House Bill 460

AN ACT TO CREATE THE "SEXUAL ASSAULT VICTIMS' DNA BILL OF RIGHTS"; TO PROVIDE DEFINITIONS FOR SUCH ACT; TO REGULATE THE PREPARATION AND PRODUCTION OF SEXUAL ASSAULT EVIDENCE; TO DESCRIBE THE RIGHTS OF SEXUAL ASSAULT VICTIMS; TO PROVIDE THAT SUCH RIGHTS ARE IN ADDITION TO ANY OF THE RIGHTS PROVIDED IN THE "MISSISSIPPI CRIME VICTIMS' BILL OF RIGHTS"; TO BRING FORWARD SECTION 99-37-25, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR PAYMENT OF SEXUAL ASSAULT COLLECTION KITS FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. This act shall be known as and may be cited as the "Sexual Assault Victims' DNA Bill of Rights."

SECTION 2. The Legislature finds that:

(a) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.

(b) Timely DNA analysis of sexual assault evidence is a core public safety issue affecting men, women and children in the State of Mississippi.

(c) The Legislature has a public interest in regulating the timely processing of sexual assault evidence kits within the time limits imposed by this act.

(d) Victims of sexual assault have vested interests in the investigation and prosecution of their cases.

(e) Law enforcement agencies have an obligation to victims of sexual assault to properly handle, retain, and timely DNA test the sexual assault evidence kits or other crime scene evidence, and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.

(f) The growth of the Mississippi Forensics Laboratory's DNA identification system and its cooperation with the Federal Bureau of Investigation and other criminal justice agencies relating to the Combined DNA Index System (CODIS) allow many sexual assault perpetrators to be identified after their first offense, provided the sexual assault evidence kit is analyzed in a timely manner.

SECTION 3. The following words shall have the meanings ascribed herein, unless the context clearly requires otherwise:

(a) "Law enforcement" means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.

(b) "Sexual assault" means sexual battery as described in Section 97-3-95, statutory rape as defined in Section 97-3-65, battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, or exploitation of children as described in Section 97-5-33, and includes any attempt for such crimes.

SECTION 4. (1) Any doctor's office, hospital, medical clinic or other medical facility that performs a medical forensic examination on an alleged victim shall send the results of the examination to the Division of Victim Compensation within thirty (30) days from the date of the examination.

(2) (a) On or after the effective date of this act, upon receipt of any sexual assault forensic evidence kit, the Mississippi Forensics Laboratory shall:

(i) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into the Combined DNA Index System (CODIS) as soon as practically possible, but no later than one hundred twenty (120) days after initial receipt of the evidence; or

(ii) Transmit the sexual assault forensic evidence kit to another crime lab as soon as practically possible, but no later than thirty (30) days after initial receipt of the evidence, to test for the presence of DNA. If a DNA profile is created, the lab that created the profile shall upload the profile into CODIS as soon as practically possible, but no longer than thirty (30) days after being notified about the presence of DNA.

(b) This subsection does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this subsection when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.

(c) This subsection does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into CODIS.

SECTION 5. (1) Upon the request of a sexual assault victim or his or her designee, the law enforcement agency which is investigating the assault of such victim shall inform the victim of the status of the DNA testing of the sexual assault evidence kit or other crime scene evidence from the victim's case. The law enforcement agency may, at its discretion, require that the victim's request be in writing.

(2) The law enforcement agency shall respond to the victim's request within thirty (30) days with either an oral or written communication, or by email, if an email address is available.

(3) Nothing in this subsection shall be interpreted to require any law enforcement agency to communicate with the victim or the victim's designee regarding the status of DNA testing without a specific request from the victim or the victim's designee.

SECTION 6. (1) In addition to the rights provided in the "Mississippi Crime Victims' Bill of Rights," a victim of sexual assault shall have:

(a) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the sexual assault evidence kit or other crime scene evidence from their case.

(b) The right to be informed whether or not the DNA profile of the assailant developed from the sexual assault evidence kit or other crime scene evidence has been entered into the Mississippi Forensic Laboratory DNA identification system or CODIS.

(c) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Mississippi Forensics Laboratory's DNA identification system, provided that disclosure would not impede or compromise an ongoing investigation.

(2) If the law enforcement agency does not receive the DNA analysis of sexual assault evidence within six (6) months, a victim of a sexual assault offense shall be informed, either orally or in writing, of that fact by the law enforcement agency.

(3) If the law enforcement agency intends to destroy or dispose of the sexual assault evidence kit or any other crime scene evidence from an unsolved sexual assault case, the victim of the case shall be given written notification by the law enforcement agency of that intention within twenty (20) days.

(4) A law enforcement agency shall not destroy or dispose of the sexual assault evidence kit or any other crime scene evidence from an unsolved sexual assault case before at least twenty (20) years after the collection of the evidence of the crime, or if the victim was under eighteen (18) years of age at the time of the alleged offense, before the victim's fortieth birthday.

(5) Written notification shall be made at least sixty (60) days before the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case.

(6) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victim's choosing, to act as a recipient of the above information required to be provided by this section.

(7) In order to be entitled to receive notice under this section, the victim or the victim's designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the name, address, telephone number, and email address, if an email address is available.

(8) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.

(9) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agency's failure to fulfill its responsibilities under this section shall be standing to file a writ of mandamus to require compliance with subdivision with the requirements of this act.

SECTION 7. Section 99-37-25, Mississippi Code of 1972, is brought forward as follows:

99-37-25. (1) (a) When a person is brought into a doctor's office, a hospital or a medical clinic by a law enforcement agency as the victim of an alleged rape or sexual assault having occurred in this state, or comes into a doctor's office, a hospital or a medical clinic alleging rape or sexual assault having occurred in this state, the bill for the medical forensic examination and the preparation of the sexual assault evidence collection kit will be sent to the Division of Victim Compensation, Office of the Attorney General. The Division of Victim Compensation shall pay for the medical examination conducted for the procurement of evidence to aid in the investigation and prosecution of the alleged offense. Such payment shall be limited to the customary and usual hospital and physician charges for such services in the area. Such payment shall be made by the Division of Victim Compensation directly to the health care provider. No bill for the examination will be submitted to the victim, nor shall the medical facility hold the victim responsible for payment. The victim may be billed for any further medical services not required for the investigation and prosecution of the alleged offense. In cases where the damage caused by the alleged sexual assault requires medical treatment or diagnosis in addition to the examination, the patient will be given information about the availability of victim compensation and the procedure for applying for such compensation.

(b) Upon application submitted by the district attorney, provided the proper warrant or court order has been issued, the county in which an offense of sexual assault or of felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, exploitation of children as described in Section 97-5-33 or sexual battery as described in Section 97-3-95, or statutory rape as defined in Section 97-3-65, or an attempt to commit such offense has occurred shall pay for a medical forensic examination of the person arrested, charged or convicted of such offense to determine if the person so arrested, charged or convicted has any sexually transmitted disease and for the collection of evidence. Such payment shall be made by the county directly to the health care provider or other service performing the collection of evidence and tests. At the victim's request, a test for human immunodeficiency virus (HIV) shall be administered to the defendant/accused not later than forty-eight (48) hours after the date on which the information or indictment is presented, and the defendant/accused shall be subjected to follow-up testing for HIV upon a determination that such follow-up testing is medically necessary and reasonable. The results of any such test shall be confidential but shall be made available to the victim or, if the victim is a child, to the guardian of the victim. After an indictment, if the case is dismissed, the defendant is found not guilty or the case is not prosecuted within three (3) years of the indictment, all records of tests shall be returned to the accused or destroyed. Upon a showing of good cause, the court may retain such records and allow a case to remain open after the expiration of the three-year limitation provided herein.

(2) Any defendant who is convicted of, or pleads guilty or nolo contendere to, any offense or an attempt to commit any such offense specified in subsection (1)(b) shall be ordered by the court to make restitution to the Division of Victim Compensation in an amount equal to the compensation paid by the Division of Victim Compensation to the victim or medical provider for the medical forensic examination and to the county for tests for sexually transmitted diseases. Such restitution shall be in addition to any restitution which the court orders the defendant to pay the victim under the provisions of Chapter 37 of Title 99, (Sections 99-37-1 through 99-37-21), Mississippi Code of 1972.

(3) The Division of Victim Compensation is hereby authorized, in its discretion, to make application for and comply with such requirements as may be necessary to qualify for any federal funds as may be available as a result of services rendered to crime victims under the provisions of this section.

SECTION 8. This act shall take effect and be in force from and after July 1, 2019.