Hb 255: Reform Related to Georgia's Sexual Assault Protocol

• Jurisdiction: Georgia,United States
• Citation: Vol. 38 No. 1
• Publication year: 2022
• topic: Criminal procedure

HB 255: Reform Related to Georgia's Sexual Assault Protocol

Kacey Baine
kbaine1@student.gsu.edu

Kirsten Fehlan
kfehlan1@student.gsu.edu

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CRIMINAL PROCEDURE

Searches and Seizures: Amend Chapter 24 of Title 15 of the Official Code of Georgia Annotated, Relating to Sexual Assault Protocol, so as to Require Certain Certifications to be Filed; Amend Article 4 of Chapter 5 of Title 17 of the Official Code of Georgia Annotated, Relating to Investigating Sexual Assault, so as to Provide for the Retention of Evidence of Sexual Assault When the Victim Chooses Not to Immediately Report the Assault; Provide for Reports; Amend Chapter 1 of Title 35 of the Official Code of Georgia Annotated, Relating to General Provisions Regarding Law Enforcement Officers and Agencies, so as to Require Law Enforcement Agencies to Enter Certain Information into the Violent Criminal Apprehension Program Established and Maintained by the Federal Bureau of Investigation; Provide for the Removal of Information from Such Program; Provide for Hearing; Provide for a Definition; Provide for Applicability; Provide a Short Title; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes.

Code Sections: O.C.G.A. §§ 15-24-2 (amended), 17-5-4 (amended), 35-1-23 (amended)

Bill Number: HB 255

Act Number: 251

Georgia Laws: 2021 Ga. Laws 567

Summary: The Act includes various amendments to Georgia's sexual assault protocol. First, the Act creates a statewide tracking system for sexual assault kits. The system will track the location and status of kits through the investigative process and allow sexual assault victims to track or receive updates. Second, the Act requires that law enforcement agencies investigating a homicide or attempted homicide thought to be serial, random, or sexually motivated input information into a national database maintained by the Federal Bureau of Investigation.

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Effective Date: July 1, 2021

History

Between 2002 and 2005, more than a dozen women were sexually assaulted by the same man, Dandre Shabazz.¹ After they were assaulted, each woman went to Grady Memorial Hospital in downtown Atlanta to receive medical treatment and a physical exam to collect evidence for a sexual assault kit (often referred to as a "rape kit").² The evidence in the sexual assault kit is then supposed to be turned over to law enforcement for testing and subsequent use in finding the offender. But those crucial steps rarely happen; for example, the sexual assault kits of the women raped by Shabazz remained untested and untouched for more than a decade.³ And these women's sexual assault kits were not the only kits that were left untested for years.⁴ An investigation by the Atlanta Journal Constitution in 2015 revealed that law enforcement never picked up, let alone processed, more than 1,300 sexual assault kits collected at Grady Memorial Hospital.⁵ In response to this failure, the following year, Representative Scott Holcomb (D-81st) introduced a bill, Senate Bill (SB) 304, requiring law enforcement to pick up all sexual assault kits within ninety-six hours.⁶ After some political controversy, the bill ultimately passed in 2016.⁷

In April 2017, the Georgia Bureau of Investigation (GBI) contacted the Fulton County District Attorney to inform him that Shabazz's

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DNA was found on twelve sexual assault kits.⁸ Shabazz's trial and subsequent conviction was a direct result of the passage of SB 304.⁹ Shabazz was ultimately sentenced to serve twelve life sentences.¹⁰

Representative Holcomb's advocacy in proposing legislation to enhance the rights of crime victims, especially sexual assault victims, did not end with the passage of SB 304. In 2019, he introduced House Bill (HB) 282, which extended the length for preserving evidence in sexual assault kits to fifty years.¹¹ Prior to HB 282, Georgia law only required preserving sexual assault kits for ten years before being discarded.¹² Now, advances in DNA testing can lead to positive DNA identification well beyond ten years and can provide information to solve cases that have been unresolved for decades.¹³

In 2020, Representative Holcomb introduced legislation that would later become HB 255.¹⁴ The legislation that Representative Holcomb drafted was included in HB 720, a bill introduced by Representative Steven Sainz (R-180th), among other representatives.¹⁵ After the legislative session was underway, however, the COVID-19 pandemic swept across the United States, bringing the legislative session to a halt.¹⁶

In 2021, Representative Holcomb reintroduced the legislation as HB 255, the "Sexual Assault Reform Act of 2021."¹⁷ This legislation creates a statewide tracking system for all sexual assault kits, which allows victims, law enforcement agencies, and medical facilities to track the status of kits as they move through the investigative

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process.¹⁸ Other bill sections address equally important sexual assault reform, such as requiring Georgia law enforcement agencies to participate in a federal program to track particularly violent criminals, holding judicial circuits accountable for establishing or failing to establish a sexual assault protocol and committee, and changing the language of existing Georgia Code Sections.¹⁹

Bill Tracking of HB 255

Consideration and Passage by the House

Representative Scott Holcomb (D-81st) sponsored HB 255 in the House.²⁰ The House read the bill for the first time on February 3, 2021, and referred the bill to the House Judiciary Non-Civil Committee.²¹ On March 5, 2021, the House Judiciary Non-Civil Committee partly amended the bill and favorably reported it by offering three changes.²²

First, the Committee replaced "immediately" with "at the time of evidence collection" to clarify the precise time the law enforcement agency is obligated to maintain physical evidence.²³

Second, in Section 3, lines 33-34, the Committee removed "investigating" from "investigating law enforcement agency" and inserted "with jurisdiction" after "law enforcement agency."²⁴ This change makes the law enforcement agency with jurisdiction responsible for maintaining physical evidence collected in response to an alleged sexual assault if the victim chooses not to file a report.²⁵

Finally, Sections 6-9 were removed from the final bill to streamline the process of passing the Sections related to preserving physical evidence collected from sexual assault kits.²⁶ Section 6 attempted to create a Forensic Medical Examination Advisory Committee tasked

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with regulating the certification criteria for sexual assault nurse examiners in Georgia.²⁷ Section 7 permitted the Georgia Composite Medical Board to refuse granting a license to an applicant or to suspend or revoke the existing license of a physician who sexually assaulted a patient.²⁸ Section 8 required a health care professional to report a physician suspected of sexually assaulting a patient.²⁹ Section 9 added to the annual report the number of physicians that the board has investigated for committing an act of sexual assault.³⁰

HB 255, including these amendments, passed in the House on March 8, 2021, by a vote of 174 to 0.³¹

Consideration and Passage by the Senate

Senator John Albers (R-56th) sponsored HB 255 in the Senate.³² On March 9, 2021, the Senate read HB 255 for the first time and referred the bill to the Senate Public Safety Committee.³³ On March 25, 2021, the Committee favorably reported the bill, and HB 255 was read to the Senate for the second time.³⁴ Then, on March 29, 2021, the Senate tabled HB 255, took the bill from the table, and read it for the third time.³⁵ That same day, the Senate passed HB 255 by a vote of 49 to 0.³⁶

On April 6, 2021, the House sent the bill to Governor Brian Kemp (R).³⁷ Governor Kemp signed the bill into law on May 6, 2021.³⁸ HB 255 went into effect on July 1, 2021.³⁹

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The Act

The Act amends the following portions of the Official Code of Georgia Annotated: Chapter 24 of Title 15, relating to sexual assault protocol; Article 4 of Chapter 5 of Title 17, relating to investigating sexual assault; and Chapter 1 of Title 35, relating to general provisions regarding law enforcement officers and agencies.⁴⁰ The Act's purpose is to require certain certifications to be filed, to provide for the retention of sexual assault evidence when the victim chooses not to report at the time of evidence collection, to provide for a sexual assault case tracking system, and to require law enforcement agencies to enter certain information into the Violent Criminal Apprehension Program maintained by the Federal Bureau of Investigation.⁴¹

Section 3 clarifies which law enforcement agency is required to take custody of the unreported kits.⁴² Section 4 requires the Georgia Criminal Justice Coordinating Council to establish a sexual assault kit tracking system, which will "track the location and status of sexual assault kits throughout the justice process, including the initial collection in sexual assault forensic examinations performed at medical facilities, receipt and storage at law enforcement agencies, receipt and analysis at forensic laboratories, and storage and any destruction after completion of analysis . . . ."⁴³ Section 4 also requires that all law enforcement agencies with custody of sexual assault kits register for and fully participate in the tracking system by July 1, 2022.⁴⁴ Additionally, Section 4 requires the Georgia Criminal Justice Coordinating Council to submit an annual report of the sexual assault kit tracking system, which includes: (1) the number of sexual assault kits that collection sites use in medical evaluations, (2) the number of sexual assault kits collected for medical evaluation for which a sexual assault has been reported to law enforcement, (3) the average time it takes a law enforcement agency to pick up the kits from collection sites, (4) the...