Legislation to ban OTC rape kits in Washington debated at Senate public hearing

(The Center Square) – There were dueling narratives at a public hearing before the Senate Law & Justice Committee on a piece of legislation that would ban over-the-counter rape kits in Washington state.

Senate Bill 1564, which was approved unanimously in the House, prohibits the sale of at-home sexual assault test kits as a violation of the state’s Consumer Protection Act.

The bill targets Leda Health, a New York-based company that sells sexual assault evidence kits to the public in Washington.

Bill sponsor Rep. Gina Mosbrucker, R-Goldendale, says the products sold by Leda Health are inferior to kits used by nurses who are trained to take samples from rape victims.

“The heartbreaking part is they’re selling it to survivors,” she told the committee during Tuesday morning’s pubic hearing. “People are profiting, I would argue, off of trauma.”

Mosbrucker went on to say, “The person who’s doing it themselves to do their kit is under the impression that they can do it themselves, mail it in, and get prosecution. So, we’re traumatizing them twice.”

She claimed Leda Health is targeting college students in selling the kits, sometimes at inflated prices.

“I think one of the biggest concerns is the chain of custody,” Mosbrucker said. “When we collect evidence – forensic evidence – we have to track that evidence all the way through to prosecution and so what this product does is it stops that chain of custody.”

Admissibility of such evidence in a court of law is also a concern of government officials who testified in favor of the bill.

“When handled properly, sexual assault examinations provide crucial evidence that is often key to successfully prosecuting perpetrators of sexual assault,” explained Heidi Anderson, assistant attorney general in the consumer protection division of the attorney general’s office.

She continued, “Despite claims to the contrary, at-home sexual assault kits cannot substitute for this crucial evidence and therefore do offer false hope to survivors. At-home kits are ineligible for testing by the Washington State Crime Lab and face numerous barriers to admission as evidence, including on the basis of potential cross contamination or spoilation.”

Last fall, Attorney General Bob Ferguson sent a cease-and-desist letter to Leda Health regarding its marketing and distribution of its at-home kits, one of several such warnings from government officials across the nation.

“I have significant concerns about admissibility,” Thurston County Prosecutor John Tunheim told the committee, noting that there are apparently no examples of admissibility or a successful prosecution based on evidence from at-home test kits.

He brought up what he sees as another potential problem.

“But even beyond that, hypothetically, if by some stretch we were able to convince a judge to admit a kit of this nature, I worry then about what that looks like in terms of testimony of the survivor on the stand who not only is being cross examined about what happened, but also cross examined about how they collected their evidence and what the chain of custody was, and having to do that in excruciating detail, likely under significant legal attack, if you will, on the part of the defense,” Tunheim said.

Opponents of the bill disagreed, including Ilana Turko, Leda Health’s chief strategy officer, who testified remotely from New York.

“So, I think it’s a shame folks are trying to rest the argument against our existence based on chain of custody and creating false hope,” she said. “We would never ever want to create false hope. We have many protections in place in our kit, including immutable time stamps that are block-chain supported to record the time of collection.”

In an email to The Center Square the day before the public hearing on HB 1564, Turko disputed the notion that evidence from at-home rape kits is inadmissible in court.

“Evidence resulting from a Survivor’s use of an EEK [Early Evidence Collection Kit] is presumed admissable in Washington state,” she wrote. “If the instructions are followed, DNA evidence stemming from a Survivor’s EEK self-collection is as admissible as if it were collected by a SANE [Sexual Assault Nurse Examiner] at a medical facility. Attacks on the specifics of evidence in a particular case (e.g. the Survivor didn’t follow instructions properly, possible cross-contamination, time delay, etc.) all go to the weight of the resultant DNA evidence, not its admissibility.”

In a same-day phone interview, she said there are examples of law enforcement collecting evidence of a sexual assault outside of the “gold standard” SANE exam

Turko pointed to an October KUOW article detailing “a case where an individual ‘cleaned up’ at home following a sexual assault by using Q-tips. Those Q-tip swabs were later collected as evidence by law enforcement and tested for comparison. The sample yielded a DNA match.”

According to the story, a serial rapist was successfully prosecuted as a result.

“As a survivor, I believe that this additive option would be great to collect evidence that may otherwise be lost from victims not going to the hospital,” Paris Crawford, who works for Leda Health in Washington, said.

She elaborated on why up to 70% of victims of sexual assault don’t tell police or their doctors about the attack.

“There can be many reasons to not report, maybe being under the influence, not wanting to be touched after being assaulted, thinking there’s no evidence left, due to using the restroom, showering or brushing teeth, as well as lack of education in what to do in the face of a sexual assault,” she said.

Hannah Chamberlin, who also works for Leda Health in Washington, said much the same thing in speaking about being drugged and sexually assaulted at the University of Washington.

“I did not feel safe telling my college or law enforcement about my experience, nor did I feel any justice would be served,” she said. “My personal experience highlights the need for at-home, affordable sexual assault kits to be available to survivors.”

She spoke out forcefully against HB 1564.

“I am extremely disturbed that the state of Washington is putting its efforts toward banning an alternative solution that is some individuals’ only hope for seeking post-assault care, support, and evidence preservation,” Chamberlin said. “I am one of the 70% who was never going to report through the traditional system. If I would have had access to an at-home sexual assault kit, I would have utilized it and potentially been able to move forward after I had fully processed what happened to me.”