Chapter 70.125 RCW

VICTIMS OF SEXUAL ASSAULT ACT

Sections

70.125.010Short title.
70.125.020Findings.
70.125.030Definitions.
70.125.060Personal representative may accompany victim during treatment or proceedings.
70.125.065Records of community sexual assault program and underserved populations provider not available as part of discoveryExceptions.
70.125.090Sexual assault kitsRequest for laboratory examinationReport to the legislature.
70.125.100Duty to submit requests for forensic analysis of sexual assault kits within time prescribedExceptions.
70.125.101Storage and preservation of unreported and untested sexual assault kits.
70.125.110Rights of sexual assault survivors.

NOTES:

Public records: Chapter 42.56 RCW.
Victims of crimes
compensation, assistance: Chapter 7.68 RCW.
survivors, witnesses: Chapter 7.69 RCW.


Short title.

This chapter may be known and cited as the Victims of Sexual Assault Act.

NOTES:

Severability1979 ex.s. c 219: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1979 ex.s. c 219 § 22.]



Findings.

The legislature hereby finds and declares that:
(1) Sexual assault is a serious crime in society, affecting a large number of children, women, and men each year;
(2) Efforts over many years to distribute information and collect data have demonstrated the incidence of sexual assault that continues to impact communities, families, and individuals;
(3) Over the past three decades, law enforcement, prosecutors, medical professionals, educators, mental health providers, public health professionals, and victim advocates have benefited from a commitment to training and learning regarding appropriate responses to and services for victims of sexual assault;
(4) This same effort has resulted in increased public awareness of sexual assault and its impact on communities, families, and individuals;
(5) Law enforcement, prosecutors, medical professionals, educators, mental health providers, public health professionals, and victim advocates should continue to work closely and collaboratively to improve responses to and services for victims of sexual assault;
(6) The physical, emotional, financial, and psychological needs of victims and their families are particularly well-served by timely and effective services provided in local communities; and
(7) Persons who are victims of sexual assault benefit directly from continued public awareness and education, prosecutions of offenders, a criminal justice system which treats them in a humane manner, and access to victim-centered, culturally relevant services.

NOTES:

Severability1979 ex.s. c 219: See note following RCW 70.125.010.



Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Community sexual assault program" means a community-based social service agency that is qualified to provide and provides core services to victims of sexual assault.
(2) "Core services" means those services that are victim-centered community-based advocacy responses to alleviate the impact of sexual assault, as delineated in the Washington state sexual assault services plan of 1995 and its subsequent revisions.
(3) "Department" means the department of commerce.
(4) "Law enforcement agencies" means police and sheriff's departments and tribal law enforcement departments or agencies of this state.
(5) "Personal representative" means a friend, relative, attorney, or employee or volunteer from a community sexual assault program or specialized treatment service provider.
(6) "Services for underserved populations" means culturally relevant victim-centered community-based advocacy responses to alleviate the impact of sexual assault, as delineated in the Washington state sexual assault services plan of 1995 and its subsequent revisions.
(7) "Sexual assault" means one or more of the following:
(a) Rape or rape of a child;
(b) Assault with intent to commit rape or rape of a child;
(c) Incest or indecent liberties;
(d) Child molestation;
(e) Sexual misconduct with a minor;
(f) Custodial sexual misconduct;
(g) Crimes with a sexual motivation;
(h) Sexual exploitation or commercial sex abuse of a minor;
(i) Promoting prostitution; or
(j) An attempt to commit any of the aforementioned offenses.
(8) "Specialized services" means those services intended to alleviate the impact of sexual assault, as delineated in the Washington state sexual assault services plan of 1995 and its subsequent revisions.
(9) "Victim" means any person who suffers physical, emotional, financial, and psychological impact as a proximate result of a sexual assault.

NOTES:

Transfer of powers and duties1996 c 123: "The powers and duties of the department of social and health services under this chapter shall be transferred to the *department of community, trade, and economic development on July 1, 1996. The department of social and health services shall transfer all unspent appropriated funds, records, and documents necessary to facilitate a successful transfer." [ 1996 c 123 § 9.]
*Reviser's note: The "department of community, trade, and economic development" was renamed the "department of commerce" by 2009 c 565.
Effective date1996 c 123: See note following RCW 43.280.010.
Effective dateSavingsApplication1988 c 145: See notes following RCW 9A.44.010.
Severability1979 ex.s. c 219: See note following RCW 70.125.010.



Personal representative may accompany victim during treatment or proceedings.

If the victim of a sexual assault so desires, a personal representative of the victim's choice may accompany the victim to the hospital or other health care facility, and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings.

NOTES:

Severability1979 ex.s. c 219: See note following RCW 70.125.010.



Records of community sexual assault program and underserved populations provider not available as part of discoveryExceptions.

Records maintained by a community sexual assault program and underserved populations provider shall not be made available to any defense attorney as part of discovery in a sexual assault case unless:
(1) A written pretrial motion is made by the defendant to the court stating that the defendant is requesting discovery of the community sexual assault program or underserved populations provider records;
(2) The written motion is accompanied by an affidavit or affidavits setting forth specifically the reasons why the defendant is requesting discovery of the community sexual assault program or underserved populations provider records;
(3) The court reviews the community sexual assault program or underserved populations provider records in camera to determine whether the community sexual assault program or underserved populations provider records are relevant and whether the probative value of the records is outweighed by the victim's privacy interest in the confidentiality of such records taking into account the further trauma that may be inflicted upon the victim by the disclosure of the records to the defendant; and
(4) The court enters an order stating whether the records or any part of the records are discoverable and setting forth the basis for the court's findings.



Sexual assault kitsRequest for laboratory examinationReport to the legislature.

(1) When a law enforcement agency receives a sexual assault kit, the law enforcement agency must, within thirty days of its receipt, submit a request for laboratory examination to the Washington state patrol crime laboratory for prioritization for testing by it or another accredited laboratory that holds an outsourcing agreement with the Washington state patrol if:
(a) The law enforcement agency has received a related report or complaint alleging a sexual assault or other crime has occurred; and
(b)(i) Consent for laboratory examination has been given by the victim; or
(ii) The victim is a person under the age of eighteen who is not emancipated pursuant to chapter 13.64 RCW.
(2) Beginning May 1, 2022, when the Washington state patrol receives a request for laboratory examination of a sexual assault kit from a law enforcement agency, the Washington state patrol shall conduct the laboratory examination of the sexual assault kit, and when appropriate, enter relevant information into the combined DNA index system, within forty-five days of receipt of the request. The Washington state patrol crime laboratory must give priority to the laboratory examination of sexual assault kits at the request of a local law enforcement agency for:
(a) Active investigations and cases with impending court dates;
(b) Active investigations where public safety is an immediate concern;
(c) Violent crimes investigations, including active sexual assault investigations;
(d) Postconviction cases; and
(e) Other crimes' investigations and nonactive investigations, such as previously unsubmitted older sexual assault kits or recently collected sexual assault kits that the submitting agency has determined to be lower priority based on their initial investigation.
(3) The failure of a law enforcement agency to submit a request for laboratory examination, or the failure of the Washington state patrol to facilitate laboratory examination, within the time periods prescribed under this section does not constitute grounds in any criminal proceeding for challenging the validity of a DNA evidence association, and any evidence obtained from the sexual assault kit may not be excluded by a court on those grounds.
(4) A person accused or convicted of committing a crime against a victim has no standing to object to any failure to comply with the requirements of this section, and the failure to comply with the requirements of this section is not grounds for setting aside the conviction or sentence.
(5) Nothing in this section may be construed to create a private right of action or claim on the part of any individual, entity, or agency against any law enforcement agency or any contractor of any law enforcement agency.
(6) This section applies prospectively only and not retroactively. It only applies to sexual assault examinations performed on or after July 24, 2015.
(7)(a) Until June 30, 2023, the Washington state patrol shall compile the following information related to the sexual assault kits identified in this section and RCW 70.125.100:
(i) The number of requests for laboratory examination made for sexual assault kits and the law enforcement agencies that submitted the requests; and
(ii) The progress made towards testing the sexual assault kits, including the status of requests for laboratory examination made by each law enforcement agency.
(b) The Washington state patrol shall make recommendations for increasing the progress on testing any untested sexual assault kits.
(c) Beginning in 2015, the Washington state patrol shall report its findings and recommendations annually to the appropriate committees of the legislature and the governor by December 1st of each year.



Duty to submit requests for forensic analysis of sexual assault kits within time prescribedExceptions.

(1) Law enforcement agencies shall submit requests for forensic analysis of all sexual assault kits collected prior to July 24, 2015, and in the possession of the agencies to the Washington state patrol crime laboratory by October 1, 2019, except submission for forensic analysis is not required when: (a) Forensic analysis has previously been conducted; (b) there is documentation of an adult victim or emancipated minor victim expressing that he or she does not want his or her sexual assault kit submitted for forensic analysis; or (c) a sexual assault kit is noninvestigatory and held by a law enforcement agency pursuant to an agreement with a hospital or other medical provider. The requirements of this subsection apply regardless of the statute of limitations or the status of any related investigation.
(2) The Washington state patrol crime laboratory may consult with local law enforcement agencies to coordinate the efficient submission of requests for forensic analysis under this section in conjunction with the implementation of the statewide tracking system under RCW 43.43.545, provided that all requests are submitted and all required information is entered into the statewide sexual assault tracking system by October 1, 2019. The Washington state patrol crime laboratory shall facilitate the forensic analysis of all sexual assault kits submitted under this section by December 1, 2021. The analysis may be conducted by the Washington state patrol laboratory or an accredited laboratory holding a contract or agreement with the Washington state patrol. The Washington state patrol shall process the forensic analysis of sexual assault kits in accordance with the priorities in RCW 70.125.090(2).
(3) The failure of a law enforcement agency to submit a request for laboratory examination within the time prescribed under this section does not constitute grounds in any criminal proceeding for challenging the validity of a DNA evidence association, and any evidence obtained from the sexual assault kit may not be excluded by a court on those grounds.
(4) A person accused or convicted of committing a crime against a victim has no standing to object to any failure to comply with the requirements of this section, and the failure to comply with the requirements of this section is not grounds for setting aside the conviction or sentence.
(5) Nothing in this section may be construed to create a private right of action or claim on the part of any individual, entity, or agency against any law enforcement agency or any contractor of any law enforcement agency.



Storage and preservation of unreported and untested sexual assault kits. (Expires June 30, 2020.)

(1) Beginning on April 23, 2019, untested sexual assault kits may not be disposed of or otherwise destroyed, and must be adequately preserved for the purpose of forensic analysis and potential use in criminal investigations.
(2) Except as provided in subsection (4) of this section, unreported sexual assault kits collected prior to April 23, 2019, must be stored by the entity responsible for the collection or its designee.
(3) Except as provided in subsection (4) of this section, unreported sexual assault kits collected on or after April 23, 2019, must be transferred to and stored by the Washington state patrol crime laboratory or its designee.
(4) In lieu of the storage requirements under subsection (2) or (3) of this section, a collecting entity may enter into an agreement with a local law enforcement agency or other third party for the storage of unreported sexual assault kits.
(5) For the purposes of this section:
(a) "Unreported sexual assault kit" means a sexual assault kit collected from a victim who has consented to the collection of the sexual assault kit but who has not reported the alleged crime to law enforcement.
(b) "Untested sexual assault kit" means a sexual assault kit that has not been submitted for forensic analysis to a forensic laboratory with combined DNA index system-eligible DNA methodologies. "Untested sexual assault kits" include unreported sexual assault kits as well as any untested sexual assault kits associated with a criminal report or investigation.
(6) This section expires June 30, 2020.

NOTES:

Effective date2019 c 93 §§ 1, 2, and 8: See note following RCW 43.10.800.



Rights of sexual assault survivors.

(1) In addition to all other rights provided in law, a sexual assault survivor has the right to:
(a) Receive a medical forensic examination at no cost;
(b) Consult with a sexual assault survivor's advocate during any medical evidentiary examination and during any interview by law enforcement officers, prosecuting attorneys, or defense attorneys, unless an advocate cannot be summoned in a timely manner, and regardless of whether a survivor has waived the right in a previous examination or interview;
(c) Be informed, upon the request of a survivor, of when the forensic analysis of his or her sexual assault kit and other related physical evidence will be or was completed, the results of the forensic analysis, and whether the analysis yielded a DNA profile and match, provided that the disclosure is made at an appropriate time so as to not impede or compromise an ongoing investigation;
(d) Receive notice prior to the destruction or disposal of his or her sexual assault kit;
(e) Receive a copy of the police report related to the investigation without charge; and
(f) Review his or her statement before law enforcement refers a case to the prosecuting attorney.
(2) A sexual assault survivor retains all the rights of this section regardless of whether the survivor agrees to participate in the criminal justice system and regardless of whether the survivor agrees to receive a forensic examination to collect evidence.
(3) If a survivor is denied any right enumerated in subsection (1) of this section, he or she may seek an order directing compliance by the relevant party or parties by filing a petition in the superior court in the county in which the sexual assault occurred and providing notice of such petition to the relevant party or parties. Compliance with the right is the sole remedy available to the survivor. The court shall expedite consideration of a petition filed under this subsection.
(4) Nothing contained in this section may be construed to provide grounds for error in favor of a criminal defendant in a criminal proceeding. Except in the circumstances as provided in subsection (3) of this section, this section does not grant a new cause of action or remedy against the state, its political subdivisions, law enforcement agencies, or prosecuting attorneys. The failure of a person to make a reasonable effort to protect or adhere to the rights enumerated in this section may not result in civil liability against that person. This section does not limit other civil remedies or defenses of the sexual assault survivor or the offender.
(5) For the purposes of this section:
(a) "Law enforcement officer" means a general authority Washington peace officer, as defined in RCW 10.93.020, or any person employed by a private police agency at a public school as described in RCW 28A.150.010 or an institution of higher education, as defined in RCW 28B.10.016.
(b) "Sexual assault survivor" means any person who is a victim, as defined in RCW 7.69.020, of sexual assault. However, if a victim is incapacitated, deceased, or a minor, sexual assault survivor also includes any lawful representative of the victim, including a parent, guardian, spouse, or other designated representative, unless the person is an alleged perpetrator or suspect.
(c) "Sexual assault survivor's advocate" means any person who is defined in RCW 5.60.060 as a sexual assault advocate, or a crime victim advocate.