A bill that establishes a tracking system in New York state for sexual assault kits has passed both the senate and assembly, and is expected to be signed into law by the governor shortly. With this bill, the state of New York becomes one of 33 states plus D.C. implementing tracking systems to give sexual assault survivors more control over their cases. At the same time, a bill to prevent the storage of victims’ DNA samples from rape kits in the state DNA identification index failed to advance in the last session, and is still sitting in the Internet and Technology Committee.
Senate Bill S7867A
After undergoing invasive evidence collection that can take up to 6 hours, survivors of sexual assault often do not know what becomes of said evidence. There is no easy way to find out if your rape kit has been processed, if the DNA has been run through CODIS or if it’s sitting on a shelf somewhere behind 1,000 others—and there’s certainly no way to find out this information anonymously. New York State Senator Alessandra Biaggi’s Senate Bill S7867A seeks to change all that.
First proposed in January, the bill—which is expected to become law—creates a statewide electronic tracking system for evidence collection kits, commonly referred to as rape kits. The system will track the location and status of each evidence collection kit through the entire criminal justice process, from initial collection during a forensic medical examination at a healthcare facility, receipt and storage of the kit at a law enforcement agency, receipt and analysis of the kit at an accredited crime laboratory, through storage and destruction of the kit after the applicable evidence is analyzed.
Importantly, the bill also enables a survivor to anonymously track the status and location of their kit, if they so wish.
The Department of Criminal Justice Services will collaborate with the Office of Victim Services, the state police and the New York State Coalition for Sexual Assault to develop the tracker. Once established, the Department of Criminal Justice Services will head the system.
Once signed into law, the bill will take effect immediately, requiring participation in the tracking system by Jan. 1, 2024. The law will only apply to “previously untested” rape kits, meaning any that have not undergone forensic testing as of yet.
The bill explicitly states that the records entered into the tracking system are confidential, only to be accessed by the survivor or “an employee of medical providers, law enforcement agencies, forensic laboratories or other…entities having custody or use of any sexual assault evidence collection kit in the state for purposes of updating or tracking the status or location.”
That part is especially important in light of what happened in San Francisco and on the heels of Senate Bill S8408 remaining in committee.
Senate Bill S8408
In February, the San Francisco Police asked the DA to charge a woman for a property crime after they linked her DNA from the scene to DNA in her rape kit collected six years earlier. Then-DA Chesa Boudin refused, but not before the headline made mainstream news.
Almost immediately after, State Senator Brad Hoylman drafted Senate Bill S8408 to ensure any and all evidence collected in New York State as part of a rape kit be excluded from the state DNA identification index.
Federal law already prohibits the inclusion of rape victims’ DNA in CODIS; however, there are no corresponding state laws on the books. Working with Boudin, California State Senator Scott Wiener proposed a similar bill for the Golden State just days before Hoylman did in New York.
“No DNA sample, record, product, or evidence collected or resulting from the collection of DNA of a victim collected in a sexual offense evidence kit may be used as part of reasonable cause for arrest, and any product or evidence that results from the use of DNA of a victim collected from a sexual offense evidence kit is prohibited from use in an investigation,” reads New York’s SB S8408. “For criminal prosecutions and proceedings, any evidence or product that results or flows from the use of DNA of the victim collected from a sexual offense evidence kit is inadmissible.”
The bill gives entities 90 days to scrub all indices of DNA records stored from rape kits.
However, the bill failed to advance to the floor in the last session when the tracking system was passed. For now, it remains in the Senate’s Internet And Technology Committee.