Lawsuit challenges sexual assault law

The director of Missouri's state public defender system, several other public defenders and three defendants charged with criminal sexual offenses have sued the state attorney general over whether a state Senate sexual assault bill made law this year is unconstitutional.

The section of the law at issue is what's known as the Sexual Assault Survivors' Bill of Rights, which the lawsuit's plaintiffs allege violates rights to free speech, fair trial, effective assistance of counsel and to confront witnesses.

The Sexual Assault Survivors' Bill of Rights is one part of SB 569. The bill - signed into law July 13 by Gov. Mike Parson - contains provisions from multiple lawmakers on issues involving sexual assaults.

The bill was originally introduced by state Sen. Andrew Koenig, R-Manchester, to better track and process sexual assault evidence collection kits. The legislation grew to include language from two other senators' bills - Sen. Jill Schupp, D-Creve Couer, and Sen. David Sater, R-Cassville.

Schupp's language from SB 951 would establish a telehealth network of nurse examiners who are qualified to collect evidence following an assault - intended to address a shortage of such certified personnel at hospitals.

Sater's language from SB 812 is the Sexual Assault Survivors' Bill of Rights, which would apply during a forensic examination of a survivor and when a survivor is interviewed by law enforcement, a prosecuting attorney or a defense attorney.

The new law would give a survivor the right to consult with an employee or volunteer of a rape crisis center during a forensic examination or interview with law enforcement or attorney, as well as have a support person of the survivor's choosing present.

Medical providers would also have to give survivors before forensic exams a document explaining those and other rights - including a right to shower after the exam.

Before an interview with law enforcement or an attorney, survivors would also have to be informed of their rights. The right to have an employee or volunteer of a rape crisis center present would be limited by whether one can be summoned in "a reasonably timely manner," and the presence of a support person of the survivor's choosing would be limited by whether a law enforcement officer or attorney "determines in his or her good faith professional judgment that the presence of that individual would be detrimental to the purpose of the interview."

Survivors would have the right to be interviewed by a law enforcement officer of the gender of their choosing. If a law enforcement officer of that gender would not be "reasonably available," the survivor would be interviewed "by an available law enforcement official only upon the survivor's consent."

Law enforcement officials, prosecuting attorneys and defense attorneys would be barred for discouraging a survivor from receiving a forensic exam.

Survivors would also have the right to be informed upon request of the results of the analysis of the forensic evidence collected from them - whether any DNA profile was produced and whether there was a match to a named perpetrator or to a suspect already in the FBI's DNA database, known as CODIS.

Defendants or a person accused or convicted of a crime against a survivor would not be able to object to any failure to comply, and failing to provide a right or notice to a survivor would not be able to be used by a defendant to seek or have a conviction or sentence set aside.

Survivors would not be required to submit to a polygraph examination as a requirement to filing an accusation or to participate in any part of the criminal justice system.

Survivors would have the right to give an impact statement at any proceeding involving a post-arrest release decision, plea, sentencing, or post-conviction release decision.

A survivor would retain those and other rights whether they agree to participate in the criminal justice system or family court and regardless of whether the survivor consents to a forensic examination for evidence to be collected.

Mary Fox, director of the state public defender system, and four assistant public defenders who work in Kansas City and St. Louis are the attorneys who sued the state over the law, filing the suit Thursday in Cole County Circuit Court.

Three men charged with one or more sexual offenses are also plaintiffs in the lawsuit. Two of the men have one of the suing public defenders as their attorney.

The lawsuit argues defense attorneys speak with survivors to gather information relevant to criminal proceedings and to represent the interests of their defendant clients, but a Missouri Supreme Court rule bars a lawyer from giving legal advice to an unrepresented person if the lawyer knows or reasonably should know the person's interests are or could be in conflict with their clients' interests.

The public defenders fear that if the law takes effect, they "will be chilled from interviewing survivors because of their reasonable fear of disciplinary action against their licenses to practice law."

The law would otherwise take effect Aug. 28, and the lawsuit seeks an injunction to block that from happening.

The three men who are criminal defendants also express fear in the lawsuit that the requirements in the law of attorneys imply to victims and witnesses that "it would be best if no interviews were given."

In addition to the alleged violations of defendants' rights by the Sexual Assault Survivors' Act, the lawsuit also argues SB 569 is unconstitutionally too broad, violates requirements for clear titling and separation of powers, and did not follow correct legislative procedures as it was developed.

Sater said in a statement in response to the lawsuit: "The Sexual Assault Survivors' Bill of Rights is about guaranteeing the rights of victims and ensuring they never again suffer in silence. With SB 569, every victim of sexual assault will know the state of Missouri is committed to helping them find justice and that their assaulters will be held accountable.

"It's disappointing then that a small group of lawyers more interested in the rights of alleged perpetrators than victims is attempting to block these important protections. I am confident the Attorney General's Office will vigorously defend this law and Missouri courts will give sexual assault victims the protections they deserve."

Attorney General Eric Schmitt's office declined to comment on the lawsuit.