# COMAR Title 02 — Office of the Attorney General ## Subtitle 08 — Sexual Assault Evidence Kits ### Chapter 01 — Sexual Assault Victims’ Rights — Disposal of Rape Kit Evidence and Notification **Authority:** Criminal Procedure Article, §11-926(e), Annotated Code of Maryland **Administrative History:** Effective date: October 8, 2018 (45:20 Md. R. 917) **Administrative History:** Regulation .03 amended effective May 4, 2020 (47:9 Md. R. 476) **Administrative History:** Regulation .04A amended effective May 4, 2020 (47:9 Md. R. 476) **Administrative History:** Regulation .05 repealed effective May 4, 2020 (47:9 Md. R. 476) #### Regulation .01 Purpose. *COMAR 02.08.01.01* This chapter is intended to promote uniform statewide implementation of the disposal of rape kit evidence and sexual assault victim notification requirements set forth in Criminal Procedure Article, §11-926, Annotated Code of Maryland. #### Regulation .02 Definitions. *COMAR 02.08.01.02* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Child advocacy center” has the meaning stated in Criminal Procedure Article, §11-296(a), Annotated Code of Maryland. (2) “Hospital” has the meaning stated in Criminal Procedure Article, §11-296(a), Annotated Code of Maryland. #### Regulation .03 Information Provided to Victims. *COMAR 02.08.01.03* A. A health care provider that performs a sexual assault evidence collection kit exam on a victim of sexual assault shall provide the victim with: (1) If known, contact information for the investigating law enforcement agency that the victim may contact about the status and results of the kit analysis; (2) Written information describing the laws and policies governing the testing, preservation, and disposal of a sexual assault evidence collection kit; and (3) Notice of the right to request an independent review of a law enforcement agency’s decision not to test a sexual assault evidence collection kit. B. An investigating law enforcement agency that receives a sexual assault evidence collection kit, within 30 days after a request by the victim from whom the evidence was collected, shall provide the victim with: (1) The law enforcement agency’s decision regarding whether to send the sexual assault evidence collection kit to a forensic laboratory for analysis; (2) The law enforcement agency’s decision regarding whether to send the sexual assault evidence collection kit to a forensic laboratory for analysis; (3) All available results of the kit analysis except results that would impede or compromise an ongoing investigation. #### Regulation .04 Transfer and Destruction of Kits. *COMAR 02.08.01.04* A. Kit Transfers. (1) A sexual assault evidence collection kit shall be transferred to a law enforcement agency: (a) By a hospital or a child advocacy center within 30 days after the exam is performed; or (b) By a government agency in possession of a kit, unless the agency is otherwise required to retain the kit by law or court rule. (2) A hospital or child advocacy center shall cause a sexual assault evidence collection kit to be transferred by notifying the appropriate law enforcement agency as set forth in §A(4) and (5) of this regulation. (3) Upon notification, the law enforcement agency shall promptly send a representative to retrieve the kit. (4) Sexual assault evidence collection kits transferred pursuant to §A(1) of this regulation shall be given to the law enforcement agency responsible for investigating the crime associated with the kit, if known. (5) If the law enforcement agency responsible for investigating the crime associated with the kit is unknown, the kit shall be given to a law enforcement agency in the county: (a) Where the hospital, child advocacy center, or government agency is located; or (b) Where the alleged sexual assault occurred. B. Except as provided in §C of this regulation, within 20 years after the evidence is collected, a law enforcement agency may not destroy or dispose of: (1) A sexual assault evidence collection kit; or (2) Other crime scene evidence relating to a sexual assault that has been identified by the State’s Attorney as relevant to prosecution. C. A law enforcement agency is not required to comply with the requirements in §B of this regulation if: (1) The case for which the evidence was collected resulted in a conviction and the sentence has been completed; or (2) All suspects identified by testing a sexual assault evidence collection kit are deceased. D. On written request by the victim from whom the evidence was collected, a law enforcement agency with custody of a sexual assault evidence collection kit or other crime scene evidence relating to a sexual assault shall: (1) Notify the victim no later than 60 days before the date of the intended destruction or disposal of the evidence; or (2) Retain the evidence for 12 months longer than the period specified in §B of this regulation or for a time period agreed to by the victim and the law enforcement agency. ### Chapter 02 — Sexual Assault Evidence Collection Kits — Analysis **Authority:** Criminal Procedure Article, §11-926(e), Annotated Code of Maryland **Administrative History:** Effective date: May 4, 2020 (47:9 Md. R. 476) #### Regulation .01 Criteria for Analysis. *COMAR 02.08.02.01* A sexual assault evidence collection kit shall be submitted to a forensic laboratory for analysis unless: A. There is clear evidence disproving the allegation of sexual assault; B. The facts alleged, if true, could not be interpreted to violate a provision of Criminal Law Article, Title 3, Subtitle 2, 3, or 6, or Title 11, Subtitle 3, Annotated Code of Maryland; C. The victim from whom the evidence was collected declines to give consent for analysis; or D. The suspect’s profile has been collected for entry as a convicted offender for a qualifying offense in the Combined DNA Index System (CODIS) maintained by the Federal Bureau of Investigation and the suspect has pleaded guilty to the offense that led to the sexual assault evidence collection kit. #### Regulation .02 Anonymous Kits. *COMAR 02.08.02.02* A. If a victim of sexual assault wishes to remain anonymous and not file a criminal complaint, the victim shall be informed that the victim may file a criminal complaint at a future time. B. If a provision of Regulation .01 of this chapter is determined to be satisfied after the submission of the victim’s sexual assault evidence collection kit for analysis, testing may be terminated or not initiated. #### Regulation .03 Submission to Forensic Laboratories. *COMAR 02.08.02.03* A. Except as provided in Regulation .01 of this chapter, an investigating law enforcement agency that receives a sexual assault evidence collection kit shall submit the kit and all requested associated reference standards to a forensic laboratory for analysis within 30 days of receipt of the kit and all requested associated reference standards. B. Testing by Forensic Laboratories. (1) A forensic laboratory that receives a sexual assault evidence collection kit and all requested associated reference standards for analysis shall determine suitability and complete screening, testing, and analysis in a timely manner. (2) Failure to complete the screening, testing, and analysis in a timely manner as required in §B(1) of this regulation may not constitute the basis for excluding the analysis or results as evidence in a criminal proceeding. #### Regulation .04 Use of Victim Services Organizations. *COMAR 02.08.02.04* A law enforcement agency that receives a sexual assault evidence collection kit shall make use of certified sexual assault crisis programs or other qualified community-based sexual assault victim service organizations that can provide services and support to survivors of sexual assault. #### Regulation .05 CODIS. *COMAR 02.08.02.05* A. The eligible results of an analysis of a sexual assault evidence collection kit shall be entered into CODIS. B. The DNA collected from a victim under this chapter may not be used for any purpose except as authorized by this subtitle. ### Chapter 03 — Review of Law Enforcement Decisions Not to Test a Kit **Authority:** Criminal Procedure Article, §§11-926(e) and 11-927(f), Annotated Code of Maryland **Administrative History:** Effective date: May 4, 2020 (47:9 Md. R. 476) #### Regulation .01 Scope. *COMAR 02.08.03.01* This chapter sets out the procedures under which a person may request the review of a law enforcement agency’s decision not to test a sexual assault evidence collection kit. #### Regulation .02 Definitions. *COMAR 02.08.03.02* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Committee” means the Maryland Sexual Assault Evidence Kit Policy and Funding Committee. (2) “Kit” means a sexual assault evidence collection kit. (3) “SART” means a sexual assault response team which includes at least one representative from each of the following professions and organizations: (a) Forensic nurse examiner providing services at a local sexual assault forensic examination program or other qualified health care provider from a local hospital; (b) Local law enforcement agency; (c) Local State’s attorney’s office; (d) Local certified rape crisis center; (e) Maryland Coalition Against Sexual Assault; (f) Crime lab, if available; and (g) Crime victim rights attorney, if available. (4) “Untested kit review” means the independent review by a SART or the Committee of a law enforcement agency’s decision not to test a kit. #### Regulation .03 Untested Kit Review by SARTs. *COMAR 02.08.03.03* A. When a law enforcement agency decides not to test a kit, the victim, the victim’s representative, a Committee member, or a member of the SART where the alleged assault occurred may request an untested kit review. B. The request for an untested kit review shall first be submitted to the SART where the alleged assault occurred if one exists. C. All SART members representing the professions and organizations listed in Regulation .02B(3) of this chapter shall participate in the untested kit review. D. A person involved in the investigation of a sexual assault case may not participate in the untested kit review for a kit related to that case. E. The SART may request and consider case files and any other evidence it deems appropriate when conducting an untested kit review. F. The SART shall issue a written determination pursuant to an untested kit review in a timely manner. G. The SART’s determination will serve as a recommendation only and is not a contested case under the Administrative Procedure Act, State Government Article, §10-222, Annotated Code of Maryland. H. In jurisdictions where there is not a functioning SART as defined in Regulation .02B(3) of this chapter, the victim, the victim’s representative, a Committee member, or a member of the SART where the alleged assault occurred shall submit a request for an untested kit review directly to the Committee. #### Regulation .04 Untested Kit Review by the Committee. *COMAR 02.08.03.04* A. After the SART issues its recommendation, the victim, victim’s representative, or member of the SART where the alleged assault occurred may request an untested kit review by the Committee. B. Subcommittee Membership. (1) The Committee shall designate a subcommittee with one Committee representative from each of the professions or organizations listed in Regulation .02B(3) of this chapter to review the law enforcement agency’s decision not to test a kit. (2) The subcommittee shall include a representative from the Office of the Attorney General. (3) A subcommittee member that participated in an untested kit review by a SART may not participate in an untested kit review of the same kit by the Committee. C. A person involved in the investigation of a sexual assault case may not participate in the untested kit review for a kit related to that case. D. The Committee may request and consider case files and any other evidence it deems appropriate when conducting an untested kit review. E. The Committee shall issue a written determination pursuant to an untested kit review in a timely manner. F. The Committee’s determination will serve as a recommendation only and is not a contested case under the Administrative Procedure Act. G. Upon request by the victim, the victim’s representative, a Committee member, or a member of the SART where the alleged assault occurred, and in those cases where there was no untested kit review by the SART, the full Committee may conduct an untested kit review. #### Regulation .05 Confidential Proceedings. *COMAR 02.08.03.05* A. SART and Committee meetings held for the purpose of conducting untested kit reviews are not open to the public. B. Information provided to, or gathered by, a SART or the Committee for purposes of conducting an untested kit review are confidential. C. Written determinations issued by a SART or Committee are not confidential. D. Personally identifying information shall be redacted from a written determination prior to its release. ### Chapter 04 — Reporting **Authority:** Criminal Procedure Article, §§11-926(e) and 11-927(f), Annotated Code of Maryland **Administrative History:** Effective date: May 4, 2020 (47:9 Md. R. 476) #### Regulation .01 Reporting by Law Enforcement Agencies. *COMAR 02.08.04.01* A. A law enforcement agency shall submit a copy of its written policies demonstrating compliance with this subtitle to the Office of the Attorney General within 90 days of the date this regulation goes into effect. B. On or before September 1, 2021, and every year thereafter, a law enforcement agency shall submit the following information to the Office of the Attorney General: (1) The number of sexual assault evidence collection kits in its possession as of June 30 of that calendar year; (2) The number of untested sexual assault evidence collection kits in its possession as of June 30 of that calendar year; (3) The date each sexual assault evidence collection kit in its possession was received; (4) The number of sexual assault evidence collection kits tested during the prior year as of June 30 of that calendar year; (5) The number of sexual assault evidence collection kits not tested during the prior year as of June 30 of that calendar year pursuant to COMAR 02.08.02.01A, B, C, or D; (6) The number of any other kits not tested and an explanation of why the kit was not tested; (7) For untested kit reviews: (a) The number of untested kit reviews requested during the prior year as of June 30 of that calendar year; (b) The written recommendation resulting from each of the untested kit reviews conducted during the prior year as of June 30 of that calendar year; and (c) The number sexual assault evidence collections kits tested at the recommendation of an untested kit review; (8) For sexual assault evidence collection kits destroyed during the prior year as of June 30 of that calendar year: (a) The number of sexual assault evidence collection kits destroyed; (b) The date each sexual assault evidence collection kit was collected; (c) The date each sexual assault evidence collection kit was destroyed; and (d) The reason for the destruction; and (9) The number of written requests received pursuant to COMAR 02.08.01.04D during the prior year as of June 30 of that calendar year. #### Regulation .02 Reporting by Forensic Laboratories. *COMAR 02.08.04.02* On or before September 1, 2021, and every year thereafter, a forensic laboratory shall submit the following information to the Office of the Attorney General: A. The number of sexual assault evidence collection kits tested within the prior completed fiscal year; B. The date each sexual assault evidence collection kit tested was received from a law enforcement agency; and C. The date on which a report summarizing the results of the test was prepared for each sexual assault evidence collection kit.