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AB-334 Sexual assault.(2017-2018)

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Date Published: 03/28/2017 09:00 PM
AB334:v98#DOCUMENT

Amended  IN  Assembly  March 28, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 334


Introduced by Assembly Member Cooper

February 07, 2017


An act to amend Section 340.15 of the Code of Civil Procedure, and to amend Sections 11160, 13823.11, and 13823.95 of the Penal Code, relating to sexual assault.


LEGISLATIVE COUNSEL'S DIGEST


AB 334, as amended, Cooper. Sexual assault.
Existing law provides that in a civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be the later of within 3 years from the date of the last act of domestic violence by the defendant against the plaintiff or within 3 years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence by the defendant against the plaintiff.
This bill would additionally make these provisions applicable to a civil action for damages suffered as a result of sexual assault, as defined. The bill would also increase the time for commencement of the action to the later of within 10 years from the date of the last act of domestic violence or sexual assault by the defendant against the plaintiff or within 10 years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence or sexual assault by the defendant against the plaintiff.
Existing law requires a health practitioner employed in a health facility, clinic, physician’s office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department who, in his or her professional capacity or within the scope of his or her employment, provides medical services for a physical condition to a patient whom he or she knows or reasonably suspects is a person suffering from a physical injury caused by a firearm or that is the result of domestic violence, to immediately make a report. A violation of this requirement is a misdemeanor.
This bill would make that requirement applicable if the patient discloses that he or she was a victim of a sexual assault, as specified, including rape, assault with the intent to commit those specified crimes, or an attempt to commit any of those crimes. By creating new crimes, the bill would impose a state-mandated local program.
Existing law establishes minimum standards for the examination and treatment of victims of sexual assault or attempted sexual assault, including child molestation and the collection and preservation of evidence from those crimes.
This bill, among other changes, would authorize a licensed hospital or licensed health care practitioner to perform an examination if an alleged victim of sexual assault is unconscious or incapacitated due to drugs, alcohol, head trauma, or a medical disease or condition, or due to a mental disorder or condition, and a reasonable person would conclude that exigent circumstances justify conducting a forensic examination and collecting appropriate evidence. The bill would make other changes relating to the conduct of sexual assault examinations and the storage of related records.
Existing law prohibits costs incurred by a qualified health care professional, hospital, or other emergency medical facility for the medical evidentiary examination portion of the examination of the victim of a sexual assault, as described in a specified protocol, when the examination is performed as specified, from being charged directly or indirectly to the victim of the assault. Existing law limits the amount that may be charged by a qualified health care professional, hospital, or other emergency medical facility to perform the medical evidentiary examination portion of a medical examination of a victim of a sexual assault to $300.
This bill would make that provision applicable to costs incurred by a clinic or sexual assault forensic medical examination team. The bill would repeal the provision limiting the amount that may be charged to $300 and would instead provide that the cost of a sexual assault forensic medical evidentiary examination requested by a sexual assault victim who is choosing not to participate in a criminal investigation shall be treated as a local cost and charged to the local law enforcement agency in whose jurisdiction the alleged offense occurred. The bill would further require that the costs of the examination be reimbursed to the local law enforcement agency by the Office of Emergency Services in an amount not to exceed $1,000. By imposing a higher level of service on local law enforcement agencies, the bill would impose a state-mandated local program.
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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 340.15 of the Code of Civil Procedure is amended to read:

340.15.
 (a) In any civil action for recovery of damages suffered as a result of domestic violence or sexual assault, the time for commencement of the action shall be the later of the following:
(1) Within 10 years from the date of the last act of domestic violence or sexual assault by the defendant against the plaintiff.
(2) Within 10 years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence or sexual assault by the defendant against the plaintiff.
(b) As used in this section, the following definitions apply:
(1) “Domestic violence” has the same meaning as defined in Section 6211 of the Family Code.
(2) “Sexual assault” means the crimes described in Sections 243.4, 261, 262, 286, 288a, or 289 of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.

SEC. 2.

 Section 11160 of the Penal Code is amended to read:

11160.
 (a) Any health practitioner employed in a health facility, clinic, physician’s office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department who, in his or her professional capacity or within the scope of his or her employment, provides medical services for a physical condition to a patient whom he or she knows or reasonably suspects is a person described as follows, shall immediately make a report in accordance with subdivision (b):
(1) A person suffering from any wound or other physical injury inflicted by his or her own act or inflicted by another if the injury is by means of a firearm.
(2) A person suffering from any wound or other physical injury inflicted upon the person if the injury is the result of assaultive or abusive conduct.
(3) A person who discloses that he or she was a victim of a crime described in Sections 243.4, 261, 262, 286, 288a, or 289, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.
(b) Any health practitioner employed in a health facility, clinic, physician’s office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department shall make a report regarding persons described in subdivision (a) to a local law enforcement agency as follows:
(1) A report by telephone shall be made immediately or as soon as practically possible.
(2) A written report shall be prepared on the standard form developed in compliance with paragraph (4), and adopted by the Office of Emergency Services, or on a form developed and adopted by another state agency that otherwise fulfills the requirements of the standard form. The completed form shall be sent to a local law enforcement agency within two working days of receiving the information regarding the person.
(3) A local law enforcement agency shall be notified and a written report shall be prepared and sent pursuant to paragraphs (1) and (2) even if the person who suffered the wound, other injury, or assaultive or abusive conduct has expired, regardless of whether or not the wound, other injury, or assaultive or abusive conduct was a factor contributing to the death, and even if the evidence of the conduct of the perpetrator of the wound, other injury, or assaultive or abusive conduct was discovered during an autopsy.
(4) The report shall include, but shall not be limited to, the following:
(A) The name of the injured person, if known.
(B) The injured person’s whereabouts.
(C) The character and extent of the person’s injuries.
(D) The identity of any person the injured person alleges inflicted the wound, other injury, or assaultive or abusive conduct upon the injured person.
(c) For the purposes of this section, “injury” shall not include any psychological or physical condition brought about solely through the voluntary administration of a narcotic or restricted dangerous drug.
(d) For the purposes of this section, “assaultive or abusive conduct” shall include any of the following offenses:
(1) Murder, in violation of Section 187.
(2) Manslaughter, in violation of Section 192 or 192.5.
(3) Mayhem, in violation of Section 203.
(4) Aggravated mayhem, in violation of Section 205.
(5) Torture, in violation of Section 206.
(6) Assault with intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220.
(7) Administering controlled substances or anesthetic to aid in commission of a felony, in violation of Section 222.
(8) Battery, in violation of Section 242.
(9) Sexual battery, in violation of Section 243.4.
(10) Incest, in violation of Section 285.
(11) Throwing any vitriol, corrosive acid, or caustic chemical with intent to injure or disfigure, in violation of Section 244.
(12) Assault with a stun gun or taser, in violation of Section 244.5.
(13) Assault with a deadly weapon, firearm, assault weapon, or machinegun, or by means likely to produce great bodily injury, in violation of Section 245.
(14) Rape, in violation of Section 261.
(15) Spousal rape, in violation of Section 262.
(16) Procuring any female to have sex with another man, in violation of Section 266, 266a, 266b, or 266c.
(17) Child abuse or endangerment, in violation of Section 273a or 273d.
(18) Abuse of spouse or cohabitant, in violation of Section 273.5.
(19) Sodomy, in violation of Section 286.
(20) Lewd and lascivious acts with a child, in violation of Section 288.
(21) Oral copulation, in violation of Section 288a.
(22) Sexual penetration, in violation of Section 289.
(23) Elder abuse, in violation of Section 368.
(24) An attempt to commit any crime specified in paragraphs (1) to (23), inclusive.
(e) When two or more persons who are required to report are present and jointly have knowledge of a known or suspected instance of violence that is required to be reported pursuant to this section, and when there is an agreement among these persons to report as a team, the team may select by mutual agreement a member of the team to make a report by telephone and a single written report, as required by subdivision (b). The written report shall be signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report.
(f) The reporting duties under this section are individual, except as provided in subdivision (e).
(g) No supervisor or administrator shall impede or inhibit the reporting duties required under this section and no person making a report pursuant to this section shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established, except that these procedures shall not be inconsistent with this article. The internal procedures shall not require any employee required to make a report under this article to disclose his or her identity to the employer.
(h) For the purposes of this section, it is the Legislature’s intent to avoid duplication of information.

SEC. 3.

 Section 13823.11 of the Penal Code is amended to read:

13823.11.
 The minimum standards 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 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 the usual policy of the hospital, clinic, or other outpatient setting.
(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.
(4) Pursuant to Chapter 3 (commencing with Section 6920) of Part 4 of Division 11 of the Family Code, a minor may consent to, or withhold consent from, hospital, medical, and surgical care, including a sexual assault forensic medical examination, 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.
(6) If an alleged victim of sexual assault is unconscious or incapacitated due to drugs, alcohol, head trauma, or a medical disease or condition, or due to a mental disorder or condition, and a reasonable person would conclude that exigent circumstances justify conducting a forensic medical examination and collecting appropriate evidence, a licensed hospital or licensed health care practitioner may perform an examination pursuant to implied consent in accordance with the provisions of this section. An examination completed in accordance with this subdivision shall preserve the victim’s anonymity. Upon the completion of the examination, law enforcement shall immediately report to the district attorney of the county in which the hospital, clinic, or other outpatient setting, or health care practitioner is located that the examination has been performed and a forensic examination kit has been completed. All patient confidentiality laws pertaining to forensic medical records apply.
(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 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 contraception by a physician or other health care provider.
(2) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim.
(f) (1) Each adult and minor victim of sexual assault who consents to a forensic medical examination for collection of evidentiary material shall have a physical examination which includes, but is not limited to, all of the following:
(A) Inspection of the clothing, body, and external genitalia for injuries and foreign materials.
(B) Examination of the mouth, vagina, cervix, penis, anus, and rectum, as indicated.
(C) Documentation of injuries and evidence collected.
(2) 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, expressly or pursuant to paragraph (6) of subdivision (c), 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 semen.
(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, expressly or pursuant to paragraph (6) of subdivision (c), to an examination for the collection of evidence may have reference specimens taken, except when he or she specifically objects thereto. A reference specimen is a standard from which to obtain baseline information and retain for DNA comparison and analysis. Reference specimens may also be collected at a later time if they are needed. 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 and the age of the victim. Baseline testing for sexually transmitted infections is relevant for children and may be forensically indicated for nonsexually active adults, and persons with disabilities or residing in long-term care facilities. In sexually active adults, testing for sexually transmitted infection for forensic purposes is not indicated. Medical indications for sexually transmitted infection testing are not part of the forensic medical examination.
(4) (A) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider.
(B) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim.
(5) For victims of sexual assault with an assault history of strangulation, best practices shall be followed for a complete physical examination and diagnostic testing to prevent adverse health outcomes or morbidity.
(6) A sexual assault forensic medical examiner and team (SAFE) shall be referred to as a SAFE and shall indicate that the person is licensed as a registered nurse, nurse practitioner, physician assistant, or physician trained on a standardized sexual assault forensic medical curriculum and serves on a SAFE Forensic Medical Examination Team.
(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.
(5) (A) Sexual assault forensic medical records are subject to the confidentiality requirements of the Confidentiality of Medical Information Act, as set forth in Part 2.6 (commencing with Section 56) of Division 1 of the Civil Code, the physician-patient privilege, as set forth in Article 6 (commencing with Section 990) of Chapter 4 of Division 8 of the Evidence Code, and the official information privilege, as set forth in Section 1040 of the Evidence Code. Sexual assault forensic medical records shall only be released as required by law.
(B) Procedures for the storage of sexual assault forensic medical records shall ensure the highest level of confidentiality and prevent copying of these records in response to requests for medical records that are not made in connection with a criminal or juvenile law investigation.
(C)  Sexual assault forensic medical records and reports shall not be destroyed. Hospitals, nonprofit organizations, and private businesses that operate sexual assault forensic medical examination teams shall develop and adhere to written protocols and procedures for protecting and maintaining the confidentiality of sexual assault forensic medical records, and for the proper disposition of these records if the examination program ceases to exist.

SEC. 4.

 Section 13823.95 of the Penal Code is amended to read:

13823.95.
 (a) Costs incurred by a qualified health care professional, hospital, clinic, sexual assault forensic medical examination team, or other emergency medical facility for the medical evidentiary examination portion of the 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, shall not be charged directly or indirectly to the victim of the assault.
(b) Any victim of a sexual assault who seeks a medical evidentiary examination, as that term is used in Section 13823.93, shall be provided with a medical evidentiary examination. No victim of a sexual assault shall be required to participate or to agree to participate in the criminal justice system, either prior to the examination or at any other time.
(c) The cost of a sexual assault medical evidentiary examination performed by a qualified health care professional, hospital, or other emergency medical facility for a victim of a sexual assault shall be treated as a local cost and charged to the local law enforcement agency in whose jurisdiction the alleged offense was committed; provided, however, that the local law enforcement agency may seek reimbursement, as provided in subdivision (d), for the cost of conducting the medical evidentiary examination portion of a medical examination of a sexual assault victim who does not participate in the criminal justice system.
(d) The cost of a sexual assault forensic medical evidentiary examination requested by a sexual assault victim who is choosing not to participate in a criminal investigation shall be treated as a local cost and charged to the local law enforcement agency in whose jurisdiction the alleged offense occurred. The costs of the examination shall be reimbursed to the local law enforcement agency by the Office of Emergency Services in an amount not to exceed one thousand dollars ($1,000). The Office of Emergency Services shall use the discretionary funds from federal grants awarded to the agency pursuant to the federal Violence Against Women and Department of Justice Reauthorization Act of 2005 and the federal Violence Against Women Reauthorization Act of 2013 through the federal Office of Violence Against Women, specifically, the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program, to cover the cost of the medical evidentiary examination portion of a medical examination of a sexual assault victim.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other 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.