BILL NUMBER: SB 50 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2009
AMENDED IN SENATE MARCH 16, 2009
INTRODUCED BY Senator Corbett
JANUARY 13, 2009
An act to add Section 13957.3 to the Government Code, and to
amend Sections 13823.95 and 13823.11 of the Penal Code,
relating to victims of sexual assault.
LEGISLATIVE COUNSEL'S DIGEST
SB 50, as amended, Corbett. Victims of sexual assault.
Existing law authorizes state compensation for victims of crime,
as specified.
This bill would additionally authorize state payment of claims by
medical providers for the costs of medical examinations and treatment
for victims of sexual assaults, as specified.
Existing law provides that no costs incurred by a qualified health
care professional, hospital, or other emergency medical facility for
the forensic examination of the victim of a sexual assault for the
purposes of gathering evidence for possible prosecution shall be
charged directly or indirectly to the victim of the assault.
This bill would provide that collection and retention of evidence
gathered during the examination of a victim of sexual assault shall
be the responsibility of the law enforcement agency requesting the
examination, and would prohibit charging the victim of a sexual
assault for the costs of medical treatment, as specified.
By imposing evidence retention duties on local law enforcement
agencies, this bill would impose a state-mandated local program.
Existing law provides that the law enforcement agency in the
jurisdiction in which the alleged sexual assault was committed which
requests the examination has the option of determining whether or not
the examination will be performed in the office of a physician and
surgeon.
The bill would delete the provisions giving that law enforcement
agency the option of determining whether or not the examination will
be performed in the office of a physician and surgeon.
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 these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13957.3 is added to the
Government Code , to read:
13957.3. Notwithstanding any other provision of this article, the
board shall pay claims submitted by medical providers for the costs
of medical examinations and treatment for victims of sexual assault,
unless an alternative source of payment is available.
SECTION 1. SEC. 2. Section 13823.95
of the Penal Code is amended to read:
13823.95. No costs incurred by a qualified health care
professional, hospital, or other emergency medical facility for the
forensic 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, for the purposes of gathering evidence for possible
prosecution , or for medical treatment, shall be
charged directly or indirectly to the victim of the assault. Those
costs shall be treated as local costs and charged to the local
governmental agency in whose jurisdiction the alleged offense was
committed.
Bills for these costs the costs of medical
examination and treatment, whether performed as part of a forensic
examination or separately, shall be submitted to the
law enforcement agency in the jurisdiction in which the alleged
offense was committed which requests the examination
California Victim Compensation and Government Claims Board .
Collection and retention of any evidence gathered during the
examination of a victim of a sexual assault shall be the
responsibility of the law enforcement agency in the jurisdiction in
which the alleged offense was committed which requests the
examination .
SEC. 2. SEC. 3. Section 13823.11 of
the Penal Code is amended to read:
13823.11. The health care provider shall follow minimum
standards for the medical examination and treatment of victims of
sexual assault or attempted sexual assault, including child
molestation. The minimum standards for the forensic
examination and treatment of victims of sexual
assault or attempted sexual assault, including child molestation and
the collection and preservation of evidence therefrom include all of
the following:
(a) Law enforcement authorities shall be notified.
(b) In conducting the physical examination, the outline indicated
in the form adopted pursuant to subdivision (c) of Section 13823.5
shall be followed.
(c) Consent for a physical examination, treatment, and collection
of evidence shall be obtained.
(1) Consent to an examination for evidence of sexual assault shall
be obtained prior to the examination of a victim of sexual assault
and shall include separate written documentation of consent to each
of the following:
(A) Examination for the presence of injuries sustained as a result
of the assault.
(B) Examination for evidence of sexual assault and collection of
physical evidence.
(C) Photographs of injuries.
(2) Consent to treatment shall be obtained in accordance with
usual hospital policy.
(3) A victim of sexual assault shall be informed that he or she
may refuse to consent to an examination for evidence of sexual
assault, including the collection of physical evidence, but that a
refusal is not a ground for denial of treatment of injuries and for
possible pregnancy and sexually transmitted diseases, if the person
wishes to obtain treatment and consents thereto. No costs incurred by
a qualified health care professional, hospital, or other emergency
medical facility for the treatment of a victim of a sexual assault
shall be charged directly or indirectly to the victim of a sexual
assault.
(4) Pursuant to Chapter 3 (commencing with Section 6920) of Part 4
of Division 11 of the Family Code, a minor may consent to hospital,
medical, and surgical care related to a sexual assault without the
consent of a parent or guardian.
(5) In cases of known or suspected child abuse, the consent of the
parents or legal guardian is not required. In the case of suspected
child abuse and nonconsenting parents, the consent of the local
agency providing child protective services or the local law
enforcement agency shall be obtained. Local procedures regarding
obtaining consent for the examination and treatment of, and the
collection of evidence from, children from child protective
authorities shall be followed.
(d) A history of sexual assault shall be taken.
The history obtained in conjunction with the examination for
evidence of sexual assault shall follow the outline of the form
established pursuant to subdivision (c) of Section 13823.5 and shall
include all of the following:
(1) A history of the circumstances of the assault.
(2) For a child, any previous history of child sexual abuse and an
explanation of injuries, if different from that given by a parent or
person accompanying the child.
(3) Physical injuries reported.
(4) Sexual acts reported, whether or not ejaculation is suspected,
and whether or not a condom or lubricant was used.
(5) Record of relevant medical history.
(e) (1) If indicated by the history of contact, a female victim of
sexual assault shall be provided with the option of
postcoital emergency contraception by a
physician or other health care provider.
(2) Postcoital Emergency
contraception shall be dispensed by a physician or other health care
provider upon the request of the victim.
(f) Each adult and minor victim of sexual assault who consents to
a medical examination as part of the forensic examination
for collection of evidentiary material shall have a medical
physical examination which includes, but is not limited to, all
of the following:
(1) Inspection of the clothing, body, and external genitalia for
injuries and foreign materials.
(2) Examination of the mouth, vagina, cervix, penis, anus, and
rectum, as indicated.
(3) Documentation of injuries and evidence collected.
Prepubertal children shall not have internal vaginal or anal
examinations unless absolutely necessary. This does not preclude
careful collection of evidence using a swab.
(g) The collection of physical evidence shall conform to the
following procedures:
(1) Each victim of sexual assault who consents to an examination
for collection of evidence shall have the following items of evidence
collected, except where he or she specifically objects:
(A) Clothing worn during the assault.
(B) Foreign materials revealed by an examination of the clothing,
body, external genitalia, and pubic hair combings.
(C) Swabs and slides from the mouth, vagina, rectum, and penis, as
indicated, to determine the presence or absence of sperm and sperm
motility, and for genetic marker typing.
(D) If indicated by the history of contact, the victim's urine and
blood sample, for toxicology purposes, to determine if drugs or
alcohol were used in connection with the assault. Toxicology results
obtained pursuant to this paragraph shall not be admissible in any
criminal or civil action or proceeding against any victim who
consents to the collection of physical evidence pursuant to this
paragraph. Except for purposes of prosecuting or defending the crime
or crimes necessitating the examination specified by this section,
any toxicology results obtained pursuant to this paragraph shall be
kept confidential, may not be further disclosed, and shall not be
required to be disclosed by the victim for any purpose not specified
in this paragraph. The victim shall specifically be informed of the
immunity and confidentiality safeguards provided herein.
(2) Each victim of sexual assault who consents to an
examination a medical examination, whether or not in
connection with a forensic examination, for the
collection of evidence shall have reference specimens taken, except
when he or she specifically objects thereto. A reference specimen is
a standard from which to obtain baseline information (for example:
pubic and head hair, blood, and saliva for genetic marker typing).
These specimens shall be taken in accordance with the standards of
the local criminalistics laboratory.
(3) A baseline gonorrhea culture, and syphilis serology, shall be
taken, if indicated by the history of contact. Specimens for a
pregnancy test shall be taken, if indicated by the history of
contact.
(4) (A) If indicated by the history of contact, a female victim of
sexual assault shall be provided with the option of
postcoital emergency contraception by a
physician or other health care provider.
(B) Postcoital Emergency
contraception shall be dispensed by a physician or other health care
provider upon the request of the victim.
(h) Preservation and disposition of physical evidence shall
conform to the following procedures:
(1) All swabs and slides shall be air-dried prior to packaging.
(2) All items of evidence including laboratory specimens shall be
clearly labeled as to the identity of the source and the identity of
the person collecting them.
(3) The evidence shall have a form attached which documents its
chain of custody and shall be properly sealed.
(4) The evidence shall be turned over to the proper law
enforcement agency.
SEC. 3. SEC. 4. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.