(6) The department shall promulgate rules to administer this section.
2021 Wis. Act. 116, § 10(1) provides:
Section 10. Nonstatutory provisions.
(1) Within 180 days of the effective date of this subsection, the department of justice shall promulgate emergency rules under s. 227.24 to implement s. 165.775 for the period before the effective date of the permanent rules but not to exceed the period authorized under s. 227.24(1)(c), subject to extension under s. 227.24(2). Notwithstanding s. 227.24 (1)(a), (2)(b), and (3), the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. These statutes and 2021 Wis. Act 116 expressly confer on DOJ the power to promulgate emergency rules interpreting the provisions in Wis. Stat. § 165.775 that are to be enforced or administered by DOJ to effectuate the purpose of those statutory provisions and the act, as long as the emergency rules do not exceed the bounds of correct interpretation of the governing statutes. DOJ finds that the promulgation of the proposed emergency rules is appropriate to comply with the Legislature’s direction that DOJ promulgate emergency rules, as described in the preceding sections of this statement. DOJ further finds that the emergency rules here proposed:
- do not exceed the bounds of correct interpretation of Wis. Stat. § 165.775; - are authorized by the statutes and act described above and are not based on authority derived from any other statutory or nonstatutory statements or declarations of legislative intent, purpose, findings, or policy;
- are authorized as necessary interpretations of the specific requirements of Wis. Stat. § 165.775 and 2021 Wis. Act. 116 and are not based on authority derived from any other general powers or duties of DOJ; and - do not impose any standards or requirements that are more restrictive than the standards and requirements contained in Wis. Stat. § 165.776. For these reasons, the proposed rule changes are authorized by Wis. Stat. §§ 227.11(2)(a), 227.24(1), and 165.775(6), as created by 2021 Wis. Act. 116.
4. Estimate of the amount of time that state employees will spend to develop the emergency rules and of other resources necessary to develop the emergency rules:
It is estimated that state employees will spend approximately 60 hours on the rulemaking process for the emergency rules proposed here, primarily for compliance with required rulemaking procedures.
5. Description of all entities that may be impacted by the emergency rules:
Several entities may be impacted by the proposed emergency rules. First, DOJ may be impacted, as it is the state agency primarily tasked with administering the changes to the law enacted in 2021 Wis. Act 116. Second, law enforcement agencies and district attorneys and their staffs may be impacted. Third, health care professionals, including those who work for hospitals and clinics, may be impacted. Fourth, the Wisconsin State Crime Laboratories may be impacted. The nature of these potential impacts of the proposed emergency rules are described in more detail in section 2 of this scope statement.
6. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the emergency rules:
Congress enacted the Survivors’ Bill of Rights Act of 2016, which was signed into law on October 7, 2016. See 18 U.S.C. § 3772. This law gives sexual assault survivors several rights, including: (1) the right not to be prevented from, or charged for, receiving a medical forensic examination; (2) the right to have a sexual-assault evidence collection kit or its probative contents preserved, without charge, for the duration of the maximum applicable statute of limitations or 20 years, whichever is shorter; (3) the right to be informed of any result of a sexual assault evidence collection kit, including a DNA profile match, toxicology report, or other information collected as part of a medical forensic examination, if such disclosure would not impede or compromise an ongoing investigation; (4) the right to be informed in writing of policies governing the collection and preservation of a sexual assault evidence collection kit; (5) the right to, upon written request, receive written notification from the appropriate official with custody not later than 60 days before ethe date of the intended destruction or disposal of the sexual assault evidence collection kit; and (6) the right to, upon written request, be granted further preservation of the kit or its probative contents. 18 U.S.C. §§ 3772(a)(1)–(3)(B).
18 U.S.C. § 3772 generally addresses the same activities that the proposed emergency rules will address, namely, the storage and processing of sexual assault kits and related evidence. However, the federal law is about providing specific rights to crime victims; whereas the proposed emergency rules will be about establishing how the Wisconsin Department of Justice will administer and execute the statutes governing storage and processing of sexual assault kits, namely Wis. Stat. § 165.775. In 2021, a bill was proposed in Congress to enact the Survivors’ Bill of Rights in the States Act of 2021. See Survivors’ Bill of Rights in the States Act of 2021, H.R. 4978, 117th Cong. § 1 (2021). The bill was introduced in the U.S. House of Representatives on August 6, 2021. It would create an incentive for states to put in place laws that provide to sexual assault survivors the rights, at a minimum, under 18 U.SC. § 3772. It would enable the U.S. Attorney General to make grants to those states equal to 10 percent of the average of the amount of funding of the three most recent awards that a state received under part T of title I of the Omnibus Crime Control and Safe Streets Act of 1968, 34 U.S.C. § 10441 et seq., commonly referred to as the STOP Violence Against Women Formula Grant Program.
This proposed legislation involves grant funding, and the proposed emergency rules do not address grants or funding sources for sexual-assault kit analysis.
Lastly, 32 C.F.R. § 114, addressing “Victim and Witness Assistance” in cases involving offenses by military personnel, establishes certain rights for sexual assault victims. These include the rights to: (1) have a “sexual assault evidence collection kit or its probative contents preserved, without charge”; (2) be informed of the result of such kits; (3) be informed in writing of policies governing the collection and preservation of such kits; (4) upon written request, receive written notification from the appropriate official with custody not less than 60 days before the intended destruction or disposal of the kit; and (5) upon written request, be granted further preservation of such kits or their probative contents. 32 C.F.R. § 114.6(b)(1)(xi), (xii), (xiii), (xiv), (xv). These federal regulations generally address the same activities that the proposed emergency rules will address, namely, the storage and processing of sexual assault kits and related evidence. However, the federal regulations are about providing specific rights to victims of particular crimes by military personnel; whereas the proposed emergency rules will be about establishing how the Wisconsin Department of Justice will administer and execute the statutes governing storage and processing of sexual assault kits, namely Wis. Stat. § 165.775.
