§ 2805-I — Treatment of sexual offense victims and maintenance of evidence in a sexual offense

New York § 2805-I

• Jurisdiction: New York
• Law PBH: Public Health
• Art. 28: Hospitals

Text

§ 2805-i. Treatment of sexual offense victims and maintenance of\nevidence in a sexual offense. 1. Every hospital providing treatment to\nalleged victims of a sexual offense shall be responsible for:\n * (a) maintaining sexual offense evidence and the chain of custody as\nprovided in subdivision two of this section;\n * NB Effective until May 9, 2027\n * (a) Maintaining the following full-time, part-time, contracted, or\non-call staff:\n (1) One or more hospital sexual violence response coordinators who are\ndesignated to ensure that the hospital's sexual violence response is\nintegrated within the hospital's clinical oversight and quality\nimprovement structure, to ensure chain of custody is maintained, and to\nensure availability and coordination of certified sexual assault\nforensic examiners;\n (2) Certified sexual assault forensic examiners sufficient to meet\nhospital needs. Such individuals shall:\n (i) be a registered professional nurse, certified nurse practitioner,\nlicensed physician assistant or licensed physician acting within their\nlawful scope of practice and specially trained in forensic examination\nof sexual offense victims and the preservation of forensic evidence in\nsuch cases and qualified to provide such services, pursuant to\nregulations promulgated by the commissioner; and\n (ii) have successfully completed a didactic and clinical training\ncourse and post course preceptorship as appropriate to scope of practice\nthat aligns with guidance released by the commissioner.\n * NB Effective May 9, 2027\n * (b) informing sexual offense victims of the availability of rape\ncrisis and local victim assistance organizations, if any, in the\ngeographic area served by the hospital, and contacting a rape crisis or\nlocal victim assistance organization to establish the coordination of\nnon-medical services, including but not limited to transportation within\nthe geographic area served by that organization, upon the conclusion of\ninitial medical services, free of charge from the medical facility to\nsexual offense victims who request such coordination and services;\n * NB Effective until May 9, 2027\n * (b) Ensuring that such sexual assault forensic examiners are on-call\nand available on a twenty-four hour a day basis every day of the year;\n * NB Effective May 9, 2027\n * (c) offering and making available appropriate HIV post-exposure\ntreatment therapies; including the full regimen of HIV post-exposure\nprophylaxis in cases where it has been determined, in accordance with\nguidelines issued by the commissioner, that a significant exposure to\nHIV has occurred, and informing the victim that payment assistance for\nsuch therapies and other crime related expenses may be available from\nthe office of victim services pursuant to the provisions of article\ntwenty-two of the executive law. With the consent of the victim of a\nsexual assault, the hospital emergency room department shall provide or\narrange for an appointment for medical follow-up related to HIV\npost-exposure prophylaxis and other care as appropriate; and\n * NB Effective until May 9, 2027\n * (c) Ensuring that such sexual assault forensic examiners maintain a\ncurrent certification from the department, pursuant to regulations, in\nproviding sexual assault examinations. The commissioner shall issue\nregulations consistent with subparagraph one of paragraph (b) of\nsubdivision four-b of this section, establishing a process for\nindividuals to apply for and receive certification upon meeting the\nrequired criteria, as well as a process for recertification.\n * NB Effective May 9, 2027\n * (d) ensuring sexual assault survivors are not billed for sexual\nassault forensic exams and are notified orally and in writing of the\noption to decline to provide private health insurance information and\nhave the office of victim services reimburse the hospital for the exam\npursuant to subdivision thirteen of section six hundred thirty-one of\nthe executive law.\n * NB Effective until May 9, 2027\n * (d) maintaining sexual offense evidence and the chain of custody as\nprovided in subdivision two of this section;\n * NB Effective May 9, 2027\n * (e) informing sexual offense victims of the availability of rape\ncrisis and local victim assistance organizations, if any, in the\ngeographic area served by the hospital, and contacting a rape crisis or\nlocal victim assistance organization to establish the coordination of\nnon-medical services, including but not limited to transportation within\nthe geographic area served by that organization, upon the conclusion of\ninitial medical services, free of charge from the medical facility to\nsexual offense victims who request such coordination and services;\n * NB Effective May 9, 2027\n * (f) offering and making available appropriate HIV post-exposure\ntreatment therapies; including the full regimen of HIV post-exposure\nprophylaxis in cases where it has been determined, in accordance with\nguidelines issued by the commissioner, that a significant exposure to\nHIV has occurred, and informing the victim that payment assistance for\nsuch therapies and other crime related expenses may be available from\nthe office of victim services pursuant to the provisions of article\ntwenty-two of the executive law. With the consent of the victim of a\nsexual assault, the hospital emergency room department shall provide or\narrange for an appointment for medical follow-up related to HIV\npost-exposure prophylaxis and other care as appropriate; and\n * NB Effective May 9, 2027\n * (g) ensuring sexual assault survivors are not billed for sexual\nassault forensic exams and are notified orally and in writing of the\noption to decline to provide private health insurance information and\nhave the office of victim services reimburse the hospital for the exam\npursuant to subdivision thirteen of section six hundred thirty-one of\nthe executive law.\n * NB Effective May 9, 2027\n 2. Sexual offense evidence shall be collected and maintained as\nfollows:\n (a) All sexual offense evidence shall be kept in a locked, separate\nand secure area for twenty years from the date of collection; provided\nthat such evidence shall be transferred to a new location(s) pursuant to\nthis subdivision.\n (b) Sexual offense evidence shall include, but not be limited to,\nslides, cotton swabs, clothing and other items. Where appropriate, such\nitems shall be refrigerated and the clothes and swabs shall be dried,\nstored in paper bags, and labeled. Each item of evidence shall be marked\nand logged with a code number corresponding to the alleged sexual\noffense victim's medical record.\n (c) Upon collection, the hospital shall notify the alleged sexual\noffense victim that, after twenty years, the sexual offense evidence\nwill be discarded in compliance with state and local health codes and\nthat the alleged sexual offense victim's clothes or personal effects\nwill be returned to the alleged sexual offense victim at any time upon\nrequest. The alleged sexual offense victim shall be given the option of\nproviding contact information for purposes of receiving notice of the\nplanned destruction of such evidence after the expiration of the\ntwenty-year period.\n (d) Until September thirtieth, two thousand twenty-two, or earlier if\ndetermined feasible by the director of budget, hospitals shall be\nresponsible for securing long-term sexual offense evidence pursuant to\nthis section, after which such storage shall be the responsibility of\nthe office of victim services. Hospitals may enter into contracts with\nother entities that will ensure appropriate and secure long-term storage\nof sexual offense evidence pursuant to this section until September\nthirtieth, two thousand twenty-two.\n (e) Beginning April first, two thousand eighteen, the department, the\noffice of victim services, the division of criminal justice services and\nthe division of state police shall jointly study, evaluate and make\nrecommendations concerning the storage and monitoring of sexual offense\nevidence for twenty years, including studying options for the use of:\nstate-owned or operated facilities; facilities owned or operated by\nlocal government or law enforcement agencies; and facilities owned or\noperated by private entities.\n (f) Between thirty and ten days prior to the transfer of sexual\noffense evidence to the office of victim services, hospitals shall make\ndiligent efforts to notify the alleged sexual offense victim of the\ntransfer of custody for the remainder of the twenty-year storage period.\n (g) On September thirtieth, two thousand twenty-two, or earlier if\ndetermined feasible by the director of budget, responsibility for\nlong-term storage of sexual offense evidence shall transfer to the\noffice of victim services.\n (h) After September thirtieth, two thousand twenty-two, or earlier if\ndetermined feasible by the director of budget, hospitals shall ensure\ntransfer of sexual offense evidence collected pursuant to this section\nto the office of victim services within ten days of collection of such\nevidence, while maintaining chain of custody.\n (i) At least ninety days prior to the expiration of the twenty-year\nstorage period for any sexual offense evidence, the office of victim\nservices shall make diligent efforts to contact the alleged sexual\noffense victim to notify the alleged sexual offense victim that the\nsexual offense evidence will be discarded in compliance with state and\nlocal health codes and that the alleged sexual offense victim's clothes\nand personal effects will be returned to the alleged sexual offense\nvictim upon request.\n (j) Notwithstanding any other provision in this section, sexual\noffense evidence shall not continue to be stored where: (i) such\nevidence is not privileged and law enforcement requests its release, in\nwhich case the custodian or custodians shall comply with such request;\nor (ii) such evidence is privileged and either (A) the alleged sexual\noffense victim gives permission to release the evidence to law\nenforcement, upon which law enforcement must retrieve the evidence\nwithin seven days of such permission and report such evidence in the\nstatewide electronic tracking system pursuant to subdivision eight of\nthis section, or (B) the alleged sexual offense victim signs a statement\ndirecting the custodian or custodians to dispose of the evidence, in\nwhich case the sexual offense evidence will be discarded in compliance\nwith state and local health codes.\n 3. Upon admittance or commencement of treatment of the alleged sexual\noffense victim, the hospital shall advise the victim of the availability\nof the services of a local rape crisis or victim assistance\norganization, if any, to accompany the victim through the sexual offense\nexamination. If after receiving such advice the sexual offense victim\nwishes the presence of a rape crisis or victim assistance advocate, the\nhospital shall contact the appropriate organization and request that one\nbe provided, provided, however, that if in the professional judgment of\nthe treating practitioner a delay in treatment is detrimental to the\nprovision of medical treatment, then examination or treatment need not\nbe delayed pending the arrival of such advocate and further provided\nthat the presence or continued presence of such advocate does not\ninterfere with the provision of necessary medical care to the victim.\n 4. No hospital or treating practitioner shall be liable in civil\ndamages for failing to comply with the requirements of subdivision one,\ntwo or three of this section or acting in good faith to provide\ntreatment as provided in subdivision three of this section.\n 4-a. On and after April first, two thousand one, a hospital providing\ntreatment to alleged victims of sexual offenses shall be eligible to\nreceive from the division of criminal justice services, at no cost,\nsexual offense evidence collection kits.\n 4-b. (a) The commissioner shall, with the consent of the directors of\ninterested hospitals in the state and in consultation with the\ncommissioner of the division of criminal justice services, designate\nhospitals in the state as the sites of a twenty-four hour sexual assault\nforensic examiner program. The hospital sites shall be designated in\nurban, suburban and rural areas to give as many state residents as\npossible ready access to the sexual assault forensic examiner program.\nThe commissioner, in consultation with the commissioner of the division\nof criminal justice services, shall consider the following criteria when\ndesignating these sexual assault forensic examiner program sites:\n (1) the location of the hospital;\n (2) the hospital's capacity to provide on-site comprehensive medical\nservices to victims of sexual offenses;\n (3) the capacity of the hospital site to coordinate services for\nvictims of sexual offenses including medical treatment, rape crisis\ncounseling, psychological support, law enforcement assistance and\nforensic evidence collection;\n (4) the hospital's capacity to provide access to the sexual assault\nforensic examiner site for disabled victims;\n (5) the hospital's existing services for victims of sexual offenses;\n (6) the capacity of the hospital site to collect uniform data and\ninsure confidentiality of such data; and\n (7) the hospital's compliance with state and federally mandated\nstandards of medical care.\n (b) Each sexual assault forensic examiner program site designated\npursuant to this subdivision shall comply with the requirements of\nsubdivisions one, two and three of this section, and shall also provide\ntreatment to the victim as follows:\n (1) The victim shall, absent exigent circumstances, be met by a sexual\nassault forensic examiner within sixty minutes of arriving at the\nhospital, who shall be a nurse practitioner, physician assistant,\nregistered nurse or physician specially trained in forensic examination\nof sexual offense victims and the preservation of forensic evidence in\nsuch cases and certified as qualified to provide such services pursuant\nto regulations promulgated by the commissioner. Such program shall\nassure that such a specially-trained forensic examiner is on-call and\navailable on a twenty-four hour a day basis every day of the year.\n (2) An examination of the victim shall be performed promptly by such\nforensic examiner in a private room designated for such examinations. An\nobstetrician/gynecologist or other appropriate medical doctor shall be\nreadily available to the forensic examiner if there is a need for more\nspecialized medical evaluation or treatment.\n (3) Promptly after the examination is completed, the victim shall be\npermitted to shower, be provided with a change of clothing, be informed\nthat a rape crisis or victim assistance organization providing victim\nassistance to the geographic area served by that hospital is available\nto provide transportation within the geographic area served by that\norganization, upon the conclusion of initial medical services, free of\ncharge from the medical facility, and receive follow-up information,\ncounseling, medical treatment and referrals for same.\n (c) Nothing in this subdivision shall affect the existence or\ncontinued existence of any program in this state through which a trained\nnurse practitioner, physician assistant, registered nurse or physician\nis providing appropriate forensic examinations and related services to\nsurvivors of sexual assault.\n 5. The commissioner shall promulgate such rules and regulations as may\nbe necessary and proper to carry out effectively the provisions of this\nsection. Prior to promulgating such rules and regulations, the\ncommissioner shall consult with relevant police agencies, forensic\nlaboratories, rape crisis centers, hospitals, and other such persons as\nthe commissioner deems necessary. Such rules and regulations shall\nidentify the offenses subject to the provisions of this section, provide\na specific definition of sexual offense evidence and require each\nhospital to contact its local police agency and forensic laboratory to\ndetermine their specific needs or requirements.\n 6. (a) The department, in consultation with the division of criminal\njustice services, the office of victim services, hospitals, other health\ncare providers and victim advocacy organizations, shall publish a sexual\nassault victim bill of rights for purposes of informing sexual offense\nvictims of their rights under state law. Such bill of rights shall be\nprominently published on the department's website, in at least the ten\nmost common languages spoken in this state, and distributed to hospitals\nas a document which shall be provided to every presenting sexual offense\nvictim. The department may update the bill of rights as necessary to\nreflect changes in state law and more accurately explain the law. Such\nbill of rights shall be in plain, easy to understand language, and\ninclude the right of the victim to:\n (1) consult with a local rape crisis or local victim assistance\norganization, to have a representative of such organization accompany\nthe victim through the sexual offense examination, to have such an\norganization be summoned by the medical facility, police agency,\nprosecutorial agency or other law enforcement agency before the\ncommencement of the physical examination or interview, pursuant to this\nsection, and to have such organization provide transportation within the\ngeographic area served by that organization, free of charge from the\nmedical facility to sexual offense victims who request such services\nupon discharge;\n (2) be offered and have made available at no cost appropriate\npost-exposure treatment therapies, including a seven day starter pack of\nHIV post-exposure prophylaxis in accordance with paragraph (c) of\nsubdivision one of this section and subdivision thirteen of section six\nhundred thirty-one of the executive law;\n (3) a health care forensic examination at no cost and the right to be\nnotified of the option to decline to provide private health insurance\ninformation and have the office of victim services reimburse the\nhospital for the examination under subdivision thirteen of section six\nhundred thirty-one of the executive law;\n (4) receive information relating to and the provision of emergency\ncontraception in accordance with section twenty-eight hundred five-p of\nthis article;\n (5) be offered contact information for the police agency,\nprosecutorial agency or other law enforcement agency with jurisdiction\nover the sexual offense and be informed, upon request of the victim, of\nthe date and location at which such sexual offense evidence kit was\nassessed for Combined DNA Index System (CODIS) eligibility and analyzed,\nwhether a CODIS eligible profile was developed and whether or not a DNA\nmatch was identified, provided, however, that the police agency,\nprosecutorial agency or other law enforcement agency serving the\njurisdiction may temporarily delay release of such DNA match information\nto the victim, prior to the arrest of a suspect alleged to have\ncommitted such offense, if such agency documents in writing and notifies\nthe victim that release of such information would compromise the\nsuccessful investigation of such sexual offense;\n (6) be notified between thirty and ten days prior to the transfer of a\nsexual offense evidence kit from the hospital to another storage\nfacility in accordance with paragraph (h) of subdivision two of this\nsection, the right to have a sexual offense evidence kit maintained at\nan appropriate storage facility for twenty years from the date of\ncollection, the right, if not previously consented to, to consent to\nrelease the evidence to law enforcement at any time during the twenty\nyears from collection, and the right to be notified by such facility at\nleast ninety days prior to the expiration of the twenty-year storage\nperiod in accordance with paragraph (k) of subdivision two of this\nsection; and\n (7) be notified by the prosecutorial agency with jurisdiction of\njudicial proceedings relating to their case in accordance with article\ntwenty-three of the executive law; and\n (8) decide whether or not the victim wishes to report the offense to\nlaw enforcement.\n (b) Before a medical facility commences a physical examination of a\nsexual offense victim, or a police agency, prosecutorial agency or other\nlaw enforcement agency commences an interview of a sexual offense\nvictim, the health care professional conducting the exam, police agency,\nprosecutorial agency or other law enforcement agency shall inform the\nvictim of the victim's rights by providing a copy of this sexual assault\nvictim bill of rights and offering to explain such rights.\n 7. On or before November thirtieth, two thousand two, the commissioner\nshall make a report to the governor, the temporary president of the\nsenate and the speaker of the assembly concerning the sexual assault\nforensic examiner program established under subdivision four-b of this\nsection. Such report shall include an evaluation of the efficacy of such\nprogram in obtaining useful forensic evidence in sexual offense cases\nand assuring quality treatment to sex offense victims. Such report shall\nalso recommend whether this program should be expanded and shall\nestimate the financial cost, if any, of such expansion.\n 8. (a) The division of criminal justice services in consultation with\nthe department, the office of victim services, the division of state\npolice, and the New York State Coalition Against Sexual Assault shall\ndevelop a statewide electronic tracking system for reported evidence\ncollection kits used to collect and preserve evidence of a sexual\nassault or other sex offense. Such statewide electronic tracking system\nshall not include unreported evidence collection kits, provided,\nhowever, that any unreported evidence collection kits released by the\noffice of victim services to law enforcement pursuant to clause (A) of\nsubparagraph (ii) of paragraph j of subdivision two of this section\nshall be designated as reported evidence collection kits subject to the\ntracking requirements set forth in this subdivision.\n (b) The division of criminal justice services shall promulgate rules\nand guidelines to ensure that sexual assault evidence collection kits\nare trackable on a statewide electronic tracking system developed\npursuant to this subdivision, and that survivors are given notice of how\nthey may track their own reported evidence collection kit. Such rules\nand guidelines shall require that (i) hospitals collecting evidence\ncollection kits record the collection of any reported evidence\ncollection kits in the electronic tracking system and notify the\nappropriate law enforcement agency within forty-eight hours of such\ncollection, and (ii) law enforcement retrieve any reported evidence\ncollection kit from a hospital within seven days of being notified by a\nhospital that a reported evidence collection kit has been collected. Any\nhospital, law enforcement agency, forensic laboratory, or prosecutor\nthat has taken custody of an evidence collection kit used for a forensic\nmedical examination shall comply with the established protocols, rules\nand guidelines established by the division of criminal justice services\npursuant to this paragraph.\n (c) The statewide electronic tracking system shall:\n (1) Track the location and status of each reported evidence collection\nkit from collection to final disposition;\n (2) Allow a hospital, law enforcement agency, accredited crime\nlaboratory, prosecutor, employees of the long-term sexual offense\nevidence storage facility, or any other entity providing a chain of\ncustody for a reported evidence collection kit, to update and track the\nstatus and location of the reported evidence collection kits; and\n (3) Allow a survivor to anonymously track or receive updates regarding\nthe status and location of such survivor's reported evidence collection\nkit.\n (d) No later than January first, two thousand twenty-five, any\nhospital, law enforcement agency, accredited crime laboratory,\nprosecutor, employee of the long-term sexual offense evidence storage\nfacility, or any other entity providing a chain of custody for a\nreported evidence collection kit to update and track the status and\nlocation of such kit, shall participate in the tracking system and\ncomply with all established protocols, rules and guidelines. A\nparticipating entity shall be permitted to access the entity's tracking\ninformation through the statewide electronic tracking system.\n (e) Records entered into the tracking system are confidential. Records\nrelating to a reported evidence collection kit shall be accessed only by\nthe survivor for whom the reported evidence collection kit was\ncompleted.\n (f) The provisions of this subdivision shall apply to all reported\nevidence collection kits submitted prior to, on, or after the effective\ndate of this subdivision.\n (g) For purposes of this section:\n (1) "evidence collection kit" shall mean a human biological specimen\nor specimens collected by a healthcare provider during a forensic\nmedical examination from the victim of a sexual assault or other sex\noffense;\n (2) "survivor" shall mean an individual who is the victim of a sexual\noffense from whom a human biological specimen or specimens collected by\na healthcare provider during a forensic medical examination;\n (3) "reported evidence collection kit" means a sexual assault evidence\nkit in which the survivor has consented to evidence collection and\nreporting the sexual assault or other sex offense to law enforcement;\nand\n (4) "unreported evidence collection kit" means evidence collection\nkits controlled by the office of victims services pursuant to paragraph\n(d) of subdivision two of this section.\n