Other LanguagesLeda Health’s at-home rape kits gather evidence that is rarely, if ever, admissible in court
TACOMA — A federal judge upheld Washington’s ban on selling and distributing at-home sexual assault kits today, dismissing a lawsuit brought by a Pennsylvania company that sells the self-administered kits for profit.
House Bill 1564, signed into law in 2023, prohibits the sale and distribution of self-administered sexual assault kits. The Legislature found that “at-home sexual assault test kits create false expectations and harm the potential for successful investigations and prosecutions. The sale of at-home sexual assault kits may prevent survivors from receiving accurate information about their options and reporting processes; from obtaining access to appropriate and timely medical treatment and follow up; and from connecting to their community and other vital resources.”
Sexual assault kits are used as part of a forensic examination, conducted by a trained medical professional, to gather evidence from survivors of sexual assault to be used in subsequent investigations and prosecutions. Washingtonians can receive free sexual assault kits from hospitals and other medical providers. These kits are admissible in court. Individuals can search for a local medical provider that provides free sexual assault exams here: https://depts.washington.edu/uwhatc/ch/sexual-assault-medical-exams-providers.html
Leda Health sells “early evidence kits” in other states. Leda marketed and distributed its self-collection sexual assault kits in Washington prior to a cease-and-desist letter from the Attorney General’s Office and the passage of the new law.
Law enforcement and prosecutors rely on these professionally administered exams to protect the integrity of those investigations and prosecutions. Evidence collected using at-home rape kits outside a hospital setting are rarely, if ever, admissible in court.
Leda challenged Washington’s ban, claiming the new state law violates the First Amendment and due process. Attorney General Bob Ferguson defended the law, and yesterday, U.S. District Court Chief Judge David G. Estudillo granted Ferguson’s motion to dismiss the lawsuit and denied Leda’s motion to block the law.
“This is a legal victory for sexual assault survivors,” Ferguson said. “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.”
Washington’s law protects victims from misleading marketing from companies like Leda, which wrongfully claim their self-administered kits are a viable alternative to the kits done in a hospital setting.
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.
Consequently, evidence kits collected from these exams are accepted by the Washington State Crime Lab and routinely admitted as evidence by Washington courts.
In contrast, self-administered kits face numerous barriers to admission as evidence, including concerns about cross-contamination, spoliation, validity, and chain of custody.
Importantly, self-administered kits are not eligible for submission to the Crime Lab, and 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.
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.
Ferguson’s Survivor Justice Unit
Ferguson’s Survivor Justice Unit, formerly the Sexual Assault Kit Initiative, is part of a coordinated, statewide effort to test every single backlogged sexual assault kit in the state.
In October 2023, Ferguson announced the state had effectively cleared Washington’s backlog of sexual assault kits.
In addition to this project, the unit:
- Assists local law enforcement to investigate sexually motivated homicides. The SJU is currently assisting with two cold sexually motivated homicides: one in King County and one in Port Orchard.
- Helps solve cold cases by assisting with genetic forensic genealogy and other advanced DNA testing. A response that is commonly received from such agencies is that they do not have the resources and or personnel available to delve into cold cases to determine whether such testing would be appropriate. For example, in August, AGO-funded forensic genetic genealogy testing helped Kent police narrow the list of suspects and make an arrest in the 44-year-old murder of Dorothy “Dottie” Silzel. Kenneth Duane Kundert, 65, was arrested in Arkansas on Aug. 20 after DNA on a cigarette butt Kundert discarded matched the profile of the suspect in the crime.
- Stands up for survivors by following up on cold cases from backlogged sexual assault kits. The SJU uses available data to track sexual assault cases and identify serial sex offenders.
The SJU has helped solve dozens of cold case sexual assaults and homicides.
Ferguson requests $534,000 for the upcoming biennium to support the ongoing work of this new unit.
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