Washington state defends ban on over-the-counter sexual assault kits

(CN) — Hoping to keep its ban on at-home sexual assault evidence collection kits in place, Washington state argued Wednesday to a Ninth Circuit Court of Appeals panel that such kits exploit sexual assault victims when they are most vulnerable.

The state’s House Bill 1564 prohibited the sale of over-the-counter sexual assault kits in 2023. But Leda Health argued to the three-judge panel that the statute is unconstitutional.

“The sexual assault kit definition is wildly broad, but it’s the law they wrote,” said Alex Little, attorney for Leda Health.

The company provides kits containing sterile swabs, plastic bags and information about how to use the items to keep evidence of an assault — a product banned under the statute.  It sued the state in 2024, asking a federal court to block the state from enforcing the ban.

Under the state’s definition, an iPhone could be considered a sexual assault kit since its camera can be used to take photos of victims, Little argued.

“What they’re prohibiting here is the collection of a whole host of legal activities that people do regularly all the time,” Little said.

The statute also restricts how such a product can be marketed. The products cannot be advertised to be used at home or to collect evidence other than by law enforcement or a health care provider. A lower court had dismissed the suit, finding that the company’s First Amendment claim failed because the bill regulated “transactional conduct” rather than speech.

Leda Health argued that the statute presents a “clear prohibition on speech” and that it’s not tailored to achieve an important state interest, though U.S. Circuit Judge Salvador Mendoza Jr. pushed back on that point.

“Well, what they want to do is they want to make sure that these folks are able to get to a hospital and get the proper treatment that they need,” the Joe Biden appointee said. “That’s what they’ve stated is their purpose in doing this.”

Little argued that the Leda Health kit includes a card with information explaining the options a sexual assault survivor has for evidence collection, which includes going to a hospital.

U.S. Circuit Judge ​​Michelle Friedland said that her impression of the state’s intent was to avoid the misleading impression that an at-home kit would be admissible in court.

“I think that’s certainly what they want you to believe,” Little responded.

If the state is worried about victims getting the wrong idea about how the kit may or may not be used in a trial against an assailant, then it should revise the statute to clarify that more precisely, Little said. Self-collected evidence was used and admitted in Bill Clinton’s impeachment case, Little noted.

“When you drill down to it, the state’s asserted interest of evaporates,” Little said.

The state reasoned that self-collection kits are challenging to admit into evidence, which often leads to further trauma of sexual assault survivors who pursue legal action.

“None of the results from these kits have ever been admitted in any court in any state,” said Tera Heintz with the Washington Attorney General’s Office. “And this company has been around for five years.”

The panel questioned whether the company could get around the statute by stating that the kit can’t be admissible as evidence, to which the state said no.

“The Washington legislature determined that if you market this kit as evidence, you’re telling sexual assault survivors that this is gonna be admissible in court,” Heintz said.  “So it simply requires that they say it isn’t — including a disclaimer is not sufficient to address that issue.”

To get the kit admitted, a survivor would likely have to testify in great detail about the forensic collection of their own evidence, which is a burden they likely aren’t considering when opting to use a kit.

“Calling this sexual assault evidence kits is more likely to deceive consumers, the targeted consumers, in the specific context here than it is not,” Heintz said.

Leda Health argued that it is not selling the kits individually, but rather offering them to groups as part of their larger comprehensive services.

“That decision about what to do with the evidence is solely in the survivor’s hands,” Little said. “They have choices.”

The Ninth Circuit panel, which also included U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, did not indicate when it would rule.