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New Retention Rates for Sexual Assault Cases

August 28, 2014 | Posted In Criminal Law |

Evidence from sexual assault cases will be held longer, thanks to a new directive from the acting Attorney General John Hoffman, criminal lawyers in New Jersey report. Last month, Hoffman ordered all evidence-housing entities, including county prosecutors’ offices and police departments to hold evidence collected from rape, assault, and other sex crimes. 

Under the state’s current time frame, evidence is collected during a medical exam at the time that a victim reports a sexual assault or rape, and is held in a Sexual Assault Forensic Evidence (SAFE) kit. If the victim has not yet decided to report the incident to law enforcement officials for investigation, the kit is referred to as a “hold kit.” These kits have traditionally been held for a period of 90 days, during which time the victim has to decide whether he or she wants to press criminal charges and get the police involved. Once the 90-day period is up, the evidence is destroyed, preventing further investigation or prosecution. 

In a statement, Hoffman said that this 90-day time frame is not long enough for victims of rape and abuse to come to terms with their assault. Because sexual assault cases can leave a victim with severe physical and psychological trauma to work through, the short time frame can be detrimental, and put additional pressure on an already traumatized person, who may reluctant or unwilling to relive the experience in a courtroom or investigation, especially so soon after the assault has occurred. However, should this victim change his or her mind, a 90-day period may be too short to come to that realization. 

Hoffman’s new directive states that forensic evidence collected in a SAFE kit during a sexually-related investigation must be kept for a minimum of five years. This longer retention period is necessary, Hoffman said, to “ensure that victims and law enforcement will not be foreclosed from seeking justice because evidence is destroyed.” This will allow law enforcement officials to hold offenders accountable, even in older cases of sexual assault. Additionally, if the victim is a minor, the SAFE kit is retained for no less than 5 years after he or she turns 18. Victims can choose to be notified when the five-year holding period is set to expire as well. 

Evidence in a SAFE kit will not be disposed of until the victim notifies the authorities that he or she does not want to pursue an investigation. At that time, a county prosecutor will notify the Division of Criminal Justice, and they can opt to take control of the evidence. In issuing this directive, Hoffman cited a report from End Violence Against Women International that said “it would defeat the purpose of the forensic compliance provisions if [evidence] were not held long enough to give victims the time to make a decision regarding criminal justice participation.” The EVAWI has been pushing states to maintain a 2-year retention period at minimum. 

While longer evidence retention will benefit sexual assault victims, it could be useful in providing a defense for persons accused of rape or other sex crimes as well, criminal lawyers in New Jersey say. If a person has been charged with sexual assault, any physical evidence collected and held under the longer period of time can be used to investigate, analyze, and prove innocence. 

At Helmer, Conley, and Kasselman, PA, our New Jersey criminal attorneys represent anyone who has been accused of sexual assault or other sex crimes. Contact an HCK attorney to discuss your case today. 

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