THE SENATE

S.B. NO.

506

TWENTY-NINTH LEGISLATURE, 2017

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO SEXUAL ASSAULT.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. (a) The legislature finds that Act 207, Session Laws of Hawaii 2016, required all law enforcement agencies and departments charged with the maintenance, storage, and preservation of sexual assault evidence collection kits to conduct an inventory of all stored kits and report to the department of the attorney general. The results of that inventory from all four county police departments show that since 1992, there are 2,240 sexual assault evidence collection kits in the possession of county police departments. As of June 30, 2016, only 289 kits have been tested, leaving 1,951 kits that have not been tested.

Act 207 also required the department of the attorney general to report to the legislature on plans and procedures for the disposition of these 1,951 kits as well as new kits, and other related information. In fiscal year 2016-2017, the legislature appropriated $500,000 to the department of the attorney general for the testing of at least five hundred sexual assault evidence collection kits and for associated victim support services.

(b) The department of the attorney general, as directed under Act 207, convened a working group to develop statewide standards and practices for the testing of sexual assault evidence collection kits. The working group met over a six-month period and developed the malama kakou project. "Malama kakou" means "care for all of us; we care." The malama kakou project is a state plan to:

(1) Test untested sexual assault evidence collection kits and new sexual assault evidence collection kits;

(2) Identify the criteria for testing sexual assault evidence collection kits and the priority of testing;

(3) Provide active outreach and public notification to ensure that information and services are provided to impacted survivors; and

(4) Establish a tracking system for sexual assault evidence collection kits.

(c) The working group outlined a plan to reform the testing of sexual assault evidence collection kits in Hawaii, which included establishing guidelines to determine whether a kit should be tested, a priority order for kits that are to be tested, and a process for police departments to follow in implementing the defined criteria and priorities. The guidelines are as follows:

(1) Criteria. The working group determined that not all sexual assault evidence collection kits in police possession should be tested. Kits that do not need to be tested may include the following cases:

(A) Unreported cases where the victim chose not to file a complaint;

(B) Adult victims who officially withdrew their sexual assault complaint;

(C) Minor victims whose parent or guardian withdrew the sexual assault complaint (the police and prosecutor have discretion to pursue testing of the sexual assault evidence collection kit if they believe a minor was harmed);

(D) The police have sufficient evidence that a crime did not occur (i.e., unfounded crimes); and

(E) The perpetrator has a DNA profile in CODIS, the FBI's combined DNA Index System, as a convicted felon;

(2) Priority. First in priority to be tested are the sexual assault evidence collection kits that the Kauai police department screened for the Y-chromosome with an accredited but not approved private laboratory, and the suspect is unknown, or if known, the suspect's profile is not in CODIS. Thereafter, priority for testing sexual assault evidence collection kits would be by category, with priority afforded to category 1, then category 2, and last, category 3. Kits may be moved to a higher category as needed.

(A) Category 1: Multiple suspects involved in the case; suspect is unknown; victim is a minor (under eighteen years old); suspected serial offender.

(B) Category 2: Suspect is known but is not in CODIS (e.g., consent issue); complaint was withdrawn and later reinstated by the victim.

(C) Category 3: All other, including deceased suspect and inferred withdrawal (police unable to reach victim; no official victim withdrawal on file); and

(3) Process. The police departments will use data from their respective sexual assault evidence collection kit inventory to identify the kits related to the defined criteria and priorities.

The legislature intends that the county police departments comply with the guidelines established in the report by the attorney general. The legislature further intends that police departments should use the guidelines as a minimum basis for testing kits that meet the criteria for testing and that the guidelines should not be interpreted to test fewer kits.

(d) The purpose of this Act is to continue the purpose and goals of Act 207 by:

(1) Providing certain rights to survivors of sexual assault;

(2) Establishing mandatory requirements for the testing of kits in accordance with the malama kakou project guidelines;

(3) Requiring annual reporting by the department of the attorney general to the legislature of statistical data pertaining to sexual assault evidence collection kits; and

(4) Requiring additional reports by the department of the attorney general on the progress of implementing the malama kakou project guidelines.

SECTION 2. Chapter 801D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"801D- Sexual assault survivors' rights. (a) A sexual assault survivor has the following rights:

(1) The right not to be prevented from, or charged for, receiving a medical forensic examination;

(2) The right, subject to paragraph (5), 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 twenty 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, provided that 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, upon written request, to receive written notification from the appropriate official with custody not later than sixty days before the date of the intended destruction or disposal of a victim's sexual assault evidence collection kit; and, upon written request by the victim, to be allowed the further preservation of the kit or its probative contents; and

(6) The right to be informed in writing of the rights set forth in this section.

(b) The rights provided in subsection (a) shall apply to any sexual assault survivor who has undergone a medical forensic examination that produced a sexual assault evidence collection kit."

SECTION 3. Chapter 844D, Hawaii Revised Statutes, is amended by adding a new section to part II to be appropriately designated and to read as follows:

"844D- Testing of sexual assault evidence collection kits; mandatory requirements. (a) Law enforcement agencies and departments charged with the testing of sexual assault evidence collection kits shall test all kits in accordance with the plans and procedures for the disposition of currently untested kits and new kits established by the department of the attorney general pursuant to section 844D-24.

(b) For all kits that meet testing guidelines, the law enforcement agency shall submit a request for testing to an accredited laboratory within ninety days after receipt of the kit, and shall follow up with the laboratory on the testing to obtain test results within ninety days of that request."

SECTION 4. Section 844D-24, Hawaii Revised Statutes, is amended to read as follows:

"[[]844D-24[]] Sexual assault evidence; reporting. (a) By September 1, 2016, all law enforcement agencies and departments charged with the maintenance, storage, and preservation of sexual assault evidence collection kits shall conduct an inventory of all such kits being stored by the agency or department.

(b) By September 1, 2016, each law enforcement agency and department subject to subsection (a) shall compile, in writing, a report containing the number of untested sexual assault evidence collection kits in the possession of the agency or department and the date the sexual assault evidence collection kit was collected. The reports shall be transmitted to the department of the attorney general.

(c) By December 1, 2016, the department of the attorney general shall prepare and transmit a report to the president of the senate and the speaker of the house of representatives containing the number of untested sexual assault evidence collection kits currently being stored by each county, law enforcement agency, or department and the date each untested kit was originally collected. The department of the attorney general shall involve community stakeholders in drafting the report, including representatives from each county. The report shall also provide the following information:

(1) An explanation of the processes that were used in the past to decide which sexual assault evidence collection kits were and were not tested;

(2) Progress made to reduce the number of untested sexual assault evidence collection kits to date;

(3) A plan and expected time frame for further reduction in the number of untested sexual assault evidence collection kits;

(4) A plan for determining priority of untested sexual assault evidence collection kits and new sexual assault evidence collection kits for testing;

(5) Processes that have been adopted or will be adopted to better track and inventory tested and untested sexual assault evidence collection kits, including their locations;

(6) Expected outcomes from testing untested sexual assault evidence collection kits and testing new sexual assault evidence collection kits;

(7) The criteria and process to determine which untested sexual assault evidence collection kits will be tested and the criteria and process for testing to be applied to all new sexual assault evidence collection kits;

(8) The sites and locations of the testing of the untested sexual assault evidence collection kits and testing of new sexual assault evidence collection kits;

(9) Victim notification, support services, and other resources that may become necessary in connection with testing untested sexual assault evidence collection kits and new sexual assault evidence collection kits;

(10) The expected cost of all projected plans and processes not yet in place for testing untested sexual assault evidence collection kits and new sexual assault evidence collection kits;

(11) An assessment of potential funding sources, including federal grants for which applications have been, will be, or may be submitted; and

(12) Potential areas for further legislative action or policy changes.

(d) Beginning July 1, 2017, all law enforcement agencies and departments shall submit new sexual assault evidence collection kits for testing in accordance with the criteria and policies established and reported by the department of the attorney general pursuant to subsection (c).

(e) By July 1, 2018, all law enforcement agencies and departments shall complete the testing of all untested sexual assault evidence collection kits in accordance with criteria and policies established and reported by the department of the attorney general pursuant to subsection (c).

(f) The department of the attorney general shall prepare and transmit an annual report to the president of the senate and the speaker of the house of representatives no later than twenty days prior to the convening of each regular session beginning with the regular session of 2018. The report shall contain:

(1) The number of sexual assault evidence collection kits reported in the prior year to the police departments of all four counties;

(2) The total number of sexual assault evidence collection kits collected in the prior year in each county;

(3) The number of sexual assault evidence collection kits tested in the prior year by each county, law enforcement agency, or department;

(4) The number of sexual assault evidence collection kits not tested in the prior year by each county, law enforcement agency, or department; and

(5) The number of sexual assault evidence collection kits destroyed in the prior year by each county, law enforcement agency, or department.

[(f)] (g) As used in this section:

"Forensic medical examination" means an examination provided to the victim of a suspected sexually-oriented criminal offense by a health care provider for the purpose of gathering and preserving evidence of a suspected sexual assault.

"Sexual assault evidence collection kit" means a human biological specimen or specimens collected by a health care provider during a forensic medical examination from the victim of a suspected sexually-oriented criminal offense.

"Untested sexual assault evidence collection kit" means a sexual assault evidence collection kit that has not been submitted to a qualified laboratory for either a serology or DNA test."

SECTION 5. The department of the attorney general shall submit a report to the legislature no later than twenty days prior to the convening of the regular session of 2018 that shall include:

(1) The guidelines, policies, and procedures that have been adopted by each police department regarding sexual assault evidence collection kits;

(2) All policies or procedures regarding sexual assault evidence collection kits adopted by the department of the attorney general;

(3) The resources that may be needed to allow the timely implementation of the recommendations and guidelines by the department of the attorney general; and

(4) Information on the expenditure of any grant moneys by each police department, each county, or the department of the attorney general related to sexual assault evidence collection kits.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

 



 

 

Report Title:

Sexual Assault Evidence Collection Kits; Reporting; Attorney General; Sexual Assault; Forensic Evidence

 

Description:

Requires annual reporting to the legislature by the AG of statistical data pertaining to the testing of sexual assault evidence collection kits. Provides certain rights to sexual assault survivors. Institutes mandatory testing requirements in accordance with AG guidelines. Requires AG to report to the legislature on the progress of implementing AG guidelines. (SD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.