Washington state considers banning over-the-counter rape kits

At-home sexual-assault kits are marketed as an option for survivors who may not report to law enforcement, but aren't admissible as evidence in court.

A screenshot from a Leda Health video showing their Early Evidence Kits.

A screenshot from a Leda Health video showing their Early Evidence Kits. Over-the-counter rape kits like this may soon be banned in Washington state. (Leda Health)

Washington lawmakers are considering a proposal that would ban the sale of DIY rape kits, which advocates say are, at minimum, confusing the sexual-assault survivors who need professional medical and legal assistance.

Last fall, Washington Attorney General Bob Ferguson sent a cease-and-desist letter to Leda Health, a company marketing DIY rape kits to survivors of sexual assault at the University of Washington. It was just the latest of several warnings from government officials across the country. 

Now, Rep. Gina Mosbrucker, R-Goldendale, is taking the fight a step further with House Bill 1564, which would ban the sale of over-the-counter sexual-assault kits in Washington. It passed unanimously out of the House on Feb. 27 and is currently in committee in the Senate. If enacted into law, it would put Washington among the first states in the country to ban the sale of a product advocates say misleads survivors of sexual assault about their options.

In Washington, many of those options are free. Getting a sexual-assault forensic exam (SAFE) costs nothing, and kits are required to be sent to the Washington State Patrol for processing within 30 days of receipt. That process is important, said prime sponsor Mosbrucker in the committee hearing in February, and DIY kits aren’t an equivalent. Unlike SAFE kits, they can’t be uploaded to CODIS – the federal database used to identify repeat offenders. That’s a particular problem when it comes to prosecuting rape, which is “serial by nature,” she said. 

An exam with a Sexual Assault Nurse Examiner (SANE), by contrast, is conducted by a medical professional “trained to make sure that evidence is collected in a way that can get to prosecution,” said Mosbrucker. SANE exams also connect survivors to medical treatment, legal resources and a rape crisis counselor: “somebody who will literally hold your hand as you go through this worst day of your life,” she said. DIY kits, on the other hand, Mosbrucker said, are “an unproven product that gives survivors, I would argue, false hope.”

That doesn’t mean the state’s supports for survivors of sexual violence couldn’t be more robust, advocates say. After being turned away from a hospital that didn’t provide sexual-assault forensic exams, advocate Leah Griffin has spent the past decade working for reforms to better equip survivors with health care and resources, expand training for SANE nurses in Eastern Washington, and clear Washington’s SAFE kit backlog.

“We’ve done all of this work, and when a private company comes in and claims to offer a commensurate solution that is not a commensurate solution, it undermines all of the great work that we’ve done in the state,” Griffin said. “And I think that the people behind Leda started out trying to solve the same problem that I’m trying to solve. We recognize that there isn’t enough access to SANE nurses, that there aren’t enough resources for survivors. The problem is that their solution, I feel, puts more survivors at risk.”

Mosbrucker and Ferguson agree. The sponsors of HB 1564 were motivated by the possibility that the kits could give survivors the false impression that home kits are admissible in court, suggesting inaccurately that a self-administered exam is functionally the same as one conducted by a trained SANE nurse. 

Appearing before the Community Safety, Justice and Reentry Committee, Heidi Anderson, assistant attorney general in the consumer protection division of the Office of the Attorney General, said that the at-home kits are also ineligible for testing by the Washington State Crime Lab.

Leda refutes some of these claims. Noelle Eller, a spokesperson with the company, said that it had “drafted a mechanism by which self-collection kits could be admissible for law enforcement,” and that several Washington cases have incorporated evidence collected outside of medical facilities; none of the cases Eller cited employed self-administered rape kits.

With HB 1564, Washington is part of an emerging trend among states seeking legislative remedies against companies marketing home test kits. New Hampshire banned the sale of the kits as part of a 2020 package of reforms related to sexual assault. (Since then, there have been three attempts to repeal the ban.) A similar bill in Utah stalled in 2021.

Since its inception, Leda Health, formally known as MeToo Kits, has been met with skepticism and legal challenges from government officials and advocates of sexual-assault survivors. The company has also received cease-and-desist letters or warning letters in New York, Connecticut, Oklahoma, Michigan, Utah, Virginia, Maryland, New Jersey, Pennsylvania and North Carolina. Two former Leda employees submitted testimony in support of Washington’s ban on the kits.

The bill has also drawn bipartisan support from prosecutors, law enforcement, and advocates who work with survivors of sexual assault, many of whom raised concerns about the kits’ marketing. Leda has presented the kits as an “additive option” for survivors who may not want to involve law enforcement, and maintains that it encourages survivors “to connect directly with SANE nurses.” “Our company wishes to provide an alternative for the 70% of women who do not feel comfortable approaching police or nurses and for those who do not have access to these resources at all,” said Eller.

But the company’s Early Evidence Kit is modeled on SAFE kits, which are used in prosecutions. “If you’re calling it an evidence kit but it’s for people who don’t want to report, who is this for?” said Griffin. “What is the point of this product? And that is a question that I’ve never gotten the answer to.”

Mosbrucker said the kits could violate consumers’ privacy, since “private companies don’t have the same responsibility to keep information of the survivor confidential” as trained providers do. Leda’s Eller maintains that the company complies with HIPAA.

Advocates like Mosbrucker are also concerned the kits could thwart actual prosecutions. “The minute it happens, we want to do everything possible to get to that rapist, to get him off the street before he reoffends,” she said. Maintaining the chain of custody is crucial to this process, but is impossible with the DIY kits, which have produced no successful prosecutions to date. “For me, if you prey on a sexual-assault or a rape victim, that’s the very worst,” said the prime sponsor in her introduction of the bill. “I don’t even have words for that.”

James McMahan, policy director with the Association of Sheriffs and Police Chiefs, said in his testimony that he had asked three times if the company had successfully used a kit in a prosecution, and was met only with silence. “There is no good reason to make a survivor of sexual assault pay to unknowingly prevent the justice in their case,” he said. “There just isn’t.”

Leda has fought the bill, sending lobbyists to Olympia and paying for Facebook ads claiming that “Washington Legislators Want to Take Rights Away from Sexual Assault Survivors.” During the committee hearing, Leda co-founder Madison Campbell offered to pull the kits from the state voluntarily. “I believe that we all want the same thing,” she said.

When committee members asked if there were any clear precedent for DIY rape kits being used in a prosecution, Leda chief strategy officer Ilana Turko, who described the kits as “an additive option” intended for victims disinclined to report to law enforcement, cited the Monterey County District Attorney’s Office, which doesn’t use DIY kits but did allow survivors to self-administer some exams in the early months of the COVID-19 pandemic. This protocol, however, used traditional SAFE kits provided by law enforcement with remote nurse supervision, and the kits remained in the chain of custody the entire time. 

“Those are the contingencies that have to be in place to make this idea work,” said Griffin. “And they’re not possible for a private company.” Mosbrucker’s bill wouldn’t prohibit a protocol like the one used in Monterey if employed by a government or medical agency; the bill applies only to private companies, not health care facilities or law enforcement.

When it comes to systemic barriers to support for sexual-assault survivors, real reform is needed, said Griffin. “We absolutely need more resources for survivors,” she said. 

She would like to see funding to ensure survivors have access to counseling, legal support and health care, as well as expanding access to the state’s Crime Victim Compensation Program by severing it from police reporting “so that all survivors can access the funds that they need to put their lives back together or to get counseling or to get help.” More SANE nurses are needed, especially in rural areas, Griffin said, and bolder reforms, like ending the statute of limitations for victims of child sex abuse, could make a huge difference for survivors.

The problem startups like Leda are trying to address is real, she said, but the way the company has gone about doing so is getting in the way of actual reform. “I wish them well in making an impact and doing things that help survivors, and I hope that they are wildly successful at doing that,” Griffin said. “But you can’t trick people into thinking that your product is going to do something that it’s not, and I just can’t sit by and let that damage be done to other survivors.”

The bill is scheduled for a hearing in the Senate Law & Justice Committee Wednesday, March 8 at 8 a.m.

CORRECTION: Corrects the spelling of James McMahan, policy director with the Association of Sheriffs and Police Chiefs.

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