims are three times more likely to
experience depression, four times more likely to contemplate suicide, six times more likely to
experience PTSD, 13 times more likely to abuse alcohol and 26 times more likely to abuse drugs. Up
to 50% of sexual violence victims quit or are forced to leave their jobs in the year following the assault.
Given those statistics, the apparent non-cooperation or non-availability of sexual assault victims is not
an appropriate reason to terminate an investigation. In addition, without the involvement of trained
counselors and victim advocates, contact between law enforcement and victims may not be optimal.

RISK FACTOR
Because law enforcement agencies did not have a policy to test every Kit, and
because of resource constraints, outdated ideas and misinformation about consent
and victim credibility resulted in many Kits not being tested.

Second, the 21% of Kits in the Special Audit that were not tested due to “lack of victim credibility” are
particularly troubling given research indicating that sexual assault is not falsely reported at a higher
level than other crimes. The National Center for the Prosecution of Violence Against Women has
narrowed the range of possible false reporting of sexual assault to 2-8%, which is in line with other
types of crimes. In addition, antiquated concepts of consent – such as the belief that silence is
equivalent to consent or that intoxicated persons, spouses or sex workers cannot be sexually
20

 

ROOT CAUSES OF UNTESTED KITS
Figure 9: Reasons Cited by Law Enforcement Agencies for Not Sending an SAE Kit to a Forensic Laboratory for
Testing, as Reported in the OSA Survey

 

assaulted – contribute to a lack of belief in sexual assault victims. In any case, New Mexico law makes
this decision simple: law enforcement agencies are required to test the Kit whether they believe the
victim or not.
Law enforcement agencies did not initially report a lack of financial or personnel resources as a
reason for not submitting Kits to the Lab. However, interviewees repeatedly emphasized the
challenges of large caseloads and the need to prioritize on a day-to-day basis. Law enforcement
agencies also reported that as different issues come into the public spotlight, there is a temporary
push to prioritize that issue. This temporary push subsides when the next issue hits the newspapers.
However, the OSA considers many of the Best Practices set forth in this report to be beneficial to
agencies as a whole and not limited just to the issues of SAE Kits. Furthermore, a non-discretionary
approach to testing Kits that is coordinated by evidence room personnel rather than detectives should
result in an overall reduction of work for other law enforcement personnel.

BEST PRACTICE
Special Audit interviewees reported that training in trauma-informed interview
techniques had significantly altered their perception of victim credibility. For
example, dispatchers and first line officers may receive training to understand that
as a result of the trauma, sexual assault victims may say unusual things and may
be smiling or even laughing, none of which speaks to their credibility. The Kit has
the potential to corroborate certain aspects of a victim’s account of the assault and
may ultimately assuage concerns about “victim credibility” if those Kits are not
excluded from testing.

21

 

ROOT CAUSES OF UNTESTED KITS
BEST PRACTICE
Law enforcement agencies should submit every Kit associated with a police report
to the appropriate lab for testing, within a minimal amount of time. Taking this nondiscretionary approach will reduce the impact of difficulties in contacting victims
and misconceptions about victim credibility.
Finally, some of the reasons cited for not testing the Kits illustrate the need for training on these
issues. For example, it is not possible for a law enforcement agency to determine from their interaction
with the Kit that “no semen was found.” These types of misconceptions can easily be addressed
through training.

Figure 10: Comparison of Reasons Given for Not Testing Kits to Goals of Testing Kits
Reason given for not testing Kit

Purposes for testing Kits
Contribute to
investigation

Enhance public
safety by
contributing to
CODIS

Honor the
victim

Foster
confidence
in the
system

Lack of victim credibility

Loss of contact with or cooperation
from the victim

Suspect known

Suspect unknown

Issue was consent, not whether
encounter occurred

Concerns about Lab resources

Victim deceased

Suspect deceased
Suspect known and arrested
Case has been adjudicated but not
as a sexual assault case

Case has already been adjudicated
as a sexual assault case
22

 

ROOT CAUSES OF UNTESTED KITS
Lack of Internal Controls
Auditors use the term “internal controls” to refer to the policies and procedures that assure that an
agency achieves its objectives in effectiveness, efficiency and compliance. Best practices for any
internal controls come from understanding the risks associated with a certain process, identifying
methods, checks and balances, and institutionalizing those controls. The “tone from the top” and
baseline understanding of the process and its importance inform every step of internal control design,
implementation and monitoring.
The issue of internal controls for SAE Kits becomes complicated because of the complex environment
within which they must function. Internal controls must meet the needs of many different groups,
including law enforcement, criminal prosecutors and defense attorneys, and victims. As discussed, the
“tone at the top” is informed by beliefs and experience regarding sexual assault.
During the Special Audit, the OSA observed numerous weaknesses in internal controls that
contributed to law enforcement agencies having untested Kit. Approaches to addressing these Risk
Factors appear in “Building and Institutionalizing Systems,” beginning on page 25.

RISK FACTOR
The OSA observed tracking systems for evidence based on the detective assigned
to the case, which contributed to losing track of Kits because of turnover within law
enforcement agencies.

RISK FACTOR
The OSA observed tracking systems for evidence that do not connect to other
aspects of case management. This resulted in a labor- and time-intensive effort in
which law enforcement personnel needed to retrieve physical or electronic case files
and reconstruct case timelines in order to understand why a Kit had not been sent to
the Lab.

RISK FACTOR
The OSA observed a lack of documentation to support Kit destruction. When courts
or district attorneys had authorized or approved destruction, then supporting
documentation was more likely to be present than when destruction resulted from
internal decision-making based on the need to clear space in the evidence room.

23

 

ROOT CAUSES OF UNTESTED KITS
Lack of Resources
Contributing to both of the root causes of the inventory of historically untested Kits is a lack of
resources at all stages of the process.

RISK FACTOR
A lack of resources affects (1) law enforcement agencies wishing to implement
stronger internal controls for untested Kits, (2) the two Forensic Labs and (3) the
service providers like SANE programs and rape crisis centers that play a critical role
throughout the investigation and prosecution of sexual abuse.

At the law enforcement level, interviewees reported unsuccessful attempts to obtain funding to
modernize evidence rooms. Multiple interviewees also reported a need for additional staff with
experience in sexual assault cases and trauma-informed interview techniques. In addition, some
agencies did not have a dedicated evidence room custodian, and instead required an officer to serve
as custodian in addition to other duties in the agency or in the field.
The lack of adequate resources is due in part to the rural-urban dynamics of our State, which increase
the burden on law enforcement agencies in urban centers without providing any additional revenue.
For example, one law enforcement agency reported that the daytime population of the city nearly
tripled over the permanent population, and staff could barely cover traffic and drug-related
emergencies. Another community reported a more than twofold increase in the population of the city
at the beginning of each month. In both cases, the budget of the law enforcement agency was
determined by the municipality, which does not necessarily recognize enough revenue from this
added activity to offset the added demands on law enforcement.

RISK FACTOR
Our site visits revealed that many agencies have one or two individuals who have
“championed” the issue of tackling the untested Kits. However, as those people move
within or outside of their agencies, it is critical that their work become institutionalized
so it is not dependent on any one person.
Law enforcement agencies overwhelmingly reported that the State Forensic Lab is easy to work with
and processes Kits in a timely fashion. That said, both Forensic Labs, while acknowledging gratitude
for increases in resources, reported inadequate staffing for their caseload. In the 2016 regular
legislative session, the New Mexico Legislature appropriated $1.2 million to the State Lab to assist in
testing the untested Kits. However, additional funds are not a quick fix. Making the changes that result
in increased capacity can take a long time. It is rare for either Lab to be fully staffed because of
turnover and training requirements. New employees require training, which can take up to a year and
also requires more experienced staff to engage in training new employees, decreasing their time for
testing. New equipment and instrumentation must be tested and validated, which diverts lab staff from
case work. Changes in technical requirements for DNA testing has pulled away staff to validate new
instruments and new equipment. Furthermore, complete technical review requires multiple persons to
be involved with each Kit.
Interviewees from the service provider and advocacy community also reported a deficiency in
resources. As just one example, one SANE program reported difficulties in getting outlying
communities to send law enforcement personnel to retrieve Kits. This problem was exacerbated by
the fact that the SANE program did not have enough resources to devote staff time to repeatedly
contacting law enforcement agencies that were non-responsive.
24

 

BUILDING AND INSTITUTIONALIZING SYSTEMS
In order to prevent untested Kits from amassing again in the future, it will be critical to build systems
and institutionalize sound practices to govern sexual assault evidence Kits. Written policies are critical
to ensuring consistency and institutionalizing the systems for processing SAE Kits. As shown in Figure
9, of most concern, 41% of OSA Survey respondents stated that their agencies had no written policy
applicable to the Kits. The second most common response was the use of general evidence policies,
with 27% using the DPS Standard Policy on Evidence and Property Handling, commonly known as
OPR 17, and 8% have one policy other than OPR 17 for all evidence including the Kits. The remaining
21% of agencies that reported an answer have a policy specific to Kits. Figure 11 illustrates these
responses.

Figure 11: Percentage of Survey Respondents with SAE Kit Policies

Interview data suggests that SAE Kit-specific policies are not necessary for implementing best
practices. Instead, a written policy generally governing evidence may contain the appropriate
guidelines for handling SAE Kits, as many policies do for guns, drugs and money. Special Audit
interviewees emphasized that caution be used because excessive policy can become detrimental to
the investigative process. Interviewees reported that ideal policies are understandable and
comprehensive, but allow an investigation to proceed without spending hours of research.

BEST PRACTICE
OSA identified the following best practices for general or specific policies that
govern the handling of SAE Kits:
 Procedures to ensure that law enforcement picks up Kits when notified by SANE
programs.
 Centralized tracking of all movement of the Kits, the lab results. For more details, see page 26.
 Procedures that emphasize victims’ rights, involve victim advocates and include the best
practices on victim notification (see Appendix E).
 Procedures for receiving, storage and destruction of Kits.
 Procedures for expedited handling of Drug-Facilitated Sexual Assault (DFSA) samples, which
take into account the period during which the sample is appropriate for analysis.
 Procedures for tracking the Kits that are at the Lab and following up when results are not
received.
 Procedures for tracking Kit destruction, including documentation of the reasons for destruction.

Appendix F contains a more detailed outline of key elements for policies applicable to SAE Kits.

25

 

BUILDING AND INSTITUTIONALIZING SYSTEMS
Tracking. The systems used to track Kits varies widely across the state, with strong systems
contributing to the improved handling of cases. The sites the OSA visited included fully computerized
systems, manual systems, and hybrid systems. Each system had its own strengths and weaknesses.
In addition to centralized systems, the best practices we observed resulted in the fewest number of
people having access to the tracking system. Although evidence room personnel were the only ones
with tracking responsibilities in many agencies, we observed agencies in which detectives or other
personnel also had tracking responsibilities.

RISK FACTOR
While most agencies we visited had sophisticated evidence tracking systems, we
also observed agencies that still track evidence in a combination of manual logs
and spreadsheets.

In order to facilitate the best practices we observed statewide, a computerized evidence system
should have the following attributes:


The system manages evidence by case number so that the user can easily access a list of all
pieces of evidence associated with a case.



The system assigns a unique identification number for each piece of evidence. This is a standard
feature in most systems.



The system facilitates the attachment of imaged documents to the record for each piece of
evidence. A system that allows the user to attach these images creates efficiencies throughout the
case. Some examples of documents that may be imaged and connected electronically to pieces of
evidence are:


Department of Public Safety Forensic Laboratory Evidence Receipt



Test results for a Kit



Order or instruction for Kit destruction



The computerized evidence system documents the reasons for destruction or disposal of
evidence, including the person(s) who authorized destruction and images of any authorizing
documents.



The system uses a pre-set list (drop-down menu) of evidence types for consistency. For example,
we reviewed systems that had open text fields for “evidence type,” resulting in Kits being entered
as “SAEK,” “SAE Kit,” “rape kit” and other designations.



The system gives the user the ability to create custom evidence types within the drop-down menu.
This would allow the creation of a unique classification for SAE Kits, DFSA Kits and many other
types of evidence. In contrast, many systems the OSA observed did not facilitate a simple search
that would produce a list of all SAE Kits.



The system links to the case management software so that evidence can easily be accessed and
tracked through the course of the investigation.



The system tracks the names or other identifying information for each person who accesses and
make changes to a record (auditable change log). This reduces the likelihood of fraudulent
changes and makes it easier to identify and train personnel who are not using the system
correctly.
26

 

BUILDING AND INSTITUTIONALIZING SYSTEMS
MDTs and SARTs. In addition to and equally important, interviewees in every location reported
that multi-disciplinary teams (MDTs) and sexual assault response teams (SARTs) were critical to the
successful handling of sexual assault cases, including the handling of Kits. Appendix G contains a list
of MDTs and SARTs statewide. MDTs and SARTs offer a forum to discuss pending cases, address
interjurisdictional issues and resolve problems in both general practices and specific cases. The U.S.
Department of Justice has also expressly recognized the value of MDTs and SARTs in addressing
untested Kits.

BEST PRACTICE
Implementing and financially supporting MDTs, SARTs and the rape crisis centers
and SANE programs that facilitate them are critical steps in processing the
untested Kits and continuing the progress we have made in handling sexual
assault cases and implementing the best practices in victim notification. Financial
support may include money for staff, training, mileage reimbursement and
outreach.

Non-Reported Kits. A “non-reported Kit” is a SAE Kit from a patient who had not, at the time of the
exam, filed a police report (see page 10). The OSA observed varying practices for storage of nonreported Kits including:
 Some SANE programs are storing non-reported Kits.
 Some law enforcement agencies are storing non-reported Kits for their own agencies.
 Some SANE programs are storing non-reported Kits for only those law enforcement agencies that
will not accept them.
 Some non-reported Kits are stored physically separately from other evidence with no case
number. The risk in this approach is that the Kit will not be subject to the same strict protocols
governing other evidence.
 Some non-reported Kits are given a generic case number and held collectively under one number
unless and until a police report is filed and the Kit is moved with the evidence for that case. The
risks in this approach are that it makes it easier to lose track of individual non-reported Kits.
 Some non-reported Kits are given a placeholder case number so they can be tracked specifically.

BEST PRACTICE
SANE programs do not have the resources or authority to handle non-reported
Kits in the long term, nor can they meet the regulations or standards for
maintaining evidence. Evidence rooms, with their enhanced policies and internal
controls, are preferable repositories for non-reported Kits.

DRUG FACILITATED SEXUAL ASSAULT (DFSA) SAMPLES
Drug-Facilitated Sexual Assault samples (DFSA) accompany SAE Kits in cases where the victim
reported that drugs may have been used to assist the offender in the sexual assault. During site
visits, OSA staff observed that some DFSA samples had been retained untested long after the
period during which the samples are testable. Appendix H contains a sample memorandum from
the Farmington Police Department with policies and procedures intended to ensure that DFSA
samples are forwarded to the lab for analysis in a timely manner.

27

 

BUILDING AND INSTITUTIONALIZING SYSTEMS
Evidence Room Personnel. Evidence room personnel are critical to the successful processing
and handling of SAE Kits. In at least two agencies that participated in the Special Audit, the evidence
custodians had personally conducted an agency-wide inspection to find all untested Kits.
Some interviewees suggested that mentoring among evidence room personnel across the state could
ensure that best practices are shared on an ongoing basis. Evidence custodians also expressed
interest in additional training through their professional organization, the New Mexico Evidence and
Property Association.

BEST PRACTICE
The OSA observed that in agencies where the evidence custodians had automatic
protocols for sending Kits to the lab, the chances of recurrence of accumulating
untested Kits had been reduced significantly.

IS OUTSOURCING THE SOLUTION?
The recent availability of federal grant funding to test Kits has raised the question of whether funds
should be used to outsource testing, given resource constraints in the two Labs in New Mexico. The
first consideration is that the local Forensic Lab that wishes to outsource testing must visit the
outsourcing Lab to fully inspect and approve the facilities. This alone can take significant time and
resources.
Outsourcing companies take an assembly line approach to testing the basic “white envelope” to
determine whether the Kit contains male DNA. If not, the process is complete. Unlike the local labs,
outsourced testers will not engage in a conversation with local law enforcement about the possibility
of testing other items in the Kit. In addition, cases involving female offenders and male-on-male
offenses are not amenable to this process.
After the initial screening, if the outsourced lab discovers any male DNA, the lab will take the two
best samples from the Kit to develop a full profile. If the result is suitable for CODIS, then the testing
is made available for technical and administrative review. Interviewees reported that the price range
is from $600 to $1,000 per sample. In contrast, the State Forensic Laboratory estimated a cost of
$400 to $500 per Kit depending on the circumstances.
Outsourced testing may be appropriate for cases that do not require deviation from these norms.
However, even in those cases, additional costs may result if lab personnel needs to give testimony.
Some interviewees suggested that outsourcing may be most appropriate for low priority Kits that are
not likely to yield DNA profiles.

28

 

ENDING THE “BACKLOG” PERMANENTLY
The State of New Mexico has two paths ahead. One is the arduous task of testing the
historically untested Kits and managing the outcomes of that testing; the other is ensuring that the
State never again amasses untested kits. Funding the Forensic Labs is a strong first step, but to truly
honor the victims and ensure public safety, we must also devote resources to local law enforcement,
victim advocates and crisis centers, and the agencies in the criminal justice system.
With regard to testing the untested Kits, Figure 12 illustrates the many agencies and steps involved
and highlights where resources will be necessary. The need for resources begins at the local law
enforcement level. The front-end needs include upgrades to the evidence tracking systems; additional
space, supplies and safety upgrades for evidence rooms; and training for evidence custodians.

Figure 12: Resources Needed to End the “Backlog” Permanently

29

 

ENDING THE “BACKLOG” PERMANENTLY
As Kits move to the two Forensic Labs, they will need additional money and staff to process the old
Kits while staying on track as new Kits come in. Since the inventory of untested Kits was conducted,
the New Mexico Legislature appropriated $1.2 million to the State Forensic Lab and the U.S.
Department of Justice recently awarded the Department of Public Safety an additional $1.9 million for
these purposes. The Department of Justice money is also intended to help with the creation of a
database to track SAE Kits.
The City of Albuquerque allocated $200,000 to help with testing. The money may be used for
outsourcing or for additional resources in the Albuquerque Forensic Lab. Although a great first step,
this is woefully inadequate to tackle the challenges at the Albuquerque Forensic Lab. Our interviews
indicate that the total cost of processing untested Kits in Albuquerque would be $7 million. The City
has requested assistance from the New Mexico Legislature, and that request will be considered in the
2017 legislative session. In addition, because of the large number of untested Kits at the City of
Albuquerque, the Albuquerque Police Department (APD) has developed a prioritization system to
manage resources. The system assumes that all Kits will eventually be tested. The priorities are
explained in Appendix J. APD has assembled a team that includes investigators and a volunteer
attorney who are working to classify untested Kits within this system. APD reports that additional
resources, including funding for permanent staff members to work on prioritization, would be very
helpful in ensuring that progress continues. In addition, Albuquerque continues to participate in a
program sponsored by the FBI, which provides for outsourced testing of 30 Kits per year. The
Bernalillo County Sheriff’s Department also developed a tier-based prioritization system described in
Appendix J.
A significant challenge is keeping the Forensic Labs staffed. Interviewees identified the challenges in
this area as establishing competitive rates of pay, dispelling concerns that facilities do not have stateof-the-art labs, location and the lack of a career path. In addition, some lab personnel prefer private
labs that do not process criminal forensics. This means that even if adequate money were allocated to
the Labs to pay for new staff, additional resources would be necessary to recruit and train
professionals.

BEST PRACTICE
The Albuquerque Forensic Lab has implemented a career path that provides a
path for retention and promotion within the Lab. This is intended to help the Lab
compete with private labs and labs in other states that pay technicians
considerably more.

When Kits are tested, the resource needs will shift back to local law enforcement agencies and victim
advocates. Personnel will need to evaluate results, track down lead and re-open, continue or conclude
investigations. In addition, because half of adult victims of sexual assault move and/or change jobs
within one year of the assault, simply locating victims may be challenging.

BEST PRACTICE
The Victim Notification Procedures set forth in Appendix E contains the best
practices for notifying victims in cases that have been dormant for a long period
but have been reactivated as a result of testing the Kits, and were developed by a
working group of advocates and law enforcement personnel.

30

 

ENDING THE “BACKLOG” PERMANENTLY
Victim advocates are absolutely essential to the successful management of Kit testing results.
Receiving news about a sexual assault case that may be many years old can re-traumatize victims
who have worked to put the assault behind them. In other cases, victims who were children at the time
of the assault may be adults. A roundtable of statewide advocates met twice over the past six months
and completed a plan with recommendations on how to implement Victim Notification of results from
“cold case” untested Kits. In addition, SANE and rape crisis centers coordinate the MDTs and SARTs
that will be key to processing these cases.
Cases related to old Kits will eventually work their way into the hands of district attorneys, who
together with public defenders and courts will also need additional resources. In Cleveland, Ohio, for
example, testing 2,326 Kits resulted in 968 investigative leads and 170 indictments. Applying those
percentages to the numbers in Albuquerque and Bernalillo County, the Second Judicial District alone
can anticipate over 280 new indictments.
Finally, the only way to end the cycle of untested Kits permanently is to ensure that local law
enforcement, SANE programs, rape crisis centers and victim advocates remain adequately staffed,
funded and trained.

BEST PRACTICE
Law enforcement personnel, in consultation with experts and the community, has
developed a written and video training module that will be implemented at the
mandatory biennial training program for law enforcement officers statewide.

DOES THE STATE NEED MORE FORENSIC LABS THAT CAN DO DNA TESTING?
Across the state, interviewees and the public inquired about the possibility of opening additional
forensic laboratories that are capable of DNA testing. Interviewees who travel considerable distance
to deliver Kits expressed a desire to have a lab closer to them. The OSA analyzed this issue and
concluded that expanding existing facilities is a significantly more efficient use of limited financial
resources for the following reasons:

31



The cost of establishing a new forensic laboratory capable of DNA testing is estimated to be $40
million, with $1 million in annual recurring costs. The salaries for forensic lab technicians ranges
from the low $30,000s for entry-level positions to over $90,000 for top-level employees.



Certifying a new forensic laboratory is time-intensive and may take up to two years. Instruments
must be duplicated with back up and validation takes a significant amount of time and other
resources.



Supplies for the lab, like reagents, are expensive and have short shelf-lives. Decentralizing the
labs would increase the likelihood of spoilage of these supplies.



New Mexico has significant challenges in finding and retaining qualified professionals to conduct
DNA testing. Additional laboratories would result in additional competition for scarce labor
resources.

 

APPENDICES
A. Risk Factors and Best Practices
B. Sample Letter from Department of Public Safety to Law Enforcement Agencies
C. Special Audit participants
D. Key articles and related resources
E. Victim Notification Procedures
F. Key Policy Elements for handling SAE Kits
G. Multi-Disciplinary Teams and Sexual Assault Response Teams
H. Sample Memorandum regarding Drug Facilitated Sexual Assault samples
I.

Resources for victims of sexual assault

J. Albuquerque Police Department and Bernalillo County Sheriff’s Department Prioritization
systems

32

APPENDIX A: RISK FACTORS AND BEST PRACTICES
RISK FACTORS


A common misconception is that the sole purpose of a SAE Kit is to identify unknown
perpetrators of sexual assault. When viewed in light of the additional goals of enhancing
DNA databases, upholding the commitment made by law enforcement to the victims and
instilling public confidence, it becomes clear why all or nearly all Kits should be tested.



The law tolling the limitation period in sexual assault cases where a suspect has not been
identified and a DNA evidence is available may be ambiguous as to whether it would apply
to crimes committed prior to its enactment date in 2003. An opinion from the Attorney
General or a legislative fix addressing this issue would be helpful when Kits from before
2003 are tested.



Law enforcement agencies expressed a lack of clarity on whether the statute requiring
submission of biological samples for DNA testing applies to all SAE Kits, or only those Kits
related to cases in which an investigation has been open. The plain language of the statute
states that all Kits must be tested, except for non-reported Kits (i.e., Kits from incidents in
which the victim has chosen not to file a police report).



Law enforcement agencies, advocates and district attorneys who participated in the
Special Audit expressed concern that the decision in State v. Thomas compounds issues
related to the cost of DNA testing. Forensic lab personnel can have a high turnover rate,
and personnel who leave for the private sector often demand high witness fees and incur
high travel costs to testify live at trial. Some interviewees stated that their agencies
received costly bills for expert witness testimony that reflected the higher rates of the
private forensic industry, and which their agencies could not afford to pay.



Alarmingly, 20% of the untested Kits subject to the OSA Special Audit were from sexual
assaults of minors.



In 36% of Kits subject to the OSA Special Audit, the reason why the Kit was not sent to the
Lab was not documented. The lack of documentation precluded a full understanding of the
significance of each Kit in the context of its case.



When the reasons for not testing the Kits were documented, over half of the reasons were
based on the credibility of, cooperation from or contact with the victim. These statistics are
particularly troubling because they suggest a failure to understand the realities of sexual
assault victims. In addition, it may be necessary to raise awareness that research indicates
that sexual assault is not falsely reported more frequently than other crimes, and that DNA
testing is an easy way to advance an investigation independent of victim cooperation.



Because law enforcement agencies did not have a policy to test every Kit, and because of
resource constraints, outdated ideas and misinformation about consent and victim
credibility resulted in many Kits not being tested.



The OSA observed tracking systems for evidence based on the detective assigned to the
case, which contributed to losing track of Kits because of turnover within law enforcement
agencies.



The OSA observed tracking systems for evidence that do not connect to other aspects of
case management. This resulted in a labor- and time-intensive effort in which law
enforcement personnel needed to retrieve physical or electronic case files and reconstruct
case timelines in order to understand why a Kit had not been sent to the Lab.

APPENDIX A: RISK FACTORS AND BEST PRACTICES (continued)
RISK FACTORS continued


The OSA observed a lack of documentation to support Kit destruction. When courts or
district attorneys had authorized or approved destruction, then supporting documentation
was more likely to be present than when destruction resulted from internal decision-making
based on the need to clear space in the evidence room.



A lack of resources affects (1) law enforcement agencies wishing to implement stronger
internal controls for untested Kits, (2) the two forensic Labs and (3) the service providers
like SANE programs and rape crisis centers that play a critical role throughout the
investigation and prosecution of sexual abuse.



Our site visits revealed that many agencies have one or two individuals who have
“championed” the issue of tackling the untested Kits. However, as those people move
within or outside of their agencies, it is critical that their work become institutionalized so it
is not dependent on any one person.



The systems used to track Kits varies widely across the state, with strong systems
contributing to the improved handling of cases. While most agencies we visited had such
systems, we also observed agencies that still track evidence in a combination of manual
logs and spreadsheets.
BEST PRACTICES



The SANE programs have changed the packaging of evidence to include underpants in the
“white envelope” to ensure that those items are tested in the first round of lab work. This
reflects research suggesting that some of the best biological material samples often come
from underpants. In addition, SANE nurses are considering adding key case descriptors to
the white envelope in order to support work at the Labs.



Forensic Labs emphasized that obtaining reference samples from victims and consensual
partners as early as possible can significantly expedite testing.



Law enforcement agencies should submit every Kit associated with a police report to the
appropriate lab for testing, within a minimal amount of time. Taking this non-discretionary
approach will reduce the impact of difficulties in contacting victims and misconceptions
about victim credibility.



Special Audit interviewees reported that training in trauma-informed interview techniques
had significantly altered their perception of victim credibility. For example, dispatchers and
first line officers may receive training to understand that as a result of the trauma, sexual
assault victims may say unusual things and may be smiling or even laughing, none of
which speaks to their credibility. The Kit has the potential to corroborate certain aspects of
a victim’s account of the assault and may ultimately assuage concerns about “victim
credibility” if those Kits are not excluded from testing.

[continued next page]

APPENDIX A: RISK FACTORS AND BEST PRACTICES (continued)


OSA identified the following best practices for general or specific policies that govern the
handling of SAE Kits:


Procedures to ensure that law enforcement picks up Kits when notified by SANE
programs.



Centralized tracking of all movement of the Kits, the lab results.



Procedures that emphasize victims’ rights, involve victim advocates and include the
best practices on victim notification (see Appendix D).



Procedures for receiving, storage and destruction of Kits.



Procedures for expedited handling of Drug-Facilitated Sexual Assault (DFSA)
samples, which take into account the period during which the sample is appropriate
for analysis.



Procedures for tracking the Kits that are at the Lab and following up when results
are not received.



Procedures for tracking Kit destruction, including documentation of the reasons for
destruction.



Implementing and financially supporting MDTs, SARTs and the rape crisis centers and
SANE programs that facilitate them are critical steps in processing the untested Kits and
continuing the progress we have made in handling sexual assault cases and implementing
the best practices in victim notification. Financial support may include money for staff,
training, mileage reimbursement and outreach.



SANE programs do not have the resources or authority to handle non-reported Kits in the
long term, nor can they meet the regulations or standards for maintaining evidence.
Evidence rooms, with their enhanced policies and internal controls, are preferable
repositories for non-reported Kits.



The OSA observed that in agencies where the evidence custodians had automatic
protocols for sending Kits to the lab, the chances of recurrence of accumulating untested
Kits had been reduced significantly.



The Albuquerque Forensic Lab has implemented a career path that provides a path for
retention and promotion within the Lab. This is intended to help the Lab compete with
private labs and labs in other states that pay technicians considerably more.



Law enforcement personnel, in consultation with experts and the community, has
developed a written and video training module that will be implemented at the mandatory
biennial training program for law enforcement officers statewide.



The Victim Notification Protocol set forth in Appendix D contains the best practices for
notifying victims in cases that have been dormant for a long period but have been
reactivated as a result of testing the Kits.

APPENDIX B: SAMPLE LETTER FROM DPS TO LAW ENFORCEMENT AGENCIES

[ATTACHED]

APPENDIX C: SPECIAL AUDIT PARTICIPANTS AND INTERVIEWEES
First Name
Laura
John
Donna
Commander Jeff
Deputy Chief Eric
Sergeant Russ
Officer Carie
Commander Mike
Mae

Last Name
Bell
Kresbsbach
Manogue
McDonald
Garcia
Landavazo
Peterson
Runyan
Sagbakken

Agency
Albuquerque Forensic Lab
Albuquerque Forensic Lab
Albuquerque Forensic Lab
Albuquerque Forensic Lab
Albuquerque Police Department
Albuquerque Police Department
Albuquerque Police Department
Albuquerque Police Department
Albuquerque Rape Crisis Center

Teresa

D’Anza

Albuquerque SANE Collaborative

Gail
Detective Amanda

Starr
Wilde

Albuquerque SANE Collaborative
APD Sex Crimes

Leigh Ann
Chief Mike
Detective Amy
Captain Andi
William F.
Kevin
McKenzie
Jackie
Wendell
Captain Roman
Sergeant David
Undersheriff Mike

Eugene
Heal
Dudewicz
Taylor
Corvin
Hallstrom
McIntosh
Tsosie
Blair
Romero
Ford
Reeves

Arise Sexual Assault Services
Aztec Police Department
Bernalillo County Sheriff’s Office
Bernalillo County Sheriff’s Office
Bernalillo County Sheriff’s Office Criminalistics
Bernalillo County Sheriff’s Office Criminalistics
Childhaven
Childhaven
Clovis Police Department
Clovis Police Department
Curry County Sheriff’s Office
Curry County Sheriff’s Office

Sheriff Wesley
Amy
Secretary Scott
Seargent John
Chief Richard
Victoria
Francisco
Detective George
Deputy Chief Matthew
Eva F.
Terry
Chief Steve
Lieutenant Joshua
Det. Sergeant Brandon
Candice

Waller
Orlando
Weaver
Lovelace
Gallegos
Gallegos
Galvan
Martinez
Vigil
Barron
Eagle
Hebbe
Laino
Lane
Morales

Curry County Sheriff’s Office
Department of Public Safety
Department of Public Safety
Dona Ana County Sheriff's Office
Espanola Police Department
Espanola Police Department
Espanola Police Department
Espanola Police Department
Espanola Police Department
Farmington Police Department
Farmington Police Department
Farmington Police Department
Farmington Police Department
Farmington Police Department
Farmington Police Department

APPENDIX C: SPECIAL AUDIT PARTICIPANTS AND INTERVIEWEES (continued)
First Name
Captain Daryl
Chelsea
Special Agent David
Anastasia
Susan
Saprina
Lieutenant Marinda
Sergeant Mark
Captain Edwin
Stephenie
Stacy
Donna
Sergeant Roy
Stella
Stella
Deputy Chief Miguel
Deputy Chief Justin
Sergeant Rebecca
Chief Jaime
Lieutenant Casey
Sergeant Edgar
Criminal Investigator Dale
Connie

Last Name
Noon
Warner
Kice
Martin
Stinson
Hudson
Spencer
Spencer
Yazzie
Hoelscher
Clark
Richmond
Askin
Carbajal
Carbajal
Dominguez
Dunivan
Kinney
Montoya
Mullins
Rosa
West
Monahan

Agency
Farmington Police Department
Farmington Police Department
Federal Bureau of Investigation
First Judicial District Attorney's Office
First Judicial District Attorney's Office
Gallup Police Department
Gallup Police Department
Gallup Police Department
Gallup Police Department
Kentucky State Auditor
La Pinon Sexual Assault Services
La Pinon Sexual Assault Services
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Las Cruces Police Department
Navajo Department of Criminal Investigations
New Mexico Coalition of Sexual Assault Programs

Captain Matt
Lieutenant Randy
Captain Eric
Captain Dale R.
Lieutenant Jesse
District Attorney Andrea
Colleen

Broom
Larcher
Schum
Wagoner
Williams
Reeb
Dearmin

Debra

Hicks

Tawnya

Burton

New Mexico State Police
New Mexico State Police
New Mexico State Police
New Mexico State Police
New Mexico State Police
Ninth Judicial District Attorney's Office
SANE Coordinator - Christus Saint Vincent
SANE Program Coordinator - Gallup Indian
Medical Center
SANE Program Coordinator - Roosevelt General
Hospital

Racheal
Eleana
Cynthia
Sheila
Jayann

Killgore
Butler
Miller
Lewis
Sepich

Sexual Assault Services of Northwest New Mexico
Sexual Assault Services of Northwestern NM
Sexual Assault Services of Northwestern NM
Solace
Surviving Parents Network

APPENDIX D: KEY ARTICLES AND RELATED RESOURCES
Reports on Other States’ Backlogs
“A Special Report on Untested Sexual Assault Kits in the Commonwealth of Kentucky,”
Kentucky Office of the State Auditor, available at: https://www.pageonekentucky.com/wpcontent/uploads/2015/09/rapekitaudit.pdf
“An Act concerning the state wide accounting of all unsubmitted rape kits,” Arkansas State
Crime
Laboratory,
available
at:
https://drive.google.com/file/
d/0B37O9WdpyKDXaVN5ZFpES0Vxd1U/view
“Cuyahoga County Sexual Assault Kit Task Force,” Cuyahoga County Office of the Prosecutor,
available at: http://prosecutor.cuyahogacounty.us/en-US/DNA-cold-case-task-force.aspx
“Report on the Minnesota Law Enforcement Agency Survey of Untested Rape Kits as
Required by SF0878,” Bureau of Criminal Apprehension, available at: https://drive.google.com/
file/d/0B37O9WdpyKDXaVN5ZFpES0Vxd1U/view

Resources for Understanding Sexual Assault Evidence Kits
“Assessing Fourth Amendment Challenges to DNA Extraction Statutes after Samson v.
California,” by Charles J. Nerko, 77 Fordham L. Rev. 917 (2008).
“Frequently Asked Questions on CODIS and NDIS,” U.S. Federal Bureau of Investigation,
available at: https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndisfact-sheet
“Untested Evidence in Sexual Assault Cases,” National Institute of Justice, available at: http://
www.nij.gov/topics/law-enforcement/investigations/sexual-assault/Pages/untested-sexualassault.aspx

Resources for Understanding Sexual Assault
“Sex Crime Trends in New Mexico: An Analysis of the Data from the New Mexico Interpersonal
Violence Data Central Repository, 2010-2014,” by Betty Caponera, PhD., A Project of the New
Mexico Coalition of Sexual Assault Programs, Inc., available at http://nmcsap.org/wp-content/
uploads/betty_caponera_Sex_Crimes_2010-2014_Report_Jan16web.pdf

Websites
New Mexico Coalition of Sexual Assault Programs, Inc.: http://www.nmscap.org
End the Backlog, a Joyful Heart Foundation Initiative: http://endthebacklog.org/
National Institute of Justice, Rape and Sexual Violence Page: http://www.nij.gov/topics/crime/
rape-sexual-violence/pages/welcome.aspx
U.S. Department of Justice Sexual
ProgramDetails.aspx?Program_ID=117

Assault

Kit

Initiative:

https://www.bja.gov/

APPENDIX E: VICTIM NOTIFICATION BEST PRACTICES

[ATTACHED]

Recommendations and Plan
For the MDT Victim Notification
of the untested NM Sexual Assault Evidence Kits (SAEKs)
July 2016
Introduction
Late in 2015, New Mexico law enforcement agencies conducted an inventory of the untested
Sexual Assault Evidence Kits (SAEKs) that had never been sent to the crime Lab for analysis.
The inventory count of untested SAEKs in NM was over 5,000, with some SAEKs as old as
1988.
Reasons to test the old SAEKs include:
 Doing the right thing for the past sexual assault victims who thought their case had been fully
investigated with the evidence that had been collected at the time of the exam;
 Analyzing and running DNA from sexual assault cases in NM against offender databases;
 Identifying evidence that might be used to support prosecution of potential criminal cases;
 Encouraging current sexual assault victims to receive medical-forensic services with the
assurances that their evidence will be tested, that sexual assault is a crime taken seriously.
Different disciplines and agencies have taken on activities to address our state’s untested SAEKs,
such as: researching best practices from other states that have worked on the untested SAEKs in
their jurisdictions, assessing law enforcement policies and needs, developing a law enforcement
training module, and convening a statewide Task Force to implement changes. Our state’s
Legislature is fully invested in this work and the media is supportive in maintaining focus on the
topic.
DNA results from a SAEK have huge implications for the sexual assault victim. Contacting the
victim may re-open memories and feelings regarding the sexual assault and may pose significant
emotional and physical risks. For those times where there has been a delay in the analysis of the
SAEK, contacting the victim may trigger strong reactions and anger.

The purpose of this document is to outline how New Mexico Multi-Disciplinary
Teams (MDTs) can implement a comprehensive plan to notify sexual assault
victims about the results from their SAEK analysis and to ensure that victims are
respected throughout the process.
Best practices of Victim Notification indicate that
 A coordinated law enforcement and advocacy team strengthens the probability that
sexual assault victims will support the investigation and further legal proceedings. Law
enforcement is credible, providing real-time information on the SAEK, the case, and the
status of the offender. Advocates have strong listening and communication skills, are
effective with crisis intervention, and know the community’s resources.
1

Victims should be kept informed and be told the truth – even when there is no good news.
Victims should be given options and time to make informed choices. Victims should have
input into the decisions that will affect their cases and their lives. Victims should be
supported and given resources for what happens next. Should the victim have an adverse
reaction or choose not to participate at that time, they should be provided with a packet of
information including a contact name in case they change their mind.

Practices should be tailored for certain populations such as children and youth 17 and
under, vulnerable adults, tribal members, and other underserved populations.

A comprehensive Victim Notification plan needs to answer WHO-WHAT-WHEN-HOW. For
New Mexico MDTs, we recommend the following:
WHO:

Law Enforcement and Victim Advocates working together as a team and
supported by the Sexual Assault Multi-Disciplinary Team (MDT)

WHAT:

Provide complete, up-to-date information to the victim with explanation as to
what can happen next and what decisions the victim can influence

WHEN:

Once the SAEK is tested, whether a DNA strand was identified or not, and
whether DNA has resulted in a CODIS (Combined DNA Index System) hit
or not.

HOW:

First contact by phone or in person should be brief; subsequent contact
should be coordinated among the victim, the advocate, and the law
enforcement investigator.

Guiding principles of Victim Notification in New Mexico
 Prioritize Safety – for victim and for those doing the notification
 Ensure victim has choices throughout the process
 Employ kindness and respect
 Practice cultural sensitivity
 Protect privacy and confidentiality
 Provide as complete information as is available
 Train those who are doing the victim notification
 Offer trauma-informed support and services
 Coordinate MDT efforts so that services are centered on the victim
 Be flexible, each victim is unique

2

Recommendation #1.
The Multi-Disciplinary Team will implement Victim Notification for victims
affected by the delayed testing of SAEK’s.
The multi-disciplinary team (MDT) will take the lead in developing and implementing how
Victim Notification will occur within their community, using local resources, and being sensitive
to cultural concerns.
1. The MDT should be comprised of at least law enforcement, victim advocates, prosecution,
and social work/counselors who have knowledge and skills in working with victims of sexual
assault.
2. The MDT should collaboratively review and adopt core recommendations of this document
into a written policy for Victim Notification. The policy should reflect local resources,
outline the responsibilities of the agencies involved, and define timelines for action steps
within the victim notification process.
3. The process of Victim Notification needs to be culturally sensitive to the various populations
within New Mexico, including children and youth, tribal, LGBTQ, immigrant, those with
limited English proficiency, and other under-served populations.
a. Special attention needs to be given to children and youth as well as to victims who
were children and youth at the time of the initial assault and investigation.
b. Special attention and support needs to be given to tribal victims and tribal agencies
4. Communities without an established sexual assault MDT are encouraged to join existing
nearby MDTs and/or contact their nearest Rape Crisis Center, Sexual Assault Service
Provider, Child Advocacy Center, SANE Program, or the New Mexico Coalition of Sexual
Assault Programs for direction and support in implementing a policy.

Recommendation #2.
MDT members need training and resources to conduct trauma-informed
Victim Notification for SAEK’s that were not tested when the victim reported
the sexual assault.
MDT members need training, skills and necessary resources to implement trauma-informed
Victim Notification. The goal of the training is to ensure a coordinated and consistent response to
notifying sexual assault victims of SAEK results from a cold-case.
3

1. Content of training should include:
a. Identifying the roles and responsibilities of victim advocate and law enforcement in a
team approach to Victim Notification.
b. Identifying how the MDT can support and trouble-shoot the process when needed.
c. Delivering the message: what to say, how to say it, and who should say what to guide
the victim notification process.
a. Identifying strategies to serve special populations such as tribal, LGBTQ, immigrant,
children and minors, those with limited English proficiency, and other under-served
populations.
a. Framing trauma-informed practice as it relates to the neurobiology of trauma to
address the risk of potential re-victimization, with a sample range of possible survivor
responses to help prepare those who will be talking with victims.
b. Providing case studies describing successful and/or unsuccessful Victim Notification
process and the coordinated response shared by victim advocate and law enforcement.
c. Identifying strategies to engage the victim and inform victims of their choices.
d. Familiarizing attendees with resources to support the victim during and after the
notification process.
2. Possible sources for instruction on Victim Notification training may include members of the
MDT, the New Mexico Rape Crisis Centers or Sexual Assault Service Providers, and the
New Mexico Coalition of Sexual Assault Programs. National websites/resources are listed at
the end of this document and may provide further support.
3. Sources for potential funding to support development and implementation of Victim
Notification training include the Crime Victim Reparation Commission’s VAWA grants,
state agencies involved with sexual assault such as Department of Health, Children-Youthand-Family Department, and/or additional funds from the State Legislature.
4. In addition to the core MDT members, other professionals would benefit from an abbreviated
Victim Notification training. Examples include but are not limited to staff from our crime
labs, police evidence technicians, and behavioral health providers. The purpose would be to
keep them informed of the Victim Notification process, the MDT policy, and how the
increased cases might impact their work.

4

Recommendation #3.
Information will be made available to keep victims and the general public
informed and engaged in the process of testing SAEK’s.
Victims should be kept informed and be told the truth – even when there is no good news.
Victims should be given options and time to make informed choices. Victims should have input
into the decisions that will affect their cases and their lives. Victims should be supported and
given resources for what happens next. Victims who may have initial adverse reactions or who
are not ready to participate should be provided a packet of information with a contact name.
Information needs to be tailored to both the individual and the general public. We
recommend four concurrent approaches:
1. Law enforcement agencies and district attorney offices need to have trained victim advocates
and/or liaisons to respond to direct victim inquiries with real-time information on their cases.
2. MDT members need to provide updates to community leaders and elected city and state
officials, to solicit their leadership and on-going support of the Victim Notification process.
3. A general awareness campaign needs to inform victims and the public of the collaborative
work being done to test the SAEK’s and provide Victim Notification. Media outreach may
include billboard, radio/television public service announcements, and news interviews.
4. Local and statewide sexual assault and crisis service providers can support the dissemination
of public, non-victim-specific information through social media and website information,
highlighting FAQs, the MDT activities, and resources pertaining to our state’s untested
SAEKs.

5

Recommended Victim Notification Process for NM Sexual Assault MDT’s
1. Once law enforcement investigator receives SAEK results from their crime lab:
a. Law enforcement will locate the victim using their database.
b. Law enforcement will coordinate with victim advocate according to the MDT
recommendations to implement the team response.
c. Notification team should have some context/history of the victim’s case to prepare.
d. When and how to notify the victim is the team’s decision.
e. Every attempt should be made to keep the notification team consistent, minimizing
the number or variety of people who are contacting the victim.
2. Victim safety as well as the safety of the notification team will be ensured through-out
notification process.
3. The notification team’s initial contact with the victim may include a flexible combination of
in-person contact, phone contact, or contact by letter.
a. First contact should be made by law enforcement, in person or by phone.
b. If victim is unavailable, law enforcement will send a letter “please contact us,” with
minimal details to ensure confidentiality.
c. If phone call is first contact, law enforcement will not leave voice message.
d. The purpose of the initial contact is to invite the victim to participate in a renewed
review of their investigation.
4. Once contact is made and throughout the process, the victim will not be pressed into pursuing
the case. The notification team will allow the victim time to process information and will
identify decisions where the victim can choose whether to opt-in/opt-out of the process and
when the victim can/cannot subsequently change his/her mind.
a. It is not trauma-informed nor victim-centered to use the non-prosecution form
or any other legally binding document to preclude the victim from subsequently
changing his or her mind.
5. Based on victim consent, subsequent contact should be at an agreed-upon meeting place with
law-enforcement and advocate as a team response.
a. In the spirit of collaboration, law enforcement and advocacy will establish a standard
of dialogue to determine appropriate wording and delivery of the information.

6

b. The law enforcement/advocacy team will make every attempt to notify a victim in a
time, place, and manner that provides privacy, respect, and safety.
c. The team will be prepared to have multiple, in-person contacts when notifying
victims. The team will allow time in between first contact and subsequent contacts for
decisions regarding the case.
d. An information and resource packet including specific contact information will be
provided.
6. The law enforcement/advocacy team may benefit from having prosecutor and/or other legal
guidance to provide information relating to deadlines about approaching Statute of
Limitations (SOL), legal implications of victim decisions, victim concerns about the identity
and/or location of suspect, and otherwise help the victim feel supported and engaged in the
criminal justice process.
7. The decision to participate in the case lies ultimately with the victim.
8. PLEASE NOTE:
a. Implementation of Victim Notification for native and tribal members will need extra
attention and details beyond the prescriptions listed above. There will need to be
tribal-specific policies guided by tribal members and tribal agencies for notification in
tribal communities. For example, in #1 above, locating victims for tribal communities
may involve extra steps for victims that do not have a physical address, or, in the case
of tribal lands without a tribal law enforcement presence, the notification team may
need to be modified to accommodate available resources.
b. Implementation of Victim Notification for children/youth or for cases where the
victim was a minor at the time of the assault will need extra attention and detail
beyond the prescriptions listed above. How and when to involve the parents may need
to be part of the Victim Notification process. Some of the untested SAEKs may have
been collected from very young children who may not remember the event. Lastly,
family dynamics – who knew or didn’t know about the disclosure or the relationship
of the offending family member – may make Victim Notification more prolonged and
less direct.

7

National Websites and References to Support the MDT Victim Notification
Joyful Heart Foundation
 www.endthebacklog.org
 Navigating Notification: A Guide to Re-engaging sexual assault survivors affected by the
untested Rape Kit Backlog
National Center for Victims of Crime
 https://victimsofcrime.org/our-programs/dna-resource-center/untested-sexual-assaultkits/victims'-rights-and-sexual-assault-kitsCold Case Victim Notification Sample Policy
 Sexual Assault Kit Testing: What Victims Need to Know
National Institute of Justice Office of Justice Programs
 www.nij.gov/topics/forensics/sexual-assault-kits.htm
 Notifying Sexual Assault Victims After Testing Evidence, January 2016 – NCJ249153
 NIJ Detroit Sexual Assault Kit Action Research Project
Detroit Project
 https://www.ncjrs.gov/pdffiles1/nij/grants/248680.pdf
 Chapter 5: Notifying Victims: Developing & Evaluating a Victim Notification Protocol
Houston Project
 www.houstonsakresearch.org
 How to Ethically Notify Victims About Sexual Assault Kit Evidence Testing
(presentation), April 2016 – University of Texas School of Social Work

This project was supported by subgrant 2016-WF-223 awarded by the NMCVRC for the STOP
Formula Grant. The opinions, findings, conclusions and recommendations expressed in the
publication are those of the authors and do not necessarily reflect the views of the NMCVRC or
the US Department of Justice Office on Violence Against Women.

8

APPENDIX F: POLICY ELEMENTS FOR HANDLING SEXUAL ASSAULT EVIDENCE KITS






Ensuring that law enforcement picks up Kits when notified by SANE programs


First and second options of contact persons



Consider making evidence room personnel the back-up for officers designated to
pick up Kits



Mailing Kits may be ok – SANEs reimbursed for forensic expenses

Tracking the following dates:


Date of alleged incident



Date of SANE exam



Date that law enforcement agency retrieved or received SAE Kit from SANE
location



Date that law enforcement agency placed and logged SAE Kit into evidence room



Date that SAE Kit was sent to lab for testing



Date that report(s) from Forensic Lab were received



Date that SAE Kit package was returned to law enforcement agency from lab



Date that SAE Kit results were communicated to victim



Date that SAE Kit was destroyed

Tracking the following information in one central location:


Key dates



Physical location of Kit



If a Kit is sent to the lab, DNA report from lab



If a Kit is destroyed, documentation to support decision to destroy (such as court
order)



Incorporating best practices on victim notification (see Appendix E)



Procedures for expedited handling of Drug-Facilitated Sexual Assault (DFSA) samples.

 



DFSA samples should not be packaged or stored with SAE Kits.



DFSA samples should be refrigerated if they will be held by law enforcement for
more than 48 hours prior to transfer to the State Laboratory Division of the
Department of Health (SLD)



DFSA samples should be transferred to SLD as soon as possible. The drugs in
blood and urine samples begin to metabolize after that point and will not be
traceable in testing.



DFSA samples should be tracked in the same manner as SAE Kits.

APPENDIX G: MULTI-DISCIPLINARY TEAMS AND SEXUAL ASSAULT RESPONSE TEAMS
County/Community

Child, Adult or
Other*

County/Community

Child, Adult or
Other*

Alb/Bernalillo Co.

Adult

McKinley Co.

Adult DV/SA

Alb/Bernalillo Co.

Child

McKinley Co.

Child

Alb/Bernalillo Co.

Disability

Mora Co.

UNKNOWN

Bernalillo Co. MDC

Adult

Navajo/NAHZCASA

Child & Adult

Catron Co.

UNKNOWN

Northern Pueblos

Child & Adult

Chavez Co.

Child

Otero Co.

Adult

Chavez Co.

Adult

Otero Co.

Child

Cibola Co.

UNKNOWN

Quay/DeBaca Co.

Child & Adult

Colfax/Union Co.

Child

Rio Arriba Co.

Child

Crownpoint

Child & Adult

Sandoval Co.

Child

Curry/Roosevelt Co.

Child & Adult

Sandoval Co.

Adult DV/SA

Dona Ana Co.

Child

San Juan Co.

Child

Dona Ana Co., Southern

Child

San Juan Co.

Adult

Dulce/Jicarilla Apache

Child & Adult

San Miguel Co.

Child

Eddy Co.

Child

st

Child

st

Santa Fe/1 Judicial

Grant Co.

Child & Adult

Santa Fe/1 Judicial

Adult

Harding/Union Co.

Child & Adult

Shiprock

Child & Adult

Hidalgo Co.

Child & Adult

Sierra Co.

Child

Lea Co.

Child & Adult

Socorro Co.

UNKNOWN

Lincoln Co.

Adult

Taos Co.

Adult

Lincoln Co.

Child

Torrance Co.

UNKNOWN

Los Alamos Co.

Child

Union/Harding Co.

Child & Adult

Luna Co.

Child & Adult

UNM SMART

Adult

Mescalero

Child & Adult

Valencia Co.

Adult

* Adult includes adolescents, 13 and above
* Child may include all types of child abuse or just child sexual abuse
* DV/SA includes domestic violence and sexual assault

APPENDIX H: SAMPLE MEMORANDUM REGARDING DRUG FACILITATED
SEXUAL ASSAULT KITS

APPENDIX I: RESOURCES FOR VICTIMS OF SEXUAL ASSAULT
A comprehensive list of service providers is available at the website for the New Mexico Coalition of
Sexual Assault Programs: http://nmcsap.org/find-help/
Albuquerque
Rape Crisis Center of Central New Mexico
9741 Candelaria Rd NE, Albuquerque, NM 87112

505-266-7711
http://www.rapecrisiscnm.org/

New Mexico Asian Family Center
128 Quincy St NE, Albuquerque, NM 87108

505-717-2877
http://nmafc.org/

Clayton
Alternatives to Violence-Clayton
110 Walnut St, Clayton, NM 88415

575-643-5335
575-643-5335 crisis

Española
Tewa Women United
912 Fairview Lane, Española, NM 87532

505-747-3259
http://tewawomenunited.org/

Farmington
Sexual Assault Services of Northwest New Mexico
622 W Maple Suite H, Farmington, NM 87401

505-325-2805
http://sasnwnm.org/

Gallup
Sexual Assault Services of Northwest New Mexico-Gallup 505-399-5940
506 W Historic Hwy 66, Gallup, NM 87301
866-908-4700 crisis
http://sasnwnm.org/
Las Cruces
La Piñon Sexual Assault Recovery Services
525 South Melendres St., Las Cruces, NM 88005
Los Lunas
Valencia Shelter Services
303 Luna Avenue, Los Lunas, NM 87031
http://www.valenciashelterservices.org/index.html
Portales
Arise Sexual Assault Services
Roosevelt General Hospital, Portales, NM 88130
http://www.arisenm.org/
Santa Fe
Solace Crisis Treatment Center
6601 Valentine Way, Santa Fe, NM 87507

575-526-3437
http://www.lapinon.org/
505-565-3100

575-226-7263
575-226-7263 emergency

505-988-1951
http://www.findsolace.org/

Silver City
Silver Regional Sexual Assault Support Services
301 W College Ave Suite 11, Silver City, NM 88061
http://www.silverregionalsass.org/

575-313-6203
866-750-6474 crisis

Taos
Community Against Violence
945 Salazar Rd, Taos, NM 87571
http://www.taoscav.org/

575-758-8082 x-117
575-758-9888 crisis

APPENDIX J: ALBUQUERQUE POLICE DEPARTMENT AND BERNALILLO COUNTY
SHERIFF’S OFFICE PRIORITIZATION SYSTEMS
The Albuquerque Police Department priority system for the untested Kits is as follows:
Priority 1 testing includes any case involving homicide or first degree sexual assault; any case
involving a child under the age of 13; any case where a possible serial sex offender can be
identified through modus operendi or other case facts; any case that has solvability factors,
victim involvement and is within the statutes of limitation; and any case pending trial.
Priority 2 testing includes any other case with an unknown offender and in which the case was
closed or suspended pending the results of the Kit, regardless of victim age.
Priority 3 testing includes any case in which an offender has been identified, the case is within
the statute of limitations, the issue of whether a sexual encounter occurred is not in contention
and DNA is not needed for trial.
Priority 4 testing includes cases in which victim cooperation has ceased; cases that have
already been adjudicated without the DNA evidence; and cases that in which the statute of
limitations may bar prosecution and that do not meet the criteria set forth for higher priorities.
Priority 5 testing includes any case that, after investigation, has been closed or otherwise
determined to be non-factual based on evidence or admission.

The Bernalillo County Sheriff’s Office also developed a tier-based prioritization system, as
follows:
Tier 1 consist of cases in which the offender is unknown, the investigation supports the
allegation and the agency believes that DNA may contribute to successful prosecution.
Tier 2 consists of cases in which the offender is unknown, there is evidence that a sexual
encounter occurred based on the SANE exam and the agency believes that DNA may
contribute to successful prosecution.
Tier 3 includes a variety of circumstances, including cases in which a suspect has been
identified, the investigation has not concluded if the sexual assault was coercive or forced, or
the victim has not cooperated.
Tier 4 consists of cases in which all allegations were unfounded after investigation. These
would still be tested, but later in time.
Tier 5 consists of cases prosecuted or dropped by the District Attorney. These would also still
be tested, but would have the lowest priority.