Privacy Bills in the House, a First Look: Frank McNulty Seeks to Give Sexual Assault Victims Control of Sensitive Forensics

by Eileen | 8:26 am, January 22, 2013 | Comments Off

WHAT: HB 13-1020, cleaning up backlogs in testing evidence from sexual assault cases, setting a timeline for future testing, and requiring consent of the victim for the disclosure of that evidence

WHO: Rep. Frank McNulty (R-43) and Sen. Ellen S. Roberts (R-6)

WHY: Because taking an iceage to test rapekits and treating victims like they deserved it is not how a society shows disapproval of sexual assault

By way of disclosure, I will come right and say that I would like to see castration with a dull knife become the default punishment for rape.  I would apply capital punishment to particularly horrendous assaults.  On days when my lesser angels are in charge, I advocate that any defense attorney who tries to put a rape victim on trial deserves to be stripped, hogtied, and thrown into a jail cell with a lifer nicknamed ‘Butcher’ or ‘Bareback Justice’.

OK, on to the cold and dispassionate analysis.  This bill has, roughly, three aims.  First, it would clear up the backlog of untested evidence from assaults by ordering the creation of an inventory of untested cases, at which point the Colorado Bureau of Investigation would proposes a plan to get all that old evidence tested by June 30, 2014.  Secondly, HB 1020 would set deadlines for evidence to be turned over to the lab, tested, and run against the DNA database for assaults in the future.

There are problems enough here for an entire article.  What the hell is wrong with us that we’ve allowed so much sexual assault evidence to lay around that we’re at the point of considering a legislative fiat to deal with it?  Maybe if we stopped wasting our time on malum prohibidum  nonsense and quit trying to force cops to play at being Officer Friendly rather than, you know, fighting crime, we could get back on top of the real problems.  Actually, how bad is our backlog? That the bill calls for an inventory and report suggests no one actually knows.  Great.  More tax dollars in actions.  God only knows what it would cost us to figure out how badly we’ve screwed up at a fundamental responsibility of law enforcement.

If there are police departments that don’t hand over rapekits to crime labs, or crime labs that don’t even know how many kits they have and what their status is, that’s not a problem that should be dealt with by making a list.  People should be fired for that.  There’s a grave problem if the hierarchy at police departments and crime labs can’t handle this internally.  Approaching the backlog legislatively points to either a power grab by lawmakers or a gross failure of the people paid with public money to investigate sexual assaults.  Between police officers and legislators, I incline to blame the legislators. But, one way or another, if this state is not rapidly processing rapekits, heads had better roll.

However, my point here is to consider the privacy aspect – the idea of giving sexual assault victims (or their survivors) the right to give and withdraw consent for the disclosure of the forensics related to their assaults.  The first thing that merits saying is that the wording is just goofy:

The bill requires the consent of the victim prior to the release of forensic evidence following disclosure of the purpose for the release and allows the victim to withdraw consent.

“Prior to the release…following disclosure of the purpose of the release…” – what does that even mean?  It means the House Republicans need a proofreader.  It also means something rather nice: a victim would have to be told the purpose(s) for which disclosure is sought and could then give her consent with that information.  On first look, it’s a nice improvement over trying to get a blanket release and then relying on the doubtful judgment of the state.  Under the terms of HB 1020, anyone given access to that evidence would be bound to abide by the purpose(s) for which the victim gave consent:

 A PERSON WHO RECEIVES EVIDENCE UNDER THIS SUBSECTION SHALL NOT DISCLOSE THE EVIDENCE EXCEPT TO THE EXTENT THAT DISCLOSURE IS CONSISTENT WITH THE AUTHORIZED PURPOSE FOR WHICH THE PERSON OBTAINED THE EVIDENCE.

Now, for the potential problems.  First, this bill isn’t really a sensible combination.  Why are we covering timelines for processing information in the same bill that considers victim’s privacy?  I know lawmakers don’t have unlimited bills each session, and for that I am thankful every day.  I still think the former isn’t even a legislative matter.  Secondly, who’s going to pay for this?  If we decree that the crime labs have, by the time this bills passes (if it does) a year or so to clear their entire backlog of rapekits, what will that cost?  What’s going to get cut to pay for that?  And will it lead to increased convictions for sexual assault?

If the bills passes and the inventory of unprocessed rapekits is large enough that we have a real problem, what would be the next step in making sure such a problem doesn’t recur? If there are cases we can’t prosecute because the statute ran out, or the evidence degraded, or the chain of custody was broken, will victims have civil claims against police or crime labs?  And who foots that bill?  What if there are just more unprocessed kits than can possibly be handled by mid-2014?  Do we make up a new timeline or pick the cases that are the most offensive or the ones the DA feels best about?  I doubt that goes over well with the public.  Hell, I know a guy who’s not currently a U.S. Senator in part because he made a judgment call about pursuing a rape case where the evidence was weak.

As for the privacy aspect, I also have a wee little concern. Disclosing evidence and the result of kits to investigators, prosecuting attorneys, and  the defense is a requirement if the victim wants to seek a conviction.  Will this create paperwork and headaches to get a signature just to continue the investigation?  I know privacy has to be weighed with other concerns.  I wouldn’t wish sexual assault or its aftermath on anyone, but it does seem to me that pursuing a conviction requires submitting evidence for investigation and entry into the courts.  I don’t know how there would be a lot of wiggle room in this case.

If crime lab employees are habitually disclosing sensitive evidence – evidence that could both shame a victim who doesn’t deserve it and, by being wrongly publicized, affect the chances of a conviction, it’s better than have a statute for prosecuting those people than not.  But then I wonder why crime labs that test evidence in sexual assault cases can’t find employees who respect the legal sensitivity and deeply private nature of such forensic material.

When I think about privacy and sexual assault victims, I think about the press and about defense attorneys who grill victims over their sexual past and personal conduct, as if victims must pass a public purity test before getting justice.  Too, it occurs to me that a rapist could set up a successful appeal by claiming his victim violated his due process rights by not giving a wide enough consent to disclosure of evidence.  Banning defense attorneys from bringing up a victim’s prior sexual behavior would be a better step, especially in light of continually saddening figures about how much sexual assault goes unreported.

I’ll be interested to see what happens in first hearing, as I’m foggy on why we need this bill.

On that note, what’s the future look like for HB-1020?  It’s assigned to the Judiciary and Appropriations Committees, Democratically controlled 7-4 and 8-5, respectively.  It could be hard to oppose this on party lines as this one’s a ‘gimme’ when it comes painting opponents as soft on crime and anti-women.  However, both committees are heavy on lawyers and the bill’s fate could lie there.

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