Review options with RAINN and Joyful Heart Foundation so they can provide TA on how to ensure statutes are followed.
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Christina was working to research laws/protocols outlining any penalties or consequences of LEAs NOT submitting kits to the labs within the designated time frames. She had only found wording that if not submitted within the time frame that the admissibility of the evidence is not affected. She wanted help to know if there was legislation or protocols that outline what actually happens if LEAs do not comply with the submission time frames?
Paige to discuss with RAINN and JHF and provide guidance.
Paige sent first round of responses from RAINN.
Response from RAINN:
It depends on what the bills says. For instance- as many states law do - there may be an express statement that if the responsible agency fails to comply with the provisions of the law that there is no private right of action (victims can't sue the state agency for failing to do the thing) or that this law does not create a legal right.
So, I would say, make sure that there aren't any similar provisions in the bill (although it is likely that someone will recommend including that kind of language at some point during the negotiation process).
Then see if you can either:
- Create an annual compliance report that must be submitted to the legislature so the failure to comply with testing times or other provisions can be identified and brought out for public scrutiny
- Connect the compliance with funding - i.e. if the agency responsible is found to not be in substantial compliance with the
- Pass the Sexual Assault Victim's Bill of Rights - that might be a good way to tie in the right of victims to sue (potentially).
Paige sent additional information.
From Ilse at Joyful Heart:
Joyful Heart is looking into this as part of their implementation research. Right now, the main compliance measure they know of is in Kentucky (text below). Another way to go is to have an ombudsperson, or put a cause of action for survivors in the law if its ignored.
Here is KY law summary. Essentially this fund provides resource for mandatory LE training in KY (so it seems that most LE agencies would use this money).
SB 63 GA adds an additional requirement for local agencies who wish to obtain funds from the Law Enforcement Foundation Program fund to include that by January 17, 2017 they must have a written policy and procedures manual related to sexual assault examinations that has been approved by the Justice and Public Safety Cabinet and which includes:
- Evidence collected as a result of an examination performed under KRS 216B.400* must be taken into custody within five days of notice from the collecting facility that the evidence is available;
*KRS 216B.400 deals with the emergency care and examination services for victims of sexual offenses, examination expenses paid by Crime Victims' Compensation Board, reporting to law enforcement, and examination samples as evidence. -
-Evidence must be transported to a Department of State Police (KSP) forensic laboratory within thirty days of its receipt by the department;
- A requirement that if a suspect standard is available, it be transmitted to the KSP forensic laboratory with the evidence received from a collecting facility. KSP may give priority to analysis and classification of kits where the suspect has been identified and the reference standard for comparison is provided with the kit.
- Process for notifying the victim of the progress of the testing and if there had been a match to other DNA samples and if the evidence is to be destroyed. This policy may allow for delaying notification until the suspect is apprehended or the Commonwealth’s Attorney consents to the notification.
-A requirement that evidence received from a collection facility relating to an incident that occurred outside the jurisdiction of KSP be transmitted to a department with jurisdiction within ten days of its receipt by the department
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