MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary A
By: Representatives Cockerham, McLean, Ford (73rd), Anthony
AN ACT TO PROVIDE A PROCESS TO COLLECT AND PRESERVE SEXUAL ASSAULT EVIDENCE COLLECTION KITS; TO REQUIRE THE LAW ENFORCEMENT AGENCY TO IMMEDIATELY COLLECT AND STORE THE KIT IN COMPLIANCE WITH CERTAIN STANDARDS; TO REQUIRE THE LAW ENFORCEMENT AGENCY TO SEND THE KIT TO THE MISSISSIPPI FORENSICS LABORATORY WITHIN A CERTAIN NUMBER OF DAYS; TO REQUIRE THE FORENSICS LABORATORY TO PROCESS THE KIT AND ENTER DNA INFORMATION INTO THE APPROPRIATE FEDERAL, STATE AND LOCAL DATABASES; TO PROVIDE ADDITIONAL RIGHTS FOR SEXUAL ASSAULT VICTIMS; TO REQUIRE THE MISSISSIPPI FORENSICS LABORATORY, THE MISSISSIPPI ASSOCIATION OF FORENSIC NURSES AND THE MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY TO CONDUCT A STUDY AND ISSUE A REPORT THAT EXAMINES THE RESOURCES REQUIRED TO IMPLEMENT A RAPE KIT TRACKING SYSTEM; TO CREATE THE SEXUAL ASSAULT EVIDENCE ACCOUNTABILITY TASK FORCE; TO BRING FORWARD SECTION 99-43-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE CRIME VICTIMS' BILL OF RIGHTS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 99-49-1, TO REVISE PRESERVATION OF EVIDENCE TIMELINES TO CONFORM TO THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) The following words shall have the meanings described in this act:
(a) "Law enforcement" means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.
(b) "Medical facility" means any doctor's office, hospital, medical clinic or nonprofit facility equipped to perform forensic medical examinations and prepare sexual assault evidence kits.
(c) "Reported kit" means a sexual assault evidence kit in which the survivor has consented to participate in the criminal justice process through reporting the crime to law enforcement.
(d) "Sexual assault" means rape, sexual assault, sexual battery or any other nonconsensual forcible sexual intercourse.
(e) "Sexual assault evidence collection kit" means a sexual assault or rape kit developed by the Mississippi chapter of the International Association of Forensic Nurses (IAFN) and approved by the Sexual Assault Evidence Accountability Task Force.
(f) "Sexual Assault Nurse Examiner" means a registered nurse or advanced practice nurse, with a minimum of one (1) year of experience in areas of practice that require advanced physical assessment skills, such as emergency, critical care and maternal child health, who has completed sexual assault nurse examiner (SANE) training consistent with IAFN SANE Education Guidelines that consists of both classroom and clinical components.
(g) "Unreported kit" means a sexual assault evidence kit in which the survivor consented to the evidence collection, but has not consented to participate in the criminal justice process by reporting the crime to law enforcement – meaning they are not seeking to have their kit tested.
(2) Sexual assault evidence collection kits shall be processed in the following manner:
(a) Any medical facility that conducts a medical forensic examination and/or prepares a sexual assault evidence collection kit shall immediately, but no longer than four (4) hours after the finalization of examination, contact the appropriate law enforcement agency to collect the kit. Until the kit is retrieved by law enforcement, the medical facility shall store the kit in a refrigerated manner in conformity with the federal guidelines.
(b) When a law enforcement agency is contacted to collect a sexual assault evidence kit, the law enforcement agency shall take possession of the kit from the medical facility within twenty four (24) hours. Upon taking physical possession of the sexual assault evidence collection kit, the law enforcement agency shall transport the kit in a manner that preserves the evidence in the kit. The agency shall: (i) store the kit in a secure, refrigerated location in the agency no more than two (2) hours after taking physical possession of the kit; or (ii) transport the kit directly to the Mississippi Forensics Laboratory.
(c) All kits must be delivered to the Mississippi Forensics Laboratory no later than seven (7) calendar days from the date the law enforcement agency took physical possession of the kit.
(d) A law enforcement agency that receives a sexual assault collection kit from a healthcare provider that relates to a report of a sexual assault that occurred outside the jurisdiction of that law enforcement agency shall have the sexual assault collection kit delivered to the law enforcement agency having jurisdiction within ten (10) days of learning that the other law enforcement agency has jurisdiction.
(3) (a) The Mississippi Forensics Laboratory shall test sexual assault evidence collection kits within forty-five (45) days of receipt from a law enforcement agency. Forensic DNA testing shall be performed according to laboratory methods that determine the presence of DNA suitable for autosomal STR analysis. Any autosomal, CODIS eligible DNA profile shall be entered into the Combined DNA Index System (CODIS) or equivalency thereof and state or local DNA database. If the Mississippi Forensics Laboratory is unable to determine DNA present in the sexual assault evidence collection kit, the laboratory should evaluate the case to determine if any other DNA results could be used for investigative purposes.
(b) When testing does result in a DNA profile, the Mississippi Forensics Laboratory should enter the full DNA profile into the Combined DNA Index System (CODIS) or equivalency thereof and any other required state or local DNA databases. The average completion rate for this analysis and classification should not exceed sixty (60) days.
(c) The Mississippi Forensics Laboratory is authorized to contract with other laboratories to ensure that each kit is tested and the information from such kit is entered into CODIS within the time frames required by this subsection.
SECTION 2. (1) Upon the request of a sexual assault victim or their designee, the law enforcement agency that is investigating the assault of such victim shall inform the victim of the location of the sexual assault evidence kit or other crime scene evidence from the victim's case and the status of the DNA testing of the sexual assault evidence kit or other crime scene evidence from the victim's case.
(2) The law enforcement agency shall respond to the victim's request as soon as possible, but no longer than seven (7) calendar days, with either an oral or written communication, or by email, if an email address is available.
(3) In addition to the rights provided in the "Mississippi Crime Victims' Bill of Rights," in Sections 99-43-1 through 99-43-101, a victim of sexual assault shall have:
(a) The right to be informed whether 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 the DNA profile of the assailant developed from the sexual assault evidence kit or other crime scene evidence has been entered into the Mississippi Forensics Laboratory's DNA identification system or CODIS.
(c) The right to be informed whether 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.
(4) 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. The victim shall be granted further preservation of the kit or its probative contents, upon their request.
(5) 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 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.
(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) For the purpose of receiving notice under this section, the victim or the victim's designee may 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 3. (1) The Mississippi Forensics Laboratory, in consultation with the Sexual Assault Evidence Accountability Task Force, and the Mississippi Department of Public Safety, shall conduct a study and issue a report that examines the resources required to implement a rape kit tracking system in the state that shall:
(a) Be operated and managed by the Mississippi Department of Public Safety or Mississippi Forensic Laboratory for the purpose of tracking all rape kits collected for testing or analysis;
(b) Be accessible to sexual assault victims and other authorized users as determined by the Mississippi Department of Public Safety; and
(c) Function as an online accessible database capable of receiving, maintaining, storing and preserving tracking information related to the testing and analysis of all rape kits.
(2) The Mississippi Department of Public Safety and Mississippi Forensic Laboratory shall issue a report of its findings and recommendations to the Legislature within twelve (12) months of the effective date of this section. The report shall, at a minimum, identify the following:
(a) The resources and training needed to implement, manage and maintain a rape kit tracking system;
(b) The costs associated with implementing, managing and maintaining a rape kit tracking system;
(c) Potential sources of funding for implementing, managing and maintaining a rape kit tracking system; and
(d) The benefits to victims and to public safety associated with implementing a rape kit tracking system in Mississippi and recommendations on implementing, managing and maintaining an efficient and cost effective rape kit tracking system.
SECTION 4. There is created the "Sexual Assault Evidence Accountability Task Force" for the purpose of developing and approving standardized policies and procedures concerning the sexual assault evidence collection kit. The committee shall be comprised of the following nine (9) members:
(a) The director of the Mississippi Forensic Laboratory;
(b) One (1) representative from the Mississippi Department of Public Safety;
(c) One (1) district attorney appointed by the Mississippi Prosecutors' Association;
(d) One (1) sexual assault investigator appointed by the Mississippi Association of Chiefs of Police;
(e) One (1) sexual assault investigator appointed by the Mississippi Sheriffs' Association;
(f) One (1) investigator from the Mississippi Attorney General's Office;
(g) One (1) sexual assault nurse examiner practicing in north Mississippi appointed by the President of the Board of Directors of the Mississippi Association of Forensic Nurses (MAFN);
(h) One (1) sexual assault nurse examiner practicing in central Mississippi appointed by the President of the Board of Directors of the Mississippi Association of Forensic Nurses (MAFN); and
(i) One (1) sexual assault nurse examiner practicing in south Mississippi appointed by the President of the Board of Directors of the Mississippi Association of Forensic Nurses (MAFN).
SECTION 5. Section 99-43-7, Mississippi Code of 1972, is brought forward as follows:
99-43-7. (1) Unless the victim is unavailable or incapacitated as a result of the crime, within seventy-two (72) hours after the law enforcement agency becomes responsible for investigating the crime, the law enforcement agency shall provide to the victim in a manner and form prescribed by the Attorney General the following information:
(a) The availability of emergency and crisis services.
(b) The availability of victims' compensation benefits and the address and telephone number of the Victim Compensation Division.
(c) The name of the law enforcement officer and telephone number of the law enforcement agency with the following statement attached: "If within sixty (60) days you are not notified of an arrest in your case, you may call the telephone number of the law enforcement agency for the status of the case."
(d) The procedural steps involved in a criminal prosecution.
(e) The rights authorized by the Mississippi Constitution on rights of victims, including a form to invoke these rights.
(f) The existence of and eligibility requirements for restitution and compensation pursuant to Section 99-37-1 et seq. and Section 99-41-1 et seq., Mississippi Code of 1972.
(g) A recommended procedure if the victim is subjected to threats or intimidation.
(h) The name and telephone number of the office of the prosecuting attorney to contact for further information.
(2) In the event a victim initiates proceedings against a person by filing an affidavit, petition or complaint in a court of competent jurisdiction, the clerk of the court shall provide the victim with the information set forth in subsection (1); however, in lieu of the information set forth in subsection (1)(c), the clerk shall advise the victim of the name and telephone number of the law enforcement agency to which the complaint will be referred. This information shall be provided on a form prescribed by the Attorney General. Failure of the clerk of court to provide such information shall not subject the clerk to any criminal or civil liability.
SECTION 6. Section 99-49-1, Mississippi Code of 1972, is amended as follows:
99-49-1. (1) Legislative intent. The Legislature finds that:
(a) The value of properly preserved biological evidence has been enhanced by the discovery of modern DNA testing methods, which, coupled with a comprehensive system of DNA databases that store crime scene and offender profiles, allow law enforcement to improve its crime-solving potential;
(b) Tapping the potential of preserved biological evidence requires the proper identification, collection, preservation, storage, cataloguing and organization of such evidence;
(c) Law enforcement agencies indicate that "cold" case investigations are hindered by an inability to access biological evidence that was collected in connection with criminal investigations;
(d) Innocent people mistakenly convicted of the serious crimes for which biological evidence is probative cannot prove their innocence if such evidence is not accessible for testing in appropriate circumstances;
(e) It is well established that the failure to update policies regarding the preservation of evidence squanders valuable law enforcement resources, manpower hours and storage space; and
(f) Simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety and settle claims of innocence.
(2) Definitions. For the purposes of this section:
(a) "Biological evidence" means the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids or other identifiable biological material that was collected as part of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense. This definition applies whether that material is catalogued separately, such as on a slide, swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups, cigarettes or other items.
(b) "DNA" means deoxyribonucleic acid.
(c) "Custody" means persons currently incarcerated; civilly committed; on parole or probation; or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period.
(d) "Profile" means a unique identifier of an individual, derived from DNA.
(e) "State" refers to any governmental or public entity within Mississippi, including all private entities that perform such functions, and its officials or employees, including, but not limited to, law enforcement agencies, prosecutors' offices, courts, public hospitals, forensics laboratories, and any other entity or individual charged with the collection, storage or retrieval of biological evidence.
(3) Preservation of evidence procedures. (a) The state shall preserve all biological evidence:
(i) That is secured in relation to an investigation or prosecution of a crime for the period of time that the crime remains unsolved or as otherwise provided by law for that crime; or
(ii) That is secured in relation to an investigation or prosecution of a crime for the period of time that the person convicted of that crime remains in custody or as otherwise provided by law for that crime.
(b) This section applies to evidence that:
(i) Was in the possession of the state during the investigation and prosecution of the case; and
(ii) At the time of conviction was likely to contain biological material.
(c) The state shall not destroy biological evidence should one or more additional co-defendants, convicted of the same crime, remain in custody, and shall preserve the evidence for the period of time in which all co-defendants remain in custody or as otherwise provided by law for that crime.
(d) The state shall retain evidence in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.
(e) Upon written request by the defendant, the state shall prepare an inventory of biological evidence that has been preserved in connection with the defendant's criminal case.
(f) The state may destroy evidence that includes biological material before the expiration of the time period specified in paragraph (a) of this subsection if all of the following apply:
(i) No other provision of federal or state law requires the state to preserve the evidence.
(ii) The state sends certified delivery of notice of intent to destroy the evidence to:
1. All persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment related to evidence in question;
2. The attorney of record for each person in custody;
3. The Mississippi Office of Indigent Appeals;
4. The district attorney in the county of conviction; and
5. The Mississippi Attorney General.
(iii) No person who is notified under subparagraph (ii) of this paragraph (f) does either of the following within sixty (60) days after the date on which the person received the notice:
1. Files a
motion for testing of evidence under * * * Chapter 39, Title 99,
Mississippi Code of 1972; or
2. Submits a written request for retention of evidence to the state entity which provided notice of its intent to destroy evidence under subparagraph (ii) of this paragraph (f).
(g) If, after providing notice under paragraph (f)(ii) of this subsection of its intent to destroy evidence, the state receives a written request for retention of the evidence, the state shall retain the evidence while the person remains in custody.
(h) The state shall not be required to preserve physical evidence that is of such a size, bulk or physical character as to render retention impracticable. When such retention is impracticable, the state shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing, before returning or disposing of the physical evidence.
(i) Should the state be called upon to produce biological evidence that could not be located and whose preservation was required under the provisions of this statute, the chief evidence custodian assigned to the entity charged with the preservation of the evidence shall provide an affidavit in which the custodian stipulates, under penalty of perjury, an accurate description of the efforts taken to locate that evidence and that the evidence could not be located.
(4) This section does not require the state to preserve the biological evidence that is obtained in performing the test required by Section 99-3-41 and is required to be destroyed under that section.
(5) Any evidence in a murder, manslaughter or felony sexual assault case in the possession of the state on July 1, 2009, whether biological or not, shall be preserved by the state consistent with the legislative intent expressed in subsection (1) and subject to compliance with subsection (3)(f).
(6) Remedies for noncompliance. If the court finds that biological evidence was destroyed in violation of the provisions of this section, it may impose appropriate sanctions and order appropriate remedies.
SECTION 7. This act shall take effect and be in force from and after July 1, 2023.