In a press release, the WA Attorney General Office (AGO) reported a federal judge upheld Washington’s ban on selling and distributing at-home sexual assault kits under House Bill 1564. The federal court’s ruling dismisses a lawsuit brought by Leda Health, a Pennsylvania company that sells the self-administered kits for profit.
Washington State’s Law Banning “At-Home” Sexual Assault Kits.
House Bill 1564 went into effect in July 2023, after garnering overwhelming, bipartisan support from the state Legislature. The law prohibits the sale and distribution of sexual assault kits that are marketed or presented to collect “evidence” at-home or over-the-counter by anyone other than law enforcement or a health care provider.
Self-administered kits have multiple important differences from an exam conducted by a Sexual Assault Nurse Examiner. These professionals receive specialized training including:
- Providing comprehensive care to sexual assault survivors, including prevention treatment for STIs and follow-up care,
- Collecting evidence in a way that avoids cross-contamination,
- Storing evidence to avoid contamination or spoliation, and
- Maintaining a chain of custody for the evidence.
Leda Health’s “MeToo Kits.”
Formerly known as MeToo Kits, Leda Health says the company’s kits offer survivors an alternative if they feel unsafe or uncomfortable going to the police or a hospital. In its lawsuit, Leda argued that the state’s 2023 ban targets sexual assault survivors and violates First Amendment rights related to free speech and advertising.
However, U.S. District Court Chief Judge David G. Estudillo disagreed, ruling that the statute is “an economic regulation of the sale of a particular product,” not a regulation of speech.
“This is a legal victory for sexual assault survivors . . . By an overwhelming bipartisan vote, the Legislature adopted this state law that prevents companies from exploiting sexual assault survivors. Survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost.” ~WA Attorney General Bob Ferguson
Washington also sent a cease-and-desist order to Leda Health in 2022 that said the company’s advertising included “patently false” claims, including marketing that may lead survivors to believe the company’s kits are comparable to free state kits. Leda Health ended sales in Washington in response and hasn’t sold in the state since.
Why Are At-Home Sexual Assault Kits Are Inadmissible in Court?
Self-administered kits face numerous barriers to admission as evidence. These barriers include concerns about cross-contamination, spoliation, validity, and chain of custody.
Importantly, self-administered kits are not eligible for submission to the Crime Lab. Therefore, any DNA collected would not be entered into CODIS, a national DNA profile database that national, state and local law enforcement use to identify repeat offenders, build leads, and track evidence.
In its press release, the AGO’s office said survivors have the right to have an advocate or personal representative with them during an exam. Survivors do not have to make a decision about talking to law enforcement or reporting a crime in order to obtain a SANE exam. State law requires unreported sexual assault kits be transported to local law enforcement and stored for 20 years from the date of collection.
“Timely forensic examinations by a trained provider represent the best chance to preserve evidence if a survivor chooses to move forward with reporting the assault and criminal investigation.” ~Press Release, AGO’s Office.
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