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SECTION 2805-I
Treatment of sexual offense victims and maintenance of evidence in a sexual offense
Public Health (PBH) CHAPTER 45, ARTICLE 28
§ 2805-i. Treatment of sexual offense victims and maintenance of
evidence in a sexual offense. 1. Every hospital providing treatment to
alleged victims of a sexual offense shall be responsible for:

(a) maintaining sexual offense evidence and the chain of custody as
provided in subdivision two of this section;

(b) informing sexual offense victims of the availability of rape
crisis and local victim assistance organizations, if any, in the
geographic area served by the hospital, and contacting a rape crisis or
local victim assistance organization to establish the coordination of
non-medical services, including but not limited to transportation within
the geographic area served by that organization, upon the conclusion of
initial medical services, free of charge from the medical facility to
sexual offense victims who request such coordination and services;

(c) offering and making available appropriate HIV post-exposure
treatment therapies; including a seven day starter pack of HIV
post-exposure prophylaxis for a person eighteen years of age or older,
or the full regimen of HIV post-exposure prophylaxis for a person less
than eighteen years of age, in cases where it has been determined, in
accordance with guidelines issued by the commissioner, that a
significant exposure to HIV has occurred, and informing the victim that
payment assistance for such therapies and other crime related expenses
may be available from the office of victim services pursuant to the
provisions of article twenty-two of the executive law. With the consent
of the victim of a sexual assault, the hospital emergency room
department shall provide or arrange for an appointment for medical
follow-up related to HIV post-exposure prophylaxis and other care as
appropriate; and

(d) ensuring sexual assault survivors are not billed for sexual
assault forensic exams and are notified orally and in writing of the
option to decline to provide private health insurance information and
have the office of victim services reimburse the hospital for the exam
pursuant to subdivision thirteen of section six hundred thirty-one of
the executive law.

2. Sexual offense evidence shall be collected and maintained as
follows:

(a) All sexual offense evidence shall be kept in a locked, separate
and secure area for twenty years from the date of collection; provided
that such evidence shall be transferred to a new location(s) pursuant to
this subdivision.

(b) Sexual offense evidence shall include, but not be limited to,
slides, cotton swabs, clothing and other items. Where appropriate, such
items shall be refrigerated and the clothes and swabs shall be dried,
stored in paper bags, and labeled. Each item of evidence shall be marked
and logged with a code number corresponding to the alleged sexual
offense victim's medical record.

(c) Upon collection, the hospital shall notify the alleged sexual
offense victim that, after twenty years, the sexual offense evidence
will be discarded in compliance with state and local health codes and
that the alleged sexual offense victim's clothes or personal effects
will be returned to the alleged sexual offense victim at any time upon
request. The alleged sexual offense victim shall be given the option of
providing contact information for purposes of receiving notice of the
planned destruction of such evidence after the expiration of the
twenty-year period.

(d) Until September thirtieth, two thousand twenty-two, or earlier if
determined feasible by the director of budget, hospitals shall be
responsible for securing long-term sexual offense evidence pursuant to
this section, after which such storage shall be the responsibility of
the office of victim services. Hospitals may enter into contracts with
other entities that will ensure appropriate and secure long-term storage
of sexual offense evidence pursuant to this section until September
thirtieth, two thousand twenty-two.

(e) Beginning April first, two thousand eighteen, the department, the
office of victim services, the division of criminal justice services and
the division of state police shall jointly study, evaluate and make
recommendations concerning the storage and monitoring of sexual offense
evidence for twenty years, including studying options for the use of:
state-owned or operated facilities; facilities owned or operated by
local government or law enforcement agencies; and facilities owned or
operated by private entities.

(f) Between thirty and ten days prior to the transfer of sexual
offense evidence to the office of victim services, hospitals shall make
diligent efforts to notify the alleged sexual offense victim of the
transfer of custody for the remainder of the twenty-year storage period.

(g) On September thirtieth, two thousand twenty-two, or earlier if
determined feasible by the director of budget, responsibility for
long-term storage of sexual offense evidence shall transfer to the
office of victim services.

(h) After September thirtieth, two thousand twenty-two, or earlier if
determined feasible by the director of budget, hospitals shall ensure
transfer of sexual offense evidence collected pursuant to this section
to the office of victim services within ten days of collection of such
evidence, while maintaining chain of custody.

(i) At least ninety days prior to the expiration of the twenty-year
storage period for any sexual offense evidence, the office of victim
services shall make diligent efforts to contact the alleged sexual
offense victim to notify the alleged sexual offense victim that the
sexual offense evidence will be discarded in compliance with state and
local health codes and that the alleged sexual offense victim's clothes
and personal effects will be returned to the alleged sexual offense
victim upon request.

(j) Notwithstanding any other provision in this section, sexual
offense evidence shall not continue to be stored where: (i) such
evidence is not privileged and law enforcement requests its release, in
which case the custodian(s) shall comply with such request; or (ii) such
evidence is privileged and either (A) the alleged sexual offense victim
gives permission to release the evidence to law enforcement, or (B) the
alleged sexual offense victim signs a statement directing the
custodian(s) to dispose of the evidence, in which case the sexual
offense evidence will be discarded in compliance with state and local
health codes.

3. Upon admittance or commencement of treatment of the alleged sexual
offense victim, the hospital shall advise the victim of the availability
of the services of a local rape crisis or victim assistance
organization, if any, to accompany the victim through the sexual offense
examination. If after receiving such advice the sexual offense victim
wishes the presence of a rape crisis or victim assistance advocate, the
hospital shall contact the appropriate organization and request that one
be provided, provided, however, that if in the professional judgment of
the treating practitioner a delay in treatment is detrimental to the
provision of medical treatment, then examination or treatment need not
be delayed pending the arrival of such advocate and further provided
that the presence or continued presence of such advocate does not
interfere with the provision of necessary medical care to the victim.

4. No hospital or treating practitioner shall be liable in civil
damages for failing to comply with the requirements of subdivision one,
two or three of this section or acting in good faith to provide
treatment as provided in subdivision three of this section.

4-a. On and after April first, two thousand one, a hospital providing
treatment to alleged victims of sexual offenses shall be eligible to
receive from the division of criminal justice services, at no cost,
sexual offense evidence collection kits.

4-b. (a) The commissioner shall, with the consent of the directors of
interested hospitals in the state and in consultation with the
commissioner of the division of criminal justice services, designate
hospitals in the state as the sites of a twenty-four hour sexual assault
forensic examiner program. The hospital sites shall be designated in
urban, suburban and rural areas to give as many state residents as
possible ready access to the sexual assault forensic examiner program.
The commissioner, in consultation with the commissioner of the division
of criminal justice services, shall consider the following criteria when
designating these sexual assault forensic examiner program sites:

(1) the location of the hospital;

(2) the hospital's capacity to provide on-site comprehensive medical
services to victims of sexual offenses;

(3) the capacity of the hospital site to coordinate services for
victims of sexual offenses including medical treatment, rape crisis
counseling, psychological support, law enforcement assistance and
forensic evidence collection;

(4) the hospital's capacity to provide access to the sexual assault
forensic examiner site for disabled victims;

(5) the hospital's existing services for victims of sexual offenses;

(6) the capacity of the hospital site to collect uniform data and
insure confidentiality of such data; and

(7) the hospital's compliance with state and federally mandated
standards of medical care.

(b) Each sexual assault forensic examiner program site designated
pursuant to this subdivision shall comply with the requirements of
subdivisions one, two and three of this section, and shall also provide
treatment to the victim as follows:

(1) The victim shall, absent exigent circumstances, be met by a sexual
assault forensic examiner within sixty minutes of arriving at the
hospital, who shall be a nurse practitioner, physician assistant,
registered nurse or physician specially trained in forensic examination
of sexual offense victims and the preservation of forensic evidence in
such cases and certified as qualified to provide such services pursuant
to regulations promulgated by the commissioner. Such program shall
assure that such a specially-trained forensic examiner is on-call and
available on a twenty-four hour a day basis every day of the year.

(2) An examination of the victim shall be performed promptly by such
forensic examiner in a private room designated for such examinations. An
obstetrician/gynecologist or other appropriate medical doctor shall be
readily available to the forensic examiner if there is a need for more
specialized medical evaluation or treatment.

(3) Promptly after the examination is completed, the victim shall be
permitted to shower, be provided with a change of clothing, be informed
that a rape crisis or victim assistance organization providing victim
assistance to the geographic area served by that hospital is available
to provide transportation within the geographic area served by that
organization, upon the conclusion of initial medical services, free of
charge from the medical facility, and receive follow-up information,
counseling, medical treatment and referrals for same.

(c) Nothing in this subdivision shall affect the existence or
continued existence of any program in this state through which a trained
nurse practitioner, physician assistant, registered nurse or physician
is providing appropriate forensic examinations and related services to
survivors of sexual assault.

5. The commissioner shall promulgate such rules and regulations as may
be necessary and proper to carry out effectively the provisions of this
section. Prior to promulgating such rules and regulations, the
commissioner shall consult with relevant police agencies, forensic
laboratories, rape crisis centers, hospitals, and other such persons as
the commissioner deems necessary. Such rules and regulations shall
identify the offenses subject to the provisions of this section, provide
a specific definition of sexual offense evidence and require each
hospital to contact its local police agency and forensic laboratory to
determine their specific needs or requirements.

6. (a) The department, in consultation with the division of criminal
justice services, the office of victim services, hospitals, other health
care providers and victim advocacy organizations, shall publish a sexual
assault victim bill of rights for purposes of informing sexual offense
victims of their rights under state law. Such bill of rights shall be
prominently published on the department's website, in at least the ten
most common languages spoken in this state, and distributed to hospitals
as a document which shall be provided to every presenting sexual offense
victim. The department may update the bill of rights as necessary to
reflect changes in state law and more accurately explain the law. Such
bill of rights shall be in plain, easy to understand language, and
include the right of the victim to:

(1) consult with a local rape crisis or local victim assistance
organization, to have a representative of such organization accompany
the victim through the sexual offense examination, to have such an
organization be summoned by the medical facility, police agency,
prosecutorial agency or other law enforcement agency before the
commencement of the physical examination or interview, pursuant to this
section, and to have such organization provide transportation within the
geographic area served by that organization, free of charge from the
medical facility to sexual offense victims who request such services
upon discharge;

(2) be offered and have made available at no cost appropriate
post-exposure treatment therapies, including a seven day starter pack of
HIV post-exposure prophylaxis in accordance with paragraph (c) of
subdivision one of this section and subdivision thirteen of section six
hundred thirty-one of the executive law;

(3) a health care forensic examination at no cost and the right to be
notified of the option to decline to provide private health insurance
information and have the office of victim services reimburse the
hospital for the examination under subdivision thirteen of section six
hundred thirty-one of the executive law;

(4) receive information relating to and the provision of emergency
contraception in accordance with section twenty-eight hundred five-p of
this article;

(5) be offered contact information for the police agency,
prosecutorial agency or other law enforcement agency with jurisdiction
over the sexual offense and be informed, upon request of the victim, of
the date and location at which such sexual offense evidence kit was
assessed for Combined DNA Index System (CODIS) eligibility and analyzed,
whether a CODIS eligible profile was developed and whether or not a DNA
match was identified, provided, however, that the police agency,
prosecutorial agency or other law enforcement agency serving the
jurisdiction may temporarily delay release of such DNA match information
to the victim, prior to the arrest of a suspect alleged to have
committed such offense, if such agency documents in writing and notifies
the victim that release of such information would compromise the
successful investigation of such sexual offense;

(6) be notified between thirty and ten days prior to the transfer of a
sexual offense evidence kit from the hospital to another storage
facility in accordance with paragraph (h) of subdivision two of this
section, the right to have a sexual offense evidence kit maintained at
an appropriate storage facility for twenty years from the date of
collection, the right, if not previously consented to, to consent to
release the evidence to law enforcement at any time during the twenty
years from collection, and the right to be notified by such facility at
least ninety days prior to the expiration of the twenty-year storage
period in accordance with paragraph (k) of subdivision two of this
section; and

(7) be notified by the prosecutorial agency with jurisdiction of
judicial proceedings relating to their case in accordance with article
twenty-three of the executive law; and

(8) decide whether or not the victim wishes to report the offense to
law enforcement.

(b) Before a medical facility commences a physical examination of a
sexual offense victim, or a police agency, prosecutorial agency or other
law enforcement agency commences an interview of a sexual offense
victim, the health care professional conducting the exam, police agency,
prosecutorial agency or other law enforcement agency shall inform the
victim of the victim's rights by providing a copy of this sexual assault
victim bill of rights and offering to explain such rights.

7. On or before November thirtieth, two thousand two, the commissioner
shall make a report to the governor, the temporary president of the
senate and the speaker of the assembly concerning the sexual assault
forensic examiner program established under subdivision four-b of this
section. Such report shall include an evaluation of the efficacy of such
program in obtaining useful forensic evidence in sexual offense cases
and assuring quality treatment to sex offense victims. Such report shall
also recommend whether this program should be expanded and shall
estimate the financial cost, if any, of such expansion.