Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

AB-334 Sexual assault.(2017-2018)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 06/12/2017 09:00 PM
AB334:v95#DOCUMENT

Amended  IN  Senate  June 12, 2017
Amended  IN  Assembly  April 27, 2017
Amended  IN  Assembly  April 18, 2017
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 add Section 340.16 to the Code of Civil Procedure, and to amend Sections 13823.5, 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 set the time for commencement of any civil action for recovery of damages suffered as a result of sexual assault, as defined, where the assault occurred on or after the plaintiff’s 18th birthday, to the later of within 10 years from the date of the last act, attempted act, or assault with intent to commit an act, of sexual assault 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, attempted act, or assault with intent to commit an act, of sexual assault by the defendant against the plaintiff.
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 make changes relating to the conduct of sexual assault examinations and the storage of related records. examinations.
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 prohibition on charging a victim of sexual assault applicable to costs incurred by a clinic or sexual assault forensic medical examination team, and would include nurse practitioners and physician’s assistants as qualified health care professionals. The bill would repeal the provision limiting the amount that may be charged to $300. The bill would further require that the costs of the examination for a sexual assault victim who chooses not to participate in a criminal investigation to be reimbursed to the local law enforcement agency by the Office of Emergency Services at the locally negotiated rate in an amount not to exceed $1,000.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 340.16 is added to the Code of Civil Procedure, to read:

340.16.
 (a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff’s 18th birthday, 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, attempted act, or assault with the intent to commit an act of sexual assault by the defendant against the plaintiff.
(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff.
(b) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 262, 264.1, 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.
(c) This section applies to any action described in subdivision (a) that is commenced on or after January 1, 2018, to any action described in subdivision (a) that is filed prior to January 1, 2018, and still pending on that date, and to any action or causes of action described in subdivision (a) that would have been barred by the laws, including the period of limitations, in effect prior to January 1, 2018, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 2018. Nothing in this section is intended to revive actions or causes of action as to which there has been a final adjudication on the merits prior to January 1, 2018. Termination of a prior action on the basis of the statute of limitations does not constitute a final adjudication on the merits.

SEC. 2.

 Section 13823.5 of the Penal Code is amended to read:

13823.5.
 (a) The Office of Emergency Services, with the assistance of the advisory committee established pursuant to Section 13836, shall establish a protocol 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. The protocol shall contain recommended methods for meeting the standards specified in Section 13823.11.
(b) (1) In addition to the protocol, the Office of Emergency Services shall develop informational guidelines, containing general reference information on evidence collection and examination of victims of, and psychological and medical treatment for victims of, sexual assault and attempted sexual assault, including child molestation.

In

(2) In developing the protocol and the informational guidelines, the Office of Emergency Services and the advisory committee shall seek the assistance and guidance of organizations assisting victims of sexual assault; qualified health care professionals, criminalists, and administrators who are familiar with emergency room procedures; victims of sexual assault; and law enforcement officials.
(c) (1) The Office of Emergency Services, in cooperation with the State Department of Public Health and the Department of Justice, shall adopt a standard and a complete form or forms for the recording of medical and physical evidence data disclosed by a victim of sexual assault or attempted sexual assault, including child molestation.

Each

(2) Each qualified health care professional who conducts an examination for evidence of a sexual assault or an attempted sexual assault, including child molestation, shall use the standard form or forms adopted pursuant to this section, and shall make those observations and perform those tests as may be required for recording of the data required by the form. The forms shall be subject to the same principles of confidentiality applicable to other medical records.

The

(3) The Office of Emergency Services shall make copies of the standard form or forms available to every public or private general acute care hospital, as requested.
The standard form shall be used to satisfy the reporting requirements specified in Sections 11160 and 11161 in cases of sexual assault, and may be used in lieu of the form specified in Section 11168 for reports of child abuse.
(d) The Office of Emergency Services shall distribute copies of the protocol and the informational guidelines to every general acute care hospital, law enforcement agency, and prosecutor’s office in the state.
(e) As used in this chapter, “qualified health care professional” means a physician and surgeon currently licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, or a nurse currently licensed pursuant to Chapter 6 (commencing with Section 2700) of Division 2 of the Business and Professions Code and working in consultation with a physician and surgeon who conducts examinations or provides treatment as described in Section 13823.9 in a general acute care hospital or in a physician and surgeon’s office, a nurse practitioner currently licensed pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code, or a physician assistant licensed pursuant to Chapter 7.7 (commencing with Section 3500) of Division 2 of the Business and Professions Code.

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 related to a sexual assault, 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.
(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 prohibition 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 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 by this code.
(2) Each victim of sexual assault who consents to an examination for the collection of evidence may have reference specimens taken, except if 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 shall be referred to as a SAFE, and shall be trained on standardized sexual assault forensic medical curriculum consistent with Sections 13823.5 to 13823.11, inclusive.
(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 shall only be released as required by law.

(B)Procedures for the storage of sexual assault forensic reports 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)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 records, and for the proper disposition of these records if the examination program ceases to exist.

(5) Hospitals, nonprofit organizations, and private businesses that conduct sexual assault forensic examinations shall develop and implement written policies and procedures for maintaining the confidentiality of sexual assault forensic reports, including proper disposition of these reports if the examination program ceases operations. Sexual assault forensic reports shall be released only as required or authorized by law.

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 A victim of a sexual assault shall not 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, and reimbursed within 60 days by, the local law enforcement agency in whose jurisdiction the alleged offense was committed; provided, however, that the committed. 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 and reimbursed within 60 days by 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 at the locally negotiated rate, 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 on 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.