Bill Text: CA AB1312 | 2017-2018 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Sexual assault victims: rights.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Passed) 2017-10-12 - Chaptered by Secretary of State - Chapter 692, Statutes of 2017. [AB1312 Detail]
Download: California-2017-AB1312-Introduced.html
Bill Title: Sexual assault victims: rights.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Passed) 2017-10-12 - Chaptered by Secretary of State - Chapter 692, Statutes of 2017. [AB1312 Detail]
Download: California-2017-AB1312-Introduced.html
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 1312 |
| Introduced by Assembly Members Gonzalez Fletcher and Berman |
February 17, 2017 |
An act to amend Section 1491 of the Health and Safety Code, and to amend Sections 264.2, 679.04, 680, and 13823.95 of, and to add Sections 680.2 and 680.3 to, the Penal Code, relating to sexual assault victims.
LEGISLATIVE COUNSEL'S DIGEST
AB 1312, as introduced, Gonzalez Fletcher.
Sexual assault victims: rights.
(1) Existing law grants the victim of sexual assault, as specified, the right to have a victim advocate and a support person of the victim’s choosing at any interview by law enforcement authorities, district attorneys, or defense attorneys. Existing law requires the law enforcement authority or district attorney, before commencing the initial interview, to notify a victim that he or she has this right.
This bill would require a law enforcement authority or district attorney to also notify the victim that he or she has the right to request to be interviewed by a law enforcement official or district attorney of the same gender or opposite gender, unless one is not reasonably available. The bill would prohibit a law enforcement official from discouraging a victim from receiving a medical evidentiary or physical examination. The
bill would require the Department of ______ to develop a document, as specified, that explains the rights of sexual assault victims, including, among other information, a clear statement that the victim is not required to participate in the criminal justice system or to receive a medical evidentiary or physical examination in order to retain his or her rights under law. The bill would require a law enforcement official or medical provider to provide this document to the victim upon the initial interaction. The bill would also require a law enforcement official, upon written request by the victim, to furnish a copy of all law enforcement reports related to the sexual assault, as specified. The bill would require a prosecutor, upon written request by the victim, to provide the defendant’s information on a sex offender registry, if any, to the victim.
(2) Existing law requires a county hospital to, without charge, provide the victim of rape or
other sexual assault with testing for venereal disease and pregnancy in addition to any examination performed without charge to a victim of rape or other sexual assault, as specified.
This bill would require a county hospital to also, without charge, provide the victim with postcoital contraception, to be dispensed by a qualified health professional, if a victim requests it within 4 hours of arriving at the county hospital.
(3) Existing law requires a medical provider to notify a sexual assault victim that he or she has the right to have a sexual assault counselor and at least one other support person of his or her choosing before commencing an initial medical evidentiary or physical examination.
This bill would require a medical provider to also notify the victim about the ramifications of delaying the medical evidentiary or physical examination if a sexual
assault counselor cannot be summoned. The bill would require the medical provider to give the victim the opportunity to shower or bathe at no cost to the victim after the examination is conducted, unless a showering or bathing facility is not available.
(4) Existing law prohibits a qualified health care professional, hospital, or other emergency medical facility performing a medical evidentiary examination of a victim of sexual assault, as specified, from charging the costs of the emanation either directly or indirectly to the victim. Existing law specifies that a victim is not required to participate in the criminal justice system either before this examination or at any other time.
This bill would require those entities to inform the victim that a refusal to participate in the criminal justice system is not a ground for denial of either treatment of injuries and any possible pregnancy or sexually
transmitted disease, if the victim wishes to obtain that treatment, or of any other right provided by law to victims of sexual assault or crime generally.
(5) Existing law requires a law enforcement agency that intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before the expiration of the statute of limitations to give written notification, as specified, to the victim of that intention.
This bill would prohibit a law enforcement agency from destroying or disposing of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before the statute of limitations expires.
(6) This bill would also require the court, upon request by a sexual assault victim during a criminal proceeding related to the alleged sexual assault, to provide the victim and the
victim’s family members, friends, and witnesses with a secure waiting area that is separate from the waiting area of the defendant and the defendant’s family members, friends, witnesses, and attorneys, and separate from the district attorney’s office.
(7) Because this bill imposes new requirements on local entities, including, but not limited to, law enforcement agencies and local entities that provide medical services, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made
pursuant to the statutory provisions noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1491 of the Health and Safety Code is amended to read:1491.
In addition to any examination performed without charge to a victim of rape or other sexual assault pursuant to Section 13823.95 of the Penal Code, a county hospital shall, without charge, provide the victim of rape, or other sexual assault, with testing for venereal disease and pregnancy. The county hospital shall also, without charge, provide the victim with postcoital contraception, to be dispensed by a qualified health professional, if a victim requests it within four hours of arriving at the county hospital.SEC. 2.
Section 264.2 of the Penal Code is amended to read:264.2.
(a) Whenever there is an alleged violation or violations of subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5, 286, 288a, or 289, the law enforcement officer assigned to the case shall immediately provide the victim of the crime with the “Victims of Domestic Violence” card, as specified in subparagraph (H) of paragraph (9) of subdivision (c) of Section 13701.(b) (1) The law enforcement officer, or his or her agency, shall immediately notify the local rape victim counseling center, whenever a victim of an alleged violation of Section 261, 261.5, 262, 286, 288a, or 289 is transported to a hospital for any medical evidentiary or physical examination. The hospital may notify the local rape victim counseling center, when the victim
of the alleged violation of Section 261, 261.5, 262, 286, 288a, or 289 is presented to the hospital for the medical or evidentiary physical examination, upon approval of the victim. The victim has the right to have a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, and a support person of the victim’s choosing present at any medical evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary or physical examination arising out of a sexual assault, a victim shall be notified orally or in writing by the medical provider that the victim has the right to have present a sexual assault counselor and at least one other support person of the victim’s choosing. choosing, the ramifications of delaying the medical
evidentiary or physical examination if a sexual assault counselor cannot be summoned, and any other rights of the victim pursuant to law in the document described in Section 680.2.
(3) The hospital may verify with the law enforcement officer, or his or her agency, whether the local rape victim counseling center has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or physical examination if the law enforcement officer or medical provider determines that the presence of that individual would be detrimental to the purpose of the examination.
(5) After conducting the medical evidentiary or physical examination, the medical provider shall give the victim
the opportunity to shower or bathe at no cost to the victim, unless a showering or bathing facility is not available.
(6) A medical provider shall do both of the following:
(A) Upon conducting a medical evidentiary examination to collect sexual assault forensic evidence, inform the sexual assault victim of all of the following:
(i) The sexual assault forensic evidence will be transported to the crime laboratory and analyzed within the time limits imposed by subparagraphs (A) and (B) of paragraph (1)
of subdivision (g) of Section 803, unless the victim requests in writing for the crime laboratory to defer analysis of the sexual assault forensic evidence.
(ii) The crime laboratory will retain the sexual assault forensic evidence until the statute of limitations has expired as set forth in Sections 801.1 and 803.
(iii) The victim may request the crime laboratory to analyze the sexual assault forensic evidence at any later date before the expiration of the applicable retention period.
(B) Within 24
hours after obtaining sexual assault forensic evidence from the victim, notify the law enforcement agency having jurisdiction over the alleged violation.
SEC. 3.
Section 679.04 of the Penal Code is amended to read:679.04.
(a) A victim of sexual assault as the result of any offense specified in paragraph (1) of subdivision (b) of Section 264.2 has the right to have victim advocates and a support person of the victim’s choosing present at any interview by law enforcement authorities, district attorneys, or defense attorneys. A victim retains this right regardless of whether he or she has waived the right in a previous medical evidentiary or physical examination or in a previous interview by law enforcement authorities, district attorneys, or defense attorneys. However, the support person may be excluded from an interview by law enforcement or the district attorney if the law enforcement authority or the district attorney determines that the presence of that individual would be detrimental to the purpose of the interview. As used in this section, “victim advocate” means a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, or a victim advocate working in a center established under Article 2 (commencing with Section 13835) of Chapter 4 of Title 6 of Part 4.(b) (1) Prior to the commencement of the initial interview by law enforcement authorities or the district attorney pertaining to any criminal action arising out of a sexual assault, a victim of sexual assault as the result of any offense specified in Section 264.2 shall be notified orally or in writing by the attending law enforcement authority or district attorney that the victim
he or she has the right to have victim advocates and a support person of the victim’s choosing present at the interview or contact.
contact, about any other rights of the victim pursuant to law in the document described in Section 680.2, and that the victim has the right to request to be interviewed by a law enforcement official or district attorney of the same gender or opposite gender as the victim, unless no such law enforcement official or district attorney is reasonably available. This subdivision applies to investigators and agents employed or retained by law enforcement or the district attorney.
(2) At the time the victim is advised of his or her rights pursuant to paragraph (1), the attending law enforcement authority or district attorney shall also advise the victim of the right to have victim advocates and a support person present at any interview by the defense attorney or investigators or agents employed by the defense attorney.
(3) The presence of a victim advocate shall not defeat any existing right otherwise guaranteed by law. A victim’s waiver of the right to a victim advocate is privileged in court.
(c) An initial investigation by law enforcement to determine whether a crime has been committed and the identity of the suspects shall not constitute a law enforcement interview for purposes of this section.
(d) A law enforcement official shall not, for any reason, discourage a victim of an alleged sexual assault from receiving a medical evidentiary or physical examination.
SEC. 4.
Section 680 of the Penal Code is amended to read:680.
(a) This section shall be known as and may be cited as the “Sexual Assault Victims’ DNA Bill of Rights.”(b) The Legislature finds and declares all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a powerful law enforcement tool for identifying and prosecuting sexual assault offenders.
(2) Existing law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples as a result of that arrest, charge, or adjudication.
(3) Victims of sexual assaults have a strong interest in the
investigation and prosecution of their cases.
(4) Law enforcement agencies have an obligation to victims of sexual assaults in the proper handling, retention, and timely DNA testing of rape kit evidence or other crime scene evidence and to be responsive to victims concerning the developments of forensic testing and the investigation of their cases.
(5) The growth of the Department of Justice’s Cal-DNA databank and the national databank through the Combined DNA Index System (CODIS) makes it possible for many sexual assault perpetrators to be identified after their first offense, provided that rape kit evidence is analyzed in a timely manner.
(6) Timely DNA analysis of rape kit evidence is a core public safety issue affecting men, women, and children in the State of California. It is the intent of the Legislature, in
order to further public safety, to encourage DNA analysis of rape kit evidence within the time limits imposed by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803.
(7) In order to ensure that sexual assault forensic evidence is analyzed within the two-year timeframe required by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803 and to ensure the longest possible statute of limitations for sex offenses, including sex offenses designated pursuant to those subparagraphs, the following should occur:
(A) A law enforcement agency in whose jurisdiction a sex offense specified in Section 261, 261.5, 262, 286, 288a, or 289 occurred, should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2016:
(i) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence.
(ii) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the victim is examined to the crime lab within five days after the evidence is obtained from the victim.
(B) The crime lab should do one of the following for any sexual assault forensic evidence received by the crime lab on or after January 1, 2016.
(i) Process sexual assault forensic evidence, create DNA profiles when able, and upload qualifying DNA profiles into CODIS as soon as practically possible, but no later than 120 days after initially receiving the evidence.
(ii) Transmit the sexual assault forensic evidence to another crime lab as soon as practically possible, but no later than 30 days after initially receiving the evidence, for processing of the evidence for the presence of DNA. If a DNA profile is created, the transmitting crime lab should upload the profile into CODIS as soon as practically possible, but no longer than 30 days after being notified about the presence of DNA.
(C) This subdivision does not require a lab to test all items of forensic evidence obtained in a sexual assault forensic evidence examination. A lab is considered to be in compliance with the guidelines of this section when representative samples of the evidence are processed by the lab in an effort to detect the foreign DNA of the perpetrator.
(D) This section does not require a DNA profile to be uploaded into CODIS if the DNA profile does not meet
federal guidelines regarding the uploading of DNA profiles into CODIS.
(E) For purposes of this section, a “rapid turnaround DNA program” is a program for the training of sexual assault team personnel in the selection of representative samples of forensic evidence from the victim to be the best evidence, based on the medical evaluation and patient history, the collection and preservation of that evidence, and the transfer of the evidence directly from the medical facility to the crime lab, which is adopted pursuant to a written agreement between the law enforcement agency, the crime lab, and the medical facility where the sexual assault team is based.
(8) For the purpose of this section, “law enforcement” means the law enforcement agency with the primary responsibility for investigating an alleged sexual assault.
(c) (1) Upon the request of a sexual assault victim, the law enforcement agency investigating a violation of Section 261, 261.5, 262, 286, 288a, or 289 may inform the victim of the status of the DNA testing of the rape kit evidence or other crime scene evidence from the victim’s case. The law enforcement agency may, at its discretion, require that the victim’s request be in writing. The law enforcement agency may respond to the victim’s request with either an oral or written communication, or by email, if an email address is available. Nothing in this subdivision requires that the law enforcement agency communicate with the victim or the victim’s designee regarding the status of DNA testing absent a specific request from the victim or the victim’s designee.
(2) Subject to the commitment of sufficient resources to respond to requests for information, sexual assault victims have the following rights:
(A) The right to be informed whether or not a DNA profile of the assailant was obtained from the testing of the rape kit evidence or other crime scene evidence from their case.
(B) The right to be informed whether or not the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence has been entered into the Department of Justice Data Bank of case evidence.
(C) The right to be informed whether or not there is a match between the DNA profile of the assailant developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Department of Justice Convicted Offender DNA Data Base, provided that disclosure would not impede or compromise an ongoing investigation.
(3) This subdivision is
intended to encourage law enforcement agencies to notify victims of information which is in their possession. It is not intended to affect the manner of or frequency with which the Department of Justice provides this information to law enforcement agencies.
(d) If the law enforcement agency does not analyze DNA evidence within six months prior to the time limits established by subparagraphs (A) and (B) of paragraph (1) of subdivision (g) of Section 803, a victim of a sexual assault offense specified in Section 261, 261.5, 262, 286, 288a, or 289 shall be informed, either orally or in writing, of that fact by the law enforcement agency.
(e) (1) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence
from an unsolved sexual assault case prior to the expiration of the statute of limitations as set forth in Section 803, case, a victim of a violation of Section 261, 261.5, 262, 286, 288a, or 289 shall be given written notification by the law enforcement agency of that intention.
(2) A law enforcement agency shall not destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case before the statute of limitations has expired, as set forth in Sections 801.1 and 803.
(f) Written notification under subdivision (d) or (e) shall be made at
least 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence from an unsolved sexual assault case where the election not to analyze the DNA or the destruction or disposal occurs prior to the expiration of the statute of limitations specified in subdivision (g) of Section 803.
case.
(g) A sexual assault victim may designate a sexual assault victim advocate, or other support person of the victim’s choosing, to act as a recipient of the above information required to be provided by this section.
(h) It is the intent of the Legislature that a law enforcement agency responsible for providing information under subdivision (c) do so in a timely manner and, upon request of the victim or the victim’s designee, advise the victim or the victim’s designee of any significant changes in the information of which the law enforcement agency is aware. In order to be entitled to receive notice under this section, the victim or the victim’s designee shall keep appropriate authorities informed of the name, address, telephone number, and email address of the person to whom the information should be provided, and any changes of the
name, address, telephone number, and email address, if an email address is available.
(i) A defendant or person accused or convicted of a crime against the victim shall have no standing to object to any failure to comply with this section. The failure to provide a right or notice to a sexual assault victim under this section may not be used by a defendant to seek to have the conviction or sentence set aside.
(j) The sole civil or criminal remedy available to a sexual assault victim for a law enforcement agency’s failure to fulfill its responsibilities under this section is standing to file a writ of mandamus to require compliance with subdivision (d) or (e).
SEC. 5.
Section 680.2 is added to the Penal Code, to read:680.2.
(a) Upon the initial interaction with a sexual assault victim, a law enforcement officer or medical provider shall provide the victim with a document to be developed by the Department of ______ that explains the rights of sexual assault victims in clear language that is comprehensible to a person proficient in English at the fifth grade level, accessible to persons with a visual disability, and available in all major languages of the state. This document shall include, but is not limited, to all of the following:(1) A clear statement that a sexual assault victim is not required to participate in the criminal justice system or to receive a medical evidentiary or physical examination in order to retain his or her rights under law.
(2) Telephone or Internet Web site contact information for a nearby rape crisis center and sexual assault counselor.
(3) Information about the types of law enforcement protection available to the sexual assault victim, including a temporary protection order, and the process to obtain that protection.
(4) Instructions for requesting the results of the analysis of the victim’s sexual assault forensic evidence.
(5) Information about 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 sexual assault victims if a criminal trial occurs.
(b) A law enforcement official shall,
upon written request by a sexual assault victim, furnish a free, complete, and unaltered copy of all law enforcement reports related to the sexual assault, regardless of whether the report has been closed by the law enforcement agency, to the victim.
(c) A prosecutor shall, upon written request by a sexual assault victim, provide the convicted defendant’s information on a sex offender registry, if any, to the victim.
SEC. 6.
Section 680.3 is added to the Penal Code, to read:680.3.
Upon request by a sexual assault victim during a criminal proceeding related to the alleged sexual assault, the court shall provide the victim and the victim’s family members, friends, and witnesses with a secure waiting area that is separate from the waiting area of the defendant and the defendant’s family members, friends, witnesses, and attorneys, and separate from the district attorney’s office.SEC. 7.
Section 13823.95 of the Penal Code is amended to read:13823.95.
(a) No costs incurred by a qualified health care professional, hospital, or other emergency medical facility for the medical evidentiary examination portion of the examination of the victim of a sexual assault, as described in the protocol developed pursuant to Section 13823.5, when the examination is performed pursuant to Sections 13823.5 and 13823.7, shall be charged directly or indirectly to the victim of the assault.(b) (1) Any victim of a sexual assault who seeks a medical evidentiary examination, as that term is used in Section 13823.93, shall be provided with a medical evidentiary examination. No
A victim of a sexual assault shall not be required to participate or to agree to participate in the criminal justice system, either prior to the examination or at any other time.
(2) A qualified health care professional or an employee of a hospital or other emergency medical facility shall inform a victim of sexual assault that a refusal to participate in the criminal justice system is not a ground for denial of either of the following:
(A) Treatment of injuries and any possible pregnancy or sexually transmitted disease, if the person wishes to
obtain and consents to the treatment.
(B) Any other right provided by law to victims of sexual assault or crime generally.
(c) The cost of a medical evidentiary examination performed by a qualified health care professional, hospital, or other emergency medical facility for a victim of a sexual assault shall be treated as a local cost and charged to the local law enforcement agency in whose jurisdiction the alleged offense was committed; provided, however, that the local law enforcement agency may seek reimbursement, as provided in subdivision (d), for the cost of conducting the medical evidentiary examination portion of a medical examination of a sexual assault victim who does not participate in the criminal justice system.
(d) The amount that may be charged by a qualified health care professional, hospital, or other emergency medical facility to perform the medical evidentiary examination portion of a medical examination of a victim of a sexual assault shall not exceed three hundred dollars ($300). The Office of Emergency Services shall use the discretionary funds from federal grants awarded to the agency pursuant to the federal Violence Against Women and Department of Justice Reauthorization Act of 2005 and the federal Violence Against Women Reauthorization Act of 2013 through the federal Office of Violence Against Women, specifically, the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program, to cover the cost of the medical evidentiary examination portion of a medical examination of a sexual assault victim.
