Loophole Allows New York Rape Kits to Go Into Trash After 30 Days

Despite Recent Victory in New York over Rape Kit Backlogs, New York Hospitals Still Allowed to Throw Away Rape Kits After 30 Days

By Jennifer Li

New York has made great progress in the past few years on the sexual assault and rape laws. In 2015, Governor Cuomo signed a the "Enough is Enough" bill, authored by Assemblymember Deborah Glick (D) and Senator Kenneth P. LaValle (R), into law. The "Enough is Enough" law provides for the most aggressive policy in the nation to fight against sexual assault on college campuses. In November 2016, Governor Cuomo signed into law a bill that recognizes and provides much-needed solutions for New York's rape kit backlog problem. The bill, A10067A, introduced by Senator Kemp Hannon (R) and Assemblymember Simotas (D), requires all police agencies across the state to send their untested rape kits to a forensic laboratory for testing, while newly collected kits will be subject to strict deadlines for testing.

But there's an unfortunate loophole that allows rape kits to fall through the cracks. While the 2016 bill mandates that law enforcement agencies be required to send rape kits to a forensic lab within 10 days of collecting evidence, it does not address another primary collector of rape kits: hospitals.

Under current New York Public Health law, a hospital is expected to collect and store sexual offense evidence for at least 30 days. Afterwards, it can be discarded, unless law enforcement requests the rape kit, the survivor requests the rape kit be turned over to law enforcement, or the victim signs a statement telling the hospital not to collect and keep evidence of the sexual assault. After 30 days, the hospital is required to notify the survivor that the evidence will be discarded if the victim chooses not to report to law enforcement.

Recovering and healing from sexual assault can take weeks, months, years, or an entire lifetime. 30 days is an impossibly short time frame for a sexual assault survivor to both process the trauma they have just experienced, and to decide whether to report their assault to law enforcement.

Retention of rape kits should not be contingent on reporting the sexual assault. Not only does this put the rape victim under a pressure cooker of stress (if they are notified about the timeline at all), it also makes it harder for New York State to prosecute sexual offences and rape cases. There are no New York statute of limitations on sexual offenses that is 30 days or shorter. If a victim decides to report their sexual assault after the short 30-day time frame, and the hospital has thrown away the kit, the State has lost important DNA evidence to prosecute the case.

As it currently stands, New York holds the undesirable title of the state with one of the shortest known rape kit retention timelines.

According to a 2007 research report by the New York City Alliance Against Sexual Assault (NYCASA) that surveyed 39 New York City hospitals, four hospitals stored kits less than 30 days, and three did not know how long they were stored. The rest of the hospitals stored the kits at least 30 days, with 37.1% storing them for one to three months. Of the 39 hospitals, only eight of the surveyed hospitals notified the victim prior to discarding the kits, even though New York Public Health law requires hospitals to notify the victim. The NYCASA study shows how unevenly the current rape kit retention law was applied through the cosmopolitan area of New York City. One can only speculate how New York hospitals located in more rural or suburban areas handle rape kit storage.

In addition to the above issues, New York Public Health law also states that "no hospital or treating practitioner shall be liable in civil damages for failing to comply with the requirements." This means that even if a rape survivor follows procedure and decides within the 30-day period to report their assault to law enforcement, if the hospital has failed to appropriately store the rape kit, or threw away the evidence before the minimum 30-day retention period, there are no consequences. There is no way to enforce the flawed law that governs how New York hospitals handle rape kits.

This is why we need the New York Sexual Assault Survivor Bill of Rights in New York. The rape kit backlog has been widely covered, and there has been great progress in this area thanks to the tireless efforts of New York lawmakers like Assemblymember Simotas, Senator Hannon, and Governor Cuomo. But before we can get to the step of rape kit testing, we need to make sure there is still a rape kit to test in the first place. One of the key rights for the New York Sexual Assault Survivor Bill of Rights is rape kit retention. Among other important rights, it also mandates that rape kits are transferred to labs and be kept for the duration of the statute of limitations or 20 years, whichever is longer.

It is already incredibly difficult to cope with the trauma of a sexual assault; rape survivors should not have to navigate a complicated system to fight to keep their rape kits out of garbage bins as well. Let's close this loophole and make sure New York is known for treating sexual assault survivors with dignity and compassion, not the state with that tosses rape kits after 30 days.