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Kelly Binder's rape kit hasn't been tested despite inspiring new law

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Last November, Kelly Binder went public with her claims of being drugged and raped at a downtown Denver hotel in late 2010 in part because she was upset that her rape kit had never been tested after prosecutors declined to file charges in the case.

The story helped inspire legislation requiring that all rape kits be tested -- and Governor John Hickenlooper signed it into law last month. Nonetheless, Binder's rape kit still hasn't been put into the system, and local authorities say there are no plans to do so.

In conversation, Binder, a married mother of two children who has chosen to make her name and image public, goes into incredible, and graphic, detail, about the December 2010 incident.

Binder says she met an old friend at a downtown bar, where she drank a beer given to her by an unknown man and soon began to feel strange; she believes it contained some kind of drug, although she says a subsequent blood draw didn't test for such a substance. Next thing she knew, she was in a bathroom kissing another man, whom she describes as a military affiliate in town for a conference. She says he pulled her out of the bar (she later learned they'd been tossed out for their bathroom behavior), separated her from her friend, and half-carried her to his hotel (she was so out of it that she fell numerous times en route). Inside his room, she says he brutally raped her, albeit without ejaculating.

Afterward, Binder called her husband and then reported the matter to the police, unwittingly beginning what she characterizes as many hours of poor treatment and humiliation. She's especially aggravated that no advocate was assigned to assist her -- and this frustration was amplified when, weeks later, authorities declined to bring charges against the man or process the rape kit that had been completed the day after the alleged attack.

This last decision was the focus of a 7News report by Keli Rabon revealing that not all rape kits are processed, with the station maintaining that 44 percent of those collected in Denver since 2008 had never been put into the system. As a result, DNA from possible perpetrators would not surface as a match if the man committed another sexual assault in the future.

The situation helped inspire House Bill 13-1020, legislation requiring the testing of all rape kits (see clarification below). Sponsored by Representative Frank McNulty, the bill passed with bipartisan support and was signed into law by Governor Hickenlooper in early June. But when Binder called us, she had received no information that her rape kit has been or will be processed.

Continue to read more about Kelly Binder and rape kits, including a photo and two videos. To find out, we contacted Lynn Kimbrough, spokesman for the Denver District Attorney's Office.

After the original 7News story ran, Kimbrough was critical of Rabon because "the story included a line that said nothing was ever done with this victim's case," she notes. "I took exception to that, because a great deal of work was done on the case. But it didn't yield the results the victim had hoped for."

By the way, the district attorney's office also took umbrage at another report by 7News' Rabon, a March 2013 package maintaining that the Denver DA's rate of sex-assault prosecution is low by comparison with other agencies.

Kimbrough is understanding about Binder's unhappiness. "We know from working with our victims how devastating it can be" when prosecution isn't launched, "but we just didn't feel we had proof beyond a reasonable doubt, which is our filing threshold."

What about the rape kit? "It's really up to the Denver Police Department if they decide to test her kit," Kimbrough replies. "We didn't ask for it to be tested, because we didn't file a case. So they would have to decide to test it."

With that in mind, we reached out to the DPD, and Technician Raquel Lopez, a department spokeswoman, told us testing the kit was up to the DA's office. "Because of the case being closed -- because it was refused -- they won't do anything," she says. "That doesn't mean they won't reopen it. But at this time, all I can tell you is, it's closed" -- and rape kits in closed cases aren't tested.

Could that change? Well, the Colorado Department of Public Safety reportedly has six months or so from the bill's signing to write rules putting it into effect, and it's at least conceivable that a provision would call for previously unprocessed rape kits to be put into the system. But such kits could also fall through the cracks, much to Binder's chagrin.

"It's coming on three years for me, and there still hasn't been a resolution," she says, adding, "Please test my kit, so when he does something like this again, some other law-enforcement agency can stop him. That's all I can ask for."

Look below to see two 7News reports -- the original November 2012 piece featuring Binder and a June report about the signing of McNulty's bill.

Clarification: The original version of this post stated that House Bill 1020 required the testing of "all" rape kits -- a reference to a June 5 story on the topic by 7News that begins with the line, "Gov. John Hickenlooper signed a bill Wednesday requiring testing of all rape kits." However, Denver DA's office spokeswoman Lynn Kimbrough points out that the bill actually "requires the executive director of the department of public safety to adopt rules concerning forensic medical evidence of a sexual assault (forensic evidence) collected by law enforcement agencies," rather than committing the state to test all rape kits.

Other sections of the bill include the word "all," including this one:


Still, caveats are included. For instance, localities are directed to inventory "all forensic medical evidence of a sexual assault that has not been analyzed by the Colorado Bureau of Investigation or other accredited crime laboratory" -- but only if it "is for an active criminal investigation" and "meets the criteria for mandatory testing pursuant to the rules adopted by the executive director."

The ongoing rule-making process will no doubt deal with any apparent ambiguities in the language. It's important to note, though, that Binder's case doesn't appear to qualify under the "active criminal investigation" description.

More from our Media archive circa March: "Rape prosecution story: Denver DA, 7News trade inaccuracy charges."

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