New York State Attorney General Letitia James in April. Photo: Diego M. Radzinschi/ALM

Companies marketing do-it-yourself sexual assault evidence collection kits for sale on the internet were asked to stop advertising and selling their products Thursday by the New York Attorney General's Office, which said they may not be admissible in court.

Attorneys for the state, in separate 'cease and desist' letters to two companies selling those products, wrote that victims would be misled about how effective the kits would actually be.

The products are currently marketed by the MeToo Kits Co. and Preserve Group, the latter of which had its kit for sale on Amazon for approximately $30 Thursday. Neither company immediately returned a request for comment on the state's letters. 

New York Attorney General Letitia James said there were several problems with the companies selling the kits as an evidence-collection tool, including their use in a legal proceeding.

"I am deeply concerned about companies selling kits that deter individuals from seeking professional care and purport to collect evidence without knowing whether the evidence will be admissible in court," James said. "We must ensure that all survivors of sexual assault are not misled and that justice is served."

Attorneys from her office noted in the letters to both companies that neither readily make clear on their websites that New York already provides evidence collection kits and exams to victims of sexual assault at no charge. 

Victims of sexual assault in New York can have evidence collected for free at a number of locations, including hospitals and Sexual Assault Forensic Exam Centers, the AG's Office said. They'll also have access to treatment for any injuries, testing for sexually transmitted infections, and medication to prevent pregnancy.

"Your advertising for MeToo's at-home evidence kit fails to disclose that testing, evidence preservation and other services are available for free in New York," the letter sent to MeToo Kits Company said.

That company's website openly admits that "there is no guarantee that any of the evidence … will be admissible in court." At the same time, its advertising claims victims can use the product to collect "evidence required in a court of law." 

Those two statements conflict with each other and mislead victims into thinking the kit will hold up in a legal proceeding, attorneys for the state wrote.

"These representations give the misleading impression that the evidence collected will be admissible in a court of law," the letter to MeToo Kits Co. said.

State and federal regulations, they wrote, also note that only members of law enforcement should be allowed to handle or transport evidence after it's been collected, not the victim or other third parties. That allows for the chain of custody to be maintained and used in court.

According to the state attorney general, the MeToo Kits Co., for example, has said victims should take a completed kit to either the police or a Title IX office after they've used it. But that's contrary to what's recommended by the government, and also wrongly suggests that victims are obligated to report the crime, the AG's Office wrote.

"In New York, it is the survivor's decision whether or not to file a police report," the letter to MeToo Kits said. "Your representation may deter survivors from evidence collection."

The products, themselves also don't meet a protocol set by the U.S. Department of Justice for sexual assault examination kits, the AG's Office wrote. The federal government requires certain material to be collected and advises the area to be kept in certain conditions while that's happening.

"It does not appear that the Preserve kit meets these guidelines, making its representations concerning its suitability for collecting evidence particularly, questionable," the AG's Office wrote in the letter to Preserve. 

The kit from Preserve is marketed on Amazon as containing two swabs, a paper bag labeled for evidence, a hinge lifter and a piece of red tape. Those tools are misleading as the necessary instruments for evidence collection after a sexual assault, the state wrote, and may ultimately fail in court.

"Stamping a paper bag with 'Evidence' or taping it shut with a red piece of tape has nothing to do with whether any physical evidence gathered might ultimately be admissible in court," the letter to Preserve said. 

The MeToo Kit Co.'s product also markets itself as a "deterrent for sexual assault," which the AG's Office took issue with in the letter. The wrote that the representation would give a misleading impression to victims that they're somehow safer after purchasing the product.

"This reckless and unsupported representation could lead to serious consequences, as individuals may be lulled into a false sense of security and be less careful with their personal safety as a result," the letter said. 

The companies were advised to immediately stop advertising and selling their products, or possibly face further action from the state, the letters said.

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