Prohibits the disclosure of a sexual assault victim's DNA or RNA evidence by entry of the DNA or RNA profile into a criminal database or by use in an unrelated investigation or prosecution of the sexual assault victim; provides that a sexual assault victim's DNA or RNA evidence is not admissible in unrelated proceedings against the sexual assault victim.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6661A
SPONSOR: Burdick TITLE OF BILL:
An act to amend the executive law, in relation to prohibiting the
disclosure of a sexual assault victim's DNA or RNA evidence; and to
amend the criminal procedure law, in relation to limiting the use of a
sexual assault victim's DNA or RNA evidence
PURPOSE OR GENERAL IDEA OF BILL:
To prohibit the unlawful disclosure of a sexual assault victim's DNA or
RNA evidence; and limits the use of a sexual assault victim's DNA or RNA
evidence in an unrelated proceeding.
SUMMARY OF PROVISIONS:
Section 1. The executive law is amended to add a section 838-c to
prohibit any international, federal, state or municipal criminal data-
base evidence of a sexual assault victim's deoxyribonucleic acid ("DNA")
profile or ribonucleic acid ("RNA") profile that was obtained during the
investigation of an offense described in article one hundred thirty of
the penal law or treatment of the sexual assault victim following the
commission of an offense described in article one hundred thirty of the
penal law; or access or utilize evidence of a sexual assault victim's
DNA profile or RNA profile that was obtained during an investigation or
prosecution of the sexual assault victim for any offense or attempt to
commit an offense unconnected to the sexual assault, regardless of when
such offense or attempt to commit the offense occurred.
Section 2. Nothing in this section shall prohibit the inclusion of a
sexual assault victim's DNA. or RNA evidence in a non-criminal missing
persons database; or in a criminal database if the sexual assault
victim, or the victim's parent, guardian or legal representative
consents to the inclusion in writing.
Section 3 The criminal procedure law is amended by adding a new section
5 60.77 § 60.77 Rules of evidence; use of a sexual assault victim's DNA
or RNA evidence that resulted from a violation of subdivision one of
section 838-c of the executive law (disclosure of a sexual assault
victim's DNA or RNA evidence) shall not be admissible in a prosecution
of the sexual assault victim for any offense or an attempt to commit an
offense unrelated to the sexual assault, regardless of when such offense
or attempt to commit the offense= occurred. Any such evidence shall be
ordered by the court to be sealed.
Section 3. Establishes the Effective Date.
JUSTIFICATION:
Sexual assault and rape are some of the most personal crimes that can be
perpetrated upon a victim. One of the tools that law enforcement uses to
gather evidence is the administration of a "rape kit" otherwise known as
a sexual assault forensic exam.
Sexual assault forensic exams are head-to-toe examination. It may
include a full body examination, including internal examinations of the
mouth, vagina, and/or anus. It may also include taking samples of blood,
urine, swabs of body surface areas, and sometimes hair samples.
A woman in San Francisco, as reported in national news stories, who was
a victim of rape, underwent a sexual assault forensic exam and was
subsequently arrested when her DNA came back linked to a property crime
case.
Various sources report that as many as 54% of rapes are not reported to
the police and of cases reported to police and of those reported only
50% of those cases are solved.
A survivor of sexual assault should not have their own DNA or RNA, as
gathered in a sexual assault forensic exam used against them. If permit-
ted this might have a chilling effect on the reporting of sexual assault
or rape and hinder the authority's ability to successfully prosecute a
criminal.
This bill will prohibit the use of a victim's DNA and RNA as collected
during a sexual assault forensic exam from being used against them.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
6661--A
2023-2024 Regular Sessions
IN ASSEMBLY
April 26, 2023
___________
Introduced by M. of A. BURDICK -- read once and referred to the Commit-
tee on Codes -- recommitted to the Committee on Codes in accordance
with Assembly Rule 3, sec. 2 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to prohibiting the
disclosure of a sexual assault victim's DNA or RNA evidence; and to
amend the criminal procedure law, in relation to limiting the use of a
sexual assault victim's DNA or RNA evidence
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new section 838-c
2 to read as follows:
3 § 838-c. Disclosure of a sexual assault victim's DNA or RNA evidence.
4 1. No person, including a police officer or peace officer, a public
5 officer or public employee, or an employee or agent of a hospital or a
6 criminal or private testing facility or laboratory, shall:
7 (a) enter into any international, federal, state or municipal criminal
8 database evidence of a sexual assault victim's deoxyribonucleic acid
9 ("DNA") profile or ribonucleic acid ("RNA") profile that was obtained
10 during the investigation of an offense described in article one hundred
11 thirty of the penal law or treatment of the sexual assault victim
12 following the commission of an offense described in article one hundred
13 thirty of the penal law; or
14 (b) access or utilize evidence of a sexual assault victim's DNA
15 profile or RNA profile that was obtained as described in paragraph (a)
16 of this subdivision during an investigation or prosecution of the sexual
17 assault victim for any offense or attempt to commit an offense uncon-
18 nected to the sexual assault, regardless of when such offense or attempt
19 to commit the offense occurred.
20 2. Nothing in this section shall prohibit the inclusion of a sexual
21 assault victim's DNA or RNA evidence:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10843-02-4
A. 6661--A 2
1 (a) in a non-criminal missing persons database; or
2 (b) in a criminal database if the sexual assault victim, or the
3 victim's parent, guardian or legal representative consents to the inclu-
4 sion in writing.
5 § 2. The criminal procedure law is amended by adding a new section
6 60.77 to read as follows:
7 § 60.77 Rules of evidence; use of a sexual assault victim's DNA or RNA
8 evidence in certain cases.
9 1. Evidence of a sexual assault victim's deoxyribonucleic acid
10 ("DNA") profile or ribonucleic acid ("RNA") profile that was obtained
11 during the investigation of an offense described in article one hundred
12 thirty of the penal law or treatment of the sexual assault victim
13 following the commission of an offense described in article one hundred
14 thirty of the penal law shall not be admissible in a prosecution of the
15 victim for any offense or an attempt to commit an offense unrelated to
16 the sexual assault, regardless of when such offense or attempt to commit
17 the offense occurred.
18 2. Evidence that resulted from a violation of subdivision one of
19 section 838-c of the executive law (disclosure of a sexual assault
20 victim's DNA or RNA evidence) shall not be admissible in a prosecution
21 of the sexual assault victim for any offense or an attempt to commit an
22 offense unrelated to the sexual assault, regardless of when such offense
23 or attempt to commit the offense occurred. Any such evidence shall be
24 ordered by the court to be sealed.
25 § 3. This act shall take effect on the thirtieth day after it shall
26 have become a law.
