Survivors’ Bill of Rights Act 2016 (Public Law 114-236)
What it does
Enumerates legal rights available to survivors of sexual assault, including heightened control over their own evidence kits, and specifies how states may win grants to disseminate these rights.
The Survivors’ Bill of Rights Act of 2016 (Public Law 114-236) aims to provide basic rights to sexual assault survivors, including expanded control over their sexual assault evidence kits.
The law amends the criminal procedure code (18 U.S.C. 3001 et seq.) to list federal rights afforded specifically to sexual assault survivors. These rights include:
- Not to be prevented from receiving a medical forensic examination.
- Not to be charged for a medical forensic examination.
- To have a sexual evidence kit and its contents preserved without charge for the maximum applicable statute of limitations (i.e., the length of time after a crime is committed during which legal charges may be brought) or 20 years, whichever is shorter.
- To be informed of any information resulting from the collection of a sexual assault evidence kit, including a DNA profile match, toxicology report, or other results, if such disclosure would not compromise an ongoing investigation.
- To be informed in writing of the policies for the collection and preservation of the evidence kit.
- To request to receive written notification no later than 60 days before the intended destruction or disposal of the evidence kit or its contents; and in such event, to request further preservation of those items.
The law additionally amends the Victims of Crime Act of 1984 (42 U.S.C. 10601 et seq.) This amendment allows the Department of Justice (DoJ) to award grants to the States; in turn, States can use these grants to disseminate written notices of the following rights to survivors of sexual assault:
- Not to be prevented from receiving a medical forensic examination regardless of whether the survivor reports the assault or cooperates with law enforcement.
- Not to be charged for a medical forensic examination.
- To be informed of the availability of protective orders and policies for the survivor’s benefit.
- To be informed of policies regarding storage, preservation, and disposal of evidence kits.
- To be informed of the availability of a sexual assault advocate and of victim compensation and restitution.
This law also calls for a collaboration between the DoJ and the Department of Health and Human Services to establish a working group. This working group will develop, coordinate, and disseminate best practices regarding the care and treatment of sexual assault survivors, and likewise create and share best practices for the preservation of forensic evidence. The group will submit a report within two years of the law’s enactment containing their findings and recommended actions.
<p>Although the use of sexual assault kits can identify perpetrators, the limited capacity of forensic science facilities often results in a backlog in processing sexual assault kits. Moreover, many kits simply remain unprocessed. Some of the reasons for this backlog and non-processing include:</p>
<li>Many jurisdictions only test cases where the assailant is unknown in efforts to identify a suspect through DNA evidence.</li>
<li>Survivors may be hesitant to participate in DNA testing for reasons including fear of retaliation, fear of being treated poorly by the law enforcement agency, or shame that the fact of the assault will become known to others, such as family and friends.</li>
<li>Survivors are often unaware of their rights regarding the handling of the sexual assault kit, such as the right to receive a thorough medical examination.</li>
<li>Some law enforcement agencies fail to submit the sexual assault evidence to the crime laboratory for DNA testing because they are unable to recognize post-traumatic behaviors including extreme calm reaction and rejection to talk, which are often contrary to the common belief of the reaction after the assault (e.g., crying).</li>
<p>Crime laboratories have limited funding and resources, and thousands of crimes are submitted to the laboratories each year (including crimes beyond sexual assault), resulting in long turn-around times for testing.</p>
A sexual assault evidence collection kit contains tools to collect evidence from a victim of sexual assault; the collection is performed by a medical professional, usually a specially trained nurse (Sexual Assault Nurse Examiner). The contents of a kit generally include swabs, blood collection tubes, microscope slides, a comb, and evidence collection envelopes for hairs and fibers. The victim is swabbed for any biological evidence that may contain the perpetrator’s DNA (e.g., skin, saliva, or semen).
The evidence in the kit can then be sent to a crime laboratory, alongside other crime scene evidence such as clothing, bed sheets, toxicology reports, or weapons. The laboratory will analyze the collective suite of evidence for traces of semen, saliva, or other body fluids; such analysis is performed via chemical and blood (serology) tests, as well as examination of microscope slides for the presence of sperm.
Evidence from the sexual assault kit found to have semen or other biological fluids can be kept for DNA analysis. DNA is the molecule containing our genetic code. DNA testing involves isolating DNA from a biological sample (e.g., blood, saliva) and creating a DNA profile (also known as a DNA “fingerprint”) that is a unique identifier of an individual. The sexual assault victim’s DNA will also be profiled to isolate her/his DNA from any other person’s DNA found on the evidence. If there is a suspect in the case, any foreign DNA profile will be compared to the DNA profile of the suspect. For cases without a suspect, any foreign DNA profile(s) will then be compared with DNA profiles in databases such as the Combined DNA Index System (CODIS).
A research report by the DoJ’s National Institute of Justice demonstrates the utility of collecting and analyzing forensic evidence. For cases with evidence to link a suspect to a crime scene or victim, the report states “the conviction rate for [such cases] was significantly higher than cases without such evidence.”
Sara Katsanis, MS is a Duke University instructor in the Duke Initiative for Science & Society. Her research focuses on policies for DNA testing in law enforcement and human rights contexts.
Endorsements & Opposition
The Survivors’ Bill of Rights Act received bipartisan support, passing unanimously through the House of Representatives and the Senate. Many news articles have been released highly acknowledging the bill.
- Senator Jeanne Shaheen (D-NH), who introduced the original Senate version of the bill (S. 2566; SᴄɪPᴏʟ brief available), in the New York Times: “It was just over a year ago when Amanda Nguyen walked into my office, shared her heartbreaking story, and we began working on legislation. Amidst the partisan bickering and gridlock in Congress, this law demonstrates that citizens can still affect positive change and that bipartisan progress is still possible.” Shaheen is also quoted in NewsTalkFlorida: “Sexual assault remains one of the most underreported crimes and I hope that these basic rights will encourage more survivors to come forward and pursue justice.”
- The Guardian: “This is the most comprehensive rape survivors’ bill ever in US history.”
- People.com: Amanda Nguyen, a rape survivor who wrote and championed the bill, says, “This historic piece of legislation codifies the federal rights of the 25 million rape survivors in America and serves as a model for Statehouses to adopt.”
- The Stute (an online newspaper run by the students of Stevens Institute of Technology): “This bill in the first of its kind at the federal level to address the backlog of untested rape kits.”
- WYFF (Greenville County, South Carolina): “A local organization is praising groundbreaking legislation to help survivors of sexual assault.”
At present, there has not been publicly reported opposition.