Proposed Florida Bill for the Retention of Sexual Offense Evidence

March 20, 2024 Don Pumphrey, Jr. Criminal Defense, News & Announcements, Sex Crimes Social Share

A proposed Senate Bill is making its way through the Florida Legislature. SB 764 aims to extend the period that evidence relating to a sex crime is maintained by law enforcement.

Currently, the law provides that the evidence “must be retained…until the prosecuting agency has approved its destruction.” However, the proposed bill would require law enforcement to keep the records for a minimum of 50 years. This will be immensely helpful to victims of alleged sex crimes who don’t initially press charges due to the extensive stigma around being a victim of such crime. Additionally, maintaining this type of evidence will also help police in instances where there is a serial rapist with multiple victims. If SB 764 passes, it will go into effect in October 2024.

This page will provide information on the evidence typically gathered for sexual offenses, the current laws on obtaining DNA evidence in sexual offense cases, and what SB 764 entails along with its responses.

What is Sexual Offense Evidence?

When a person experiences a traumatic event, such as being sexually assaulted, there are certain steps in place to collect the “sexual offense evidence” for law enforcement to find and apprehend the person responsible.

The most generic form of evidence for a sexual offense is a sexual assault kit (SAK) also referred to as a “rape kit.” The National Institute of Justice (NIJ) defines an SAK as a collection of evidence collected by a medical professional. Depending on what the victim claims occurred during the sexual assault can impact which type of evidence is collected. While the contents of a kit can vary by jurisdiction, some of the most common contents include:

• Swabs;
• Test tubes;
• Microscopic slides; and
• Evidence collection envelops for hairs and fibers.

A sexual assault medical forensic exam (SAFE) is an exam conducted by a specially trained Sexual Assault Nurse Examiner (SANE) or other medical professional to establish the victim’s medical history, analyze and coordinate treatment for any injuries, collect and document that biological and physical evidence, and refer the sexual offense victim to relative support.

The National Protocol for Sexual Assault Medical Forensic Examinations by the U.S. Department of Justice (DOJ) highlights the minimum guidelines for a collection kit’s contents:

1. A kit container to hold the items taken during the evidence collection;
2. An instruction sheet or checklist to guide the examiner and patient in collecting the evidence and maintaining the chain of custody;
3. Forms to facilitate evidence collection and analysis, and the patient’s authorization to release the evidence information to law enforcement (if they choose to do so);
4. Materials for collecting and preserving the following evidence, according to jurisdictional policy:

• Patient’s clothing, underwear, and any foreign material dislodged from clothing;
• Foreign materials on patient’s body such as bloods, dried secretion, fibers, loose hairs, vegetation, soil/debris, fingernail scrapings and/or cuttings, matted hair cuttings, and material dislodged from mouth;
• Swabs of suspected semen, saliva, and/or areas highlighted by alternate light sources;
• Hair (if required by jurisdiction);
• Vaginal/cervical swabs;
• Penile swabs;
• Anal/perianal swabs;
• Oral swabs; and
• Body swabs.

Current Florida Law on DNA Evidence in Sexual Offense Investigation

As of now, there is no specific time for how long law enforcement is required to keep sexual offense evidence.

Under Florida Statute Section 943.326, a sexual offense kit or other form of DNA evidence must be submitted to a member of the statewide criminal analysis laboratory system for forensic testing within 30 days of the following:

1. Receipt of evidence by a law enforcement agency if a report of the sexual offense is made to the law enforcement agency; or
2. A request to the medical provider or law enforcement agency to have the evidence evaluated by any of the following:
   1. The alleged victim of the sexual offense;
   2. The alleged victim’s parent, guardian, or legal representative (if victim is a minor); or
   3. The alleged victim’s personal representative (if the victim is deceased).

The time limitations for prosecution of certain criminal offenses is outlined under Florida Statute Section 775.15.

Under Florida Statute Section 775.15(16)(a) a prosecution of any of the following offenses may be commenced at any time after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of DNA evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available:

• Aggravated battery;
• Kidnapping or false imprisonment;
• Burglary;
• Robbery;
• Carjacking;
• Aggravated child abuse;
• An offense of sexual battery; and/or
• A lewd or lascivious offense.

SB 764

The proposed bill SB 764 titled “Retention of Sexual Offense Evidence” is focused on requiring evidence pertaining to alleged sexual offenses be retained by the authorized entities for a specific number of years after the collection date.

If SB 764 passes into law, it would amend Florida Statute Section 943.326 to state the following:

• Under Section(3)(a): “Except as provided in paragraph (b), a collected sexual offense evidence kit, or other DNA evidence if a kit is not collected, that is collected from an alleged victim who reports a sexual offense to a law enforcement agency or who makes a request, or on whose behalf a request is made, for testing in compliance in with paragraph (1)(B), must be retained in a secure, environmentally safe manner until the prosecuting agency has approved its destruction.”
• Under Section(3)(b)1: “A sexual offense evidence kit that is collected from a person who does not report a sexual offense to a law enforcement agency during the forensic physical examination and who does not make a request, or have a request made on his or her behalf, in compliance with paragraph (1)(b) must be retained for a minimum of 50 years after the collection date.” Additionally, the medical facility or certified rape crisis center that collected such forensic evidence has 30 days to transfer the kit to the department, who is required to maintain the kit in compliance with this section.
• Under Section(3)(b)2: “If, at any time following the initial retention of a sexual offense evidence kit pursuant to subparagraph 1., an alleged victim makes a report to a law enforcement agency or makes a request, or has a request made on his or her behalf, for testing in compliance with paragraph (1)(b), the kit must be retained as described in (a) if the applicable time limitation under s. 775.15 has not expired and prosecution of a criminal case may still be commenced. In circumstances in which a criminal case may not be commenced because the applicable time limitation under s. 775.15 has expired, the kit must be maintained in a secure, environmentally safe manner until the department has approved its destruction.”

Essentially, the proposed legislation would require law enforcement to hold and maintain sexual offense evidence even in instances where the victim has not yet reported the crime. That way if the victim decides to report the crime years after, the law enforcement agency will still have the records with the relative DNA evidence in their system.

Responses to SB 764

The proposed bill SB 764 is being sponsored by Senator Linda Stewart, who claims the legislation would be crucial in providing victims of sex crimes more time.

“It’s just going to help these victims, in the long run, be able to know that at some point, they can come forward and when they’re comfortable, and that’s the most important thing,” said Sen. Stewart.

When a person experiences some form of sexual assault, they can feel overwhelmed about what to do next. The following is a statement provided by Palm Beach County Victims Services representative Rene Boon regarding why a person may not feel comfortable initially coming forward:

“Sometimes it’s a little too much for them to do it all at one time to have the exam to meet with law enforcement to then have to maybe meet with law enforcement for more interviews, identify friends and family that could be witnesses. So they sometimes need that time to process before they’re comfortable or they’re ready to move on with reporting the crime…

People would normally think if you’re sexually assaulted, the first thing you’re going to do is come forward to get a sexual assault kit. But we have to remember that most sexual assaults up to 80 percent are committed by someone that we know—they’re not a stranger on the street.”

Boone also addressed how everyone reacts to trauma differently. Victims often tend to blame themselves, fear that others won’t believe them, or even be in denial of the unlawful act.

With SB 764 requiring law enforcement to maintain the assault kits, even in cases where a victim does not come forward within the 30-day window, will help police with future cases and will preserve the evidence if the victim decides to come forward and report the crime later when they feel ready.

Contact a Defense Attorney with Pumphrey Law Firm

While the proposed bill can do a lot of positive impact for alleged victims, it also means that law enforcement will obtain and maintain potentially incriminating evidence from sexual offenses for a minimum of 50 years. Depending on the jurisdiction’s statute of limitations for a sexual offense, a victim who comes forward later about an alleged sexual assault could result in the criminal prosecution of the suspected person. It is important to point out that Florida has extremely harsh implications for sex crimes.

If you or someone you love is being accused of a sexual offense, consider hiring legal representation with Pumphrey Law Firm. Our team of attorneys can review your case details during a free consultation. Contact our office today at (850) 681-7777 or fill out our online form.

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