Sexual Assault Survivors' Bill of Rights Exposed

The Sexual Assault Survivors' Bill of Rights is a draft model policy considered by ALEC's Criminal Justice Reform Task Force at the 2017 Annual Meeting. As of August 7, 2017 it is not known whether this model policy was approved by the ALEC Board of Directors..

ALEC Bill Text

[Insert state legislature] BILL No.[]

Introduced by [insert legislator member name]

[Date]

Summary: This act ensures the basic rights of sexual assault survivors. These rights include a right to a counselor, the right to an attorney, and the duration of those rights. It also allows for a civil cause of action against government agencies who violate these rights.

The people of the State of [insert state name] do enact as follows:

PART 1

(a) This Act may be cited as the “Sexual Assault Survivors’ Bill of Rights.”

PART 2

1. Definitions

For the purposes of this act,

(a) “Sexual assault survivor” (“survivor”) means any person who is a victim of a crime defined under Sections [insert relevant sections of state penal code] and, if the survivor is incompetent, deceased, or a minor who is unable to consent to counseling services under [insert state code section regarded competence], the parent, guardian, spouse, or any other person related to the survivor by consanguinity or affinity to the second degree, or any other lawful representative of the survivor, unless such person is the alleged assailant.

(b) “Sexual assault forensic evidence,” “SAEC Kit” or “kit” means any human biological specimen collected by a medical provider during a forensic medical examination from an alleged survivor, as provided for in [insert state statutory definition, if available], including, but not limited to, a toxicology kit.

(c) “Sexual assault counselor” means any person who is defined under [insert state evidence code section defining a counselor], or a victim advocate working in a center established under [insert relevant state code pertaining to the support of sexual assault counselors or other similarly trained individuals for survivors, if applicable].

(d) “Crime laboratory” (“crime lab”) means any [insert statutory definition, if available].

(e) “Law enforcement official” means any person employed by an entity defined under [insert state statutory definition]; or any person employed by a private police agency at an educational institution defined under [insert state statutory definition].

(f) “Medical provider” means any qualified health care professional, hospital, other emergency medical facility, or other facility conducting a medical evidentiary or physical examination of the survivor.

Section 2. Attachment and duration of rights

(a) The rights provided to survivors in this chapter attach whenever a survivor is subject to a medical evidentiary or physical examination, as provided in [insert state statutory location]; and whenever a survivor is subject to an interview by a law enforcement official, prosecutor, or defense attorney, as provided under [insert state statutory location].

(b) A survivor retains all the rights of this chapter at all times regardless of whether the survivor agrees to participate in the criminal justice system or in family court, as provided under [insert state statutory location]; and regardless of whether the survivor consents to a medical evidentiary or physical examination to collect sexual assault forensic evidence.

Section 3. Right to a sexual assault counselor and a support person

(a) A survivor has the right to consult with a sexual assault counselor during any medical evidentiary or physical examination, as well as the right to have a support person of the survivor’s choosing present, as provided in [insert state statutory location]; and during any interview by a law enforcement official, prosecutor, or defense attorney, as provided under [insert state statutory location]. A survivor retains this right even if the survivor has waived the right in a previous examination or interview.

(b)

(1) Communications between a survivor and a sexual assault counselor are confidential and privileged, including information disclosed in the presence of any third persons during a medical evidentiary or physical examination or during any interview by a law enforcement official, prosecutor, or defense attorney, as provided in [insert state evidence code location].

(2) The presence of a sexual assault counselor does not operate to defeat any existing privilege otherwise guaranteed by law.

(c) A survivor’s waiver of the right to a sexual assault counselor is privileged.

(d) Notwithstanding any waiver of privilege, a survivor’s communications with a sexual assault counselor, or waiver of the right to a sexual assault counselor, shall not be admissible into evidence for any purpose except with the consent of the survivor.

Section 4. Collection of sexual assault forensic evidence

(a) No costs incurred by a medical provider for the medical evidentiary examination portion of the examination of a survivor shall be charged directly or indirectly to the survivor, as provided under [insert state statutory location].

(b) Before a medical provider commences a medical evidentiary or physical examination of a survivor, the medical provider shall inform the survivor of the following:

(1) the survivor’s rights pursuant to this act and other relevant law in a document to be developed by the [DEPARTMENT], which shall be signed by the survivor of sexual assault to confirm receipt;

(2) the survivor’s right to consult with a sexual assault counselor, to be summoned by the medical provider before the commencement of the medical evidentiary or physical examination, unless no sexual assault counselor can be summoned in a reasonably timely manner; and to have present at least one support person of the victim’s choosing;

(3) if a sexual assault counselor and/or support person cannot be summoned in a timely manner, the ramifications of delaying the medical evidentiary or physical examination; and

(4) after the medical evidentiary or physical examination, the survivor’s right to shower at no cost, unless showering facilities are not available.

Section 5. Interview with a law enforcement official, prosecutor, or defense attorney

(a) Before commencing an interview of a survivor, a law enforcement official, prosecutor, or defense attorney shall inform the survivor of the following:

(1) the survivor’s rights pursuant to this act and other relevant law by providing the survivor with a document to be developed by the [DEPARTMENT], which document shall be signed by the victim of sexual assault to confirm receipt;

(2) the survivor’s right to consult with a sexual assault counselor during any interview by a law enforcement official, prosecutor, or defense attorney, to be summoned by the interviewer before the commencement of the interview, unless no sexual assault counselor can be summoned in a reasonably timely manner;

(3) the survivor’s right to have a support person of the survivor’s choosing present during any interview by a law enforcement official, prosecutor, or defense attorney, unless the law enforcement official, prosecutor, or defense 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; and

(4) for interviews by a law enforcement official, the survivor’s right to be interviewed by a law enforcement official of the gender of the survivor’s choosing. If no law enforcement official of that gender is reasonably available, the survivor may be interviewed by an available law enforcement official only upon the survivor’s consent.

(b) A law enforcement official, prosecutor, or defense attorney shall not, for any reason, discourage a survivor from receiving a medical evidentiary or physical examination.

Section 6. Right to counsel

A survivor retains the right to have counsel present during all stages of any medical examination, interview, investigation, or other interaction with representatives from the legal or criminal justice systems within the state as delineated in Section 4 and Section 5 of this bill. Treatment of the survivor should not be affected or altered in any way as a result of the survivor’s decision to exercise this right to have counsel present during any interaction with the legal or criminal justice systems within the state.

Section 7. Analysis of sexual assault forensic evidence

(a) A survivor has the right to prompt analysis of sexual assault forensic evidence, as provided under [insert state statutory location, if any].

(1) A medical provider shall, upon conducting a medical evidentiary examination to collect sexual assault forensic evidence, inform the survivor that:

(A) the sexual assault forensic evidence shall be transported to the crime laboratory and analyzed within [insert time period. 90-100 days is recommended], unless the survivor requests in writing at any time prior to analysis for the crime laboratory to defer analysis of the sexual assault forensic evidence;

(B) the crime laboratory shall retain the sexual assault forensic evidence for a minimum of [insert time period. Until the state statute of limitations is recommended] before it is destroyed, or until the survivor reaches 40 years of age if the survivor was a minor when the assault occurred; and

(C) if the survivor has requested deferred analysis, as described in subsection (A), the survivor can request the crime laboratory to analyze the sexual assault forensic evidence at any later date before the expiration of the retention period defined in subsection (B).

(2) A medical provider shall, within [insert time period. 24 hours is recommended] after collecting any sexual assault forensic evidence, notify the law enforcement agency having jurisdiction over the alleged assault.

(3) A law enforcement agency that receives notice under subsection (2) shall take possession of the sexual assault forensic evidence from the medical provider. Upon taking such possession, the law enforcement agency shall:

(A) Submit it to the crime laboratory within [insert time. 5-7 days is recommended] after receiving that notice; and assign a criminal complaint number to that evidence within [insert time. 5 days is recommended] after receiving that notice; or,

(B). If the law enforcement agency determines that it does not have jurisdiction over the alleged assault, it shall notify the law enforcement agency having proper jurisdiction of that fact within [insert time. 5-7 days is recommended] after taking possession of the sexual assault forensic evidence. After receiving such notice, the law enforcement agency having proper jurisdiction shall take possession of the sexual assault forensic evidence and submit it to the crime laboratory within [insert time. 5 days is recommended].

(4) Any law enforcement agency that submits sexual assault forensic evidence to a crime laboratory shall, immediately following such submission, notify the survivor of the name, address, and telephone number of the crime laboratory. The law enforcement agency shall also notify the survivor of the information listed in subsection (1)(A) – (C) of this section.

(5) A crime laboratory that receives sexual assault forensic evidence on or after [insert non-retroactive date close to estimated bill passaged date] shall analyze that evidence and upload any available DNA profiles into CODIS, as provided under [insert existing victims’ rights or DNA bill of rights statutes, if applicable], within [insert time. 90 days is recommended] of receipt of that evidence, unless the survivor has requested in writing for the crime laboratory to defer analysis of that evidence.

(b) A crime laboratory shall retain all sexual assault forensic evidence for a minimum of [insert time period. Until the state statute of limitations is recommended]; or until the alleged survivor reaches 40 years of age, if the survivor was a minor when the alleged assault occurred.

(c) A survivor has the right to be informed, upon the survivor’s request, of the results of the analysis of the survivor’s sexual assault forensic evidence, whether the analysis yielded a DNA profile, and whether the analysis yielded a DNA match, either to the named perpetrator or to a suspect already in CODIS, as provided under [insert existing victims’ rights or DNA bill of rights statutes, if applicable. If not, then remove “as provided under”]. The survivor has the right to receive this information through a secure and confidential message in writing from the [insert name of state forensic laboratory]. This message must include the telephone number of the [insert name of state forensic laboratory] so that the survivor can call regarding the results.

(d)

(1) A defendant or person accused or convicted of a crime against a survivor shall have no standing to object to any failure to comply with this section, and the failure to provide a right or notice to a survivor under this section may not be used by a defendant to seek to have the conviction or sentence set aside, as provided under [insert relevant state statutory provision].

(2) The failure of a law enforcement agency to take possession of any sexual assault forensic evidence as provided in this act or to submit that evidence for analysis within the time prescribed under this act does not alter the authority of a law enforcement agency to take possession of that evidence or to submit that evidence to the crime laboratory, and does not alter the authority of the crime laboratory to accept and analyze the evidence or to upload the DNA profile obtained from that evidence into CODIS. The failure to comply with the requirements of this act does not constitute grounds in any criminal or civil proceeding for challenging the validity of a database match or of any database information, and any evidence of that DNA record shall not be excluded by a court on those grounds.

(e) No sexual assault forensic evidence shall be used:

(1) to prosecute a survivor for any misdemeanor crimes or any crime defined under [insert state controlled substances statutes]; or

(2) as a basis to search for further evidence of any unrelated misdemeanor crimes or any crime under [insert state controlled substances statutes], that may have been committed by the survivor.

Section 8. Notice to survivors

(a) Upon initial interaction with a survivor, a law enforcement officer or medical provider shall provide the survivor with a document to be developed by the [DEPARTMENT] that explains the rights of survivors, pursuant to this act and other relevant law, in clear language that is comprehensible to a person proficient in English at the fifth grade level, accessible to persons with visual disabilities, and available in all major languages of the state. This document shall include, but is not limited to:

(1) a clear statement that a survivor is not required to participate in the criminal justice system or to receive a medical evidentiary or physical examination in order to retain the rights provided by this chapter and other relevant law;

(2) telephone and internet means of contacting nearby rape crisis centers and sexual assault counselors;

(3) forms of law enforcement protection available to the survivor, including temporary protection orders, and the process to obtain such protection;

(4) instructions for requesting the results of the analysis of the survivor’s sexual assault forensic evidence; and

(5) state and federal compensation funds for medical and other costs associated with the sexual assault; and information on any municipal, state, or federal right to restitution for survivors in the event of a criminal trial.

(b) A law enforcement official shall, upon written request by a survivor, furnish [within [x] business days of receiving such request] a free, complete, and unaltered copy of all law enforcement reports concerning the sexual assault, regardless of whether the report has been closed by the law enforcement agency.

(c) A prosecutor shall, upon written request by a survivor, provide

(1) timely notice of any pretrial disposition of the case, as provided under [insert relevant state statutory or constitutional provisions];

(2) timely notice of the final disposition of the case, including the conviction, sentence, and place and time of incarceration, as provided under [insert relevant state statutory or constitutional provisions];

(3) timely notice of a convicted defendant’s location, including whenever the defendant receives a temporary, provisional, or final release from custody; escapes from custody; is moved from a secure facility to a less-secure facility; or re-enters custody; as provided under [insert relevant state statutory or constitutional provisions]; and

(4) a convicted defendant’s information on a sex offender registry, if any.

Section 9. Cause of Action

[Ed. note – Rise advises that a civil cause of action be established for the violation of the rights given to survivors in Sections 2 to 8 of this bill. This being said, we leave this section purposefully blank in order to give states flexibility in terms of which rights they wish to establish a cause of action for, and the types of damages and/or other forms of remedies should be available as a result of the violation of the enumerated rights of a survivor in Sections 2 to 8. At a minimum, Rise advocates that injunctive relief and attorney’s fees be available to a survivor whose right was violated. Considering the difficulty of establishing traditional form of damages, statutory damages may be added to this provision in order to set a specific amount of available damages to the survivor whose right was violated.

Here is an example statutory cause of action modeled for a specific state:

• Each person, corporation, agency, officer, or employee who has a responsibility or responsibilities to survivors under this act or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that survivors and witnesses receive such information and services to which they may be entitled under applicable law.
• Any failure to make such efforts, or any violation of the enumerated rights or provisions described herein, shall be considered a tortious act causing injury to person or property within the state.
• Whenever the attorney general shall believe from evidence satisfactory to the attorney general that any person, corporation, agency, officer, or employee has failed to make such efforts, or has violated any of the enumerated rights and provisions contained therein, the attorney general may bring an action in the name and on behalf of the people of [insert state] to enjoin such acts or practices, including through mandatory injunction, and to obtain restitution for any survivors affected directly or indirectly from any such act or omission. In such action, preliminary relief may be granted under [insert relevant state statute(s)].
• Before any violation of this section is sought to be enjoined, the attorney general shall be required to give the person against whom such proceeding is contemplated notice by certified mail and an opportunity to show in writing within five business days after receipt of notice why proceedings should not be instituted against him, unless the attorney general shall find, in any case in which he or she seeks preliminary relief, that to give such notice and opportunity is not in the public interest.
• In any such action, it shall be a complete defense that the act or practice is subject to and complies with the rules and regulations of, and the statutes administered by any official department, division, commission or agency of the United States as such rules, regulations or statutes are interpreted by such department, division, commission or agency or the federal courts.
• In connection with any proposed proceeding under this section, the attorney general is authorized to take proof and make a determination of the relevant facts, and to issue subpoenas in accordance with the civil practice law and rules.
• This section shall apply to all violations of this statute, whether or not subject to any other law of this state,[1] and shall not supersede, amend or repeal any other law of this state under which the attorney general is authorized to take any action or conduct any inquiry pursuant to this statute.
• In addition to the right of action granted to the attorney general pursuant to this section, any person who has been injured by reason of any violation of this act or the enumerated rights and provisions contained herein may bring an action in his or her own name to enjoin, including through mandatory injunction, such unlawful act or practice, an action to recover his or her actual damages or one thousand dollars, whichever is greater, or both such actions.  The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to six thousand dollars, if the court finds the defendant willfully or knowingly violated this section.
• The court may award reasonable attorney’s fees to a prevailing plaintiff.]

Section 10. Creation of tracking system for SAEC Kits

There shall be established by the [insert state forensics laboratory or responsible state agency] in consultation with [insert police and other relevant state agencies], within one year of the passage of this act, a system for tracking SAEC Kits that permits a victim of sexual assault to track, by telephone or internet, the location and status of his or her kit. Once established, whoever administers a kit shall furnish the victim of sexual assault with written information, created by [insert responsible state agency], about how to use and access the tracking system.

Section 11. Reporting on the inventory of SAEC Kits

(a) Initial inventory report of unanalyzed SAEC Kits

(1) By [DATE], all law enforcement agencies and departments charged with the maintenance, storage, and preservation of SAEC Kits shall create an inventory of all such kits being stored by the agency or department before the effective date of this act which have not been submitted for analysis. The inventory shall be transmitted to the [STATE AUDITOR / ATTORNEY GENERAL].

(2) By [DATE], the [STATE AUDITOR/ATTORNEY GENERAL] shall prepare and transmit to the speaker of the senate and speaker of the house of representatives, and post on a publicly accessible Internet website, a report identifying the number of unanalyzed SAEC Kits being stored by each county, by each law enforcement agency or department or other organization, the date each unanalyzed kit was collected, the corresponding statute of limitations for prosecution for the crime associated with such kit, and a plan, in consultation with the crime laboratories or other organizations holding any unanalyzed kits, for analyzing such kits.

(b) Annual report

(1) After the publication of the initial inventory report described in subsection (a), the [State Police Forensic Services Group or other responsible state agency] and [any other agencies at the state or local level] shall obtain from all law enforcement agencies and departments charged with the collection, maintenance, storage, and preservation of SAEC Kits an updated inventory of the unanalyzed SAEC Kits being stored by the agency or department, the number of SAEC Kits collected by each law enforcement agency since the last inventory was created, the date each kit was collected, the number of SAEC Kits analyzed and remaining unanalyzed by each [state forensics laboratory], the time taken for each kit to be analyzed, and the corresponding statute of limitations for prosecution of the crime associated with each kit.

(2) The [STATE AUDITOR/ATTORNEY GENERAL] shall compile all of the data obtained by the [State Police Forensic Services Group or other responsible state agency] and [any other agencies at the state or local level] into an annual report that shall be posted on a publicly accessible Internet website by [DATE] of each year. The report shall also be transmitted to the speaker of the senate and speaker of the house of representatives by [DATE] of each year.

Section 12. Creation of the Rights of Victims of Sexual Assault Task Force

(a) There is hereby established a Rights of Victims of Sexual Assault Task Force, whose members shall serve without compensation. Notwithstanding any provision of [insert relevant state statute pertaining to the creation of task forces, if applicable], the task force shall be selected, unless otherwise indicated, and staffed by the [state department of public health or other relevant state agency] and shall consist of:

(1) the [Secretary/Commissioner] of [state department of public health or other relevant agency] or the [Secretary’s/Commissioner’s] designee;

(2) a survivor who is a citizen or lawful resident of [insert state];

(3) a representative of [relevant state office pertaining to victims’ rights/survivors];

(4) a representative of rape crisis centers, as defined by [insert state statute defining a rape crisis center, if applicable];

(5) the [Superintendent] of the [state police force] or the [Superintendent’s] designee;

(6) a law enforcement official working for a city or town police department designated by the [state Chiefs of Police association, or similar organization];

(8) an attorney designated by the [state bar association];

(9) a representative of [state colleges or universities] whose occupational duties include the provision of direct services to victims of sexual assault and whose employers are not under investigation by the Department of Education for alleged violations of the federal Clery Act or Title IX of the United States Education Amendment Act of 1972;

(10) a representative of an organization that provides services, education, or outreach to communities of color or immigrant communities;

(11) a representative of an organization that provides services, education, or outreach to lesbian, gay, bisexual, and transgender individuals;

(12) a certified sexual assault nurse examiner; and

(13) other individuals or representatives selected by [state department of public health or other relevant state agency], with the total task force not to exceed 15 members.

(b) The Task Force shall study nationally recognized best practices and make recommendations regarding:

(1) the development and implementation of an effective mechanism for submitting, tracking, and investigating complaints regarding the handling of, or response to, a sexual assault report or investigation by any agency or organization involved in the response;

(2) whether a need exists for additional sexual assault counselors for victims of sexual assault, and if such a need does exist, the Task Force shall:

(A) develop criteria to certify sexual assault counselors;

(B) create a plan for how the [State/Commonwealth] can provide, in conjunction with rape crisis centers, victims’ advocates organizations, and [relevant state office and any existing similar programs], additional sexual assault counselors to meet the needs identified; and

(C) determine the cost of funding such a plan;

(3) whether a need exists to expand the right to a sexual assault counselor beyond the medical examination and law enforcement interview settings, and if such a need does exist, the Task Force shall:

(A) identify the scope and nature of the need; and

(B) make recommendations on how best to fill that need, whether legislatively or otherwise; and

(4) whether a need exists to provide for ongoing evaluation of the implementation of these rights, and if such a need does exist, the Task Force shall:

(A) identify the scope and nature of the need; and

(B) make recommendations on how best to fill that need, whether legislatively or otherwise; and

(5) whether there is an ongoing need to maintain the Task Force after it issues its final report, pursuant to subsection (e) of this section.

(c) In fulfilling its requirements under subsection (b) of this chapter, the Task Force shall collect data regarding sexual assault reporting, arrest, prosecution rates, access to sexual assault victims services, and any other data important for its deliberations and recommendations. If such data does not exist, then the Task Force shall encourage its creation and maintenance by the [insert state department mentioned in subsection (a) of this section].

(d) In fulfilling its requirements under subsection (b) of this chapter, the Task Force shall collect feedback from stakeholders, practitioners, and leadership throughout the state and local law enforcement, victim services, forensic science practitioners, and health care communities to inform development of future best practices or clinical guidelines regarding the care and treatment of survivors.

(e) No later than 18 months after passage of this Act, the Task Force shall produce a report that includes the result of the assessments, developments, and recommendations completed pursuant to subsections (b), (c), and (d) of this section. This Task Force shall transmit the report to the legislature, the Governor, the Attorney General, the Superintendent of the [state police], the executive director of [state office charged with such duties covered under this bill, if applicable] and victims’ advocates organizations and rape crisis centers.

(f) This Task Force shall be reconvened on an ongoing basis every 5 years in perpetuity, or until it is determined that all rights contained within this bill have been effectively implemented to ensure the rights of all survivors in [insert state]. A determination of effective implementation of the rights contained in this act such that the Task Force is no longer needed shall only be made by a majority vote of the current members of the Task Force at the completion of their duties as delineated in subsections (b), (c), and (d) of this section.

(g) In undertaking its duties, the Task Force shall be empowered to retain independent experts who may:

(1) request files and records from any law enforcement official, but all such information shall be kept strictly confidential and reported on only as aggregated or anonymized;

(2) conduct confidential interviews with law enforcement officials, medical providers, sexual assault counselors, and others with direct knowledge of the sexual assault response process; and

(3) within the bounds of confidentiality, provide advice and recommendations to the Task Force.

Section 13. Legal procedures

(a) In either a civil or criminal case relating to the sexual assault, a survivor has the right to be reasonably protected from the defendant and persons acting on behalf of the defendant, as provided under [insert relevant state statutory or constitutional provisions].

(b) A survivor has the right to be free from intimidation, harassment, and abuse, as provided under [insert relevant state statutory or constitutional provisions]. A court shall make reasonable efforts to provide the survivor and the survivor’s family members, friends, and witnesses with a secure waiting area or room that is separate from the waiting area of the defendant and the defendant’s family members, friends, witnesses, and attorneys; and separate from the prosecutor’s office.

(c) A survivor has the right to be treated with fairness and respect for his or her privacy and dignity, as provided under [insert relevant state statutory or constitutional provisions]. A court shall, upon the request of the survivor, clear the courtroom of all persons when the survivor is testifying regarding the sexual assault in any civil or criminal trial, except that parties to the cause and their immediate families or guardians, attorneys and personnel working at the attorneys’ direction, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, with the consent of the survivor, witnesses designated by the prosecutor may remain in the courtroom.

(d) A survivor shall not be required to submit to a polygraph examination as a prerequisite to filing an accusatory pleading, as provided under [insert relevant state statutory or constitutional provisions], or to participating in any part of the criminal justice system.

(e) A survivor has the right to be heard through a survivor impact statement at any proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any other proceeding where a right of the survivor is at issue, as provided under [insert relevant state statutory or constitutional provisions]; and the right to provide a sentencing recommendation to the probation department official conducting a pre-sentence investigation, as provided under [insert relevant state statutory or constitutional provisions].

Section 14. Authorization of appropriations

(a) There is authorized to be appropriated $[ ] for each of fiscal years 2017 through 2020 to implement the provisions of this Act.