If Ashley Spence’s rapist was arrested in Arizona, where he brutally raped the then-19-year-old, he would likely still be roaming the streets. It wouldn’t be a rare occurrence—out of 1,000 rapes, 97.5% of rapists go free.
Fortunately, seven years after the crime, Kevin Francois was arrested in California when police found him trying to break into an apartment owned by three women. He resisted arrest, which is a felony offense. In California—as well as 18 other states—DNA from felony arrestees is entered into CODIS. As soon as Francois’ DNA hit the database, it matched to Spence’s rape at Arizona State University in 2003.
In 2016, Francois was sentenced to 138 years in prison, the maximum sentence allowable in the state of Arizona.
“This man was serial. He had a wife and a young son, but also a shed behind his home full of women’s underwear, drivers license from all over the world. I wasn’t the first, and what haunted me the most in the seven years that went by, I knew I wasn’t the last,” Spence said last week during a moving presentation at the ISHI conference.
DNA collection of arrestees
Although Francois was arrested and linked to Spence’s rape in 2010, it took five years to go to trial. That’s because the legal team was waiting on another court case—Maryland v King. The court upheld that case, saying it is a reasonable part of the booking procedure to take a DNA check swab for qualifying arrestees under the Fourth Amendment. With that precedent set, Spence’s trial could commence.
But, not every state has the same laws when it comes to DNA collection of arrestees.
“Where I was raped and assaulted in Arizona, had he been arrested there today, as the law stands, he would be out there raping and harming other woman. Resisting arrest would not have qualified as an offense they would have taken his DNA for,” said Spence. “Thankfully they had [the law] in California.”
Two states collect DNA for violent offense arrests only, while 11 do so for violent felony and burglary arrests, including Arizona.
But, a study from Case Western Reserve University has shown that an overwhelming majority of both serial and one-time sexual offenders have felony-level criminal histories. According to the study results, 74% of serial rapists had at least one prior felony arrest, while 95% of all serial rapists had a subsequent felony arrest.
“These offenders are not just doing higher-level crimes, they are doing lower-level crimes along the way,” said Spence. “We have to get them sooner.”
Expansion of DNA databases
The key to getting them sooner, Spence says, is DNA policy and databases. CODIS is one of the most successful investigative tools for law enforcement, but there are challenges.
Across the U.S., it is estimated that 40,000 to 50,000 lawfully owed samples, per state, are missing. This is due to a myriad of issues, including a systemic problem of failing to collect and process samples. For example, offenders miss court hearings and ignore court orders. A judge can order an offender to get their cheek swabbed, but once they leave the courtroom, there is nothing that ensures that step is actually taken.
In fact, uncollected offender DNA is one of the biggest hurdles to solving rape kit backlog issues. While there has been much reform and headway made on the rape kit backlog in the past 10 years, offender DNA is still a missing piece of the overall puzzle.
“We can do all this work on rape kit reform, but if we don’t have DNA to match, we’re not going to get the hits,” said Spence. “We know that when we can expand the collection of DNA in these databases, we’ll get more hits, which leads to more prosecutions and the right people serving time. This is critical.”
Innovative technologies like Rapid DNA can help eliminate database loopholes since DNA is taken upon the qualifying arrest and is uploaded and processed within 90 minutes. Louisiana is the first to go live with the FBI-approved technology in booking stations, with other states preparing to follow suit.
The value of forensic scientists
Speaking to a crowd of forensic professionals, Spence repeatedly acknowledged the value of their life-saving work.
“You can imagine how traumatic it would be to have DNA collection off your body after an attack like mine, but I don’t even remember. All I remember is my forensic nurse, Jennifer. She made me feel safe and protected and calm. And she would end up collecting what would be the evidence—saliva from my chest—that would put [Francois] in prison,” recalled Spence.
Spence also praised the DNA analyst who did such a precise job that the legal team was able to prove during the trial that the DNA collected from Spence’s body the night of the attack was “38 trillion times more likely” to be Francois’ than anyone else’s. A Y-STR analysis also found the rapist’s DNA all over Spence’s body, proving the information Spence provided immediately after the attack.
“When we can maximize the use of forensic DNA and technology, when we can have trauma-informed trained law enforcement, and SANEs, we make this world safer,” concluded Spence. “We can prevent tomorrow’s victim.”