by April Corbin Girnus, Nevada Current
Untold numbers of sexual assault cases nationwide have been solved after DNA evidence linked perpetrators to their crimes, but victims of sexual assault should not have to worry that their own DNA will be used against them.
Senate Bill 321 would protect victims of sexual assault from having the DNA they submit as part of a rape kit used to prosecute them for crimes. Such samples could only be used to prosecute the perpetrator of their sexual assault. The bill passed the Nevada State Senate unanimously on April 25 and was heard by the Assembly Judiciary committee Tuesday.
State Sen. Lisa Krasner, R-Reno, brought forward the bill, and 19 lawmakers across both chambers and parties have signed on as primary or co-sponsors.
Krasner pointed to a high profile incident in California as a reason why Nevada should be proactive on the issue of protecting victims of sexual assault.
San Francisco’s district attorney last year revealed the city’s police crime lab used DNA collected during a rape kit in 2016 to tie a sexual assault victim to a burglary in 2021. The city’s police chief called it a “horrendous mistake” and vowed it would not happen again, but the incident sparked broad calls for states to strengthen safeguards against such use.
Sexual assault is one of the most underreported crimes. Fear that their DNA or other forensic evidence collected during a rape kit might be used against them in unrelated cases is believed to be contributing to underreporting. Other reasons why victims don’t come forward include fear of not being believed, fear of retribution by their assailant, or feeling like justice is futile. (Just under 20% of reported rapes in Nevada in 2022 resulted in an arrest, according to the Department of Public Safety.)
“We have to do better,” said Krasner. “Collecting and properly processing sexual assault crime evidence and rape kits is vital to that effort. We must do everything we can to help victims feel safe in coming forward.”
In 2019, she added, citing FBI data, Nevada had one of the highest rates of reported rape per capita. Since then, the state’s rate of reported rapes per capita has seen a “small but steady decline.”
“We have to wonder if that just means that victim survivors are choosing not to come forward and report the rape to law enforcement,” she said.
Nevada already has a Sexual Assault Survivors’ Bill of Rights, which specifies that forensic evidence from a sexual assault survivor cannot be used to prosecute that survivor for any misdemeanor or offense related to a controlled substance. SB321 would expand that protection to any crime.
No Assembly Judiciary committee member expressed objections to the proposed bill.
“Besides the humanity and sensitivity of the issue, it’s also a Fourth Amendment issue,” said Democratic Assemblywoman Britney Miller, referring to the right to privacy established in the U.S. Constitution. “Even if you can’t extend yourself to humanity and sensitivity, it is a strong constitutional issue.”
SB321 is being supported by a broad coalition that includes the Nevada District Attorneys Association, the public defenders offices in Clark and Washoe counties, and several law enforcement groups, including the Las Vegas Metropolitan Police Department.
LVMPD lobbyist Beth Schmidt said during her testimony in support that Metro does not run sexual assault victim DNA through the national DNA database — known as CODIS, or the Combined DNA Index System.
“We appreciate codifying this into statute,” she added.
Steve Gresko, the administrator of CODIS for Nevada and a supervising criminalist at the Washoe County Sheriff’s Office, also testified that CODIS does not currently include victim DNA.
Gresko said law enforcement agencies will occasionally turn to forensic evidence collected through a rape kit if the victim of a sexual assault later becomes a missing person and no other DNA reference sample can be found. In those cases, the purpose is not to prosecute but only to identify the person.