West Virginia Code 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.
Terms Used In West Virginia Code 15-9B-4
- Allegation: something that someone says happened.
- Biological evidence: includes a sexual assault forensic examination kit, semen, blood, saliva, hair, skin tissue, or other identified biological material. See West Virginia Code 15-9B-1a
- commission: means the Sexual Assault Forensic Examination Commission. See West Virginia Code 15-9B-1
- DNA: means deoxyribonucleic acid. See West Virginia Code 15-9B-1a
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Hospital: means a facility licensed pursuant to the provisions of §. See West Virginia Code 15-9B-1a
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- 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. See West Virginia Code 15-9B-1a
- 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. See West Virginia Code 15-9B-1a
- Offense: includes every act or omission for which a fine, forfeiture, or punishment is imposed by law. See West Virginia Code 2-2-10
- 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:
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Unfounded: means evidence developed after reasonable investigation and supported by proper documentation proving no crime occurred or where the alleged victim has recanted. See West Virginia Code 15-9B-1a
(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;
(2) Protocols for storage of DNA samples and sexual assault forensic examination kits; and
(3) Requiring a hospital to have trained health care provider available or transfer agreement as provided in a county plan, to complete a sexual assault forensic examination. “Available” includes, but not limited, having access to a trained sexual assault forensic examination expert via telehealth.
(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.