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 rules 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 rules establish how the Wisconsin Department of Justice will administer and execute the statutes governing storage and processing of sexual assault kits, namely s. 165.775, Stats. 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 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 rules 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 rules establish how the Wisconsin Department of Justice will administer and execute the statutes governing storage and processing of sexual assault kits, namely s. 165.775, Stats. Comparison with rules in adjacent states:
Illinois: In Illinois, the Sexual Assault Evidence Submission Act governs sexual assault kit evidence collection, storage, and processing. 725 ILCS 202. It includes provisions addressing: the submission, analysis, and inventorying of evidence; reporting regarding sexual-assault cases; rulemaking regarding evidence; a sexual assault kit evidence tracking system; and other related provisions. 725 ILCS 202/10 to 202/50. Similarly, the Sexual Assault Incident Procedure Act, 725 ILCS 203, includes provisions regarding: victim notification; sexual assault incident policies; reports by law enforcement officers; third-party reports; victim notice; release and storage of sexual assault evidence; and release of other information. 725 ILCS 203/11 to 203/35.
Iowa: In Iowa, Iowa Code section 709.10 governs evidence of sexual abuse. It establishes a sexual assault kit tracking system. I. C. A. § 709.10.1.c., 2.–3., 8.–9. The law addresses how health care providers and law enforcement agencies are to collect, process, and document sexual assault kit evidence. I. C. A. § 709.10.4.–5. Law enforcement agencies are required to store the kit for a minimum of 15 years or, in the case of a minor victim, for 15 years after the minor reaches the age of majority. I. C. A. § 709.10.6. The law addresses disposal of sexual assault kits. I. C. A. § 709.10.7. It also addresses victim consent. I. C. A. § 709.10.11.a.–e.
Michigan: In Michigan, the Michigan Legislature enacted the Sexual Assault Kit Evidence Submission Act in 2014. This law governs sexual assault kit evidence collection, storage, and processing, and it includes provisions that specifically address the duties of health care facilities, written victim consent, notice to law enforcement agencies, the duties of law enforcement agencies, and destruction of sexual assault kit evidence. Mich. Comp. Laws. Ann. §§ 752.931–.935. Minnesota: In Minnesota, Minn. Stat. § 299C.106 governs sexual assault kit handling, submission, and storage. Specifically, the law requires law enforcement agencies to retrieve unrestricted sexual assault examination kits from health care professionals within 10 days of receiving notice that the kit is available for transfer. Minn. Stat. § 299C.106, subd. 2. Within 60 days of receiving an unrestricted sexual assault examination kit, a law enforcement agency must submit the kit for testing to a forensic laboratory. Minn. Stat. § 299C.106, subd. 3. The law also mandates that a uniform consent form be developed and distributed and that a searchable database providing sexual assault victims with information on the status of their individual sexual assault examination kit be maintained. Minn. Stat. § 299C.106, subds. 3a., 3b.
Summary of factual data and analytical methodologies: The rules are predicated on legal analysis by DOJ staff of the language and requirements of 2021 Wis. Act. 116 and s. 165.775, Stats. Based on that analysis, DOJ has determined that the rules are necessary for DOJ to carry out its responsibilities under 2021 Wis. Act 116 and s. 165.775, Stats. Fiscal estimate: DOJ has prepared a fiscal estimate that is being filed herewith.
Effect on small business: The rules will have no effect on small businesses.
Agency contact person:
Assistant Attorney General Clayton P. Kawski
17 West Main Street
Madison, WI 53703
Phone: (608) 266-8549
Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person shown above no later than one week after the public hearing on these rules is conducted. Information as to the date, location, and time of the public hearing will be published in the Wisconsin Administrative Register.
TEXT OF THE RULE
SECTION 1. Chapter Jus 20 is created to read: CHAPTER JUS 20
STORAGE AND PROCESSING OF SEXUAL ASSAULT KITS
JUS 20.01 Authority. The Wisconsin Department of Justice has promulgated these rules pursuant to the authority granted by ss. 165.775(6), Stats. and 2021 Wis. Act 116. JUS 20.02 Definitions. In this chapter:
(1) “Delayed report” means a report when a non-reporting victim later reports to a law enforcement agency that he or she was sexually assaulted.
(2) “Reporting victim” means a person who reports to a law enforcement agency that he or she was sexually assaulted.
JUS 20.03 Health care professional procedures. Health care professionals shall:
(1) Except as provided in sub. (2), after conducting a sexual assault forensic examination where a sexual assault kit is collected, notify the law enforcement agency in the jurisdiction where the examination occurred within 24 hours after collection of the kit.
(2) When a victim chooses not to report a sexual assault to a law enforcement agency, send a collected sexual assault kit to the state crime laboratories for storage within 72 hours after collection of the kit.
JUS 20.04 Law enforcement agency procedures. Law enforcement agencies shall:
(1) Upon being notified by a health care professional of the collection of a sexual assault kit, take possession of the kit within 72 hours.
(2) Upon taking possession of a sexual assault kit under sub. (1), send the kit to the state crime laboratories for processing within 14 days.
(3) When, after taking possession of a reporting victim’s sexual assault kit from a health care professional, but before submitting the kit to the state crime laboratories for processing, the reporting victim notifies the law enforcement agency that the victim does not want to proceed with the analysis of the kit, submit the kit within 14 days to the state crime laboratories for storage.
(4) After receiving a delayed report of sexual assault from a victim, notify the state crime laboratories of the delayed report to allow for processing of the stored kit in the state crime laboratories’ possession.
JUS 20.05 State crime laboratories procedures. The state crime laboratories shall:
(1) Process sexual assault kits from a reporting victim that are submitted by law enforcement agencies.
(2) Return processed sexual assault kits to the submitting law enforcement agency after processing.
(3) Store submitted sexual assault kits from victims who have chosen not to report the sexual assault to a law enforcement agency for 10 years from the date that the sexual assault forensic examination occurred.
(4) If, after 10 years from the date that the sexual assault forensic examination occurred, a law enforcement agency does not notify the state crime laboratories of a delayed report of a sexual assault, destroy the sexual assault kit.
SECTION 2. EFFECTIVE DATE. These rules take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided in s. 227.22(2) (intro.), Stats. (END OF TEXT OF THE RULE)
