SB809: Bill Text

2019 Senate BILL 809

February 12, 2020 - Introduced by Senator Jacque, cosponsored by Representatives Steffen, Thiesfeldt, Brandtjen, James, Loudenbeck, Dittrich, Gundrum, Kerkman, Knodl, Krug, Kulp, Magnafici, Murphy, Mursau, Sanfelippo, Petersen, Quinn, Tittl and Zimmerman. Referred to Committee on Judiciary and Public Safety.

SB809,1,10 An Act to repeal 165.77 (7) and 175.405; to renumber 950.03 and 950.04 (1v) (dL); to amend 165.845 (title), 165.845 (1) (a), 165.845 (1) (b), 165.845 (2), 949.20 (3) and 968.205 (3) (intro.); and to create 50.378 (1m), 100.58, 118.60 (1) (f), 118.60 (1) (h), 118.60 (3g), 119.23 (1) (cf), 119.23 (1) (e), 119.23 (3g), 165.25 (20), 165.775, 165.788, 165.845 (1) (d), 165.847, 175.408, 895.537, 949.23, 950.02 (3t), 950.03 (2), 950.043 and 973.06 (1) (i) of the statutes; relating to: creating a sexual assault victim bill of rights; collection and reporting of data regarding sexual assault kits; storage and processing of sexual assault kits; tracking of sexual assault kits in sexual assault cases; and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

Processing of sexual assault kits

Under current law, there is no statutory procedure for the collection and processing of sexual assault kits. This bill creates procedures for transmission, processing, and storage of sexual assault kits. Under the bill, a health care professional who collects a sexual assault kit must do one of the following: 1) if the victim chooses to report the sexual assault to law enforcement, the health care professional must notify a law enforcement agency within 24 hours of collecting the kit; or 2) if the victim chooses not to report the sexual assault to law enforcement, the health care professional must send the kit to the state crime laboratories for storage no more than two business days after collecting the kit. Under the bill, if a law enforcement agency has been notified by a health care professional that a kit has been collected, the law enforcement agency must take possession of the kit within 48 hours, and must then send the kit to the state crime laboratories for processing no less than 48 hours and no more than seven days after taking possession of it. If the victim changes his or her mind about wanting to have his or her kit analyzed after it is given to a law enforcement agency but before the agency sends the kit to the state crime laboratories for processing, the agency must send the kit to the state crime laboratories for storage rather than for processing.

Under the bill, once the state crime laboratories takes possession of a sexual assault kit, it must do one of the following: 1) if it has received the kit of a person who has not consented to analysis, securely store the kit for 50 years; or 2) if it has received the kit of a person who has consented to analysis, process the kit within 90 days and then securely store the kit for 50 years, until the date of the expiration of the statute of limitations, or until the end of a term of imprisonment or probation of a person convicted in the sexual assault case, whichever is longest.

Sexual assault victim bill of rights

This bill creates a sexual assault victim bill of rights. In addition to the rights extended to crime victims under Wisconsin's basic bill of rights for victims and witnesses, this bill adds the following rights for victims of sexual assault, regardless of whether or not they choose to cooperate with a law enforcement agency: the right to be provided with accurate written information about his or her rights as a sexual assault victim; the right to bathe immediately following a sexual assault forensic examination; the right to choose whether or not to cooperate with a law enforcement agency; the right to have any sexual assault kit stored for 50 years or until the end of the prison term of the person convicted of the assault against him or her; and the right to be notified in writing of the results of his or her sexual assault kit analysis, to be notified in writing of the occurrence of analysis of another sexual assault kit in which there is a matching DNA sample collected, and to be notified in writing 60 days prior to the destruction of any evidence obtained in a sexual assault forensic examination.

Sexual assault data

Under current law, local law enforcement agencies must report certain crime statistics to the Department of Justice. This bill requires DOJ to collect certain data regarding sexual assault kits collected and tested in Wisconsin in addition to the data currently being collected, and requires DOJ to submit an annual report to the legislature on those sexual assault kits. Under the bill, DOJ must report specific information including the following: the number of sexual assault kits collected and the dates of collection, the number of sexual assault kits submitted to DOJ laboratories for analysis, the number of kits submitted to DOJ laboratories for analysis that have not yet been analyzed and the reason they have not been analyzed, the dates of submission and, if applicable, analysis, and the number of kits not submitted to DOJ for analysis that remain in law enforcement custody and the reason the kits were not submitted. The bill also requires DOJ to publish data on law enforcement agency compliance with DOJ reporting requirements.

This bill also requires DOJ to establish a data bank, to be known as the Wisconsin Sexual Assault Kit Tracking System, for the purpose of providing a victim of sexual assault access to information about the status of any sexual assault kit the victim has provided.

Citizenship of individuals arrested for and convicted of sexual assault

Under the bill, if a person under arrest for sexual assault is not a U.S. citizen and is not authorized to be in the United States under federal law, the law enforcement agency must notify U.S. Immigration and Customs Enforcement. In addition, if a person convicted for sexual assault is not a U.S. citizen and is not authorized to be in the United States under federal law, DOJ must notify U.S. Immigration and Customs Enforcement.

Parental choice programs; exceptions for victims of sexual assault

Under the bill, a pupil who is a victim of sexual assault may attend a private school participating in the Milwaukee Parental Choice Program, the Racine Parental Choice Program, or the statewide parental choice program, regardless of whether the pupil meets the standard eligibility requirements to participate in the parental choice program. Additionally, the bill provides an alternative application procedure that allows a pupil who is victim of sexual assault to begin attending a private school under a parental choice program at any time during the school year. For purposes of these provisions, a pupil is a victim of sexual assault if charges are filed for the sexual assault and the person against whom the charges were filed is a pupil or a school district employee.

Miscellaneous

Current law allows a health care provider who conducts an examination to gather evidence regarding a sex offense to apply to DOJ for reimbursement of the examination costs, which include tests for sexually transmitted diseases and medications to prevent or treat a sexually transmitted disease. This bill adds the following as costs that may be reimbursed: 1) if the health care provider believes that pregnancy could be a consequence of the sex offense, the costs of a pregnancy test, to be administered when a pregnancy may be detected and 2) a post-exposure prophylaxis.

The bill also provides authority to a court to require a defendant who is convicted of a crime in which a sexual assault kit was collected to pay the costs for collection of the sexual assault kit and prohibits the sale of at-home sexual assault evidence collection kits.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB809,1 Section 1 . 50.378 (1m) of the statutes is created to read:

SB809,4,6 50.378 (1m) Notification of victim rights. A hospital that provides emergency services to a victim of sexual assault, human trafficking, or child sexual abuse shall inform the victim of his or her rights under ss. 950.04 (1v) (ag), (bm), (c), (d), and (em) and 950.043 orally and, using a form provided by the department of justice, in writing.

SB809,2 Section 2 . 100.58 of the statutes is created to read:

SB809,4,9 100.58 At-home sexual assault evidence collection kits. (1) In this section:

SB809,4,12 (a) “At-home sexual assault evidence collection kit” means a kit that is intended for use by a person who is not a health care professional or employee of a law enforcement agency to collect forensic evidence regarding a sex offense.

SB809,4,14 (b) “Health care professional” means a person licensed, certified, or registered under ch. 441, 448, or 455.

SB809,4,15 (c) “Sex offense” has the meaning given in s. 949.20 (7).

SB809,4,17 (2) No person may sell or offer for sale in this state an at-home sexual assault evidence collection kit.

SB809,3 Section 3 . 118.60 (1) (f) of the statutes is created to read:

SB809,4,20 118.60 (1) (f) “Sexual assault” means conduct that is in violation of s. 940.225, 948.02, 948.025, 948.055, 948.06, 948.08, 948.085, 948.09 or 948.10.

SB809,4 Section 4 . 118.60 (1) (h) of the statutes is created to read:

SB809,5,3 118.60 (1) (h) “Victim" means an individual who is the victim of sexual assault if charges have been filed for the sexual assault and the individual against whom the charges are filed is a pupil or an employee of a school district.

SB809,5 Section 5 . 118.60 (3g) of the statutes is created to read:

SB809,5,7 118.60 (3g) (a) 1. Notwithstanding sub. (2), a pupil in grades kindergarten to 12 who resides within an eligible school district and is a victim may attend a participating private school under this section.

SB809,5,10 2. Notwithstanding sub. (2), a pupil in grades kindergarten to 12 who resides in a school district, other than an eligible school district or a 1st class city school district, and is a victim may attend a participating private school under this section.

SB809,5,14 (b) 1. Notwithstanding sub. (3), the parent of a pupil under par. (a) who wishes to attend a participating private school under this section may, in lieu of applying under sub. (3), submit an application under this subsection, on a form provided by the department, at any time during the school year.

SB809,5,21 2. If a participating private school receives an application under subd. 1. the participating private school shall notify the applicant, in writing, whether it has accepted the application no later than 60 days after receiving the application. A participating private school may reject an applicant under this paragraph only if the participating private school has reached its maximum general capacity or seating capacity. If a participating private school rejects an application, the participating private school shall include the reason in the written notice.

SB809,5,24 3. If an application is accepted by a participating private school under this paragraph, the pupil may immediately begin attending the participating private school.

SB809,6,3 (c) The department may not count a pupil who attends a participating private school under this subsection for purposes of determining whether a school district has exceeded its pupil participation limit under sub. (2) (be).

SB809,6 Section 6 . 119.23 (1) (cf) of the statutes is created to read:

SB809,6,6 119.23 (1) (cf) “Sexual assault” means conduct that is in violation of s. 940.225, 948.02, 948.025, 948.055, 948.06, 948.08, 948.085, 948.09 or 948.10.

SB809,7 Section 7 . 119.23 (1) (e) of the statutes is created to read:

SB809,6,10 119.23 (1) (e) “Victim" means an individual who is the victim of sexual assault if charges have been filed for the sexual assault and the individual against whom the charges are filed is a pupil or an employee of a school district.

SB809,8 Section 8 . 119.23 (3g) of the statutes is created to read:

SB809,6,14 119.23 (3g) (a) 1. Notwithstanding sub. (2), a pupil in grades kindergarten to 12 who resides within the city and is a victim may attend a participating private school under this section.

SB809,6,17 2. Notwithstanding sub. (2), a pupil in grades kindergarten to 12 who resides in a school district, other than an eligible school district or a 1st class city school district, and is a victim may attend a participating private school under this section.

SB809,6,21 (b) 1. Notwithstanding sub. (3), the parent of a pupil under par. (a) who wishes to attend a participating private school under this section may, in lieu of applying under sub. (3), submit an application under this subsection, on a form provided by the department, at any time during the school year.

SB809,7,3 2. If a participating private school receives an application under subd. 1. the participating private school shall notify the applicant, in writing, whether it has accepted the application no later than 60 days after receiving the application. A participating private school may reject an applicant under this paragraph only if the participating private school has reached its maximum general capacity or seating capacity. If a participating private school rejects an application, the participating private school shall include the reason in the written notice.

SB809,7,6 3. If an application is accepted by a participating private school under this paragraph, the pupil may immediately begin attending the participating private school.

SB809,9 Section 9. 165.25 (20) of the statutes is created to read:

SB809,7,11 165.25 (20) Sexual assault victim notice. On behalf of the state crime laboratories and law enforcement agencies, notify a sexual assault victim from whom a sexual assault kit, as defined in s. 165.775 (1) (e), was collected, of all of the following:

SB809,7,12 (a) If the sexual assault kit is analyzed, the results of the analysis.

SB809,7,15 (b) If the sexual assault kit is analyzed and analysis identifies a foreign deoxyribonucleic acid profile, the occurrence of any future sexual assault kit analysis that identifies a matching foreign deoxyribonucleic acid profile.

SB809,7,17 (c) At least 60 days before the end of the storage period under s. 165.775 (4) (a) or (5), the date on which the person's sexual assault kit will be destroyed.

SB809,10 Section 10. 165.77 (7) of the statutes is repealed.

SB809,11 Section 11 . 165.775 of the statutes is created to read:

SB809,7,20 165.775 Sexual assault kits. (1) In this section:

SB809,7,21 (a) “Department” means the department of justice.

SB809,7,22 (b) “Health care professional" has the meaning given in s. 154.01 (3).

SB809,7,23 (c) “Sex offense” has the meaning given in s. 949.20 (7).

SB809,7,25 (d) “Sexual assault forensic examination” means an examination performed by a health care professional to gather evidence regarding a sex offense.

SB809,8,2 (e) “Sexual assault kit” means the evidence collected from a sexual assault forensic examination.

SB809,8,4 (f) “Wisconsin law enforcement agency" has the meaning given in s. 165.77 (1) (c).

SB809,8,7 (2) Whenever a health care professional conducts a sexual assault forensic examination and collects a sexual assault kit, the health care professional shall do one of the following:

SB809,8,10 (a) If the victim chooses to report the sexual assault to a Wisconsin law enforcement agency, or if reporting is required under s. 48.981 (2), notify a Wisconsin law enforcement agency within 24 hours after collecting the sexual assault kit.

SB809,8,15 (b) If the victim chooses not to report the sexual assault to a Wisconsin law enforcement agency, and reporting is not required under s. 48.981 (2), send the sexual assault kit to the state crime laboratories for storage in accordance with the procedures specified in the rules promulgated under sub. (7) no more than 2 business days after collecting the sexual assault kit.

SB809,8,17 (3) If a Wisconsin law enforcement agency receives notification under sub. (2) (a), it shall do all of the following:

SB809,8,19 (a) Take possession of the sexual assault kit from the health care professional within 48 hours after receiving the notification.

SB809,8,23 (b) Except as provided in par. (c), send the sexual assault kit to the state crime laboratories for processing in accordance with the procedures specified in the rules promulgated under sub. (7) no less than 48 hours and no more than 7 days after taking possession of the sexual assault kit.

SB809,9,5 (c) If the Wisconsin law enforcement agency, after taking possession of the sexual assault kit under par. (a) but before sending the sexual assault kit under par. (b), receives notification from the victim that the victim does not want to proceed with the analysis of his or her sexual assault kit, send the sexual assault kit to the state crime laboratories for storage in accordance with the procedures specified in the rules promulgated under sub. (7) within 7 days after taking possession of the sexual assault kit.

SB809,9,7 (4) If the state crime laboratories takes possession of a sexual assault kit, it shall do all of the following:

SB809,9,12 (a) If the victim chooses not to report the sexual assault to a Wisconsin law enforcement agency and thus has not consented to the analysis of his or her sexual assault kit, securely store the sexual assault kit for 50 years, during which time the sexual assault victim may choose to report the assault to a Wisconsin law enforcement agency.

SB809,9,17 (b) If the victim chooses to report the sexual assault to a Wisconsin law enforcement agency and thus has consented to the analysis of his or her sexual assault kit, process the kit in accordance with the procedures specified in the rules promulgated under sub. (7) within 90 days after taking possession of the sexual assault kit.

SB809,9,22 (5) After the state crime laboratories have processed a sexual assault kit, notwithstanding s. 968.205, it shall securely store the sexual assault kit for 50 years, until the date of the expiration of the statute of limitations, or until the end of the term of imprisonment or probation of a person who was convicted in the sexual assault case, whichever is longest.

SB809,9,25 (6) The department shall establish a data bank, which shall be known as the Wisconsin Sexual Assault Kit Tracking System, for the purpose of providing victims of alleged or suspected sexual assault access to information about the status of any sexual assault kit the victim has provided. The data bank shall use electronic technologies to allow continuous, ongoing access to do all of the following:

SB809,10,8 (a) Allow health care professionals collecting sexual assault kits, forensic laboratories, law enforcement agencies, prosecutors, and the department to update and track the location and status of sexual assault kits throughout the criminal justice process, including the initial collection of evidence, receipt and storage at law enforcement agencies, receipt and analysis at forensic laboratories, and storage and any destruction after completion of analysis.

SB809,10,12 (b) Allow a victim of sexual assault to anonymously track or receive updates regarding the location and status of the victim's sexual assault kit throughout the criminal justice process. Notwithstanding s. 165.79 (1), a victim may receive information and analyses of evidence obtained from the victim's sexual assault kit.

SB809,10,13 (7) The department shall promulgate rules to administer this section.

SB809,12 Section 12 . 165.788 of the statutes is created to read:

SB809,10,16 165.788 Citizenship of individuals convicted of sexual assault. (1) In this section, “sexual assault” has the meaning given in s. 165.93 (1) (b).

SB809,10,19 (2) If a person convicted of a sexual assault is not a U.S. citizen and is not authorized to be in the United States under federal law, the department shall notify U.S. immigration and customs enforcement.

SB809,13 Section 13 . 165.845 (title) of the statutes is amended to read:

SB809,10,21 165.845 (title) Collect crime and criminal justice data.

SB809,14 Section 14 . 165.845 (1) (a) of the statutes is amended to read: