Over 250 rape kits await testing as North Dakota's backlog grows
More than two dozen sexual assault kits needed for possible criminal charges in North Dakota are more than a year old. Attorney General Drew Wrigley says the issue is part of a backlog of evidence testing he inherited from his predecessor.
BISMARCK — A backlog of testing sexual assault kits has grown over the last year in North Dakota due to a lack of staffing, with many kits more than a year old.
There were 271 kits awaiting testing at the state crime lab as of last week, according to the North Dakota Attorney General’s Office. That figure is up from 126 untested kits at the lab as of December 2021.
The issue is part of a backlog in testing evidence that Attorney General Drew Wrigley said he inherited from his predecessor, Wayne Stenehjem. Stenehjem died from cardiac arrest in late January.
Wrigley said budget cuts dating back to 2017 have affected the state crime lab. Wrigley noted that even before Gov. Doug Burgum appointed him to lead the office in February, Wrigley identified the lab's funding and staffing shortfalls that keep it from operating in a timely manner.
“Now we're in a position to have the privilege of putting in that budget and making those proposals based on what the people at the lab tell us they're going to need to not only return those capacities for testing, but also deal with the backlog," Wrigley told The Forum.
Wrigley declined to say how many people he would like to hire to alleviate the backlog, but he plans to ask the state Legislature to add several crime lab staff members, lab space and the reintroduction of testing of firearms and fingerprints at the lab.
North Dakota does not require all sexual assault kits to be tested. With the staffing shortage, the state lab has decided to prioritize kits that prosecutors need for court cases, Wrigley said.
Testing all kits, including ones that have sat on shelves for years, has helped authorities in other jurisdictions identify serial rapists, Joyful Heart Foundation Policy and Advocacy Director Ilse Knecht said. Her organization runs End the Backlog, an initiative that tracks how states perform in testing sexual assault kits.
Testing backlogged kits could prevent future offenders, Knecht said. Instead, the "evidence that could have stopped them was sitting on the shelf," she said.
"Unfortunately, hundreds of thousands of rape kits have sat on shelves across the country, and we see what are preventable crimes that have happened ... because we didn't test kits," Knecht said.
Wrigley said he would be for testing all kits if the backlog was cleared. For now, the state lab has to focus on what it can practically test with its resources.
“If we get to the point, like I said, where we have the luxury of going and testing all of the tests of all of those samples that we've got, even though there's not an ongoing criminal case, we're happy to evaluate that,” he said. “We'd be happy to have that luxury, but we don't have it now."
It's unclear when North Dakota's backlog could be resolved.
Of the 271 kits awaiting testing, Deputy Attorney General Claire Ness said 170 kits could be used for prosecution.
Of the kits that could be used for prosecution, 26 are more than a year old, Ness said.
The oldest kit from that group of 26 was dated Jan. 13, 2021, from the Fargo Police Department, Ness confirmed last week. Fargo police said Tuesday, Oct. 11, that prosecutors have declined to pursue charges in the case connected to that kit "unless new incriminating evidence becomes available."
"However, this does not mean the kit will not be tested," the police department said, adding that the results could influence a decision to prosecute.
The Forum first reported a backlog at the state lab on Oct. 7 after the Fargo Police Department said it was waiting for 75 sexual assault kits to be tested, including 18 that were more than a year old. Fargo Police Chief David Zibolski said he was not happy with the turnaround time for testing kits and called the situation “not appropriate.”
Of the 271 backlogged kits, the state lab has 101 kits that the attorney general's office required law enforcement agencies to send in as part of a statewide sexual assault kit tracking system. Those 101 kits are all more than a year old, but they were deemed by law enforcement or prosecutors to not be needed for pursuing charges.
Twelve of the Fargo Police Department's 18 untested kits more than a year old are part of that group of 101, Ness said.
The oldest kit on the shelves of the state lab dates back to Dec. 4, 2015, from Fargo, according to the attorney general’s office. Ness said that one is no longer needed by prosecutors. It's unclear why that kit was marked as not needed.
Prosecutors must bring charges of gross sexual imposition, a felony charge in North Dakota that accuses a person of rape, within seven years of the alleged offense.
Prosecutors and law enforcement decide whether a kit needs to be tested, Wrigley said. The state lab will test any kit that is sent in, he added.
In 2021, the North Dakota Legislature passed a law proposed by Stenehjem that allowed the attorney general's office to create the sexual assault kit tracking system. The state received $225,000 to set it up, and it is expected to go live in December.
Stenehjem told a legislative committee in February 2021 that the intent of the legislation was to find out where kits were in the state and how they were being used. Almost 500 kits in North Dakota hadn’t been submitted to the crime lab as of February 2021, State Crime Lab Director Robin Quinn said in addressing a legislative committee that recommended the tracking system be created.
“We’re never quite sure what happens to them,” Stenehjem said during the hearing.
It's unknown how many kits are out in the state.
Stenehjem previously told The Forum he believes all kits should be tested, as evidence could help solve other cases or vindicate innocent people.
“They should be tested,” he said. “That is the point of the bill.”
Finding serial offenders
Advocates have pushed for tracking systems across the country after thousands of kits were not being tested in the U.S. In Detroit, the testing of more than 11,000 backlogged kits identified over 800 serial rapists, according to media reports.
"We see it from Detroit to smaller places in Minnesota," Knecht said. "There's varying sizes of cities across the country who have gotten federal grant money to test these kits. ... They're all finding serial offenders that are testing these kits."
The time it takes to test a kit varies at North Dakota's crime lab, Ness said. Typically, staff can test a kit in a week and review data in another two to three weeks, she said. Kits that are needed for court dates are prioritized, she said.
Some cases can be more complex and require more time to test, Ness said.
The state crime lab has four technicians dedicated to testing sexual assault kits, though only three can do more complex testing, she said.
Not all states track the amount of time it takes to test and analyze a kit. Massachusetts can turn around kits in 30 days, Knecht said.
There are places that have yearlong waits, but that is not acceptable, she said.
'I have the lab that I've inherited'
There are a number of reasons kits wouldn't be tested. Victims may decide not to press charges, or they may recant allegations, Wrigley said. Investigations also may determine the sex was consensual. A defendant also may plead guilty before the kit is tested, Wrigley said.
The Fargo Police Department submits all kits in cases where a crime has been established, which is a "low threshold," Capt. George Vinson said.
“How the State Crime Lab handles submitted kits as part of its workflow is up to that agency as it receives kits and evidence from more than just the FPD,” Vinson said in an email. "The FPD also does not always know what will or what will not be considered prosecutable at the time of submission to the lab.”
The Fargo Police Department said it has six kits connected to unfounded sexual assault allegations that are in its evidence storage area.
Wrigley said he supports testing kits that have evidentiary value.
“There's a variety of different ways that, all of a sudden, you don't need to have those results,” he said. “They're not gonna be prioritized.”
He acknowledged the argument of finding serial rapists, but he also noted the North Dakota crime lab has scarce resources for testing kits. Wrigley said a trial date hasn’t been missed because the state lab hasn’t been able to complete testing on a kit, and the backlog is still in compliance with the law.
"Right now, I have the lab that I've inherited," Wrigley said. "We have the personnel that we've inherited. We have the backlogs that have formed across years that we've inherited. And so in dealing with those, I think people can understand you're going to be moving the kits that have evidentiary value, and ongoing cases have to be prioritized."