West Virginia-2020-HB4476-Enrolled

AN ACT to amend and reenact §15-9B-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto 2 new sections, designated §15-9B-1a and §15-9B-5; and to amend and reenact §15-9B-2 and §15-9B-4 of said code, all relating to providing for the collection, submission, testing, retention, and disposition of forensic evidence in sexual assault cases; transferring some duties of the Division of Justice and Community Services to the Division of Administrative Services; defining terms; requiring sexual assault forensic examination kits collected by health care providers to be directly submitted to the West Virginia State Police Forensic Laboratory; requiring certain kits to be transported to Marshall University Forensic Science Center; establishing protocols for storage, retention, transmission and disposal of kits; notice to victim regarding disposal; establishing misdemeanor penalties; and granting rule-making authority.

Be it enacted by the Legislature of West Virginia:

ARTICLE 9B. SEXUAL ASSAULT EXAMINATION NETWORK.

§15-9B-1. Sexual Assault Forensic Examination Commission.

(a) The Sexual Assault Forensic Examination Commission is continued as a subcommittee of the Governor’s Committee on Crime, Delinquency and Correction. The purpose of the commission is to establish, manage, and monitor a statewide system to facilitate the timely and efficient collection, submission, testing, retention, tracking, and disposition of forensic evidence in sexual assault cases. As used in this article, the word “commission” means the Sexual Assault Forensic Examination Commission.

(b) Membership on the commission shall consist of the following:

(1) A representative chosen from the membership of the West Virginia Prosecuting Attorneys Association who shall be chosen by the president of that organization;

(2) A representative chosen from the membership of the West Virginia Association of Counties who shall be chosen by the executive director of that organization;

(3) The Commissioner of the Bureau for Public Health, or his or her designee;

(4) A representative from the State Police Forensic Laboratory who shall be chosen by the Superintendent of the West Virginia State Police;

(5) A representative from the membership of the West Virginia Child Advocacy Network;

(6) The President of the West Virginia Hospital Association, or his or her designee;

(7) A representative from the membership of the West Virginia Foundation for Rape and Information Services who shall be chosen by the state coordinator of that organization;

(8) A representative of the West Virginia University Forensic and Investigative Sciences Program who shall be chosen by the director of that program; and

(9) A representative of the Marshall University Forensic Science Center who shall be chosen by the director of that organization.

(c) If any of the representative organizations listed in subsection (b) of this section cease to exist, the director of the Division of Administrative Services, or his or her designee, may select a person from a similar organization.

(d) The director of the Division of Administrative Services, or his or her designee, shall appoint the following additional members of the commission:

(1) An emergency room physician licensed to practice and practicing medicine in this state;

(2) A victim advocate from a rape crisis center employed in this state;

(3) A sexual assault nurse examiner who is engaged in an active practice within this state;

(4) A law-enforcement officer in this state with experience in sexual assault investigations;

(5) A health care provider with pediatric and child abuse expertise licensed in this state; and

(6) A director of a child advocacy center licensed and operating in this state.

(e) The commission shall establish mandatory statewide protocols for conducting sexual assault forensic examinations, including designating locations and providers to perform forensic examinations, establishing minimum qualifications and procedures for performing forensic examinations, and establishing protocols to assure the proper collection of evidence.

§15-9B-1a Definitions.

As used in this article:

(1) “Biological evidence” includes a sexual assault forensic examination kit, semen, blood, saliva, hair, skin tissue, or other identified biological material.

(2) “DNA” means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides an individual’s personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.

(3) “Nonreported kit” means a kit collected from an alleged victim who has consented to the collection of the kit, but has not consented to participation in the criminal justice process.

(4) “Sexual assault forensic examination kit” or “kit” means a set of materials, including, but not limited to, swabs and tools for collecting blood samples, clothing, or other materials used to gather forensic evidence from a victim of a reported sexual offense and the evidence obtained with the materials.

(5) “Sexual offense” means any offense or attempted offense in the jurisdiction of the state in which a sexual assault forensic examination kit is collected, including, but not limited to, the following sections:

(A) §61-8-12 of this code;

(B) §61-8A-2 of this code;

(D) §61-8A-5 of this code;

(E) Any offenses listed in §61-8B-1 et seq. of this code;

(F) Any offenses listed in §61-8C-1 et seq. of this code;

(G) Any offenses listed in §61-8D-1 et seq. of this code.

(6) “Unfounded” means evidence developed after reasonable investigation and supported by proper documentation proving no crime occurred or where the alleged victim has recanted.

§15-9B-2. Powers and duties of the commission.

(a) The commission shall facilitate the recruitment and retention of qualified health care providers that are properly qualified to conduct forensic examinations. The commission shall work with county and regional officials to identify areas of greatest need, and develop and implement recruitment and retention programs to help facilitate the effective collection of evidence.

(b) The commission shall authorize minimum training requirements for providers conducting exams and establish a basic standard of care for victims of sexual assault. The commission may adopt necessary and reasonable requirements relating to establishment of a statewide training and forensic examination system, including, but not limited to, developing a data collection system to monitor adherence to established standards, assisting exam providers to receive training and support services, advocating the fair and reasonable reimbursement to exam providers, and facilitating transportation services for victims to get to and from designated exam locations.

(c) The commission shall approve local plans for each area of the state or a county or regional basis. If the commission determines it necessary, it may add or remove a county or portion of a county from a region to assure that all areas of the state are included in an appropriate local plan. Upon the failure of any county or local region to propose a plan, the commission may implement a plan for that county or region.

(d) Once a plan is approved by the commission, it can only be amended or otherwise altered as provided by the rules authorized pursuant to subsection (e) of this section. Designated facilities and organizations providing services shall give the commission 30 days’ advance notice of their intent to withdraw from the plan. If there is a change of circumstances that would require a change in a county or regional plan, the members of the local board and the state commission shall be notified.

(e) The commission may adopt and modify bylaws, policies, and procedures for the conduct of its meetings and the operation of the committee. The commission may propose rules for legislative approval, in accordance with §29A-3-1 et seq. of this code, that are necessary to implement this article.

(f) The commission shall elect a chair and a vice chair, and any other officers as it considers necessary. Special meetings may be held upon the call of the chair, vice chair, or a majority of the members of the commission. A majority of the members of the commission present in person, by proxy or designation, or by electronic means constitutes a quorum.

(g) Any member appointed to the commission who is a written, designated representative has the full rights of a member, including the right to vote, serve on subcommittees, or perform any other function.

(h) The commission may make recommendations to the Governor’s Committee on Crime, Delinquency and Correction for legislation related to the commission’s duties and responsibilities, or for research or studies by the Division of Administrative Services, Justice and Community Services Section on topics related to the commission’s duties and responsibilities.

(i) On or before December 1, 2020, the Commission shall develop a written plan to:

(1) Prioritize the testing of kits;

(2) Ensure all kits are tested; and;

(3) Establish a system of tracking kits received which shall be available to victims;

(j) The Commission may suggest additional protocols to the superintendent which it determines might improve the efficacy of testing;

(k) Any reports generated by the Commission shall be submitted to the Joint Committee on Government and Finance.

§15-9B-4. Submission, testing, and retention of sexual assault forensic examination kits.

(a) The Sexual Assault Forensic Examination Commission created by §15-9B-1 of this code shall establish a subgroup of persons with subject matter expertise to establish best-practice protocols for the submission, testing, retention, and disposition of sexual assault forensic examination kits collected by health care providers. The commission shall propose rules for legislative approval, in accordance with §29A-3-1 et seq. of this code, detailing best-practice protocols. Upon approval of the legislative rules, local sexual assault forensic examination boards shall follow the rules.

(b) Rules promulgated pursuant to subsection(a) of this section shall include:

(1) Time frames for submission of sexual assault forensic examination kits in the possession of law enforcement; and

(2) Protocols for storage of DNA samples and sexual assault forensic examination kits.

(c) The commission may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code in order to implement this section: Provided, That no emergency rule may permit the destruction of any DNA evidence.

(d) Upon collection, a sexual assault forensic examination kit shall be submitted for testing by the health care provider to the West Virginia State Police Forensic Laboratory within 30 days of collection or as soon thereafter as practicable. All packaging kits for transmittal and transmittal protocols shall be designed to meet applicable standards for maintaining the efficacy of the sample and chain of custody.

(e) No sexual assault forensic examination kit need be tested where the alleged victim has not consented to the testing, requests that the kit not be tested, where he or she recants as to the allegation of a sexual offense, or the allegation that a sexual offense occurred is determined to be unfounded. If the alleged victim does not consent to law enforcement involvement, the kit shall be designated a nonreported kit and transmitted to the Marshall University Forensic Science Center.

(f) The Commission shall, in cooperation with the West Virginia State Police, develop protocols for storage of previously tested materials to be made available for secondary testing upon a court order to do so.

(g) Biological evidence obtained through tests of a sexual assault forensic examination kit shall not be destroyed:

(1) During the time period of incarceration of a person whose DNA was identified by the use of the biological evidence, or while the person remains under continued supervision, whichever is later in time; or;

(2) For as long as the offense from which the biological evidence is obtained remains unresolved;

(h) Notwithstanding any provision of this code, or any rule or policy promulgated thereunder, upon completion of the processing and testing set forth in subsection (d) of this section, the sexual assault forensic examination kit shall be transmitted to the appropriate investigating local or state law-enforcement agency which shall retain all identified biological material that is secured in connection with any sexual offense or attempted sexual offense for the periods set forth in subsection (g) of this section.

(i) After processing and testing of a sexual assault forensic examination kit, the West Virginia State Police Laboratory shall transmit the sexual assault forensic examination kit to the appropriate investigating state or local law-enforcement agency through any reasonable means sufficient to establish the proper chain of custody, including, but not limited to, use of the United States Postal Service or hand delivery by appropriate personnel or a law-enforcement officer. The appropriate investigating state or local law-enforcement agency shall preserve the sexual assault forensic examination kit for the period of time prescribed in subsection (g) of this section in a condition where any biological evidence is suitable for DNA testing. The lack of timely submission, or the inadvertent loss or destruction of a sexual assault forensic examination kit, standing alone, shall not constitute a bar to the prosecution of a sexual offense.

(j) Sexual assault forensic examination kits retained pursuant to this section shall be made available for DNA testing pursuant to §15-2B-7 of this code or pursuant to an appropriate order of a circuit court of competent jurisdiction for secondary testing.

(k) The appropriate investigating state or local law-enforcement agency responsible for retaining the sexual assault forensic examination kit shall obtain approval from the circuit court of competent jurisdiction for the county in which the crime occurred before disposal of any biological evidence. Before the disposal of any sexual assault forensic examination kit, reasonable efforts shall be made to provide written notice to the victim by the prosecuting attorney of the county in which the crime occurred.

(l) Nothing in this section shall be construed as limiting a state or local law-enforcement agency’s discretion concerning the conditions under which biological evidence is retained, preserved, or transferred among different entities if the evidence is retained in a condition that is suitable for DNA testing.

§15-9B-5 Offenses; penalty.