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Constitutionality of Missouri’s rape kit law questioned in court

JEFFERSON CITY, Mo. — Missouri’s rape kit law — the measure adding greater protections for sexual assault victims signed by Gov. Mike Parson earlier this year — is facing legal questions over its constitutionality.

A group of Missouri State Public Defenders (MSPD) attorneys and their clients launched a legal challenge to the law, set to go into effect in August before a temporary restraining order was levied, arguing it violated free speech and fair trial rights as well as the Missouri Constitution’s single-subject requirements. 

State Sen. Andrew Koenig

Championed by Republican state Sen. Andrew Koenig, SB 569 included multiple provisions designed to aid and protect victims of sexual assault and rape. It included a layout for streamlining the testing of rape kits, making it easier for victims to track the kits’ statuses; created a statewide telehealth network for medical providers to conduct forensic examinations; and formed the “Sexual Assault Survivors’ Bill of Rights” which established certain protections for victims. 

It’s the latter portion of the bill, a provision from Republican state Sen. David Sater, that caused consternation with the MSPD attorneys. Included in that measure is: “Before commencing an interview of a survivor, a law enforcement officer, prosecuting attorney, or defense attorney shall inform the survivor of” his or her rights laid out in the statute. Those include the right to consult with a rape crisis center representative during an interview and the right to have a “support person” present during an interview. 

The suit also alleged the legislation was amended to include provisions outside its original purpose, thus violating the Missouri Constitution. 

“Testing rape kits or doing telehealth for victims, we’ve got no problem with any of that, no policy dispute with any of that,” MSPD attorney Jeffrey Esparza said during a virtual hearing in Cole County Circuit Court Thursday. “But the law was passed unconstitutionally. … Our foremost concern in all of this … is that forcing us to be the government’s messenger against our will is unconstitutional.” 

But Paul M. Brown with the Missouri Attorney General’s Office said while the title of the legislation was amended, the intent of the bill was not altered. 

“The purpose was to protect the interest of sexual assault survivors when interacting with the criminal justice system,” Brown said. “Anything else that might be added to that legislation as it went through the General Assembly, as long as it was germaine to its original purpose, was considered to be part of a single-subject.” 

Brown also criticized the public defenders for broadening what they asked of the court from an injunction against requiring a defense attorney to inform an alleged victim of his or her rights to striking down the entire law.

“They want the provisions for collection of sexual assault kits struck down by this court. They want the provisions for telehealth access to sexual assault survivors in rural locations that don’t have access to health care facilities where they can get this kind of forensic examination done,” Brown said. “They don’t want there to be a bill of rights for sexual assault survivors. They don’t want there to be a task force on the rights of sexual assault survivors.” 

“The scope of this lawsuit has expanded dramatically since we were last before the court. It’s very important because they’re making far-reaching claims that’s going to have a huge impact beyond what was argued in the original briefs and what was argued at the hearing of the plaintiffs’ motion on the preliminary injunction.”

“This is a piece of legislation that was properly enacted and that serves a very, very important public interest,” Brown said. 

Questions during session 

Although the bill passed unanimously in the Senate, three Republican state representatives voted against the measure, with at least one citing questions about its constitutionality. 

Rep. Mike Moon, who is set to join the upper chamber next year, said he had “heartburn” while voting against the measure because he supported each individual component. However, he maintained the legislation grew outside its intended and original scope. 

“As I’ve argued several times during the past several years, we’ve ignored the constitution when it requires one subject per bill,” Moon told The Missouri Times. “The original purpose of [SB 569] was evidentiary collection kits. When it was amended, it was changed to sexual assault victims.” 

Reps. Tom Hursts and Jeff Pogue were the other two lawmakers who voted against the measure. 

What SB 569 does

Aside from the “Sexual Assault Survivors Bill of Rights,” SB 569 also mandated law enforcement agencies retain evidentiary kits for 30 years that have not yet been adjudicated. And except in the cases of minors, unreported kits should be maintained for at least five years. 

It included a measure creating a statewide telehealth network to mentor, train, and provide assistance to medical providers who are conducting forensic examinations, meaning hospitals wouldn’t necessarily need to be staffed with full-time Sexaul Assault Nurse Examiners (SANE) around the clock. The measure, from Democratic state Sen. Jill Schupp, was meant to increase access to rape kits, particularly in more rural communities. 

Additionally, the legislation included a measure protecting a victim from having to pay for a rape kit and ensuring communications between a counselor and survivor are privileged. 

“Survivors of sexual assault will no longer have to suffer in silence,” Koenig said when the legislature OK’d the bill. “Survivors deserve justice, and this legislation gives them the resources and support needed to find closure and finally resolve their case.” 

Parson signed the measure into law in July, and it was supposed to go into effect in late August. However, a temporary restraining order has prevented its implementation. 

“This legislation has been passed in some other states. We’re not the first state to do this,” Sater told The Missouri Times. “I’m confident it will survive.” 

The lawsuit is before Judge Patricia Joyce in Cole County Circuit Court. The matter is expected to go to the Missouri Supreme Court.