Legislature Considers Banning At-Home Sexual Assault Evidence Kits

MeToo Kit, a DIY rape test, is a bad idea, says Michigan AG Dana Nessel

Seattle Times journalistreports that Washington lawmakers are considering a bipartisan bill prohibiting the sale of over-the-counter sexual assault kits. Apparently, these kits offer false hope and can thwart investigations and prosecutions. They are also not admissible in court.

“I just don’t think people should profit on trauma . . . I think that their heart was probably in the right place in the beginning … but at the end of the day, it’s my job as a legislator to protect people in the state.” ~Rep. Gina Mosbrucker, R-Goldendale, one of the bill sponsors.

Attorney General Bob Ferguson last year issued a cease-and-desist letter requiring Leda Health to stop distributing its kits. In the letter, Ferguson’s office said the kits violate the state Consumer Protection Act, which bans unfair or deceptive practices. The letter quotes Leda Health’s website, which at the time said “[we] believe though that courts should admit our kit results, especially if all our protocols are followed.” The terms and conditions on the company site said its products and information are not substitutes for professional advice. Moreover, the company “cannot guarantee” evidence collected will be admitted in court.

King County Senior Deputy Prosecuting Attorney Emily Petersen said her main concern is the kits are being advertised as a way to collect evidence.

“The last thing we want is for a victim or survivor to decide to report a rape or a sexual assault, and only to find out that the evidence that they collected, stored and that they relied on to be admissible is not in fact, admissible.” ~King County Senior Deputy Prosecuting Attorney Emily Petersen

Information from at-home kits cannot be uploaded to CODIS, the federal DNA database that tracks DNA samples of those convicted of felonies, including sexual assault and rape.

New York issued a cease-and-desist letter in 2019 to two companies selling at-home kits, Preserve Group and #MeToo Kits Company, which would later become Leda Health. The letter said the companies were misleading consumers by saying evidence collected with these kits could be used in court.

States including MichiganOklahomaDelawareHawaiiNew MexicoNorth Carolina and Virginia, as well as Washington, D.C., have issued warnings against buying any at-home sexual assault kits. And legislation similar to Washington’s bill to ban these kits stalled last year in Utah.

My opinion? These products are not admissible in court. Rape evidence must be collected by a specially trained nurse using specific tools. Also, collecting evidence must adhere to a chain of custody to maintain its integrity for use in court. The chain must include how the evidence was collected, who else had access to it and what happened to the evidence after.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.