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What are the exceptions to the mandatory submission of PERKs to DFS?

Pursuant to Virginia Code § 19.2-11.8, all PERKs collected from a victim who has reported the offense must submit the PERK to DFS for analysis within 60 days of receipt, except under the following circumstances:

  • (i) it is an anonymous PERK;
  • (ii) the PERK was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted;
  • (iii) the PERK is connected to an offense that occurred outside of the Commonwealth; or
  • (iv) the PERK was determined by the law-enforcement agency not to be connected to a criminal offense.

What happens to the PERK if the victim elects to report the sexual assault to law enforcement?

If the victim elects to report the sexual assault to law enforcement at the time the PERK is collected, the health care provider is required to notify the investigating law enforcement agency forthwith that the kit has been collected, and the law enforcement agency is required to forthwith take possession of the kit upon receiving such notice. With four limited exceptions, law enforcement is required submit to DFS within 60 days all PERKs where the victim has made a report of the offense.

Will DFS store the PERKs after analysis?

No. After analysis, DFS will return the PERK to the law enforcement agency.  It shall be stored for 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time the kit was collected, whichever is longer. If the law enforcement agency receives a written objection to the destruction of the PERK from the victim, it is required to store the PERK for a period of 10 years following the receipt of the objection. After the mandatory retention period or any additional 10-year storage period has lapsed, the law enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law enforcement agency may destroy the kit or, in its discretion, may retain the PERK for a longer period of time.

Can victims get information about the PERK analysis in their case?

Yes.

A victim, a parent or guardian of a victim, or a close relative of a deceased victim has the right to request and receive from the investigating law enforcement agency information regarding:

  • The submission of the PERK for analysis:
  • The status of the analysis; and
  • The results of the analysis.

However, the law enforcement agency can withhold the information if it would interfere with an investigation or prosecution, provided the victim, parent, guardian or relative is provided an estimated date on which the information may be disclosed.  The victim, parent, guardian or relative must provide a current address or telephone number to the Commonwealth’s Attorney and the law enforcement agency.

Information about the location and status of victim PERKs can also be viewed in the Victim Portal of the PERK Tracking System.  The Victim Portal only provides the status of the analysis (analysis completed or examination terminated) and not specific analysis results. For analysis results, contact the investigating law enforcement agency. Please visit the Victim/Survivor FAQ or the Victim Portal Manual for more information.

Where are anonymous PERKs stored and for how long?

Pursuant to Code § 19.2-11.6, all anonymous PERKs must be forwarded by the health care provider to the Division of Consolidated Laboratory Services (DCLS) for storage.  DCLS is required to store each kit for a minimum of two years and for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous PERK from the victim. After the initial two years or any additional 10-year storage period, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, DCLS may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, retain a kit longer. If the victim makes a report to law enforcement, DCLS is required to release the PERK to the law enforcement agency. Information about anonymous PERKs can be found on the DCLS website.

What is an anonymous PERK?

Anonymous PERKs are kits collected from victims of sexual assault who elect not to make a report of the offense to law enforcement at the time of the examination.

How should mobile devices be handled to prevent loss of evidence (data)?

Mobile devices should be isolated from communication networks at the time of seizure in order to prevent the transmission and destruction of data on the device, as well as to maintain the device in its most vulnerable security state.  This can be accomplished in one of the following ways:

A. If the device is seized powered on:

  1. Determine if any security measures (e.g. Secure Startup, PIN, password, pattern-lock, encryption) are enabled;
    1. If unsecured or the passcode is known:
      1. Enable the device’s “Airplane Mode” – a setting available on many mobile devices that suspends the device’s signal transmitting/receiving functions;
        • Disable any other communication settings (e.g. Wi-Fi, Bluetooth, etc.) that are not automatically disabled by enabling Airplane Mode;
      2.  If applicable, remove its battery and Universal Integrated Circuit Card (UICC) (aka Subscriber Identity Module [SIM] card);
      3. Power down the device via its interface or by long-pressing its power button and, if applicable, remove its battery;
        • Depending on enabled security measures, this process may prevent future access to the device
    1. Secured Apple and Android devices with an unknown passcode require specific handling in order maximize the amount of data available for extraction and the speed of passcode identification. The following evidence handling guidelines should be followed:
      1. Ensure the device stays powered on and is sufficiently charged – DO NOT ALLOW THE DEVICE TO POWER OFF OR REBOOT;
      2. Shield the device from communication networks by putting the device into “Airplane Mode” and placing it in a shielded enclosure;
        • If neither options are available, remove* the UICC from the device;
          *Removing the UICC from a device that is powered on may result in the device being placed into a more secure state;
      3. Submit the device to the Central laboratory as soon as possible.

B. If the device is seized powered off:

  1. If applicable, remove its battery and UICC
    1. For applicable mobile devices, it is important to determine if the device (handset) contains a UICC or flash memory card such as a micro Secure Digital (microSD) card
      1. Either card can be located internally, typically under the battery, or externally along the side of the
        device;
      2. These storage devices should be indicated on the RFLE as additional items of evidence; typically as sub-items to the handset.
      3. Also, if the device is reliant on a UICC to authenticate the device to a service provider’s network(s),
        removal may be an additional shielding measure.

The Virginia Department of Forensic Science recommends mobile devices be packaged at the time of seizure and prior to lab submission as follows:

  1. Place in an anti-static bag (e.g. paper envelope)
  2. Wrap in aluminum foil (5 times with heavy duty or 10 times with standard thickness)
    1. This step can be skipped if the device’s battery has been removed or Airplane Mode has been enabled (confirming cellular/data, Wi-Fi, and Bluetooth are disabled)
  3. Place in a >3 mil thick shielded enclosure (e.g., “Faraday” bag)
    1. This step can be skipped if the device’s battery has been removed or Airplane Mode has been enabled (confirming cellular/data , Wi-Fi, and Bluetooth are disabled)
  4. Place in an outer storage bag (container) and seal
    1. If applicable, label that the battery has been removed or Airplane Mode has been enabled (confirming cellular/data, Wi-Fi, and Bluetooth are disabled)

Packing kits may be available from a third party vendor for purchase.

What paperwork is required by DFS for submission of family reference samples or an alternate known in a Missing Persons case?

DFS recommends the use of the Missing Person Family Reference Collection Kits. These kits can be obtained at any of the Regional Laboratories or Medical Examiner’s offices. Follow the instructions provided with the kits, and submit along with a completed Request for Laboratory Examination (RFLE). If you do not have the Missing Person Family Reference Collection Kits, download and complete this document for each reference sample being collected, and submit along with the reference samples/alternate known and a completed RFLE.