Bill to ban sale of DIY rape kits in Utah stalls after early momentum in Legislature

Opponents say at-home kits give ‘false hope,’ while supporters say they give survivors options.

(Trent Nelson | The Salt Lake Tribune) Rep. Angela Romero, D-Salt Lake City, leans in to speak to Senate Majority Leader Evan Vickers, R-Cedar City, after her bill to ban the sale of DIY rape kits in Utah was killed in the Senate Health and Human Services Standing Committee at the state Capitol in Salt Lake City on Wednesday, Feb. 24, 2021.

Rep. Angela Romero reminded her peers where she stands on at-home, do-it-yourself rape kits, just before a committee voted on what to do with her proposal to ban them.

“There’s no way [evidence collected with the kits] will ever be used in a court of law, and we’re letting down victims again,” the Democrat from Salt Lake City said. “I ran legislation just a week ago on affirmative consent. That got voted down, too. So, what are we telling survivors?”

As for senators’ suggestions that Romero might find a compromise with companies selling the kits, she told them, “If you’re going to vote it down, vote it down.”

“I am not collaborating and giving survivors false hope,” she said.

After HB168, which would ban the sale of DIY rape kits in Utah, made it through the House, the Senate Health and Human Services Committee heard emotional testimony Wednesday from survivors of sexual assault who shared their experiences and struggle to find justice in a “broken system.” The committee then voted to stall the bill.

Romero doesn’t plan to bring her proposal back, but she said in a text message Thursday that she “will lobby at a federal level to get [the kits] banned.”

In fall 2019, advocacy groups in the Beehive State joined national organizations in opposing the at-home kits, calling the products “exploitive” and “misleading.” Multiple state attorneys general sent cease and desist letters to companies selling the products. Meanwhile, supporters argued the kits gave options to survivors who are hesitant to report assaults.

After the backlash, “these companies pulled back,” said Julie Valentine, a member of Wasatch Forensic Nurses and an associate professor at Brigham Young University College of Nursing. But “with the emergence of COVID,” as some people were nervous about going to hospitals, the DIY kits reemerged, she said, prompting Romero to file HB168.

Arguments against DIY kits

A series of prosecutors, defense attorneys, law enforcement officials and advocates, including the Utah Coalition Against Sexual Assault and Utah County Sheriff Mike Smith, spoke in support of Romero’s bill at the hearing, saying material gathered with DIY kits would not be admissible in court. They described “chain of custody” issues, or concerns about who would have had access to a kit and its evidence before it reached a lab.

Utah criminal defense lawyer Mark Moffat said that if he handled a case where someone tried to use evidence from an at-home kit against his client, he would file motions to keep it out of court. He would want to make sure any evidence meets the required thresholds of reliability, and there’s no way, he said, that the “patently absurd and preposterous” kits could be considered at the same level as a sexual assault kit collected by a trained forensic nurse examiner.

“It will put everybody in a bad situation” when these kits can’t be admitted in court, said Richard Mauro, executive director of the Salt Lake Legal Defender Association, and their use could lead to the dismissal of cases.

“When victims buy these, what they’re actually purchasing is little more than a trick in a box,” agreed Will Carlson, deputy district attorney for Salt Lake County.

Laurieann Thorpe, executive director of Prevent Child Abuse Utah, asked legislators to imagine whether a court would accept at-home evidence collection kits for a homicide or burglary. “It’s absurd,” she said.

“The truth is that victims do not need a rape kit to prove to themselves that they’ve been raped. They know what happened,” said Crystal Powell, an attorney with the Utah Crime Victims Legal Clinic. “The only purpose of a rape kit is to prove to a jury that a rape has occurred.”

DIY kits are “a gimmick that needs to be banned, blocked and booted in Utah,” she said.

With these products, survivors do not get access to health care services and medications for injuries and sexually transmitted infections, Valentine said, and they are not connected to advocates and service providers to help them through the process and follow-up care. They also charge someone for something that’s already provided for free by the state, she said.

Why people support at-home kits

Multiple survivors and parents of sexual assault victims spoke Wednesday about their painful experiences seeking help after being raped. One woman said she understands why some people don’t want to report because she went through an hours-long forensic exam and answered “invasive questions” from police.

“I needed to have more options. I needed time to process and collect. And I needed autonomy and privacy,” she said.

Like others who spoke against Romero’s bill, the woman argued that DIY kits allow “innovation for a system that’s failing” and choices for survivors.

Madison Campbell, founder and CEO of Leda Health, provided the committee with one of her at-home kits that she said is currently in development and “not on the market yet.” Leda Health was formerly known as MeToo Kits Company, one of the businesses scrutinized in 2019, according to Campbell’s LinkedIn page.

The kit has DNA swabs, tamper-evident tape, evidence collection bags and an app to track the kit, as well as instructions for people to go to a hospital for care, if they can, and follow-up instructions for how to go to police and to store the product. They also plan to offer STI testing, medication, virtual forensic assault nurse examiners and free support groups, she said.

It also includes a disclaimer that the DIY kit may not be admissible in court, according to Campbell. She said her product empowers survivors to take the first step of many toward healing.

Sonya Martinez-Ortiz, executive director of the Rape Recovery Center in Salt Lake City, told survivors, “we believe you” and “hear you.”

“The system has failed survivors,” said Martinez-Ortiz, who spoke in support of Romero’s bill. “There are a number of survivors who do not see justice. And while this sounds like a tempting opportunity, the reality is that this provides false hope.”

‘This is serious’

Sen. Evan Vickers, R-Cedar City, said he appreciated the work Romero had done, but felt “conflicted” about the bill and was having a “hard time” banning the sale of a product that is not illegal. Vickers made a motion to move on to the committee’s next agenda item without voting on whether to send HB168 on to the House.

Sens. Michael Kennedy, R-Alpine, and Jacob Anderegg, R-Lehi, agreed with Vickers’ move and suggested Romero could find common ground with vendors. Sen. Luz Escamilla, a sponsor of HB168, opposed the motion.

“We’re going to be here years from now listening from survivors” who used a DIY kit and are “coming back crying” because their cases were not prosecuted, said Escamilla, D-Salt Lake City. “It’s going to be devastating.”

She told her peers “this is serious” and encouraged them to listen to the experts who deal with evidence issues on a daily basis.

After hearing Escamilla’s and Romero’s comments, Vickers said he felt “a bit like I’ve been chastised.” He said he knows Romero is passionate about this topic, and added, “I don’t want to vote no on this,” because he thinks there can be middle ground.

“I think we can have respect for each other’s opinion,” he said.

The committee voted 5-3 to skip to the next agenda item, with Escamilla, Sen. Jani Iwamoto, D-Holladay, and Sen. Keith Grover, R-Provo, voting against.

Becky Jacobs is a Report for America corps member and writes about the status of women in Utah for The Salt Lake Tribune. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by clicking here.