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 rules will address, namely, the tracking 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 rules will be about establishing how DOJ will administer and execute the statutes governing the tracking of sexual assault kits, namely Wis. Stat. § 165.776. 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. 117 and s. 165.776, Stats. Based on that analysis, DOJ has determined that the rules are necessary for DOJ to carry out its responsibilities under 2021 Wis. Act 117 and s. 165.776, 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 21 is created to read: CHAPTER JUS 21
TRACKING OF SEXUAL ASSAULT KITS IN SEXUAL ASSAULT CASES
JUS 21.01 Authority. The Wisconsin Department of Justice has promulgated these rules pursuant to the authority granted by s. 165.776(4), Stats. JUS 21.02 Definitions. In this chapter:
(1)
“Health care professional” has the meaning given in s. 165.775(1)(b), Stats.(2)
“Reporting victim” means a person who reports to a law enforcement agency that he or she was sexually assaulted.(3)
“Sexual assault kit” has the meaning given in s. 165.775(1)(e), Stats.JUS 21.03 Health care professional procedures. Health care professionals shall:
(1)
Upon collection of a victim’s sexual assault kit, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.JUS 21.04 Law enforcement agency procedures. Law enforcement agencies shall:
(1)
Upon taking possession of a sexual assault kit for a reporting victim from a health care professional in Wisconsin, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(2)
Upon taking possession of a sexual assault kit for a reporting victim from a health care professional who collected the evidence outside of Wisconsin, and where the kit does not contain the Wisconsin Sexual Assault Kit Tracking System barcodes, notify the state crime laboratories for assistance.(3)
When, after taking possession of a sexual assault kit from a health care professional in Wisconsin, but before submitting it to the state crime laboratories for processing, the reporting victim notifies the law enforcement agency that the victim does not want to proceed with analysis of the kit, notify the state crime laboratories of these facts to assist the state crime laboratories in updating the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(4)
Notify the state crime laboratories whenever a victim, after having first chosen not to report a sexual assault as provided in Jus 20.03 (2) or notified the law enforcement agency that the victim does not want to proceed with analysis of the kit as provided in sub. (3), notifies the law enforcement agency that the victim does want to proceed with analysis of the kit to allow the state crime laboratories to update the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(5)
Upon receiving a victim’s sexual assault kit from the state crime laboratories after it has been processed, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.JUS 21.05 State crime laboratories procedures. The state crime laboratories shall:
(1)
Upon taking possession of a sexual assault kit from a victim submitted by a Wisconsin law enforcement agency, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(2)
Upon taking possession of a sexual assault kit collected from a victim and submitted by a health care professional in Wisconsin, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(3)
After processing is complete for a sexual assault kit from a reporting victim and the kit is ready to be returned to the submitting law enforcement agency, enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.(4)
When a sexual assault kit from victim is destroyed by the state crime laboratories after the 10-year storage period provided in s. 165.775(4)(a), Stats., enter the information for the kit in the required fields defined by the Wisconsin Sexual Assault Kit Tracking System.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)
WISCONSIN DEPARTMENT OF JUSTICE
Dated:____________________ Agency: _________________________
Joshua L. Kaul
Attorney General
