8 sex assault cases unable to be investigated due to destroyed evidence: Fairfax County Police

Eight sex assault cases where evidence was marked as having been destroyed can no longer be investigated, Fairfax County Police say.

The department says they have reviewed 93 cases assigned to Detective Cynthia Lundberg from 1994 to 1997 that were identified following a Freedom of Information Act request filed by a victim of 1995 sexual assault.

The Washington Post was the first to reveal the destruction of evidence in Gretchen Van Winkle’s case.

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Two separate investigators looked at the FOIA request with particular emphasis on the 46 sex assault cases where evidence was labeled as having been destroyed.

Detectives had no concerns with the destruction of evidence in 38 of these cases, as evidence was destroyed in accordance with FCPD policy. Examples of evidence destroyed per department protocol include cases closed by arrest and fully adjudicated, cases where the victim did not want to further the investigation and cases closed as a police service.

Detectives found eight sex assault cases listed within the FOIA where evidence was marked as having been destroyed and questions remain. Additional investigation into these cases would be warranted but is now impossible without the necessary evidence.

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The victims in these cases are all living survivors of sexual assault, and FCPD says they deeply regret that they will not likely be able to obtain the justice they deserve due to the destruction of evidence.

FCPD says victims with questions about an existing case are encouraged to call. They will be provided with a case update and supportive services.

"The improper destruction of evidence makes it extremely difficult to hold offenders of crimes accountable," said Major Ed O’Carroll, Bureau Chief, Major Crimes Bureau, Cyber and Forensics. "The victims in these cases deserved better, and the Fairfax County Police Department deeply regrets the actions of the past. Steps are now in place to prevent such errors from ever repeating."

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The department says its policies and practices are now explicit in the way evidence is preserved in all sexual assault investigations. These policies include:

- All physical evidence recovery kits (PERKs), regardless of whether they are submitted for testing or excluded from testing because of a legislatively mandated exception, are required to be stored for a minimum of 10 years, or 10 years past the victim’s 18th birthday, whichever is longer. 

- If at any time, the victim objects to the destruction of a PERK, or rape kit, the kit shall be kept for a minimum of 10 years from the date of the request.

- Officers/Detectives shall notify survivors of their PERK ID number and PIN for access to the PERK Tracking System, unless there is sufficient and articulable reason to believe that doing so would unnecessarily interfere with the investigation. 

- All officers/detectives shall provide victims with a PERK ID number and PIN, and are required to notify a victim at least 60 days prior to the destruction of a PERK of their intent to destroy the kit.

- Regardless of the results of any forensic testing, no FCPD employee may unilaterally request the destruction of any PERK kit or other crime scene evidence relating to a sexual assault that has been identified by MCB Command, in conjunction with the Director of Victim Services, to be deemed relevant to prosecution. 

- FCPD employees who seek the destruction of these items shall request a meeting with both the Commander of the Violent Crimes Division as well as the Director of the Victim Services Division for final review and joint concurrence.

- The status of property or evidence shall not be changed without the written consent of the officer/detective responsible for the item(s) along with secondary approval of their first-line supervisor. 

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In July 2016, Virginia law was put into effect stating that a law enforcement agency that receives a PERK collected from a victim who has reported the offense shall submit the PERK to DFS for analysis within 60 days of receipt, except in certain circumstances.

In June 2019, Virginia also launched a website to track the location of PERKs to ensure survivors of sexual assault know what’s happening to their cases. Survivors of sexual assault are given an ID number to see where their kit is. No personal information that could identify the survivor is logged in the website.