MOORHEAD — The morning after it happened, Michelle knew she had to preserve the evidence. She resisted the urge to shower and went to the hospital with two friends at her side.
A specially trained nurse in the emergency room collected DNA evidence from the 28-year-old's body and sealed it in a cardboard box known as a rape kit. Such kits are often submitted to crime labs for DNA analysis. But in Michelle's case, her kit was never tested, said Moorhead Police Lt. Mike Detloff.
Michelle's alleged attacker told a detective his encounter with her was consensual. Because there was no dispute over whether the two had sex, police saw no need to test the kit, Detloff said. Prosecutors ended up declining to file charges, and earlier this year, Michelle's rape kit was thrown away.
Michelle had been holding out hope her kit would be tested, that her attacker might face justice. But this month, when she learned from The Forum that her kit had been tossed, that hope was lost.
Victim advocates question why police sometimes decline to have crime labs process the DNA evidence gathered in sexual assault investigations, arguing that more testing could help snare serial rapists.
Moorhead police and other local agencies haven't tracked the number of untested rape kits they've disposed of over the years. But some states, including Minnesota under a new law passed this year, require police agencies to report how many existing kits remain untested. Nearly 3,500 untested kits are collecting dust in Minnesota, according to the state's survey released this month. In many other states, like North Dakota, even that number is a question mark.
In the Fargo-Moorhead area, 40 untested kits sit on the shelves of police evidence rooms, local agencies told The Forum. Police say various circumstances can make testing a rape kit unnecessary.
But, for Michelle, what to do with a rape kit is simple: "They should test every single one."
The Fargo woman, who isn't being identified by her real name because The Forum typically doesn't identify victims of alleged sex crimes, wishes the DNA evidence from her kit had been placed in the FBI's DNA database, which would have allowed investigators across the country to check for links to other cases.
"If they would have matched the same DNA, it could have helped and could have got these guys locked up," she said, referring to her attacker and his acquaintance, who she believes may have also raped her on the same night.
Along with linking cases, there are other benefits to testing all kits, said Ilse Knecht, policy and advocacy director for the Joyful Heart Foundation, a national nonprofit group pushing for rape kit testing.
"We can confirm the survivor's account of the attack. We can discredit suspects," Knecht said, adding that testing kits can also exonerate the wrongly accused.
Collecting a rape kit can take up to three hours. It's an invasive procedure that victims endure at a traumatic time in their lives, and testing their kits lets them know their cases matter, Knecht said. "Each of these kits represents a survivor who's had this horrible experience in his or her life," she said.
Minnesota's counted kits
Because there's no consistent reporting requirements, the number of untested kits in the U.S. is unknown. In 2003, federal authorities estimated it was hundreds of thousands. Since then, several states have taken steps to address the issue. In Illinois, Colorado, Ohio and Texas, police are required to submit rape kits to crime labs for analysis.
Minnesota's survey this year, conducted by the Bureau of Criminal Apprehension, counted 3,482 kits at 171 agencies. Locally, Dilworth police had nine kits, and the Clay County Sheriff's Department had one. Moorhead police reported having three kits in storage.
But before Moorhead reached its official count of three, the department disposed of 12 kits, including Michelle's, that police decided were no longer needed, Detloff said. Moorhead investigators also submitted seven kits for crime lab testing, including four that dated back to 2012.The decisions the Moorhead Police Department made to cull some kits ahead of the survey did not surprise Rep. Dan Schoen, DFL-St. Paul Park.
"This is stuff that police departments do every day in Minnesota," said Schoen, a police officer in Cottage Grove who sponsored the legislation that prompted the survey. "They have to make space for new stuff."
Minnesota's survey showed the most common reason police cited for not submitting a kit was because the victim didn't want to seek charges. That was why 30 percent of the 3,482 kits went untested, according to a BCA report.
Schoen and Knecht, the victim advocate, agree that in such cases, kits should not be tested. "A sexual assault investigation has to be victim-centered, victim-first," Schoen said.
Other reasons why agencies did not submit rape kits for testing included: prosecution was declined (21 percent), the attacker confessed (5 percent) or the case centered on the question of consent, not whether the sex occurred (7 percent). In 9 percent of cases, agencies reported not knowing why the kit wasn't tested, the BCA report said.
Schoen said there are valid questions to be raised about these untested kits. "What if you solved other crimes by testing that kit and found the suspect?" he asked. "Does that kit have bigger ramifications than one case?"
'You can't go wrong'
What will happen to Minnesota's untested kits remains an open question. The BCA has proposed three options to state legislators for analyzing the evidence: test the kits internally, hire outside labs to do the testing or a combination of the two.
In Minnesota and North Dakota, state funds cover the costs of testing rape kits. For the BCA to test all the unsubmitted kits, it would cost $4.4 million and would take about three years with the help of eight more full-time employees, the bureau said.
Minnesota, like North Dakota, does not have statewide guidelines on how to deal with rape kits. Schoen said that's something legislators need to discuss, though he has hesitations. "I think that investigative procedure is not best placed in state statute by any means," he said. Schoen said that when there's a case with a victim willing to cooperate with investigators, the best course is to test the rape kit. "You can't go wrong doing that, but you can always end up being wrong if you don't," he said.
However, not all police officials share that mindset.
Moorhead Police Chief David Ebinger said he thinks the concept of testing every kit is well-meaning on the part of politicians and victim advocates, but he believes it's unrealistic given the tight resources of Minnesota's crime labs.
Ebinger says many of the kits his department receives have no value in a prosecution and testing them would delay justice for victims in higher-priority cases.
"You always take any allegation of sexual assault seriously. But you have some that on investigation, you find out it never happened," he said. "What do you do with those kits?"
Like other local departments, Moorhead police typically submit rape kits for testing when the suspect denies sex occurred or when investigators have no suspect, Detloff said. Most of the untested kits the department recently threw away were from cases like Michelle's in which the accused was known to police, and the matter of consent was in question, he said.
Victim advocates say there's value in testing such kits.
"If we test those kits and get that DNA in the database, we will be able to connect the crimes together. And then it becomes not just he-said-she-said, but you see this he-said-she-said-she-said-she-said pattern," Knecht said.
Detloff said if a man was meeting women in bars and multiple sexual assault complaints were made against him, police agencies in the Fargo-Moorhead area, which all share their records, would take notice.
But the lieutenant acknowledged that if an attacker committed a series of similar assaults while moving throughout the region, police could overlook the pattern.
"There is potential that we would miss those types of serial rapists," he said.
Night at the Hub
On Oct. 10, 2013, Michelle and a girlfriend went to the Hub, a nightclub in Fargo.
Michelle recalls having about five or six drinks, all of which she saw a bartender make.
Her last recollection is drinking a tequila sunrise. The cocktail came from two men she did not know. After drinking it, the night went completely dark.
"I don't remember anything," she said. "I woke up in Moorhead with two guys in the room, and I freaked out."
Michelle, who has no memory of what happened, said she believes she was somehow separated from her friend and then one or both of the men sexually assaulted her. She said she contracted chlamydia and suffered vaginal and anal tearing as a result.
"I couldn't even work after that," she said. "Because of my injuries, I kept, like, having accidents."
After waking up in Moorhead, she quickly gathered her belongings, dashed outside and waited for a cab to take her home. Soon afterward, she went to Sanford Medical Center to have a rape kit collected. The next day, a Moorhead police detective interviewed her.
Michelle said the assault has left her with an onslaught of emotions, not the least of which is overwhelming anxiety. She said her daily bouts with anxiety sometimes culminate in panic attacks.
Aside from the handling of her rape kit, Michelle said, she's pleased with how police investigated her case. But she's upset that prosecutors did not press charges.
Asked about Michelle's case, Clay County Attorney Brian Melton said, "Sometimes cases are difficult, especially cases where alcohol is involved" or when a victim does not recall what happened.
Michelle, who said she had never blacked out before that night, is convinced the men slipped a drug in her drink. Still, given the facts of her case, Melton said, prosecutors would not have been able to meet their burden of proof beyond a reasonable doubt, with or without testing her rape kit.
"Unfortunately, the better test would be a test for a date-rape drug, but we know from testing experience that doesn't stay in the system," he said.
Melton and Cass County State's Attorney Birch Burdick said it's often police who decide whether to submit rape kits for testing, though occasionally prosecutors weigh in. Neither prosecutor's office has a policy on when kits should be tested.For suspects who haven't been charged or convicted, entering their DNA into a law enforcement database raises civil rights issues, Burdick and Melton each said.
"We may collect a person's DNA as part of an investigation, but that doesn't necessarily mean that it should be maintained permanently (in a database) just because they were accused," Melton said.
Despite such civil rights concerns, the FBI's DNA database, used by Minnesota and North Dakota authorities, already retains DNA collected during investigations of sexual assaults and other crimes in which no one has been charged or convicted.
No tally in ND
There's no statewide count of how many untested kits are in the evidence rooms of North Dakota's police agencies, said Liz Brocker, spokeswoman for the state attorney general.
Locally, the Fargo Police Department told The Forum it has 20 untested kits. The West Fargo Police Department said it had seven. North Dakota State University police and the Cass County Sheriff's Office both reported having none.
Lt. Joel Vettel, who's in charge of Fargo police investigations, said police believe Fargo's untested kits have no value as evidence. They are largely from cases in which consent was in question, the victim declined to take part in the investigation or a false report was made, Vettel said.
"It's really just a small percentage that we don't send for very specific reasons," he said. "If we're in doubt, we'll send the kit."
Earlier this year, Sen. Carolyn Nelson, D-Fargo, sponsored a bill meant to shorten wait times for rape victims who need sexual assault examinations. She said it's possible future legislation could call for a count of the state's untested rape kits.
"I would like to see that all of them are processed," Nelson said.
Tallying North Dakota's untested kits is a move victim advocates would welcome, Knecht said.
"Going into evidence rooms and counting the kits is really the first step in knowing what the extent of the problem is," she said.
Untested rape kits in local evidence rooms
Fargo Police Department ... 20
Dilworth Police Department ... 9
West Fargo Police Department ... 7
Moorhead Police Department ... 3
Clay County Sheriff's Office ... 1
NDSU Police Department ... 0
Cass County Sheriff's Office ... 0
Source: Local police agencies