Amendment SSA1-SB809

2019 - 2020 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 809

February 17, 2020 - Offered by Senator Jacque.

SB809-SSA1,1,9 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, 165.25 (20), 165.775, 165.776, 165.845 (1) (d), 165.847, 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.

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

SB809-SSA1,1 Section 1 . 50.378 (1m) of the statutes is created to read:

SB809-SSA1,2,3 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-SSA1,2 Section 2 . 100.58 of the statutes is created to read:

SB809-SSA1,2,6 100.58 At-home sexual assault evidence collection kits. (1) In this section:

SB809-SSA1,2,9 (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-SSA1,2,11 (b) “Health care professional” means a person licensed, certified, or registered under ch. 441, 448, or 455.

SB809-SSA1,2,12 (c) “Sex offense” has the meaning given in s. 949.20 (7).

SB809-SSA1,2,14 (2) No person may sell or offer for sale in this state an at-home sexual assault evidence collection kit.

SB809-SSA1,3 Section 3. 165.25 (20) of the statutes is created to read:

SB809-SSA1,2,18 165.25 (20) Sexual assault victim notice. Ensure that 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-SSA1,2,19 (a) If the sexual assault kit is analyzed, the results of the analysis.

SB809-SSA1,2,22 (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-SSA1,2,24 (c) At least 60 days before the end of the storage period under s. 165.775 (5), the date on which the person's sexual assault kit will be destroyed.

SB809-SSA1,4 Section 4. 165.77 (7) of the statutes is repealed.

SB809-SSA1,5 Section 5. 165.775 of the statutes is created to read:

SB809-SSA1,3,2 165.775 Sexual assault kits. (1) In this section:

SB809-SSA1,3,3 (a) “Department” means the department of justice.

SB809-SSA1,3,4 (b) “Health care professional" has the meaning given in s. 154.01 (3).

SB809-SSA1,3,5 (c) “Sex offense” has the meaning given in s. 949.20 (7).

SB809-SSA1,3,7 (d) “Sexual assault forensic examination” means an examination performed by a health care professional to gather evidence regarding a sex offense.

SB809-SSA1,3,9 (e) “Sexual assault kit” means the evidence collected from a sexual assault forensic examination.

SB809-SSA1,3,11 (f) “Wisconsin law enforcement agency" has the meaning given in s. 165.77 (1) (c).

SB809-SSA1,3,14 (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-SSA1,3,17 (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-SSA1,3,22 (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-SSA1,3,24 (3) If a Wisconsin law enforcement agency receives notification under sub. (2) (a), it shall do all of the following:

SB809-SSA1,4,2 (a) Take possession of the sexual assault kit from the health care professional within 72 hours after receiving the notification.

SB809-SSA1,4,6 (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) within 14 days after taking possession of the sexual assault kit.

SB809-SSA1,4,13 (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 14 days after taking possession of the sexual assault kit.

SB809-SSA1,4,15 (4) If the state crime laboratories takes possession of a sexual assault kit, it shall do all of the following:

SB809-SSA1,4,20 (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-SSA1,4,25 (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-SSA1,5,6 (5) If a law enforcement agency takes possession of a sexual assault kit after it has been processed by the state crime laboratories, notwithstanding s. 968.205, it shall securely store the sexual assault kit for a period of 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-SSA1,5,11 (6) (a) The department shall establish a database, which shall be known as the Wisconsin Sexual Assault Kit Tracking System, for the purpose of providing victims of sexual assault access to information about the status of any sexual assault kit the victim has provided. The database shall use electronic technologies to allow continuous, ongoing access to do all of the following:

SB809-SSA1,5,16 1. 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, including the initial collection of evidence, receipt and storage at law enforcement agencies, receipt and analysis at forensic laboratories, and destruction.

SB809-SSA1,5,19 2. Allow a victim of sexual assault to anonymously track the location and status of the victim's sexual assault kit. Notwithstanding s. 165.79 (1), a victim may receive information relating to the location and status of the victim's sexual assault kit.

SB809-SSA1,5,23 (b) Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of sexual assault, the agency or professional shall enter the information required in the department's rules under sub. (7) into the Wisconsin Sexual Assault Kit Tracking System.

SB809-SSA1,6,2 (c) Whenever the crime laboratories perform deoxyribonucleic acid analysis of a sexual assault kit, the crime laboratories shall enter the information required in the department's rules under sub. (7) into the Wisconsin Sexual Assault Kit Tracking System.

SB809-SSA1,6,3 (7) The department shall promulgate rules to administer this section.

SB809-SSA1,6 Section 6. 165.776 of the statutes is created to read:

SB809-SSA1,6,8 165.776 Sexual assault victim notification. The state crime laboratories shall notify a sexual assault victim from whom a sexual assault kit, as defined in s. 165.775 (1) (e), was collected at least 60 days before the end of the storage period under s. 165.775 (4) (a).

SB809-SSA1,7 Section 7 . 165.845 (title) of the statutes is amended to read:

SB809-SSA1,6,10 165.845 (title) Collect crime and criminal justice data.

SB809-SSA1,8 Section 8 . 165.845 (1) (a) of the statutes is amended to read:

SB809-SSA1,6,20 165.845 (1) (a) Collect information concerning the number and nature of offenses known to have been committed in this state, concerning sexual assault kits, as defined in s. 165.775 (1) (e), collected in this state, and concerning such other information as may be useful in the study of crime and the administration of justice. The department of justice may determine any other information to be obtained regarding crime, evidence, and justice system data or statistics. The information shall include data requested by federal agencies under the U.S. department of justice, including but not limited to the federal bureau of investigation under its system of uniform crime reports for the United States.

SB809-SSA1,9 Section 9 . 165.845 (1) (b) of the statutes is amended to read:

SB809-SSA1,6,25 165.845 (1) (b) Furnish all reporting officials with forms or instructions or both that specify the nature of the information required under par. (a), the time it is to be forwarded, the process for submitting the information, the method of classifying and any other matters that facilitate collection and compilation.

SB809-SSA1,10 Section 10. 165.845 (1) (d) of the statutes is created to read:

SB809-SSA1,7,4 165.845 (1) (d) Publish data at least annually on law enforcement agency compliance with the reporting requirement under par. (a) relating to sexual assault kits.

SB809-SSA1,11 Section 11 . 165.845 (2) of the statutes is amended to read:

SB809-SSA1,7,12 165.845 (2) All persons in charge of law enforcement agencies and other criminal and juvenile justice system agencies shall supply the department of justice with the information described in sub. (1) (a) on the basis of the forms or instructions or both to be supplied by the department under sub. (1) (a) (b). The department may conduct an audit to determine the accuracy of the data and other information it receives from law enforcement agencies and other criminal and juvenile justice system agencies.

SB809-SSA1,12 Section 12. 165.847 of the statutes is created to read:

SB809-SSA1,7,17 165.847 Report on status of sexual assault kits. On an annual basis, using information collected under s. 165.845 (1) (a), the department of justice shall submit to the legislature for distribution under s. 13.172 (2) a report that includes all of the following information for that year:

SB809-SSA1,7,18 (1) The total number of sexual assault kits collected in Wisconsin.

SB809-SSA1,7,19 (2) The date that each sexual assault kit was collected.

SB809-SSA1,7,21 (3) The number of sexual assault kits submitted to the crime laboratories for analysis.

SB809-SSA1,7,23 (4) The date of submission of each sexual assault kit submitted to the crime laboratories.

SB809-SSA1,7,25 (5) The date of analysis of each sexual assault kit submitted to the crime laboratories.

SB809-SSA1,8,2 (6) The number of sexual assault kits that were submitted to the crime laboratories for analysis that have not yet been analyzed.

SB809-SSA1,8,4 (7) For each unanalyzed sexual assault kit, the reason the kit has not been analyzed.

SB809-SSA1,8,7 (8) The number of sexual assault kits that identified a foreign deoxyribonucleic acid profile, the number of such profiles uploaded into the combined deoxyribonucleic acid index system, and the number of such profiles that match a profile in the system.

SB809-SSA1,8,8 (9) The number of sexual assault kits associated with further investigations.

SB809-SSA1,8,11 (10) The number of criminal cases filed, the number of such active cases, and the number of such cases with dispositions resulting from the analysis of sexual assault kits.

SB809-SSA1,8,14 (11) Any recommendations for statutory changes necessary to ensure that department practices regarding sexual assault kits conform with changes in technology and scientific best practices.

SB809-SSA1,13 Section 13 . 175.405 of the statutes is repealed.

SB809-SSA1,14 Section 14 . 895.537 of the statutes is created to read:

SB809-SSA1,8,18 895.537 Liability exemption; sexual assault evidence collection. (1) In this section:

SB809-SSA1,8,19 (a) “Health care professional” has the meaning given in s. 154.01 (3).

SB809-SSA1,8,21 (b) “Sexual assault forensic examination” has the meaning given in s. 165.775 (1) (d).

SB809-SSA1,8,25 (2) Any health care professional conducting a sexual assault forensic examination pursuant to informed consent or a court order is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.

SB809-SSA1,9,3 (3) Any employer of the person under sub. (2) or any health care facility where the sexual assault forensic examination is conducted by that person has the same immunity from liability under sub (2).

SB809-SSA1,15 Section 15 . 949.20 (3) of the statutes is amended to read:

SB809-SSA1,9,15 949.20 (3) “Examination costs" means the costs of an examination that is done to gather evidence regarding a sex offense,; any procedure during that examination process that tests for or prevents a sexually transmitted disease , and; any medication provided or prescribed, during that examination process, that prevents or treats a sexually transmitted disease that the person performing the examination or procedure believes could be a consequence of the sex offense, including post-exposure prophylaxis; and a pregnancy test, to be administered at a time when a pregnancy could be detected, if the person performing the examination or procedure believes that pregnancy could be a consequence of the sex offense. “Examination costs" does not include any processing or administrative costs, attorney fees, or other expenses.

SB809-SSA1,16 Section 16 . 949.23 of the statutes is created to read:

SB809-SSA1,9,18 949.23 Victims rights. A health care provider conducting an examination to gather evidence regarding a sex offense shall do all of the following:

SB809-SSA1,9,21 (1) Inform the victim, orally and, using a form provided by the department of justice, in writing, of his or her rights under ss. 950.04 (1v) (ag), (bm), (c), (d), and (em) and 950.043.

SB809-SSA1,9,23 (2) If facilities are available, provide to the victim an opportunity to bathe immediately following the examination.

SB809-SSA1,17 Section 17 . 950.02 (3t) of the statutes is created to read:

SB809-SSA1,10,4 950.02 (3t) “Sexual assault victim” means an individual against whom a crime has been committed under s. 940.22, 940.225 (1) to (3m), 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07 (1) to (4), 948.08, 948.085, 948.095, 948.10, 948.11 (2) (a) or (am), or 948.12, or s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.