HB1168 103RD GENERAL ASSEMBLY

LRB103 04746 RLC 49755 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB1168

Introduced 1/31/2023, by Rep. Daniel Didech and Joyce Mason

SYNOPSIS AS INTRODUCED:

410 ILCS 513/15
725 ILCS 202/5
725 ILCS 202/6 new

Amends the Genetic Information Privacy Act. Provides that in accordance with the Sexual Assault Evidence Submission Act, genetic information derived from reference specimens of DNA from: (1) a victim of a sexual assault crime or alleged sexual assault crime; (2) known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion: and (3) any profiles developed from those samples, may be used only for purposes directly related to the investigation of the sexual assault crime or alleged sexual assault crime through which the victim's genetic information was obtained. Amends the Sexual Assault Evidence Submission Act. Establishes procedures for the use by law enforcement of known reference specimens of DNA from a victim of a sexual assault crime or alleged sexual assault crime, and to known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion, and to any profiles developed from those samples. Adds various definitions to the Act.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Genetic Information Privacy Act is amended by changing Section 15 as follows:

(410 ILCS 513/15)

Sec. 15. Confidentiality of genetic information.

(a) Except as otherwise provided in this Act, genetic testing and information derived from genetic testing is confidential and privileged and may be released only to the individual tested and to persons specifically authorized, in writing in accordance with Section 30, by that individual to receive the information. Except as otherwise provided in subsection (b) and in Section 30, this information shall not be admissible as evidence, nor discoverable in any action of any kind in any court, or before any tribunal, board, agency, or person pursuant to Part 21 of Article VIII of the Code of Civil Procedure. No liability shall attach to any hospital, physician, or other health care provider for compliance with the provisions of this Act including a specific written release by the individual in accordance with this Act.

(b) When a biological sample is legally obtained by a peace officer for use in a criminal investigation or prosecution, information derived from genetic testing of that sample may be disclosed for identification purposes to appropriate law enforcement authorities conducting the investigation or prosecution and may be used in accordance with Section 5-4-3 of the Unified Code of Corrections and Section 6 of the Sexual Assault Evidence Submission Act. The information may be used for identification purposes during the course of the investigation or prosecution with respect to the individual tested without the consent of the individual and shall be admissible as evidence in court.

The information shall be confidential and may be disclosed only for purposes of criminal investigation or prosecution.

Genetic testing and genetic information derived thereof shall be admissible as evidence and discoverable, subject to a protective order, in any actions alleging a violation of this Act, seeking to enforce Section 30 of this Act through the Illinois Insurance Code, alleging discriminatory genetic testing or use of genetic information under the Illinois Human Rights Act or the Illinois Civil Rights Act of 2003, or requesting a workers' compensation claim under the Workers' Compensation Act.

In accordance with Section 6 of the Sexual Assault Evidence Submission Act, the following may be used only for purposes directly related to the investigation of the sexual assault crime or alleged sexual assault crime through which the victim's genetic information was obtained: (1) genetic information derived from reference specimens of DNA from a victim of a sexual assault crime or alleged sexual assault crime; (2) genetic information derived from reference specimens of DNA from known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion: and (3) genetic information derived from reference specimens of DNA from any profiles developed from those samples.

(c) If the subject of the information requested by law enforcement is found innocent of the offense or otherwise not criminally penalized, then the court records shall be expunged by the court within 30 days after the final legal proceeding. The court shall notify the subject of the information of the expungement of the records in writing.

(d) Results of genetic testing that indicate that the individual tested is at the time of the test afflicted with a disease, whether or not currently symptomatic, are not subject to the confidentiality requirements of this Act.

(Source: P.A. 95-927, eff. 1-1-09.)

Section 10. The Sexual Assault Evidence Submission Act is amended by changing Section 5 and by adding Section 6 as follows:

(725 ILCS 202/5)

Sec. 5. Definitions. In this Act:

"Agent" of a law enforcement agency includes any person or entity the agency provides access to a DNA sample collected directly from the person of a victim of or witness to a sexual assault crime or alleged sexual assault crime, or access to any profile developed from those samples. This includes, but is not limited to, public or private DNA testing facilities.

"Commission" means the Sexual Assault Evidence Tracking and Reporting Commission.

"Incident being investigated" means the sexual assault crime or alleged sexual assault crime that caused a law enforcement agency or agent to analyze or request a DNA sample from a victim of or witness to that sexual assault crime or alleged sexual assault crime.

"Law enforcement agencies" means local, county, State or federal law enforcement agencies involved in the investigation of sexual assault cases in Illinois.

"Sexual assault evidence" means evidence collected in connection with a sexual assault investigation, including, but not limited to, evidence collected using the Illinois State Police Evidence Collection Kits.

"Victim" or "witness" does not include any person who is a target of the investigation of the incident being investigated, if law enforcement agents have probable cause to believe that person has committed a public offense relating to the incident under investigation.

"Voluntarily provided for the purpose of exclusion" means a sample is voluntarily provided for the purpose of exclusion if law enforcement agents do not consider the individual to be a suspect and have requested a voluntary DNA sample in order to exclude that person's DNA profile from consideration in the current investigation.

(Source: P.A. 102-538, eff. 8-20-21.)

(725 ILCS 202/6 new)

Sec. 6. DNA samples; restrictions on use. The following procedures in this Section apply to known reference specimens of DNA from: (1) a victim of a sexual assault crime or alleged sexual assault crime; (2) known reference samples of DNA from any individual that were voluntarily provided for the purpose of exclusion; and (3) any profiles developed from those samples:

(1) Law enforcement agencies and their agents shall use these DNA samples or profiles only for purposes directly related to the incident being investigated.

(2) No law enforcement agency or agent of a law enforcement agency may compare any of these samples or profiles with DNA samples or profiles that do not relate to the incident being investigated.

(3) No law enforcement agency or agent of a law enforcement agency may include any of these DNA profiles in any database that allows these samples to be compared to or matched with profiles derived from DNA evidence obtained from crime scenes.

(4) No law enforcement agency or agent of a law enforcement agency may provide any other person or entity with access to any of these DNA samples or profiles, unless that person or entity agrees to abide by the statutory restrictions on the use and disclosure of that sample or profile.

(5) Any part of a DNA sample that remains after the requested testing or analysis has been performed shall be securely stored and may be used only in accordance with the restrictions on use and disclosure of the sample provided in this Section.

(6) No agent of a law enforcement agency may provide any part of these DNA samples or profiles to any person or entity other than the law enforcement agency that provided them, except portions of these remaining DNA samples may be provided to the defendant when authorized by court order.

(7) A person whose DNA profile has been voluntarily provided for purposes of exclusion shall have the person's searchable database profile expunged from all public and private databases if the person has no past or present offense or pending charge which qualifies that person for inclusion within the State's DNA Database and Databank Program.

(8) This Section does not prohibit crime laboratories from collecting, retaining, and using for comparison purposes in multiple cases the following DNA profiles:

(A) The DNA profiles from persons whose proximity or access to DNA case evidence during the collection, handling, or processing of that evidence might result in DNA contamination, including first responders, crime scene investigators, laboratory staff, or others at the laboratory, if these kinds of elimination samples are voluntarily provided with written consent for their use as quality assurance or control samples, or if the elimination samples are obtained as a condition of employment with written consent, so that the crime laboratory can assure reliable results.

(B) The DNA profiles from persons associated with the manufacturing or production of consumable supplies or reagents or positive control samples used in laboratory testing, if these kinds of elimination samples are voluntarily provided with written consent.

(C) The DNA profiles that may be incidentally encountered on consumable supplies or reagents such as plastic tubes, plastic plates, swabs, and buffers.

(9) The requirement for written consent for voluntary elimination samples does not preclude a DNA testing laboratory from retaining, for use consistent with this Section, the voluntary quality assurance or control samples described in paragraph (8) that were provided without written consent by persons prior to the effective date of this amendatory Act of the 103rd General Assembly, or if the laboratory is otherwise required to retain such case samples by another provision of law.

(10) This Section does not preclude a DNA testing laboratory from conducting a limited comparison of samples that were analyzed concurrently in order to evaluate the DNA typing results for potential contamination, determine the source of contamination when detected, and to ensure that the contaminating profiles were not misidentified as DNA profiles from putative perpetrators.

(11) This Section does not affect the inclusion of specimens in State DNA databases as described in Section 5-4-3 of the Unified Code of Corrections, the use of state DNA databases for identifying missing persons, the compliance with other provisions of law that allow the release of samples for post-conviction testing, or the use of reference samples from a suspect lawfully collected in a manner that does not violate this Section.

(12) This Section does not apply to evidence arising from the victim that is biological material that is not the victim's own and is not from an individual who voluntarily provided a reference sample for exclusion, such as DNA transferred from an assailant.