W. Va. Code R. § 149-11-5

Current through Register Vol. XLI, No. 44, November 1, 2024

Section 149-11-5 - Submitting sexual assault evidence for testing

5.1. The Sexual Assault Evidence Collection Kit shall be used in the manner prescribed by the information contained in that kit.

5.2. With the victim's consent, as prescribed by subsection 5.3., the kit shall be completed in acute cases if the victim presents themselves for medical forensic services within 96 hours after the sexual offense or has disclosed past sexual offense by a specific individual and was in the care of that individual within the last 96 hours.

5.3 Written Consent to the Release of Sexual Assault Evidence for Testing.

5.3.1. Prior to the medical forensic exam, the health care professional providing the medical forensic services shall provide the patient the opportunity to sign a written consent to allow the transmission of sexual assault evidence for testing or to be stored as a nonreported kit. The written consent shall be on a form included in the Sexual Assault Evidence Collection Kit.

5.3.1.a. If the victim is an adult who has a guardian, a health care surrogate, or an agent acting under a health care power of attorney, the consent of the guardian, surrogate, or agent is not required to release evidence and information concerning the sexual assault or sexual abuse. If the adult is unable to provide consent for the release of evidence and information and a guardian, surrogate, or agent under a health care power of attorney is unavailable or unwilling to release the information, then an investigating law enforcement officer may authorize the release.

5.3.1.b. After the health care professionals make a mandatory report to law enforcement, all Sexual Assault Evidence Collection Kits collected on minors under the age of 18 shall be transmitted to the West Virginia State Police Lab for testing with no consent required.

5.3.2. The health care facility shall provide the sexual assault victim with the kit tracking number and inform the victim that the kit may be tracked using the tracking kit number at www.go.wv.gov/kit.

5.3.3. The health care facility shall keep a copy of the written consent form in the patient's forensic medical record.

5.4. If an adult sexual assault victim does not consent to law enforcement involvement, the victim shall be given the opportunity to sign a written request that the kit shall be designated a nonreported kit and transmitted to the Marshall University Forensic Science Center. Sexual assault victims shall be informed in writing at the time their nonreported kit is collected that the kit shall be stored and maintained for a period of 20 years from the date the kit was collected.

5.5. If the sexual assault victim has consented to the transmission of sexual assault evidence for testing, upon collection a Sexual Assault Evidence Collection Kit shall be transmitted for testing by the health care facility to the West Virginia State Police Forensic Laboratory within 30 days of collection or as soon thereafter as practicable. All packaging kits for transmittal and transmittal protocols shall be designed to meet applicable standards for maintaining the efficacy of the sample and chain of custody.

5.6. If the sexual assault victim does not consent to law enforcement involvement, upon collection the kit shall be designated a nonreported kit and submitted by the health care facility to the Marshall University Forensic Science Center for storage.

5.7. The commission shall, in cooperation with the West Virginia State Police, develop protocols for storage of previously tested materials to be made available for secondary testing upon a court order to do so.

5.8. Biological evidence obtained through tests of Sexual Assault Evidence Collection Kits shall not be destroyed per W. Va. Code §15-9B-4(g). State and local law-enforcement agencies shall retain, preserve, and/or transfer biological evidence under conditions that are suitable for DNA testing per national best practices as identified by the SAFE Commission.

W. Va. Code R. § 149-11-5