BILL ANALYSIS Ó
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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