New Jersey-2010-A3395-Introduced

An Act concerning the rights of victims of sexual violence and supplementing Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "Sexual Assault Victim's Bill of Rights."

2. The Legislature finds and declares that:

a. The passage of the "Crime Victim's Bill of Rights," P.L.1985, c.249 (C.52:4B-34 et seq.) and the "New Jersey Campus Sexual Assault Victim's Bill of Rights Act," P.L.1994, c.160 (C.18A:61E-1 et seq.) have resulted in significant advances in the recognition and protection of the rights of crime victims and survivors once they enter the criminal justice system;

b. Nonetheless, victims of sexual violence, more than other victims, are likely to be blamed for the crime, assumed to be fabricating the crime, or taken less seriously than their injuries warrant. These victims are sometimes discouraged from proceeding with their complaints and as a result are not afforded the protections and rights that other crime victims receive in the criminal justice system;

c. Therefore, with no diminution of the legislatively-recognized rights of crime victims, it is the public policy of this State to accord victims of sexual violence these specific rights:

All victims of sexual violence have the right to be treated with respect, dignity, empathy, and a non-judgmental attitude regardless of gender, race, cultural background, age, affectional or sexual orientation, gender identity, income, cognitive abilities, physical abilities, or sexual, medical, and mental health history;

Victims have the right to be free of any suggestion that they are responsible for the violence committed against them; and

Victims have the right to have the sexual assault treated seriously and in accordance with their ability and willingness to proceed legally or personally to recoup their losses from any such violence.

3. As used in this act:

a. "Public employee" means any person employed by a public entity who is responsible for the delivery of social, health care, institutional, or correctional services, or primary or secondary educational services to the public.

b. "Public entity" means any State, county, or municipal agency that employs public employees as defined in this act, or is funded or regulated by the State to perform the functions of a public employee.

c. "Division on Women" shall mean the Division on Women in the Department of Community Affairs established pursuant to P.L.1974, c.87 (C.52:27D-43.8 et seq.).

d. "SART" means a Sexual Assault Response Team established pursuant to section 6 of P.L.2001, c.81 (C.52:4B-54).

e. "Sexual violence" includes, but is not limited to, sexual assault pursuant to N.J.S.2C:14-2; criminal sexual contact pursuant to N.J.S.2C:14-3; endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to subsection a. of N.J.S.2C:24-4; endangering the welfare of a child pursuant to paragraph (3) or (4) or subparagraph (a) of paragraph (5) of subsection b. of N.J.S.2C:24-4; luring or enticing pursuant to section 1 of P.L.1993, c.291 (C.2C:13-6); luring or enticing an adult pursuant to section 1 of P.L.2005, c.1 (C.2C:13-7); kidnapping pursuant to N.J.S.2C:13-1; criminal restraint pursuant to N.J.S.2C:13-2; or false imprisonment pursuant to N.J.S.2C:13-3 if the victim is a minor and the offender is not the parent of the victim; human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8); and knowingly promoting prostitution of a child pursuant to paragraph (3) or paragraph (4) of subsection b. of N.J.S.2C:34-1. It also includes acts which have the same elements as any of those crimes but which occurred beyond the relevant statutes of limitations. No prosecution is necessary to confer these rights on a victim.

f. "Victim" means a person who alleges to have been subjected to sexual violence, or the parent or guardian of any person under 18 who has been subjected to any such act, or the guardian of a person declared incapacitated pursuant to section 12 of P.L.2005, c.304 (C.3B:12-24.1) who has been subjected to any such act.

g. For the purposes of this act, the responsibility of an employee to "facilitate access to" the rights described in P.L. , c. (C. )(pending before the Legislature as this bill) can be fulfilled by: (1) assisting the victim in contacting a sexual violence program should the victim choose such contact; or (2) directing a victim to a person designated by the public entity to assist a victim in contacting a sexual violence program or appropriate mandated reporting agency.

4. A public employee as defined in subsection a. of section 3 of P.L. , c. (C. )(pending before the Legislature as this bill) to whom, during the course of his employment, a complaint or report of sexual violence is made by a person receiving the services of the public employee, shall not deny such person the rights provided for under this act regardless of the victim's age, race, gender, cognitive capacity, physical abilities, or sexual, medical, or mental health treatment history. If the reporter of sexual violence is not the victim, information regarding these rights shall be provided to the reporter. There shall be no retaliation against a person who in good faith reports suspected sexual violence against any person to a public employee. The Division on Women shall, upon request, make available written materials that convey the rights of victims of sexual violence as defined in this act and other appropriate information. These materials shall be written in a manner that promotes the dignity of and shows respect for victims of sexual violence.

5. No public employee or public entity shall deny any of the following rights to a victim of sexual violence and shall facilitate access to these rights:

a. To speak privately, consistent with privileges provided by the New Jersey statutes, at any point in the process of reporting a sexual assault or receiving services, with a rape care advocate as defined in section 3 of P.L.1987, c.169 (C.2A:84A-22.14), and with any other advocate, clergy, attorney, or support person of the victim's choosing and to have any such communication treated as privileged and confidential;

b. To be informed about any legal or ethical requirement that requires the agency or employee to share any information related to the violence with another government agency;

c. To formally report the sexual violence, or to refrain from making a formal report to any person or institution, including law enforcement authorities, and to not have the receipt of any public service made contingent on reporting or not reporting the incident;

d. To medical treatment by a provider of the victim's choice, or from a SART, as provided in the Attorney General's Standards for Providing Services to Victims of Sexual Assault. If a SART is chosen, a victim has the right to opt into or out of any of its services, including the option to refuse a forensic examination;

e. To choose whether to participate in any investigation of the assault;

f. To reasonable efforts to provide treatment and interviews in a language in which the victim is fluent and to be given access to appropriate assistive devices to accommodate the victim's disabilities, whether temporary or long term; and

g. To information and assistance in accessing specialized mental health services; protection from further violence; and other appropriate community or governmental services, including services provided by the Victims of Crime Compensation Office; and all other assistance available to crime victims pursuant to P.L.1985, c.249 (C.52:4B-34 et seq.).

6. The Victims of Crime Compensation Office in consultation with the Director of the Division on Women, the Department of Health and Senior Services, and the Executor Director of the New Jersey Coalition Against Sexual Assault, shall publish a notice of these rights and shall promulgate regulations that require its posting in all hospital emergency departments, police stations, and any other appropriate place to inform victims of their rights and inform public employees and entities of their obligations under P.L. , c. (C. )(pending before the Legislature as this bill).

7. Any conflict between P.L. , c. (C. )(pending before the Legislature as this bill) and any other statutory duty of a public employee or any other law shall not invalidate the remainder of this act.

8. Nothing in P.L. , c. (C. )(pending before the Legislature as this bill) shall add to or diminish any person's rights to seek damages pursuant to the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., nor shall this act preclude or restrict a public employee's statutory obligation to report a crime to the appropriate law enforcement authorities.

9. Nothing in P.L. , c. (C. )(pending before the Legislature as this bill) shall be construed to preclude or in any way restrict any public entity from performing a preexisting duty to report any suspected crime or offense to the appropriate law enforcement authorities.

10. Notwithstanding any other provision of law to the contrary, no public employee or public entity shall be liable for damages resulting from any exercise of judgment or discretion in connection with the performance of the employee's or entity's duties unless the actions evidence a reckless disregard for the duties imposed by this act. Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission.

11. This act shall take effect 180 days after the date of enactment, but the Victims of Crime Compensation Office and the Director of the Division on Women may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.

STATEMENT

This bill would establish a "Sexual Assault Victim's Bill of Rights" for victims of sexual violence. The bill would also require certain public employees to facilitate access to services for victims of sexual violence.

The bill defines "public employee" as any person employed by a public entity who is responsible for the delivery of social, health care, institutional, or correctional services, or primary or secondary educational services to the public. The bill defines "to facilitate access" as: (1) assisting the victim in contacting a sexual violence program should the victim choose such contact; or (2) directing a victim to a person designated by the public entity to assist a victim in contacting a sexual violence program or appropriate mandated reporting agency.

The bill provides that a person receiving the services of a public employee who makes a complaint or report of sexual violence to the employee shall not be denied the rights provided for under the bill regardless of the victim's age, race, gender, cognitive capacity, physical abilities, or sexual, medical, or mental health treatment history.

The intent of this provision is to address a gap in current procedures. At present, if a client of a public agency reports an act of sexual violence to an employee, the agency may not have policies and procedures to address the issue appropriately.

The rights enumerated under the bill are as follows:

� To speak privately, consistent with privileges provided by the New Jersey statutes, at any point in the process of reporting a sexual assault or receiving services, with a rape care advocate and with any other advocate, clergy, attorney, or support person of the victim's choosing, and to have any such communication treated as privileged and confidential;

� To be informed about any legal or ethical requirement that requires the agency or employee to share any information related to the violence with another government agency;

� To formally report the sexual violence, or to refrain from making a formal report to any person or institution, including law enforcement authorities, and to not have the receipt any public service made contingent on reporting or not reporting the incident;

� To medical treatment by a provider of the victim's choice, or from a Sexual Assault Response Team as provided in the Attorney General's Standards for Providing Services to Victims of Sexual Assault, and to the choice to opt into or out of any of the team's services, including the option to refuse a forensic examination;

� To choose whether to participate in any investigation of the assault;

� To reasonable efforts to provide treatment and interviews in a language in which the victim is fluent and to be given access to appropriate assistive devices to accommodate the victim's disabilities, whether temporary or long term; and

� To information and assistance in accessing specialized mental health service; protection from further violence; and other appropriate community or governmental services, including services provided by the Victims of Crime Compensation Office; and all other assistance available to crime victims under present law.

The bill would also require the Victims of Crime Compensation Office in consultation with the Division on Women, the Department of Health and Senior Services and the New Jersey Coalition Against Sexual Assault to publish a notice of these rights and promulgate regulations that require its posting in all hospital emergency departments, police stations, and any other appropriate place to inform victims of their rights and inform public employees and entities of their obligations under the bill.