Physical Evidence Recovery Kits (also known as Sexual Assault Kits in other jurisdictions) are used to collect biological evidence from victims of sexual assaults. Effective July 1, 2016, Virginia Code § 19.2-11.5 through 19.2-11.11 creates a comprehensive procedure for the consistent collection, storage, and analysis of PERKs in the Commonwealth.
Physical Evidence Recovery Kit (PERK) Questions:
When should a PERK be submitted to the laboratory for analysis?
- Pursuant to Virginia Code § 19.2-11.8, a law-enforcement agency that receives a physical evidence recovery kit (PERK) collected from a victim who has reported the offense shall submit the physical evidence recovery kit to DFS for analysis within 60 days of receipt, except under the following circumstances: (i) it is an anonymous PERK; (ii) the PERK was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted; (iii) the PERK is connected to an offense that occurred outside of the Commonwealth; or (iv) the PERK was determined by the law-enforcement agency not to be connected to a criminal offense. This is effective July 1, 2016.
What is an anonymous PERK?
- Anonymous PERKs are kits collected from victims of sexual assault who elect not to make a report of the offense to law enforcement at the time of the examination.
Where are anonymous PERKs stored and for how long?
- Pursuant to Code § 19.2-11.6, all anonymous PERKs must be forwarded by the health care provider to the Division of Consolidated Laboratory Services (DCLS) for storage. DCLS is required to store each kit for a minimum of two years and for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous PERK from the victim. After the initial two years or any additional 10-year storage period, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, DCLS may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, retain a kit longer. If the victim makes a report to law enforcement, DCLS is required to release the PERK to the law enforcement agency. Information about anonymous PERKs can be found on the DCLS website.
Can victims get information about the PERK analysis in their case?
A victim, a parent or guardian of a victim, or a close relative of a deceased victim has the right to request and receive from the investigating law enforcement agency information regarding:
- The submission of the PERK for analysis:
- The status of the analysis; and
- The results of the analysis.
Will DFS store the PERKs after analysis?
- No. After analysis, DFS will return the PERK to the law enforcement agency. It shall be stored for 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time the kit was collected, whichever is longer. If the law enforcement agency receives a written objection to the destruction of the PERK from the victim, it is required to store the PERK for a period of 10 years following the receipt of the objection. After the mandatory retention period or any additional 10-year storage period has lapsed, the law enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law enforcement agency may destroy the kit or, in its discretion, may retain the PERK for a longer period of time.
What happens to the PERK if the victim elects to report the sexual assault to law enforcement?
- If the victim elects to report the sexual assault to law enforcement at the time the PERK is collected, the health care provider is required to notify the investigating law enforcement agency forthwith that the kit has been collected, and the law enforcement agency is required to forthwith take possession of the kit upon receiving such notice. With four limited exceptions, law enforcement is required submit to DFS within 60 days all PERKs where the victim has made a report of the offense.
What are the exceptions to the mandatory submission of PERKs to DFS?
- Pursuant to Virginia Code § 19.2-11.8, all PERKs collected from a victim who has reported the offense must submit the PERK to DFS for analysis within 60 days of receipt, except under the following circumstances:
- (i) it is an anonymous PERK;
- (ii) the PERK was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted;
- (iii) the PERK is connected to an offense that occurred outside of the Commonwealth; or
- (iv) the PERK was determined by the law-enforcement agency not to be connected to a criminal offense.