STATE OF WISCONSIN
Department of Justice
STATEMENT OF SCOPE OF PROPOSED RULES
Rule No.: Wis. Admin. Code ch. Jus 9. Relating to: Procedures and standards for the collection, handling, submission, retention, storage, DNA analysis, and use of biological evidence from sexual assault crime scenes and from sexual assault victims.
1. Description of the objectives of the rules:
The State of Wisconsin Department of Justice proposes to make additions and amendments to Wis. Admin. Code ch. Jus 9, which governs the procedures for the submission of human biological specimens to the Department of Justice crime laboratories for DNA analysis, the analysis of such specimens, the maintenance of a data bank of DNA analysis data, and the use of the DNA data bank. The proposed additions and amendments to Wis. Admin. Code ch. Jus 9 will relate to procedures and standards for the collection, handling, submission, retention, storage, DNA analysis, and use of biological evidence in cases of alleged or suspected sexual assault, where the biological evidence is obtained from the crime scene or from a forensic examination of the sexual assault victim. The proposed rule will cover both cases in which no suspect in the sexual assault has been identified and cases in which a suspect in the sexual assault has been identified. The proposed rule will cover matters related to biological evidence obtained from a sexual assault crime scene or from a sexual assault victim. Matters related to biological specimens that are or have previously been obtained from an individual convicted of or arrested for a crime are covered by existing provisions of Wis. Stat. ch. Jus 9 and are not part of the scope of the currently proposed rule. The proposed rule will cover the following subject areas:
• The collection and handling of biological evidence by a law enforcement agency or by a health care professional from a sexual assault crime scene or from a sexual assault victim.
• The information and options about which victims of alleged or suspected sexual assault must be notified by law enforcement personnel, health care professionals, and sexual assault service providers.
• The submission to the crime laboratories of biological evidence that has been obtained by a law enforcement agency or by a health care professional from a sexual assault crime scene or from a sexual assault victim, including the circumstances in which such evidence must be sent to the crime laboratories, who is responsible for submitting such evidence to the crime laboratories, and the time requirements for such submissions.
• The retention, storage, and DNA analysis by the crime laboratories of biological evidence that has been obtained from a sexual assault crime scene or from a sexual assault victim, including the circumstances under which such evidence will be stored or destroyed.
• The use, for law enforcement and criminal justice purposes, of the DNA analysis of biological evidence that has been obtained from a sexual assault crime scene or from a sexual assault victim.
• Protecting the confidentiality of the personal identifying information of sexual assault victims from whom biological evidence has been obtained, and the circumstances under which such information can or cannot be released to law enforcement.
2. Description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives; the history, background and justification for the proposed rule:
Under a variety of Wisconsin Statutes, certain persons are required to submit biological specimens to the crime laboratories in DOJ for DNA analysis. In 2013 Wisconsin Act 20 and 2013 Wisconsin Act 214, the State of Wisconsin substantially revised those statutes. On September 20, 2015, DOJ promulgated permanent administrative rules that repealed and recreated Wis. Admin. Code ch. Jus 9 to accommodate those statutory changes. In addition to the statutes that require certain persons to submit a personal biological specimen to the crime laboratories, there are also two statutory provisions that specifically address matters related to biological evidence that is obtained not from such persons, but rather from a sexual assault crime scene or from a sexual assault victim.
First, under s. 165.77(7), Stats., in any case of alleged or suspected sexual assault, if a Wisconsin law enforcement agency or a health care professional collects evidence, the agency or professional shall follow the procedures specified in DOJ rules promulgated under s. 165.77(8), Stats., and the DOJ crime laboratories shall, in a timely manner, perform DNA analysis of any biological specimens submitted to them. Second, under s. 175.405, Stats., in any case of alleged or suspected sexual assault, if a Wisconsin law enforcement agency collects evidence upon which DNA analysis can be performed, and the person who committed the sexual assault has not been identified, the agency shall follow the procedures specified in DOJ rules promulgated under s. 165.77(8), Stats., and shall, in a timely manner, submit the evidence it collects to the DOJ crime laboratories. The rule proposed here will carry into effect the legislative policies in ss. 165.77(7) and 175.405, Stats., by establishing specific procedures, time limits, and standards for the collection, handling, submission, retention, storage, DNA analysis, and use of biological evidence in cases of alleged or suspected sexual assault, where the biological evidence is obtained from the crime scene or from a forensic examination of the sexual assault victim. 3. Statutory authority for the rule (including the statutory citation and language):
Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of alleged or suspected sexual assault, the agency or professional shall follow the procedures specified in the department's rules under sub. (8). The laboratories shall perform, in a timely manner, deoxyribonucleic acid analysis of specimens provided by law enforcement agencies under sub. (2). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of those specimens in the data bank under sub. (3).
The department shall promulgate rules to administer this section.
Whenever a Wisconsin law enforcement agency collects, in a case of alleged or suspected sexual assault, evidence upon which deoxyribonucleic acid analysis can be performed, and the person who committed the alleged or suspected sexual assault has not been identified, the agency shall follow the procedures specified in s. 165.77 (8) and shall, in a timely manner, submit the evidence it collects to a crime laboratory, as identified in s. 165.75.
4. Estimate of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule:
It is estimated that state employees will spend approximately 180 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking procedures.
