STATE OF WISCONSINDepartment of Justice
ORDER OF
THE WISCONSIN DEPARTMENT OF JUSTICE
TO ADOPT RULES
The Wisconsin Department of Justice (“DOJ”) finalizes an order to create ch. Jus 21, relating to the tracking of sexual assault kits in sexual assault cases. The statement of scope for these rules, SS 024-22, was approved by the Governor on March 24, 2022, published in the Administrative Register, No. 785B, on March 28, 2022, and approved by the Attorney General on April 13, 2022. The Governor approved these rules on December 14, 2023. ANALYSIS PREPARED BY THE
WISCONSIN DEPARTMENT OF JUSTICE
Explanation of agency authority:
(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Wisconsin Stat. § 165.776(4), as created by 2021 Wis. Act 117, provides that “[t]he department shall promulgate rules to administer this section.” 2021 Wis. Act 117, § 1 provides, in pertinent part: “(4) The department shall promulgate rules to administer this section.” This statute and 2021 Wis. Act 117 expressly confer on DOJ the power to promulgate rules interpreting the provisions in s. 165.776, Stats., that are to be enforced or administered by DOJ to effectuate the purpose of those statutory provisions and the act, as long as the rules do not exceed the bounds of correct interpretation of the governing statutes. DOJ finds that the promulgation of the rules is appropriate to comply with the Legislature’s direction that DOJ promulgate rules. DOJ further finds that the rules:
do not exceed the bounds of correct interpretation of s. 165.776, Stats.;
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 s. 165.776, Stats., and 2021 Wis. Act 117 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 s. 165.776, Stats.For these reasons, the rules are authorized by s. 165.776(4), Stats., as created by 2021 Wis. Act 117, and s. 227.11(2)(a). Related statutes or rules: s. 165.775, Stats.; Wis. Admin. Code ch. Jus 20. Plain-language analysis:
In 2021 Wis. Act 117, Wisconsin established statutes governing the tracking of sexual assault kits, which contain evidence collected as part of sexual assault forensic examinations of victims. The law describes an electronic database, which shall be known as the Wisconsin Sexual Assault Kit Tracking System, to allow victims of sexual assault the ability to anonymously access information about the location and status of any sexual assault kit the victim has provided, notwithstanding other limitations on accessing the information in s. 165.79(1), Stats. The law further provides that the Wisconsin Sexual Assault Kit Tracking System shall allow continuous and ongoing access by health care professionals, law enforcement agencies, prosecutors and DOJ 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. A. Wisconsin Law Enforcement Agencies and Health Care Professionals
Under s. 165.776(3)(a), Stats., whenever a Wisconsin law enforcement agency or health care professional collect a victim’s sexual assault kit, they shall enter the information required into the Wisconsin Sexual Assault Kit Tracking System. The statute does not, however, define procedures for these practices. The rules set forth these procedures. B. Wisconsin State Crime Laboratories
Under s. 165.776(3)(b), Stats., the Wisconsin State Crime Laboratories shall enter the information required into the Wisconsin Sexual Assault Kit Tracking System. The statute does not, however, define procedures for these practices. The rules set forth these procedures. Consistent with the above information, the rules cover five subject areas, which are separated into different sections.
First, section Jus 21.01 describes DOJ’s authority for promulgating the rules, with a specific citation to the enabling statute, and DOJ’s purpose for promulgating the rules. Second, section Jus 21.02 includes three definitions of phrases that are used in the rules. These phrases, “health care professional,” “reporting victim,” and “sexual assault kit,” are used in the rules to specify particular types of health care personnel, kits, and victims who will be impacted by the procedures that the rules establish. The phrases “health care professional” and “sexual assault kit” are defined in the enabling statute and should be defined consistently in the rules. Further, the phrase “reporting victim” is a term of art with which lay people may not be familiar, and that the rules should define. Third, section Jus 21.03 establishes procedures relating to the tracking of sexual assault kits pertinent to health care professionals. After collecting evidence in a sexual assault kit, the rules require a health care professional to enter information regarding the kit into the Wisconsin Sexual Assault Kit Tracking System. Fourth, section Jus 21.04 establishes procedures relating to the tracking of sexual assault kits pertinent to law enforcement agencies. When a law enforcement agency takes possession of a victim’s sexual assault kit, the agency must enter information regarding the kit into the Wisconsin Sexual Assault Kit Tracking System. The rules explain what must happen for a kit collected by a health care professional inside and outside Wisconsin. The rules explain what a law enforcement agency should do with information about a kit when a victim does not want to proceed with analysis of the kit or changes their mind about the processing of the kit. The rules also require a law enforcement agency to enter information into the Wisconsin Sexual Assault Kit Tracking System after the kit has been processed by the state crime laboratories and received by the law enforcement agency. Lastly, section Jus 21.05 establishes procedures relating to the tracking of sexual assault kits pertinent to the state crime laboratories. The state crime laboratories must enter information into the Wisconsin Sexual Assault Kit Tracking System for a sexual assault kit from a victim submitted by either a law enforcement agency or a health care professional. After processing the sexual assault kit, the state crime laboratories also must enter information regarding the kit into the Wisconsin Sexual Assault Kit Tracking System. And when a sexual assault kit is destroyed by the state crime laboratories after 10 years of storage, the state crime laboratories must enter information about the kit into the Wisconsin Sexual Assault Kit Tracking System. Summary of, and comparison with, existing or proposed federal regulations:
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 the 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 some topics that are related to what the rules will address, namely, the tracking of sexual assault kits and related evidence. However, the federal law is about providing specific rights to crime victims; whereas the rules will be about establishing how DOJ and others will execute the statutes governing tracking sexual assault kits, namely Wis. Stat. § 165.776. 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. Instead the rules will address the tracking of sexual assault kits in sexual assault cases.
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, 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; (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 some topics that are related to what the 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 rules will be about establishing how DOJ and others will execute the statutes governing the tracking of sexual assault kits, namely Wis. Stat. § 165.776. Comparison with rules in adjacent states:
