STATE OF WISCONSIN
Department of Justice
STATEMENT OF SCOPE OF PROPOSED RULES
Rule No.: Wis. Admin. Code JUS 20 (Storage and processing of sexual assault kits)
Relating to: Storage and processing of sexual assault kits.
1. Description of the objectives of the rules:
Consistent with Wis. Stat. § 165.775(6), as created by 2021 Wis. Act 116, the State of Wisconsin Department of Justice (“DOJ”) proposes to promulgate rules to conform to statutory requirements in Wis. Stat. §§ 165.775(1) through (5), as created by 2021 Wis. Act 116. These provisions relate to the submission, processing, and storage of sexual assault kits collected from victims. 2. Description of existing policies relevant to the rules and of new policies proposed to be included in the rules and an analysis of policy alternatives; the history, background, and justification for the rules:
In spring 2016, as part of the Wisconsin Sexual Assault Kit Initiative (SAKI), DOJ initiated a process to inventory all previously unsubmitted sexual assault kits. Through a cooperative effort with Wisconsin law enforcement agencies and health care professionals, thousands of sexual assault kits were inventoried, culminating in almost 4,500 untested sexual assault kits being submitted by law enforcement agencies across the state to the Wisconsin State Crime Laboratories for processing.
As part of the SAKI project and associated multidisciplinary discussions, DOJ developed “best practice” guidance for its criminal justice partners involved in the receipt, investigative handling, and processing of sexual assault kit evidence from victims in Wisconsin. Continued kit inventory project efforts (termed a “kit census”) have maintained a method to catalogue and account for sexual assault kits in the state.
Reporting options for victims who provided evidence through a sexual assault kit were additionally created as a “best practice” guideline, allowing victims the choice of reporting the sexual assault crime to law enforcement with consent for analysis, or conversely, not reporting the crime to law enforcement when no consent is provided for the analysis of their kit. The sexual assault kits for which the victim chose the “non-reporting” option would be transferred by the collecting health care facility directly to the Wisconsin State Crime Laboratories for storage. DOJ determined these kits would be stored at the Wisconsin State Crime Laboratories for ten years, coinciding with the statute of limitations for second- and third-degree sexual assault offenses. If the non-reporting victim did not choose to report the crime after ten years from the date of the offense, the Wisconsin State Crime Laboratories would then dispose of the kit. If the non-reporting victim chose later to file a report of the sexual assault to law enforcement, this would cause the sexual assault kit to be removed from storage and processed by the Wisconsin State Crime Laboratories.
In 2021 Wis. Act 116, Wisconsin established statutes governing the submission and storage of sexual assault kits, which contain evidence collected as part of sexual assault forensic examinations of victims. The law describes options provided to the victims of sex offenses. Victims are provided a choice at the time of evidence collection to either report the sexual assault crime to law enforcement and have their kit submitted for processing, or not report the crime to law enforcement or have their sexual assault kit analyzed. The law also creates timeframes associated with notifications and transfers of the sexual assault kit between health care professionals, law enforcement agencies, and the Wisconsin State Crime Laboratories. The law prescribes timeframes for storage of sexual assault kits applicable to both law enforcement agencies (concerning kits associated with reported crimes) and the Wisconsin State Crime Laboratories (concerning kits associated with non-reported crimes). 2021 Wis. Act 116 is consistent with and mirrors much of the “best practice” guidance previously developed by DOJ during the SAKI project. 2021 Wis. Act 116 impacts the following DOJ criminal justice partners, specified in Wis. Stat. § 165.775, as follows: A. Health Care Professionals
Under Wis. Stat. § 165.775(2)(a) and (b), health care professionals must either (1) notify a Wisconsin law enforcement agency within 24 hours after collecting a sexual assault kit from a reporting victim, or (2) submit a sexual assault kit within 72 hours after collection to the Wisconsin State Crime Laboratories for storage, when the victim chooses not to report the crime to law enforcement. The statute does not, however, define procedures for these practices. The proposed rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775(2)(a) to (b), namely, health care professionals. B. Law Enforcement Agencies
Under Wis. Stat. § 165.775 (3)(a) to (c), law enforcement agencies are directed to respond and take possession of a sexual assault kit (from a reporting victim) from health care professionals within 72 hours of being notified, and then must submit the kit to the Wisconsin State Crime Laboratories for processing within 14 days after taking possession of the kit. Additionally, the statute directs law enforcement agencies to submit a sexual assault kit to the Wisconsin State Crime Laboratories for storage when, prior to the submission of the kit to the crime laboratory for processing, a victim provides notification that they choose to revoke their consent and no longer want to proceed with the analysis of their kit. The statute does not, however, define procedures for these practices. The proposed rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775 (3)(a) to (c), namely, law enforcement agencies. C. Wisconsin State Crime Laboratories
Under Wis. Stat. § 165.775(4)(a) and (b), the Wisconsin State Crime Laboratories is directed to take possession from health care professionals of a sexual assault kit from a victim who chooses not to report a crime to law enforcement and has not consented to have their kit analyzed. These provisions also direct the Wisconsin State Crime Laboratories to store the sexual assault kits received from these non-reporting victims for a period of ten years. During this ten-year storage period, the victim can choose to file a report of the crime to law enforcement and provide consent for the Wisconsin State Crime Laboratories to analyze their kit. Once the Wisconsin State Crime Laboratories receives notification of the report and consent for analyzing a victim’s sexual assault kit from the investigating law enforcement agency, the kit would be removed from storage and processed. The statute does not, however, define procedures for these practices. The proposed rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775 (4)(a) to (b), namely, the Wisconsin State Crime Laboratories. D. Post-processing Sexual Assault Kit Storage by Law Enforcement Agencies
Under Wis. Stat. § 165.775(5), law enforcement agencies are directed to take possession of a sexual assault kit from the Wisconsin State Crime Laboratories after processing is completed. The statute further prescribes a storage timeframe for the law enforcement agency: “notwithstanding s. 968.205, it shall securely store the sexual assault kit for a period of 50 years, or 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 longer.” The proposed rules would develop a required practice and define processes for those criminal justice partners impacted by Wis. Stat. § 165.775(5), namely, law enforcement agencies. Additionally, 2021 Wis. Act 117 requires DOJ to establish a database, which shall be known as the Wisconsin Sexual Assault Kit Tracking System. 2021 Wis. Act 117 § 1 (creating Wis. Stat. § 165.776(1) to (4)). The requirement of a sexual assault kit tracking system will provide transparency for future cataloging and transfers of sexual assault kits from victims. The kit tracking system will capture data in the creation, transfer, and processing timeline of sexual assault kits from victims, as handled by health care professionals, law enforcement agencies, and the Wisconsin State Crime Laboratories. 3. Statutory authority for the rules (including the statutory citation and language):
Wisconsin Stat. § 227.11(2)(a) provides:
(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.
