When do MDTs need to be formed?
Pursuant to G.S.15A-266.5A, the team should be formed as soon as practicable but no later than December 18, 2019.
This guide provides practical steps for Law Enforcement Agencies (LEAs) to comply with the intent of recently enacted legislation, G.S. 114-65 and The Survivor Act (G.S. 15A-266.5A). Two of the fundamental goals of the Survivor Act are: 1) testing of all future sexual assault evidence collection kits (SAECKs) reported to law enforcement and; 2) testing of previously unsubmitted SAECKs reported to law enforcement with a victim-centered and trauma-informed approach. The purpose of this guide is to support LEAs addressing the above legislation so that outsourced testing of previously untested SAECKs commences as soon as possible. We will also have six regional trainings on best practices to help facilitate the implementation of this enacted legislation. See below for upcoming training dates.
In 2019, Attorney General Josh Stein drafted and championed the Survivor Act, which was signed into law in September 2019. The Survivor Act requires local law enforcement agencies with unsubmitted sexual assault kits to take several actions to address their untested inventory:
John Somerindyke, retired Fayetteville Police Special Victims Unit Lt. Commander, overviews necessary next steps you and your teams need to take in a set of training videos, available below.
The North Carolina Department of Justice is available to provide additional guidance and training as you form multidisciplinary teams and review cases. If you’d like more information or assistance, please contact John Somerindyke at email@example.com.
Pursuant to G.S.15A-266.5A, the team should be formed as soon as practicable but no later than December 18, 2019.
Pursuant to G.S. 15A-266.5A, local law enforcement is the entity responsible to initiate the MDT. However, it is strongly suggested that the local district attorney be included in the process from the very start. Note: District Attorneys will be responding to multiple MDT requests as they work with more than one LEA.
Recommended team members, in addition to law enforcement include: prosecutors, sexual assault nurse examiners (SANEs), victim advocacy groups, survivors of sexual assault, and representatives from a forensic laboratory.
NOTE: Smaller LEAs may have fewer participants in their MDTs. In those cases, it is highly recommended that along with law enforcement there is a prosecutor and a victim advocate.
The first priority for the MDT is to review all cases collected prior to January 1, 2018 and prioritize testing based on factors outlined under G.S. 15A-266.5A(d)(2). This way, LEAs will know which SAECKs to send first after contacting the State Crime Lab and being instructed as to how many can be outsourced at that time for testing.
It is optional, but encouraged. Any reported SAECK collected between January 2, 2018 and June 30, 2019 is to be submitted as soon as is practicable. The Survivor Act does not require these post-2018 kits to be reviewed by an MDT for prioritization. However, the best practice recommendation is for a victim-centered, trauma informed MDT to review cases and to determine how to move forward with victim notification, the investigation, and prosecution.
Not before testing. Pursuant to G.S. 15A-266.5A(c)(2), any reported SAECK collected on or after July 1, 2019, is to be submitted to the State Crime Lab, or a laboratory approved by the State Crime Lab, not more than 45 days after the LEA takes custody of the SAECK. However, the best practice recommendation is for a victim-centered, trauma informed MDT to review cases after testing to determine how to move forward with victim notification, the investigation, and prosecution.
At the initial meeting, purpose and roles within the MDT should be determined. Furthermore, the workload should be assessed (initially reviewing unfounded cases) and the meeting dates set.
One fundamental role for the MDT is to review all SAECKs that have been labeled to be unfounded. According to General Statute, a sexual assault kit is determined to be unfounded if, after completion of the investigation, a comprehensive case review by the LEA, and complete review by the MDT, “it was concluded by the investigating law enforcement agency, based on clear and convincing evidence, that a crime did not occur.” G.S. 15A-266.5A(b)(5),(d)(3)(b).
Note: Unfounded is definitively different from unsubstantiated. Sometimes these definitions are used interchangeably and it is critical that the definition of “unfounded” be held to its legal standard.
The adoption of G.S. 15A-266.5A promotes MDTs as a best practice for investigating and prosecuting sexual assault crimes. It is recommend that the MDT continue to meet after all unsubmitted cases are resolved because the MDT model is a national best practice for an improved response to sexual assault and is highly effective when responding to recent sexual assault cases.
There are many similarities between SARTs (Sexual Assault Response Teams) and MDTs. Both are multidisciplinary teams of professionals who come to provide coordinated responses to sexual assault. Both work to address the needs of victims and hold offenders accountable.
The big difference between the two is in terms of case review. While several NC communities operate SARTs, most are not involved with case review. Most NC SARTs focus on internal information-sharing, community education and response protocols. In reference to the Survivor Act, MDTs’ primary focus is on case reviews of sexual assault cases.
Pursuant to G.S.15A-266.5A, the MDT must contact the State Crime Lab to request testing of their LEA’s untested SAECKs as soon as practicable no later than March 18, 2020. Please do not wait until then to form an MDT, prioritize pre-2018 cases in the LEA’s inventory, and request testing of your unsubmitted SAECKs.
We have the resources now to test your SAECKs. Reviews and submissions can certainly be done in phases and in cycles in order to quickly begin outsourcing portions of your untested inventory. This is what has been called a “modified fork-lift approach” in identifying kits for testing. This approach involves an initial selection of a random number of kits – for instance, selecting 50 out of 100 previously untested kits – from which to conduct the first “cycle” of case review by the MDT to determine whether they should be tested. Once those kits have been submitted, conduct another cycle to review the remaining 50 and then contact the lab to request testing of the second cycle.
This process will continue until the entire untested inventory has been reviewed and either a) tested or b) determined to fall into the following categories: i) Unreported (send to LESS Warehouse), ii) Determined Unfounded after MDT review; or iii) There was a criminal conviction and the perpetrator’s DNA is already in CODIS and the convicted person does not seek DNA testing. G.S. 15A-266.5A(d)(3).
A SAECK that is reported is one in which the survivor has consented to participate in the criminal justice process through reporting the crime to law enforcement. G.S. 15A-266.5A(b)(4). Reported SAECKs dated after July 1, 2019, are to be sent by the LEA to the lab for testing within 45 days of taking custody of the SAECK. G.S. 15A-266.5A(c)(2).
A SAECK that is unreported, also referred to as anonymous, is one which the survivor consented to the evidence collection, but has not consented to participate in the criminal justice process by reporting the crime to law enforcement – meaning they are not seeking to have their kit tested. G.S. 15A-266.5A(b)(6). All unreported kits are to be submitted to the Department of Public Safety and stored at the LESS Warehouse. The survivor may decide at any time if or when they are ready to move forward with the criminal justice process. G.S. 15A-266.5A(c)(3).
An unfounded SAECK is a reported sexual assault kit, whereupon completion of the investigation, a comprehensive case review by the LEA, and complete review by the MDT, it was concluded by the investigating LEA, based on clear and convincing evidence, that a crime did not occur. G.S. 15A-266.5A(b)(5),(d)(3)(b).
The LEA must track any previously unsubmitted SAECKs that it determines, after completion of the investigation, a comprehensive case review by the LEA, and complete review by the MDT, are unfounded – meaning that the LEA, at the end of this process, concluded based on clear and convincing evidence that a crime did not occur. The required tracking that an LEA must perform for unfounded SAECKs includes documenting the number of SAECKS that are unfounded, as well as a brief summary of the clear and convincing evidence that supports the determination of unfounded. If later on, the LEA receives information or evidence that creates investigative or evidentiary value for testing the previously unfounded kit, the LEA shall send the unfounded kit to the Crime Lab for testing as soon as practicable.
The reason for testing a kit even though there was a criminal conviction is that many perpetrators of sexual violence tend to re-offend. CODIS is a critical investigative tool that can link multiple cases together and help law enforcement apprehend repeat offenders. Therefore, uploading the perpetrators DNA profile to CODIS even though they plead guilty in the instant case can help solve other cold cases. The MDT should engage the North Carolina Innocence Inquiry Commission to assist with SAECK testing decisions related to post-conviction cases. However, if there was a criminal conviction, the convicted person’s DNA profile is already in CODIS, and the convicted person does not seek DNA testing, that SAECK should be withheld from submission.
This would be considered an unreported, or anonymous SAECK under G.S. 15A-266.5A(b)(6). After a review to confirm the survivor did not consent to participate in the criminal justice process by reporting the crime to law enforcement, these SAECKs are to be sent to the Law Enforcement Support Services (LESS) Warehouse with the Department of Public of Safety.
While some of the original classifications may carry over, many will require an updated determination. These cases need to be reviewed with fresh eyes, particularly as it relates to the category of unfounded.
G.S. 114-65 directs all SAECKs, including unsubmitted SAECKs, to be tracked in STIMS.
LEAs should contact the State Crime Lab by emailing SAK@NCDOJ.gov to request a form and directions for any SAECKs collected before 1/1/2018. All other SAECKs should be submitted to the State Crime Lab using the FA Portal Request for Examination form. When the SAECK form is completed, it is sent to the State Crime Lab for approval. It is normal for LEAs to send request forms for multiple SAECKs to the lab at once.
It is the responsibility of the LEAs to submit the SAECK once the LEAs receive approval from the Crime Lab. The LEA will receive instructions regarding how to submit.
The LEAs will receive copies of all reports (negative or positive for DNA) from the outsourcing laboratory. A SAECK that is positive for DNA in sufficient quantity and quality to develop a DNA profile will have the profile entered into CODIS by the State Crime Lab. The State Crime Lab will notify the LEA of any CODIS hits and will request a known standard for subsequent testing.
Upon receiving the DNA results and any information related to CODIS hits, the LEA will determine whether to move forward with the criminal justice process. It is recommended as a best practice that the LEA utilize their MDT team to review the results and to assist with determinations as to whether to reopen the case. Also, once test results are received, victim notification should proceed.
(See forthcoming Section on Victim Notification)
These victim notification tools have been created by the North Carolina Department of Justice Sexual Assault Kit Initiative (SAKI) Working Group. This group is a multidisciplinary group of professionals – law enforcement , victim advocates, sexual assault nurse examiners, district attorney, forensic specialists – committed to improving our state’s approach to sexual assault.