BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 534 (Corbett)                                            
          As Introduced February 17, 2011 
          Hearing date:  March 29, 2011
          Penal Code
          AA:mc


                                SEXUAL ASSAULT VICTIMS:

                               FORENSIC MEDICAL EXAMS

                                           
                                       HISTORY

          Source:  Alameda County District Attorney

          Prior Legislation: SB 50 (Corbett) - 2009; died in the Assembly
                       AB 506 (Maze) - Ch. 535, Stats. 2003
                       AB 1860 (Migden) - Ch. 382, Stats. 2002
                       SB 892 (Seymour) - Ch. 812, Stats. 1985

          Support: California Coalition Against Sexual Assault; Peace 
                   Officers Research Association of California; California 
                   Police Chiefs Association

          Opposition:None known

           


                                         KEY ISSUE
           
          SHOULD STATUTORY LAW EXPLICITLY PROVIDE THAT VICTIMS OF SEXUAL 




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          ASSAULT ARE NOT REQUIRED TO PARTICIPATE IN THE CRIMINAL JUSTICE 
          SYSTEM OR COOPERATE WITH LAW ENFORCEMENT IN ORDER TO BE PROVIDED 
          WITH A FORENSIC MEDICAL EXAM?



                                       PURPOSE

          The purpose of this bill is to provide that victims of sexual 
          assault are not required to participate in the criminal justice 
          system or cooperate with law enforcement in order to be provided 
          with a forensic medical exam.

           Existing federal law  includes the Violence Against Women Act 
          (VAWA), which establishes an office within the Department of 
          Justice to administer the Act, including the Services-Training 
          Officers-Prosecutors (STOP) grant program.  (42 USCA  3796.)  
          The Office has authority over all grants, cooperative 
          agreements, and contracts pursuant to VAWA, and develops policy, 
          protocols, and guidelines for programs receiving grants under 
          the Act.  (42 USCA  3796gg0b.)  

           Existing federal law  bars a state from receiving a VAWA grant 
          unless state law provides as follows:

                 A sexual assault victim shall not be charged for 
               forensic and medical examinations, as specified.
                 A victim shall not be required to seek reimbursement 
               from his or her insurance carrier.
                 The requirement can be met if the state provides for 
               victim reimbursement for medical costs, as specified, state 
               law can place no limit on the amount of reimbursement and 
               the state must provide reimbursement within 90 days of 
               receipt of notice of the expense.
                 A sexual assault victim shall not be required to 
               participate in the criminal justice system in order to 
               receive a forensic medical exam or to receive reimbursement 
               for the exam.  (42 USCA  3796gg-4.)





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           Existing California law  generally provides for standards and 
          protocols for the examination and treatment of victims of sexual 
          assault and attempted sexual assault, including child 
          molestation, and the collection and preservation of evidence 
          therefrom.  (Pen. Code  13823.5.)

           Existing California law  provides that the protocol for the 
          examination and treatment of victims of sexual assault or 
          attempted sexual assault, including child molestation, and the 
          collection and preservation of evidence therefrom shall include 
          provisions for all of the following:
             (a) Notification of injuries and a report of suspected child 
          sexual abuse to law enforcement authorities.
             (b) Obtaining consent for the examination, for the treatment 
          of injuries, for the collection of evidence, and for the 
          photographing of injuries.
             (c) Taking a patient history of sexual assault and other 
          relevant medical history.
             (d) Performance of the physical examination for evidence of 
          sexual assault.
             (e) Collection of physical evidence of assault. 
             (f) Collection of other medical specimens.
             (g) Procedures for the preservation and disposition of 
          physical evidence. (Penal Code  13823.7.)  

           Existing California law  provides that no costs incurred by a 
          qualified health care professional, hospital, or other emergency 
          medical facility for the examination of the victim of a sexual 
          assault, as specified, when the examination is performed for the 
          purposes of gathering evidence for possible prosecution, 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.  (Penal Code  13823.95.)   Current law  
          provides that bills for these costs shall be submitted to the 
          law enforcement agency in the jurisdiction in which the alleged 
          offense was committed which requests the examination, and that 
          the law enforcement agency in the jurisdiction in which the 
          alleged offense was committed which requests the examination has 




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          the option of determining whether or not the examination will be
          performed in the office of a physician and surgeon. (Id.)

           This bill  would amend this section to provide that, "Victims of 
          sexual assault are not required to participate in the criminal 
          justice system or cooperate with law enforcement in order to be 
          provided with a forensic medical exam."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  

          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 




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          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.

           

                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               In many parts of California, the only way a victim can 
               receive a forensic exam without having to pay for it 
               is when a law enforcement agency requests and 
               authorizes the forensic exam.  In cases where a victim 
               chooses not to cooperate with law enforcement and the 
               law enforcement agency does not authorize the exam, 
               the victim may not receive such an exam.  Furthermore, 
               the jurisdiction is out of compliance with VAWA 
               regulations, thereby jeopardizing the state's 
               compliance with VAWA (Violence Against Women's Act) 
               and eligibility for STOP (Services Training, Officer, 
               Prosecutors) funding.

               California currently receives approximately $13 
               million annually from the federal government for VAWA. 
                If a state is found to be out of compliance with VAWA 
               requirements, they may be at risk of losing these 
               federal dollars.

               Each year, women experience about 4.8 million intimate 
               partner-related physical assaults and rapes.  
               According to the Department of Justice, the number of 
               reported forcible rapes increased 2.5 percent during 
               the first six months of 2008 when compared to the same 
               period in 2007 (from 2,748 to 2,818).  





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          2.  What This Bill Would Do

           This bill would amend existing statutory law to make clear that 
          victims of sexual assault are not required to participate in the 
          criminal justice system or cooperate with law enforcement in 
          order to be provided with a forensic medical exam.  As explained 
          by the author, this provision is consistent with requirements of 
          the federal VAWA grant requirements.
           

          3.  The Federal Violence Against Women Act (VAWA) - Background of 
            the Law and Federal Grants to Fund State Programs  

          The Violence Against Women Act (VAWA) was enacted in Congress in 
          1994.  It has been reenacted in 2000 and 2005.  According to the 
          U.S. Department of Justice, the intent of VAWA is to "remedy the 
          legacy of laws and social norms that serve to justify violence 
          against women.  Since the passage of VAWA, there has been a 
          paradigm shift in how the issue of violence against women is 
          addressed."  In 2000, VAWA expanded or created programs for 
          sexual assault victims, dating violence victims and battered 
          immigrants.  Domestic violence victims who fled across state 
          lines were allowed to obtain custody orders in their new states. 
           In 2005, VAWA was expanded to include court training, child 
          witness and culturally specific programs.  Expansions of VAWA 
          generally have been done to reach underserved populations.

          The initial VAWA legislation established the Office on Violence 
          Against Women (OVW) in the Department of Justice.  According to 
          the Department of Justice, "OVW administers financial and 
          technical assistance  around the country to facilitate" 
          programs and practices to end or limit sexual assault, domestic 
          and dating violence, and stalking.  

          VAWA effectively set national standards for state and local 
          government responses to sexual assault, domestic violence and 
          related issues.  These standards maintained or enforced in 
          significant part through conditions on grants of federal funds 
          to states, local governments, tribal entities, non-profit 




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          organizations and even law schools.  

          The STOP (Services-Training-Officers-Prosecutors) grants under 
          VAWA are essentially the subject of this bill.  Each state 
          receiving a STOP grant must allocate the funds in this manner: 
          25% to law enforcement; 25 to prosecution; 5% for courts; and 
          30% for victim services.  In order to receive STOP funds, the 
          state or another governmental entity must bear "the full 
          out-of-pocket cost of forensic exam  for victims of sexual 
          assault."  The state or local entity may not condition receipt 
          of an examination on cooperation by the victim with law 
          enforcement. 
          (42 U.S.C.  3896gg-4; DOJ, OVW website.)


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