Despite victim requests, Grady withheld rape evidence from police

Credit: Branden Camp

Credit: Branden Camp

How hospitals can help

The chances of a rapist being brought to justice can rest heavily on what happens when a victim walks through a hospital’s doors. When he or she receives proper care, their chance of cooperating with an investigation rises, said Rebecca Campbell, a Michigan State University professor.

Studies show that experiencing a violent crime can change a person’s brain chemistry, making information and decisions become a blur. Victims arrive confused.

“Everyone says, ‘go to the hospital,’ but a lot of victims don’t know when they walk in that door exactly what they’re walking in to,” Campbell said. If doctors and nurses place quality health care ahead of police concerns, they help a victim regain a sense of control, reduce emotional trauma and leave him or her better prepared to help detectives.

Medical professionals should explain the complex legal and medical issues surrounding a rape both verbally and in writing, and read any written information aloud with the patient, said Kim Day of the International Association of Forensic Nurses. If victims decide not to cooperate, they should explain that it’s their right, but if they change their minds later, their cases could be harder to investigate.

Since 2000, the state’s largest hospital has failed to tell police about as many as 1,500 possible sex crimes, including more than 130 where the victims asked the hospital for help to bring rapists to justice, an Atlanta Journal-Constitution investigation found.

Grady Memorial officials said a federal medical privacy law blocked them from alerting police or providing them with evidence from victims, such as bodily fluids and hair.

But had staff notified police when they learned of the possible crimes, the federal law would have been no barrier, legal experts told the AJC. What’s more, state law requires hospitals to alert law enforcement to injuries that may have been caused by a crime. Other hospitals contacted by the AJC said they report immediately and give kits to investigators.

As it is, victims at Grady may have undergone an invasive, grueling rape exam for nothing, advocates said, and dangerous criminal may have gone unpunished. Police could have been flagged to patterns of attacks. Entering DNA samples into a national database could have unmasked attackers who were strangers to their victims or prevented serial rapists from striking again.

“This is an incredible breach of trust,” said Aimee Maxwell, executive director of the Georgia Innocence Project. “This is an indication of a systemic problem.”

Grady officials later acknowledged that 136 victims had requested in writing that the hospital turn over findings and answer questions from police. Hospital Attorney Timothy Jefferson wouldn’t say why those assaults were not reported to law enforcement.

“Obviously there was a mistake made somewhere. Or something else happened,” Jefferson told the AJC.

He insists, though, that the federal Health Insurance Portability and Acccountability Act barred the hospital from notifying police. If Grady doesn’t have patients’ written and verbal consent to provide evidence to police, it locks the rape kits away in a storage room. There they stay unless victims change their minds and file police reports themselves.

“Our interpretation of the law is we cannot — will not — give out medical information to law enforcement when a patient expressly asks us not to, absent a court order,” Jefferson said.

He said he disagrees with the other attorneys’ interpretation of the federal law, and that Grady plans no immediate changes in its policy.

Following the AJC’s inquiries, Grady did hand Atlanta police the 136 rape kits, without telling them why.

“I was floored by that,” said Lt. Celeste Murphy, head of the agency’s special victims unit. The department usually gets only a handful of kits at a time. “It just didn’t make sense that that many were down there,” she said.

Police checked victims’ names against department records and found only three had gone on their own to police. In two of the cases, reported in 2008 and 2011, police had classified the accusations as unfounded. Incident reports from preliminary investigations showed that the accusers contradicted themselves to officers.

In the third case, in October 2005, the victim told police a stranger held her at gunpoint, forced her to perform oral sex, and then hit her in the face. Paramedics took her to Grady after the attack.

“No rape kit completed,” the police report said.

The case remains unsolved. The kit is now being tested.

Atlanta police were unable to find reports for the other 133 victims.

“It looks like the remainder was not reported to law enforcement,” Murphy said.

The department returned kits for those cases to Grady. The kits had no details about the incidents, they were inconsistently labeled, and police weren’t told that victims wanted to prosecute. APD didn’t even know if it had jurisdiction, said Major Adam Lee, commander for the major crimes section.

“It would have been a big mess, and it might be all for naught,” he said.

Business hours only

As home to the sole rape crisis center for Fulton County’s nearly 1 million residents, Grady should know how to help traumatized victims and its legal obligations.

By its written policies, it does. But in practice, rape cases can fall through the cracks.

Research shows that rape victims often need help from trained staff to answer questions and explain their legal rights. Yet counselors are often unavailable to accompany victims through rape exams at the hospital. The rape crisis center is only staffed during business hours, Jefferson said.

Doctors and nurses who perform rape exams are trained, he said, but wouldn’t say if they are certified to do the exams.

Another issue: If victims sign consent forms that affirm they have been raped, yet state verbally that they don’t want police help, staff does not dial 9-1-1, Jefferson said. That may be why the 136 kits were withheld from police, he said.

He did not say how the hospital determined that victims for the additional 1,354 rape kits did not want Grady to hand them to police. Grady officials said that it’s common for patients to refuse police help, even after they endure the rape kit exam, which can take four hours and involve swabs of body cavities and photos of injuries. Last year, the officials said, 56 percent did not want police to be notified.

State law doesn’t give the hospital that option, though. It requires hospitals to alert police to signs of “nonaccidental” injuries and release information that could solve a case. That’s why Grady staff routinely tells police about stabbings and shootings.

“The law is there to encourage reporting,” said Atlanta attorney Lance LoRusso, who advises hospitals on federal privacy laws. “If someone is reporting a rape, obviously that’s a nonaccidental injury.”

The federal law limits what hospitals may release but doesn’t prevent compliance with state law, said Deven McGraw, a Washington, D.C.-based attorney who advised the federal government on the HIPAA regulations.

“HIPAA clearly allows disclosures to law enforcement that are required by state law,” she said.

Grady’s decision to store rape kits indefinitely creates other issues.

Two kits are now so old that victim names have faded from their hand-written labels.

And by storing the kits, Grady is taking on the responsibility of ensuring that the evidence isn’t compromised. Few rape crisis centers or hospitals want that burden. In Metro Atlanta, no other rape crisis center stores the kits long term, their directors said.

Hospitals and rape crisis facilities are ill-equipped to run large evidence storage facilities, said Kim Day, who helps set national standards for rape kit examinations with the International Association of Forensic Nurses. While DNA evidence can last indefinitely, kits should be kept in locked, climate-controlled environments with proper air circulation. Each instance they change hands must be logged to ensure the correct evidence is tested and presented at trial.

“Nobody wants to mess up,” Day said.

Cause for concern

Grady had ample warning that its store of kits needed to be checked. In the early 2000s, the hospital was forced to store some 250 packages of evidence that police officers forgot or refused to transport to the crime lab. An internal Atlanta police investigation found investigators were hiding rape reports to fake lower crime rates, and Fulton County District Attorney Paul Howard and Maxwell offered to help Grady audit its kits.

What’s more, it was no secret that rape victims were getting lost in the shuffle in Grady’s packed emergency room, said Phyllis Miller, who retired as the rape crisis center director in 2007. The harsh reality was that the staff was just too busy. Their first priority is to treat patients with life-threatening conditions, which most sex crime victims do not have.

“If you’re a physician at a busy ER, and there’s an adult [victim] there, and they’re adamant they’re not going talk to police, and other patients are waiting on you, are you going to spend extra hour, or four, coordinating with police?” said Miller, who now runs the rape crisis center in DeKalb County.

Attempts to give evidence to police for these unreported cases failed, Miller said. While Georgia law says all evidence belongs in the hands of law enforcement, in practice a kit without a case belongs to no one.

Grady may be stuck with the rape kits now, and its stockpile may only grow in the future.

When police aren’t notified, cases aren’t opened. Without cases or patient consent, federal rules do place strict limits on what hospitals can release to law enforcement, experts said.

State Rep. Scott Holcomb of Atlanta, who is sponsoring legislation to ease a backlog of untested rape kits already in the hands of police, is baffled over Grady’s failure to follow state law.

“It seems incomprehensible how this all could have happened,” Holcomb said. “Sometimes, you can look at an issue from a public policy perspective and understand how things can fall through the cracks. But I have a really hard time understanding this.”

Justice delayed

Grady’s store of kits could still be used to catch rapists, even if the victims are anonymous, unknown or refuse to cooperate with police.

In other states, investigators run old or anonymous kits through a national database to match them with known suspects. One jurisdiction identified hundreds of possible serial rapists this way.

But in Georgia, advocates may have to file suit against Grady and obtain a court order for the release of kits where victims did not request the hospital cooperate with police, legal experts said.

“I’m surprised no one has asked for one,” said health privacy law expert McGraw.

Even if a judge orders the release, testing could take years. GBI’s forensic lab is already cataloguing 20,000 pieces of old DNA evidence that need to be tested. More are emerging. Georgia agencies that have joined a national effort to locate untested rape kits are coming up with hundreds more.

Closing Grady’s cases would take even longer. Witnesses may have died or moved away. Victims could be hard to track down. When they receive news that their cases were never investigated, memories of their long-ago rapes may come flooding back.

Regardless of who is responsible for the hospital’s untested kits, someone needs to ensure rape victims get the help that they deserve, forensic nursing expert Day said.

“Something’s broken. They’ve got to fix it.”