In Idaho, women who become pregnant following a sexual assault are legally allowed to get an abortion under the law’s few exceptions. But, they first have to report their assault to a law enforcement agency and produce a police report to medical providers.

Those who do report to law enforcement and request copies of the document required by the statute may find barriers in authorities’ failure to understand their role in the process and lack of consistent protocols to assist victims.

“Most survivors opt out”

Victims advocates say requiring women to report to law enforcement prevents many from seeking the help they need.

Kelly Miller, the former head of the Idaho Coalition against Sexual and Domestic Violence said rape and sexual assault are some of the most underreported crimes in the state.

“Sexual assault and its various manifestations happens at extraordinarily high numbers that are not captured in most of the national or state data,” she said. Fear of not being believed by authorities and retaliation from their aggressor who they may know are a few of the reasons women don’t report their assault to the police, she added.

In 2023, law enforcement agencies in Idaho processed 594 cases of rapes, a figure she said does not reflect the reality of sexual violence in the state.

“Often, sexual assault survivors just want it to be over and so having to go through the trauma of reporting, the trauma of a forensic interview, most survivors opt out,” she said.

A woman who has been raped and wants an abortion in Idaho, first has to report her assault to the authorities, then has to request a copy of her report from the police. Only then can a medical provider perform an abortion.

“Those barriers are just going to be too much for some of those victims,” Dr. Samuel Dickman, an abortion provider in Montana. “And they will have to continue pregnancies as a result. I think that’s just incredibly tragic.”

Dickman co-authored a study published in the Journal of the American Medical Association that estimates in the 16 months following Idaho’s abortion ban, around 11,000 women were sexually assaulted in the state, a much higher number than what is reported to the authorities. Of those assaults, the study estimates more than a thousand resulted in a pregnancy.

“And the rape exceptions are doing virtually nothing to help those victims,” Dickman said, adding about 50% of rape survivors who become pregnant as a result of their assault look to terminate the pregnancy.

“What that means is that the vast majority of survivors of sexual assault who become pregnant are not able to get legal care in state in Idaho, despite the fact that technically it ought to be available to them,” he added.

Miller said the legal system is not centered around the needs of victims. No other type of medical intervention appears to require patients to interact with law enforcement as a precondition for care.

“This is a such a personal and deep and profound trauma when someone’s sexually assaulted that asking them to report is taking away agency and choice, which was taken away from the first place in the sexual assault,” Miller said. “So it’s retraumatizing to require anyone to have to report to anybody.”

The 72-hour amendment

Idaho banned abortions in 2022, with exceptions in cases of rape or incest, and when the life of the mother is threatened. Victim advocates quickly pointed out that police do not release copies of records during an ongoing investigation, potentially preventing women from receiving timely abortion care. In 2023, the legislature amended the law, entitling victims of rape to receive their police report within 72 hours of it being made.

More than a year after the updated amendment went into effect, a Boise State Public Radio investigation shows law enforcement agencies and public records departments in Idaho are unevenly complying with its requirements, which could prevent victims of rape or incest from easily accessing the documentation they need for a legal abortion.

“It doesn’t work that way”

“We’re treating this notion of a police report like it’s a receipt in a store,” Sen. Melissa Wintrow said while debating the amendment before it passed on the floor in 2023.

“You get raped, you experience trauma, you go to the police, you get your receipt, and you come back to the physician, and then you ask for the abortion. It doesn’t work that way.”

“Police reports are intricate and complicated, and police just don’t take that lightly,” she added.

Sergeant Bryan Lovell from the Bonneville County Sheriff’s Office explained the process once police receive a request for a record.

“If it’s an active investigation, then, they’re not going to give it to you. And chances are, we wouldn’t even know if you’re the victim or a witness to it, or just someone that’s curious. Right?”

Idaho’s public records law says agencies can’t ask why people want a copy of a file, but under the amendment, a victim has to identify themselves as such to receive their report. Without specific protocols to differentiate requests from victims from the general public, victims going through standard public records portals may be denied up front.

“It just runs through that same process and we wouldn’t know,” Lovell said.

Police do not usually release files pertaining to an open investigation because they may contain sensitive information. When records are requested, they aren’t released immediately.

“We’ll get the request in for a particular report, and then it’ll go to the prosecutor’s office for approval, and they’ll come back and say, ‘this can be released or it can’t be released, or it can be released with redactions,’” he added.

Lovell said an option for victims whose initial request is denied would be to directly contact their prosecuting attorney’s office, something they might not know to do.

Agencies across the state comply with the requirement unevenly

Depending on where they report their assault, victims of rape may have more or less difficulty getting the documentation they need.

Boise State Public Radio contacted 56 agencies across Idaho and asked about their protocols to help rape victims access their reports.

Many did not answer. Others did not mention the 72-hour amendment and said they’d follow public records law requirements. Some said they’d defer any special cases to their prosecuting attorney’s office.

Ada County’s Prosecutor’s Office, which works with the largest police department in the state, cited the ongoing litigation against Idaho’s abortion statute when declining to answer questions about its protocols.

Agencies like the Meridian Police Department, Garden City Police Department and Fremont County Sheriff said they comply with the 72-hour amendment and have in-house advocates to assist victims.

As a victim witness coordinator with the Caldwell Police Department, Liz Godina said if a victim needed help getting a copy of her report, she could walk them through the system step-by-step.

“I would talk to them and kind of explain to them like, ‘this is what you are able to do, if you need me to help you, I can go with you to the records department and do that with you,’” she said, adding she could then make sure records custodians know about the updated 72-hour amendment.

“When we’re working with victims of crime, it’s very important for them to feel heard, ” Godina said. Accompanying them through that journey, she said, can make them feel respected and empowered.

Godina said she knew about the rape exemption’s 72-hour requirement because she read about it online and feels it’s important in her position to stay updated with law changes.

But not all victims across the state may be so lucky to have someone like Godina assisting them in getting a copy of their record.

Open investigation policies confuse the process

Some agencies contacted by Boise State Public Radio didn’t appear to have any streamlined way to provide victims their report, in particular during an open case. Others seemed unaware of the updated law altogether.

In July 2024, a year after the amendment went into effect, Rexburg’s Police Department wrote in an email that in order to get a copy of a report, victims had to go through the city’s website.

“There they can search for Public Records Request and fill out a form to obtain a copy of the report. It is then forwarded to our office and we proceed with the process of handling the request,” the email reads.

“If the investigation is complete and there are no pending charges or court action, the victim can receive a copy of the report. If the rape is still under investigation, a copy is not released until the investigation is complete, per our Madison County Prosecutor’s Office, and the victim is advised of this.”

Idaho’s amended abortion law says that if an act of rape or incest is reported to a law enforcement agency or child protective services “then the person who made the report shall, upon request, be entitled to receive a copy of such report within seventy-two (72) hours of the report being made, provided that the report may be redacted as necessary to avoid interference with an investigation.”

In Clearwater County, Sheriff Chris Goetz also said his office generally only releases records when an investigation is complete.

“An example for this type of case would be a victim reporting a rape and wanting a report from us that she had reported a rape so that she could get an abortion,” he wrote in an email. “If we have not yet done an investigation how would we know if a rape had actually occurred or if she just wanted an abortion.”

Goetz wrote that if a preliminary investigation showed a rape occurred, the agency would provide the report to the victim.

“An example of that would be that we have done all of the interviews and collected the physical evidence but are waiting on results from a lab before we could actually complete the investigation. We may not yet be able to file charges because the case is not complete but I would support the victim any way possible,” he added.

Denied Requests

At the Nampa Police, Detective Troy Hale, an investigator at their Office of Professional Standards, said their department realized it hadn’t been complying with the 72-hour requirement, and unknowingly denied records to rape victims in 2023.

“We found four that should have under the new law been released that weren’t and it was kind of more of a training issue at that point for our records division,” he said. “So it was just an oversight,” he added.

“Since then we’ve changed that procedure obviously in our records department to where within that 72 hour time frame from when they want that report, then we supply that now.”

The four victims were not notified of the department’s mistake in handling their request.

“To my knowledge, I don’t know that we contacted them at all,” Hale said. The reason for their initial request is unknown.

The Department of Health and Welfare reports five abortions were legally provided in 2023 in Idaho. There is no way of knowing if any were granted under the state’s rape exception.

With five days to go until the 2024 general election, nearly 150,000 Idaho voters have already voted by absentee ballot, according to the Idaho Secretary of State’s Office.

As of Thursday afternoon, 146,139 Idahoans had cast their vote by absentee ballot, surpassing the total number of votes by absentee ballot in the 2022 election. 

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During the 2022 general election, which was not a presidential election, 129,210 Idahoans voted by absentee ballot, according to the Idaho Secretary of State’s Office. 

An additional 173,795 Idaho voters had participated in early voting for the 2024 election, as of Wednesday.

“With Idahoans showing up in large numbers for early voting and absentee, we are on the path to a historic turnout for the Nov. 5 general election,” Secretary of State Phil McGrane said in a written statement Wednesday. “I encourage every eligible voter to make a plan, whether it’s early voting through Friday, returning an absentee ballot, or heading to the polls on Election Day.”

About 23% of absentee ballots requested have not yet been returned, so the number of votes by absentee ballot is likely to continue to increase until polls close on Election Day.

Most of the voters who have voted by absentee ballot are Republicans. According to the Idaho Secretary of State’s Office, 82,059 of the absentee ballots that have been returned for the 2024 general election are from registered Republicans. That compares to 33,727 ballots from unaffiliated voters, 29,276 from registered Democrats, 791 from Libertarians and 286 from Constitution Party members.

In an interview Thursday at the Idaho State Capitol in Boise, McGrane said he has been most surprised and impressed by the 173,795 early in-person early votes.

“One of things that I have found most interesting this election is that as of right now, we have more early votes cast than we do absentee ballots cast, and I think if this trend continues today and tomorrow, I think this might be the first election where early voting surpassing absentee voting,” McGrane said. “And that is noteworthy.”

McGrane said he attributes the increase in early voting to voters simply feeling more comfortable voting that way.

“I think we are feeling the energy around early voting this cycle,” McGrane said.

Idaho legislators have sought to restrict absentee voting

Even though absentee voting is popular in Idaho, some Idaho legislators have sought to restrict absentee voting.

In 2023 and 2024, the Idaho Legislature’s House State Affairs Committee introduced bills sponsored by Reps. Joe Alfieri, R-Coeur d’Alene, and Mike Kingsley, R-Lewiston, respectively, that would have limited who was eligible to request an absentee ballot. Ultimately, the Idaho House killed Alfieri’s bill, House Bill 205, the Idaho Capital Sun previously reported, while Kingsley’s bill, House Bill 667, was sent out for possible amendments and never advanced. 

In 2023 the Idaho House passed a different bill, House Bill 259, which would have restricted who could distribute absentee ballot request forms. The Idaho Senate never took House Bill 259 up, which died when the 2023 session adjourned. 

All absentee ballots must be received by county elections office before polls close Nov. 5

The deadline to request an absentee ballot in Idaho was Oct. 25. As of Thursday, about 76.7% Idaho absentee ballots that were requested have been returned. Idaho voters must return their completed absentee ballot to their county’s elections office by the time polls close at 8 p.m. local time on Election Day, Nov. 5. On Wednesday, the Idaho Secretary of States Office asked voters who have not yet returned their ballots to use an official elections drop box or take their absentee ballot to their county elections office. 

“It is now too late to mail absentee ballots to guarantee arrival by the deadline on Election Day,” the Idaho Secretary of State’s Office said in a press release issued Wednesday. 

For Idahoans who do not vote early or by absentee ballot, polls will be open from 8 a.m. to 8 p.m. local time for those voting in person on Election Day. Residents can register to vote at the polls in Idaho. To register to vote in person, voters will need a current photo ID and proof of residence.