Hb 282 - Preservation of Sexual Assault Evidence

• Jurisdiction: Georgia,United States
• Publication year: 2019
• Citation: Vol. 36 No. 1

HB 282 - Preservation of Sexual Assault Evidence

Rebecca A. Dickinson

Georgia State University College of Law, rdickinson8@student.gsu.edu

Alessandra T. Palazzolo

Georgia State University College of Law, apalazzolo1@student.gsu.edu

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CRIMINAL PROCEDURE

Searches and Seizures: Amend Article 4 of Chapter 5 of Title 17 of the Official Code of Georgia Annotated, Relating to Investigation of Sexual Assault, so as to Revise the Amount of Time that Law Enforcement Agencies are Required to Preserve Certain Evidence of Sexual Assault; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Section: O.C.G.A. § 17-5-71 (amended)

Bill Number: HB 282

Act Number: 238

Georgia Laws: 2019 Ga. Laws 721

Summary: This Act extends the time that law enforcement agencies are required to preserve certain evidence of sexual assault. Physical evidence of a reported sexual assault will be preserved for fifty years, and if there is an arrest, for thirty years from the date of arrest or seven years from the sentence's completion.

Effective Date : July 1, 2019

History

One of the first cases Representative Scott Holcomb (D-81st) prosecuted was that of a young woman who had been sexually assaulted.¹ After Representative Holcomb secured a guilty plea from the defendant, the judge issued a light sentence during the sentencing hearing.² The woman later told Representative Holcomb she felt as though she had been victimized again after having to testify.³ This

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case sparked Representative Holcomb's desire to seek change in sexual assault legislation and still drives him today.⁴

In 2015, Representative Holcomb filed a bill addressing the backlog of sexual assault kits in Georgia.⁵ Before filing the bill, Representative Holcomb was unsure how severe Georgia's backlog would be; however, he knew there was a national problem concerning sexual assault kit backlogs and understood there to be a backlog in Georgia.⁶ Although the Atlanta Journal-Constitution (AJC) reported that the bill was in response to the AJC investigation into the backlog, Representative Holcomb filed the first draft of the legislation before the investigation began, and refiled as House Bill (HB) 827 in 2016 which garnered significant bipartisan support.⁷ The investigation revealed over 1,400 untested sexual assault kits that survivors wanted tested.⁸ In March 2016, HB 827 passed unanimously through the House before being blocked in the Senate by State Senator Renee Unterman (R-45th).⁹ The former Chairperson of the Senate Health and Human Services Committee claimed statewide legislation was unnecessary for a backlog that stemmed primarily from one Atlanta hospital.¹⁰ Her decision to block the bill was met with widespread disapproval, and Representative Holcomb and the Senate revived HB 827 as Senate Bill (SB) 304, which then passed unanimously.¹¹ Since the passage of SB 304, experts tested over 3,000 sexual assault kits, leading to the identification of serial rapists and positive identifications in the DNA database on hundreds of cases.¹²

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Representative Holcomb's efforts addressing the treatment of sexual assault kits in Georgia did not end with the backlog. In the 2019 legislative session, Representative Holcomb filed HB 282, and Senator Unterman was the bill's Senate sponsor.¹³ HB 282 dealt with the time period the state stores sexual assault kit evidence.¹⁴ Prior to the passage of HB 282, Georgia only stored sexual assault kits for ten years after the sexual assault was reported.¹⁵ Often, this time limit did not give prosecutors and law enforcement adequate time to find justice for the sexual assault survivor.¹⁶ Thus, local advocacy groups, state representatives, and law enforcement officials continue to make sexual assault legislation a priority.

Bill Tracking of HB 282

Consideration and Passage by the House

Representative Scott Holcomb (D-81st) sponsored HB 282 in the House.¹⁷ HB 282 was assigned to the House Judiciary Non-Civil Committee.¹⁸ The House read the bill for the first time on February 13, 2019.¹⁹ On March 1, 2019, the House Judiciary Non-Civil Committee amended the bill in part and favorably reported the bill by Committee substitute.²⁰ The Committee offered the following two changes to the bill: (1) clarification on the time sexual assault kits shall be maintained for a crime without a statute of limitations; and

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(2) removal of Code section 17-5-71(a), which left only Code section 17-5-71(b).²¹

The Committee substitute did not significantly change the introduced bill's language.²² Instead, the Committee offered clarification for the amount of time a sexual assault kit needed to be kept if the crime has no statute of limitations by explaining that "such evidence shall be retained for fifty years after the report of the alleged sexual assault."²³

Code section 17-5-71(b) provides an exception for circumstances when the survivor does not cooperate with law enforcement in the investigation or prosecution of an alleged sexual assault.²⁴ When this circumstance arises, law enforcement need only maintain the physical evidence collected for "not less than 12 months from the date any such physical evidence is collected."²⁵ As introduced, the bill removed subsection (b), offering a consistent fifty-year retention period for all alleged sexual assaults unless the alleged crime's statute of limitations expires before fifty years.²⁶

Then, on March 7, 2019, the House passed the Rules Committee substitute by a vote of 173 to 0.²⁷ The Rules Committee's substitute removed subsection (a) in its entirety, leaving only the language from subsection (b).²⁸

Consideration and Passage by the Senate

Senator Renee Unterman (R-45th) sponsored HB 282 in the Senate.²⁹ On March 8, 2019, the Senate read the bill for the first time and referred HB 282 to the Senate Committee on Judiciary.³⁰ On

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March 21, 2019, the Committee favorably reported the bill by substitute.³¹

The Senate Committee substitute added a significant amount of text and clarity to the bill.³² Five amendments occurred in this substitute: (1) the addition of subsection (a); (2) modification of the introductory language; (3) a change to the time evidence must be maintained if there is an arrest; (4) a change to the time evidence must be maintained once a sentence is completed; and (5) removal of any language about statute of limitations.³³ The substitute maintained subsection (b) in its entirety as passed by the House.³⁴

The Committee added subsection (a), modifying it substantially from both of its previous iterations—the bill as introduced and the House Judiciary Non-Civil Committee substitute.³⁵ First, the Committee modified the introductory language to state that the bill applied "[i]n cases in which the victim reports an alleged sexual assault to law enforcement . . . ."³⁶ The language of the bill as introduced instead began: "Except as otherwise provided in Code [s]ection 17-5-55 or 17-5-56, on or after May 12, 2008 . . . ."³⁷ Alternatively, the House Judiciary Non-Civil Committee substitution's introductory language referenced its reintroduction of the exception in subsection (b).³⁸ Second, the Committee amended the bill to specify how long law enforcement must maintain evidence where there has been an arrest—"30 years from the date of arrest."³⁹ Third, the Committee substitute also specified how long law enforcement must maintain evidence where a sentence is completed: "seven years from completion of sentence."⁴⁰ Then, the Committee substitute further clarified the time evidence must be maintained when there is both an arrest and the completion of a sentence:

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"whichever occurs last."⁴¹ Next, the Committee's amendment provided that when there is no arrest, the evidence shall be maintained for fifty years.⁴² Finally, the Committee's substitute removed language referring to any statute of limitations.⁴³

Following these amendments, on March 29, 2019, the Senate tabled HB 282.⁴⁴ Then on April 2, 2019, the Senate took HB 282 from the table and read the bill for the third time.⁴⁵ That same day, the Senate voted, passed, and adopted the bill by Committee substitute by a vote of 55 to 0.⁴⁶ Finally, on April 2, 2019, the House agreed to the Senate substitute by a vote of 156 to 0.⁴⁷ The House sent the bill to Governor Brian Kemp (R) on April 11, 2019.⁴⁸ The Governor signed the bill into law on May 7, 2019.⁴⁹ The bill went into effect on July 1, 2019.⁵⁰

The Act

The Act amends the following portion of the Official Code of Georgia Annotated: Article 4 of Chapter 5 of Title 17, relating to criminal procedure.⁵¹ The overall purpose of the Act is to revise and extend the amount of time that law enforcement agencies are required to preserve certain evidence of sexual assault.⁵²

Section 1

Section 1 of the Act revises subsection (a) of Code section 17-5-71, which discusses the maintenance of sexual assault kit evidence and the length of time the evidence must be stored by the state.⁵³ Specifically, the Act changes the language at the beginning of

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the subsection from "[e]xcept as otherwise provided in subsection (b) of this Code section or 17-5-55 or 17-5-56, on or after May 12, 2008," to "[i]n cases in which the victim reports an alleged sexual assault to law enforcement."⁵⁴ The Act also modifies subsection (a), changing the period of time law enforcement must store sexual assault kit evidence.⁵⁵ Originally, the language read "ten years after report of the alleged assault."⁵⁶ The Act revised the statute to read "30 years from the date of arrest, or seven years from completion of the sentence, whichever...