AG Platkin issues statewide directive requiring longer retention of DNA, other evidence from medical exams in sexual assault cases

NEW JERSEY — Attorney General Matthew J. Platkin Monday issued a statewide law enforcement directive to ensure that sexual assault survivors have access to the medical, investigative, and supportive services they need and deserve, and that evidence collected in sexual assault cases is preserved and processed in a victim-centered and efficient manner.

Attorney General Law Enforcement Directive 2023-1 requires longer retention of evidence, including DNA evidence, from sexual assault medical examinations not processed by a lab at the survivor’s request, extending the current required retention period from five years to 20 years. The directive also establishes statewide procedures and guidelines for tracking, storing, and determining how and when such evidence is submitted for testing, and limits circumstances in which law enforcement can decline to submit evidence for testing in cases where a survivor has consented to it.

The directive specifically prohibits law enforcement officers and prosecutors from declining to submit evidence for testing strictly because they believe the sexual act was consensual, they have no suspects, or the survivor filed a complaint against a current or former spouse or partner.

“This directive builds on our Administration’s commitment to supporting survivors of sexual assault. The services enforced in this measure are essential in the safety and well-being of survivors, while also supporting law enforcement’s efforts in identifying perpetrators,” said Governor Murphy. “There is no room in our state for violence in any form, and we will continue to collaborate with Attorney General Platkin to further these values.”

“We recognize that sexual assault is one of the most traumatic events an individual may experience and it is imperative that we preserve survivors’ right to pursue justice at a time when they feel ready,” Platkin said. “The standards and procedures established in this Directive ensure that if or when that time comes – whether it’s immediately after an assault or years down the road – their cases will be vigorously investigated by law enforcement and their opportunity to hold perpetrators accountable will not be foreclosed because evidence is no longer viable or has been destroyed.”

“With this Directive we are empowering survivors of sexual assault to decide when – and if – they want to move forward with a criminal investigation,” said Director Pearl Minato, of the Division of Criminal Justice. “The statewide standards and procedures we are establishing help ensure that law enforcement agencies throughout New Jersey are investigating and prosecuting sexual assault cases in a uniform manner that follows best practices and affords equal justice to survivors.”

The standards and procedures in the Directive were established in close collaboration with the Division of Violence Intervention and Victim Assistance (VIVA). Established by Attorney General Platkin in September 2022, VIVA was created to coordinate and advance the Office of the Attorney General’s (OAG) victim-centered strategy by bringing together victim-related and violence intervention and prevention services currently dispersed throughout the Department of Law and Public Safety, and to play a lead role with respect to survivors of domestic and sexual violence, centralizing the Department’s trauma-informed practices and advancing policies on behalf of individuals and communities impacted by violence.

Pursuant to the Standards for Providing Services to Victims of Sexual Assault, physical evidence collected during the medical exam is placed in a Sexual Assault Forensic Evidence (SAFE) kit or, in certain circumstances, Drug-Facilitated Sexual Assault (DFSA) kits.  These kits are referred to as unreported or “Hold” kits when the survivor has not consented to release the physical evidence to law enforcement or has allowed the evidence to be released but does not want it submitted for testing.

In 2019, the State Auditor within the Office of Legislative Services issued a report to evaluate whether there was a SAFE kit testing backlog in New Jersey.  While no backlog was identified, the report recommended changes to policies for handling and tracking SAFE kits.

In response to this report, the Division of Criminal Justice (DCJ) created a SAFE Kit Working Group whose goal was to assess the feasibility of implementing a statewide tracking system and explore options for standardizing the tracking of SAFE kits.  The recommendations of this working group were reviewed by the leadership within DCJ, VIVA, and OAG, and that collective expertise informed this Directive.

In 2023, as required by N.J.S.A.  52:17B-245, the Attorney General today issued a report on a survey of SAFE kits in New Jersey from 2018 through 2020. The results of the survey also informed this directive.

In addition to extending the required retention period for SAFE/DFSA kits not turned over to law enforcement, the Directive also:

• establishes conditions under which SAFE/DFSA kits must be stored, including temperature protocols;
• requires that all SAFE/DFSA kits released to law enforcement, shall be submitted to the laboratory as soon as possible, but no later than ten (10) calendar days after collection unless provided with a written extension of time by the head of the prosecution agency for good cause. And even when a written extension is granted, reported kits shall be submitted to the laboratory no later than 10 days after the initiation of charges;
• mandates that in circumstances where a survivor initially consents to release a SAFE/DFSA kit to law enforcement but then withdraws consent before the kit has been processed by the lab, the kit be retained for the same 20-year period it would have been afforded if the kit were unreported;
• standardizes information required to be documented in the processing of the SAFE/DFSA kits to ensure efficiency, credibility, and confidence in the storage of kits in New Jersey, and to ensure the anonymity of survivors who undergo a medical exam that involves collection of evidence in the aftermath of sexual assault, but who decline to report to law enforcement; and
• requires individual law enforcement to report to the Office of the Attorney General an inventory of all kits in its custody biannually to ensure ongoing accountability for all kits collected and to accurately evaluate the timeline for SAFE/DFSA kit processing in New Jersey.

The directive is the latest step taken by Attorney General Platkin to address and combat violent crime in a victim-centered approach that seeks to minimize re-traumatization associated with the criminal justice process by providing the support of victim advocates and service providers, and empowering survivors as engaged participants in process.