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Utah Makes Rape Kit Testing Mandatory

Rape kits (also known as sexual assault forensic exams) frequently contain DNA evidence that can help police arrest and prosecutors convict the alleged offenders who commit sex crimes. Despite the hundreds of thousands of victims who have undergone the incredibly invasive tests that are part of rape kits, numerous such kits have been backlogged and remain untested in jurisdictions throughout the country.

The Salt Lake City Tribune reported on March 25 that Utah’s statewide working group for sexual assault kits found an estimated 2,750 untested rape kits statewide in 2014. Under a new bill signed into law by Governor Gary Herbert on March 22, local law enforcement agencies in Utah will have to submit sexual assault kits to state forensic labs for testing within 30 days of retrieval.

House Bill (HB) 200 also creates a statewide tracking system for all rape kits that allow victims to anonymously track kits as they are evaluated and tested. HB 200 imposes different requirements for the handling of sexual assault kits—packages of items used by medical personnel to gather and preserve biological and physical evidence following allegations of sexual assault—and restricted kits—sexual assault kits collected by a collecting facility and for which an alleged victim who is 18 years of age or older chooses not to provide a personal statement about the sexual assault to law enforcement, as provided in Utah Code § 76-5-606(1)(d).

Utah Code § 76-5-604 states that except for restricted kits, each sexual assault kit must be submitted to the Utah Bureau of Forensic Services as soon as possible, but no later than 30 days after receipt by a law enforcement agency. Restricted kits cannot be submitted to the Utah Bureau of Forensic Services, but if an alleged victim chooses to provide a personal statement about the sexual assault or sexual abuse to law enforcement at any time after declining to provide a statement, the restricted kit will no longer be classified as restricted and the kit will be transmitted to the Utah Bureau of Forensic Services as soon as possible, but no later than 30 days after the victim chooses to provide a statement to law enforcement.

Under Utah Code § 76-5-604, any item of evidence gathered by collecting facility personnel, law enforcement, prosecutorial, or defense authorities that may be subject to DNA evidence testing and analysis in order to confirm the guilt or innocence of a criminal defendant cannot be disposed of before trial of a criminal defendant unless 50 years have passed from the date of evidence collection for sexual assault kits relating to an uncharged or unresolved crime or 20 years have passed from the date of evidence collection for restricted kits, and:

  • The prosecution has determined that the defendant will not be tried for the criminal offense;
  • The prosecution has filed a motion with the court to destroy the evidence; and
  • An attempt has been made to notify the victim as required in Utah Code § 77-37-3(3)(b)(i) and (ii).

The Sexual Assault Kit Processing Act also enacts Utah Code § 76-5-607, which establishes that the Department of Public Safety must develop and implement a statewide tracking system by July 1, 2018, that contains the following information for all sexual assault kits collected by law enforcement:

  • The submission status of sexual assault kits by law enforcement to the Utah Bureau of Forensic Services;
  • Notification by the Utah Bureau of Forensic Services to law enforcement of DNA analysis findings; and
  • The storage location of sexual assault kits.

The same statute also states that the tracking system will include a secure electronic access that allows the submitting agency, collecting facility, department, and a victim, or his or her designee, to access or receive information, provided that the disclosure does not impede or compromise an active investigation, about the lab submission status, DNA analysis findings provided to law enforcement, and storage location of a sexual assault kit that was gathered from that victim.

Salt Lake City Rape Defense Attorney

Lawmakers in Utah cited one recent case as an example why HB 200 is so important. KSTU-TV reported on March 16 that a convicted sex offender incarcerated in the Utah State Prison was charged with the 2014 rape of a 14-year-old girl in Davis County three years after the rape kit the alleged victim took was finally tested.

It is important to keep in mind that not all rape kits are damaging to alleged offenders in sexual assault cases. If there is no evidence of trauma or the evidence is not consistent with an alleged victim’s accusations, the results of a rape kit could very well result in criminal charges being dismissed.

While they are certainly important to the criminal justice process, rape kits are still only a part of the much bigger picture. Allegations of rape are often far more complex, and disputes about consent are especially common.

If you believe that you might be under investigation or you were already arrested for rape, sexual assault, or sexual battery in Utah, it is in your best interest to exercise your right to remain silent until you have legal counsel. Contact an experienced Salt Lake City criminal defense lawyer as soon as possible for help achieving the most favorable resolution to your case.

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About the Author

Darren Levitt is a trial attorney and founder and manager of the law firm Levitt Legal, PLLC. As an attorney, Darren works to protect, defend and uphold the freedom, liberty, property, and constitutional and unalienable rights of individuals.