Bill Text: NY A08401 | 2017-2018 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Provides for the establishment of a sexual assault victim bill of rights by the department of health, in consultation with the division of criminal justice services and the office of victim services; establishes a victim's right to notice.
Spectrum: Moderate Partisan Bill (Democrat 26-5)
Status: (Passed) 2018-12-21 - signed chap.407 [A08401 Detail]
Download: New_York-2017-A08401-Amended.html
Bill Title: Provides for the establishment of a sexual assault victim bill of rights by the department of health, in consultation with the division of criminal justice services and the office of victim services; establishes a victim's right to notice.
Spectrum: Moderate Partisan Bill (Democrat 26-5)
Status: (Passed) 2018-12-21 - signed chap.407 [A08401 Detail]
Download: New_York-2017-A08401-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8401--A 2017-2018 Regular Sessions IN ASSEMBLY June 13, 2017 ___________ Introduced by M. of A. SIMOTAS, OTIS -- read once and referred to the Committee on Health -- recommitted to the Committee on Health in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the public health law and the executive law, in relation to establishing a sexual assault survivor bill of rights; and to amend the executive law, in relation to maintenance of sexual assault evidence, establishing a victim's right to notice prior to destruction and requiring a study relating to the feasibility of establishing a statewide tracking system for sexual offense evidence kits The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 2 of section 2805-i of the public health law, 2 as amended by chapter 504 of the laws of 1994, is amended to read as 3 follows: 4 2. The sexual offense evidence shall be collected and kept in a locked 5 separate and secure area for not less than thirty days unless: (a) such 6 evidence is not privileged and the police request its surrender before 7 that time, which request shall be complied with; or (b) such evidence is 8 privileged and (i) the alleged sexual offense victim nevertheless gives 9 permission to turn such privileged evidence over to the police before 10 that time, or (ii) the alleged sexual offense victim signs a statement 11 directing the hospital to not collect and keep such privileged evidence, 12 which direction shall be complied with. The sexual offense evidence 13 shall include, but not be limited to, slides, cotton swabs, clothing and 14 other items. Where appropriate such items must be refrigerated and the 15 clothes and swabs must be dried, stored in paper bags and labeled. Each 16 item of evidence shall be marked and logged with a code number corre- 17 sponding to the patient's medical record. The alleged sexual offense 18 [victim] survivor shall be notified [that after thirty days, the refrig-EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11584-09-8A. 8401--A 2 1erated] ten days prior to the transfer of sexual offense evidence, that 2 the evidence will be [discarded in compliance with state and local3health codes and the alleged sexual offense victim's clothes will be4returned to the alleged sexual offense victim upon request] transferred 5 to a centralized location to be maintained for at least twenty years 6 pursuant to section eight hundred thirty-eight-a of the executive law. 7 The survivor shall be given the option of providing contact information 8 should he or she wish to receive notice of the planned destruction of 9 the evidence after the expiration of the twenty year period. 10 § 2. Subdivision 6 of section 2805-i of the public health law is 11 renumbered subdivision 7 and a new subdivision 6 is added to read as 12 follows: 13 6. (a) The department, in conjunction with the division of criminal 14 justice services, the department of law and the office of victim 15 services, in consultation with hospitals, other health care providers 16 and victim advocacy organizations, shall establish a sexual assault 17 survivor bill of rights for purposes of informing sexual offense victims 18 of their rights under state law. Such bill of rights shall be in plain, 19 easy to understand language, and include, at a minimum: 20 (1) the right of the victim to consult with a local rape crisis or 21 victim assistance organization, to have a representative of such organ- 22 ization accompany the victim through the sexual offense examination 23 under paragraph (b) of subdivision one and subdivision three of this 24 section, and to have such an organization be summoned by the medical 25 facility, police agency or prosecutorial agency before the commencement 26 of the physical examination or interview, unless no rape crisis or 27 victim assistance organization can be summoned; 28 (2) the right of the victim to be offered and have made available at 29 no cost appropriate post-exposure treatment therapies, including a seven 30 day starter pack of HIV post-exposure prophylaxis under paragraph (c) of 31 subdivision one of this section and subdivision thirteen of section six 32 hundred thirty-one of the executive law; 33 (3) the right to a health care forensic examination at no cost and the 34 right to be notified of the option to decline to provide private health 35 insurance information and have the office of victim services reimburse 36 the hospital for the examination under subdivision thirteen of section 37 six hundred thirty-one of the executive law; 38 (4) the right to receive information relating to and the provision of 39 emergency contraception under section twenty-eight hundred five-p of 40 this article; 41 (5) the right to be offered contact information for the police agency 42 or prosecutorial agency with jurisdiction over the sexual offense and be 43 informed, upon request of the victim, with notice of the date and 44 location upon which their sexual offense evidence kit was assessed for 45 combined DNA Index System (CODIS) eligibility and analyzed, whether a 46 CODIS eligible profile was developed and/or a DNA match was identified; 47 (6) the right to be notified prior to the transfer of an unreported 48 sexual offense evidence kit from the hospital to a centralized storage 49 facility, the right to have an unreported sexual offense evidence kit 50 maintained at a centralized storage facility for at least twenty years 51 and the right to be notified by such facility in a manner of communi- 52 cation designated by the victim at least thirty days in advance of 53 planned destruction of the sexual offense evidence kit pursuant to 54 subdivision four of section eight hundred thirty-eight-a of the execu- 55 tive law; andA. 8401--A 3 1 (7) the right to be informed when there is any change in the status of 2 his or her case or reopening of the case. 3 (b) Before a medical facility commences a physical examination of a 4 sexual offense victim, or a police agency or prosecutorial agency 5 commences an interview of a sexual offense victim, the health care 6 professional conducting the exam, police agency or prosecutorial agency 7 shall inform the victim of his or her rights and provide a copy of the 8 sexual assault survivor bill of rights. 9 § 3. Section 838-a of the executive law, as amended by chapter 6 of 10 the laws of 2017, is amended to read as follows: 11 § 838-a. Maintenance of sexual offense evidence kits. 1. The following 12 requirements shall apply to all sexual offense evidence kits reported, 13 surrendered to or collected by, at the request of, or with cooperation 14 of a police agency or prosecutorial agency, with the consent of the 15 victim: 16 (a) Each such police agency and prosecutorial agency shall submit any 17 sexual offense evidence kits in its custody or control to an appropriate 18 forensic laboratory within ten days of receipt. 19 (b) Each forensic laboratory receiving sexual offense evidence kits 20 after the effective date of this section shall assess case specific 21 information for Combined DNA Index System (CODIS) eligibility and, if 22 eligible, analyze the kits and attempt to develop CODIS eligible 23 profiles of any potential perpetrators from the evidence submitted. The 24 forensic lab shall report the results to the submitting agency and 25 appropriate prosecutorial entity within ninety days after receipt of a 26 kit. 27 (c) Each police agency and prosecutorial agency that has one or more 28 sexual offense evidence kit in its custody or control shall, within 29 ninety days after the effective date of this paragraph, inventory such 30 kits and report the total number of such kits to the division and to the 31 forensic laboratory where such kits will be submitted pursuant to para- 32 graph (a) of this subdivision. The division shall provide such invento- 33 ries to the senate and assembly leaders by March first, two thousand 34 seventeen. Every police and prosecutorial agency shall update this 35 report each month thereafter until paragraph (a) of this subdivision has 36 become effective. 37 (d) Each police agency and prosecutorial agency that, prior to the 38 effective date of paragraph (a) of this subdivision, has one or more 39 sexual offense evidence kits in its custody or control shall, within 40 thirty days after the effective date of this section, submit all 41 untested kits in its possession or control to an appropriate forensic 42 laboratory. 43 (e) Each forensic laboratory, within one hundred twenty days after 44 receiving each sexual offense evidence kit pursuant to paragraph (d) of 45 this subdivision shall assess case specific information for CODIS eligi- 46 bility and, if eligible, analyze the kits and attempt to develop CODIS 47 eligible profiles for any potential perpetrators and shall, within nine- 48 ty days of such assessment, report the results to the submitting agency 49 and the appropriate prosecutorial entity. 50 (f) The failure of any such police agency, prosecutorial agency or 51 forensic laboratory to comply with [a time limit specified in] this 52 section or section eight hundred thirty-eight-b of this article shall 53 not, in and of itself, constitute a basis for a motion to suppress 54 evidence in accordance with section 710.20 of the criminal procedure 55 law.A. 8401--A 4 1 2. (a) Each forensic laboratory in the state shall report to the divi- 2 sion, on a quarterly basis, in writing, on (i) the number of reported 3 sexual offense evidence kits it received under subdivision one of this 4 section, (ii) the number of such kits processed for the purpose of 5 developing Combined DNA Index System (CODIS) eligible profiles of any 6 potential perpetrators, and (iii) the number of reported kits not proc- 7 essed for testing, including, the reason such kits were ineligible for 8 processing. 9 (b) Each police agency and prosecutorial agency shall report to the 10 division on a quarterly basis, in writing, on (i) the number of all the 11 sexual offense evidence kits it received, (ii) the number of such kits 12 it submitted to a forensic laboratory for processing, (iii) the number 13 of kits in its custody or control that have not been processed for test- 14 ing, and (iv) the length of time between receipt of any such sexual 15 offense evidence kit and the submission of any such kit to the forensic 16 laboratory. 17 (c) The division shall provide to the senate and assembly leaders such 18 quarterly reports received from the forensic labs and police and prose- 19 cutorial agencies pursuant to paragraphs (a) and (b) of this subdivision 20 by January first, two thousand eighteen and annually thereafter. 21 3. Each police agency and prosecutorial agency within this state shall 22 adopt policies and procedures concerning contact with the victims and 23 the provision of information to victims, upon request, concerning their 24 sexual offense evidence kits. The policies and procedures shall be 25 survivor-focused, meaning systematically focused on the needs and 26 concerns of a victim to ensure the compassionate and sensitive delivery 27 of services in a nonjudgemental manner, and shall include, at a minimum, 28 a requirement that: 29 (a) the police agency and prosecutorial agency designate at least one 30 person, who is trained in trauma and victim response through a program 31 meeting minimum standards established by the division of criminal 32 justice services following national guidelines from the Substance Abuse 33 and Mental Health Services Administration, within its agency to receive 34 all inquiries concerning sexual offense evidence kits from victims; and 35 (b) at the time that a sexual offense evidence kit is collected, a 36 victim shall be provided with contact information, including a phone 37 number and e-mail address, for the individual designated by subdivision 38 two of this section at the police agency and prosecutorial agency with 39 jurisdiction over the sexual assault offense. 40 4. Unreported sexual offense evidence kits, meaning sexual offense 41 evidence kits collected in instances in which a victim has not consented 42 to report to law enforcement, shall be maintained for at least twenty 43 years in a secure, centralized location designated by the division of 44 criminal justice services, in conjunction with the department of health, 45 the department of law and the office of victim services, in consultation 46 with hospitals, other health care providers and victim advocacy organ- 47 izations, taking into consideration federal guidance pertaining to main- 48 tenance of sexual offense evidence kits. Sexual offense evidence kits 49 maintained for twenty years or more shall only be destructed upon 50 providing at least thirty days notice to the victim, in the form of 51 communication designated by the victim, of such planned destruction. 52 5. The division shall undertake actions designed to ensure that all 53 police agencies and prosecutorial agencies in the state and all forensic 54 laboratories are educated and aware of the provisions of this section. 55 § 4. The executive law is amended by adding a new section 838-b to 56 read as follows:A. 8401--A 5 1 § 838-b. Victim's right to notice. Each police agency and prosecutori- 2 al agency with jurisdiction over the sexual assault offense shall, upon 3 request of the victim who has consented to report to law enforcement, 4 provide the sexual offense victim with notice of the date and location 5 upon which his or her sexual offense evidence kit was assessed for CODIS 6 eligibility and analyzed, and whether a CODIS eligible profile was 7 developed and/or a DNA match was identified. The police or prosecutorial 8 agency in possession of the reported sexual assault offense evidence kit 9 shall notify the sexual assault victim at least thirty days in advance 10 of any planned destruction of their sexual offense evidence kit in a 11 manner of communication designated by the victim, unless such informa- 12 tion would impede an ongoing investigation. 13 § 5. The executive law is amended by adding a new section 838-c to 14 read as follows: 15 § 838-c. Study and report on establishing a statewide sexual offense 16 evidence kit tracking system. The division shall conduct a study and 17 develop a plan, in consultation with stakeholders including hospitals, 18 other health care providers, law enforcement agencies, evidence manag- 19 ers, forensic laboratories, prosecutors, and victim advocacy organiza- 20 tions, to establish a statewide sexual offense evidence kit tracking 21 system, to streamline law enforcement tracking, create greater transpar- 22 ency and accountability in ensuring compliance with this article and to 23 provide a way for survivors to check the status of their sexual offense 24 evidence kit throughout the entire process, from collection to 25 conviction. The tracking system shall be secure and accessible only by 26 authorized entities or individuals such as hospitals, law enforcement 27 agencies, evidence mangers, prosecutors, and victims and designed to 28 provide secure electronic access through which a victim can anonymously 29 track the status of their sexual assault evidence kit. The commissioner 30 shall submit a report of the division's findings and recommendations to 31 the governor, the temporary president of the senate and the speaker of 32 the assembly on or before May first, two thousand nineteen. 33 § 6. This act shall take effect immediately; provided that the divi- 34 sion of criminal justice services shall designate and establish the 35 secure centralized location required by subdivision 4 of section 838-a 36 of the executive law, as added by section three of this act, within 180 37 days of the effective date of this act; and provided, further, that 38 notwithstanding the provisions of section 2805-i of the public health 39 law to the contrary, every hospital shall retain custody of unreported 40 sexual offense evidence kits until such time as the centralized storage 41 facility is established and designated pursuant to subdivision 4 of 42 section 838-a of the executive law.
