Violence Against Women Act Forensic Compliance Issues

1. Violence Against Women Act Forensic Compliance Issues

2. VAWA Forensic Compliance 2005 Reauthorization 42 USCA S. 3796gg-4.b.3.D.d.1 “Nothing in this section shall be construed to permit a State, Indian tribal government, or territorial government to require a victim of sexual assault to participate in the criminal justice system or cooperate with law enforcement in order to be provided with a forensic medical exam, reimbursement for charges incurred on account of such an exam, or both.”

3. Why the Change? • Up to 84% of all sexual assaults go unreported – increasing reporting increases victims’ access to health care • Forensic evidence collection is time-sensitive • Acute emotional trauma inhibits the trauma victim’s decision making capacity

4. Deadline • January 5, 2009 • States must be able to certify, in good faith, that they are in compliance with the statutory eligibility requirements within VAWA • A breakdown in system could jeopardize VAWA STOP funds

5. Models of Compliance • Evidence Collection Option • Anonymous / “Jane Doe” Reporting • Anonymous Mandatory Reporting • Evidence Based Prosecution Option • The Military Model: Restricted & Unrestricted Reporting

6. Evidence Collection Option Guiding Principle • Emphasis on healthcare and evidence collection, and not on reporting to law enforcement Characteristics • Victims are offered a SAFE Exam regardless of their decision to cooperate or participate with justice system • From a law enforcement perspective, no crime has taken place unless & until victim elects to report at a later date • Hospital stores kit in some cases

7. Evidence Collection Option: New York Every hospital providing treatment to alleged victims of a sexual offense shall be responsible for: • 1-a. maintaining sexual offense evidence and the Chain of Custody as provided in subdivision two of this section. • 1-b. contacting a rape crisis or victim assistance organization, if any, providing victim assistance to the geographic area served by that hospital to establish the coordination of non-medical services to sexual offense victims who request such coordination and services. Source: New York State Public Health Law; Section 2805-i; “Treatment of sexual offense patients and maintenance of evidence in a sexual offense, including Sections 2805-i (4-b) and 2805-i (5); Establishment of hospital-based Sexual Assault Forensic Examiner Programs”; And New York State Public Health Law; Section 2805-p; “Emergency treatment of rape survivors” 2805-i. Treatment of sexual offense victims and maintenance of evidence in a sexual offense.

8. Anonymous/ “Jane Doe”/ Blind Reporting Guiding Principle • Emphasizes keeping victim’s identity from law enforcement Characteristics • Victims are offered a SAFE exam regardless of decision to cooperate or participate with justice system • From a law enforcement perspective, they are not investigating until victim chooses to make a full report • Law enforcement may document evidence through a police report or an informational report • Generally, law enforcement transports evidence to police department for storage • Also known as ‘Third Party Reporting’

9. Anonymous Reporting: Oregon SAFE Kits, where the identity of the victim is unknown, will need to be assigned a case number and entered into evidence. Methods such as Jane Doe reporting, citizen contact, suspicious incident or sexual offense can be utilized for generating a case number. Source: Attorney General’s Sexual Assault Task Force Recommended Law Enforcement Policy

10. Anonymous Mandatory Reporting Guiding Principles • Uniform reporting of sexual assault will allow the State to learn much more regarding the prevalence of sexual assault. Characteristics • Victims are offered a SAFE exam regardless of their decision to cooperate with law enforcement and/or participate with the criminal justice system • From a law enforcement perspective, a crime has taken place, which is generally documented through an alternative manner (such as a supplemental report filed by a health care provider) • Generally, law enforcement transports evidence to police department for storage

11. Anonymous Mandatory Reporting:Massachusetts “Every physician attending, treating, or examining a victim of rape or sexual assault, or, whenever any such case is treated in a hospital, sanatorium or other institution, the manager, superintendent or other person in charge thereof, shall report such case at once to the criminal history systems board and to the police of the town where the rape or sexual assault occurred but shall not include the victim’s name, address, or any other identifying information. The report shall describe the general area where the attack occurred. Whoever violates any provision of this section shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars.” Source: M.G.L.C. 112§ 12½

12. Evidence Based Prosecution Option Guiding Principle • Proper evidence collection may allow prosecutor to proceed in prosecuting the case with physical evidence only Characteristics • Similar to Pro-Prosecution model for Domestic Violence • At this time, this theoretical option is being considered as a possibility in a few jurisdictions

13. Military: Restricted Reporting Guiding Principles • Recognizes the significant deterrents to reporting within the military • Emphasizes the availability of supportive services • Encourages more accurate data collection Characteristics • Similar to the civilian Anonymous Reporting options • Victim is afforded protection from Chain of Command notifications • Victim may opt to change the report to “Unrestricted” in the future

14. Promising Statutes & Policies • Evidence Collection: • New York • Sexual Assault Examiner Program Fact Sheet: • http://criminaljustice.state.ny.us/ofpa/saefactsheet.htm • Sexual Assault Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault November 2004: • http://www.health.state.ny.us/professionals/protocols_and_guidelines/sexual_assault/docs/adult_protocol.pdf • Anonymous Reporting: • Oregon • HB 2154: • http://www.oregonsatf.org/documents/HB%202154%20A-engrossed.pdf • Mandatory Reporting: • Massachusetts • Provider Sexual Crime Report: • http://www.mass.gov/Eeops/docs/programs/fjj/provider_sexual_crime_report.pdf • Transportation Protocol: • http://www.mass.gov/Eeops/docs/programs/law%20enf/2006_transport_letter.doc • http://www.mass.gov/Eeops/docs/programs/law%20enf/2006_transport_protocol.doc

15. Common Barriers • Conflicting Legislation • Response Protocol • Reimbursement Process • Handling of Evidence (Tracking, Transportation, and Storage)

16. Resolving Barriers:State Level vs. Local Level • Explore what efforts, if any, exist at the state level to address compliance issues • Identify Barriers that are appropriate for local multidisciplinary Response Teams (SART, SARRT, or other) to address

17. Conflicting Legislation • Generally addressed on the state level Common Issues • Conflicts with mandatory reporting • Statutes addressing exam payments and/or reimbursements

18. Response Protocols • Most likely a state response and a local response Common Issues • Developing statewide protocols in response to enabling legislation • SART issue to discuss local response

19. Reimbursement/ Payment Issues • Generally addressed on the state level Common Issues • Statutory roadblocks • Administrative roadblocks

20. Handling of Evidence • May be a state and/or a local issue Common Issues • Once evidence is collected, where is it stored? • How is it transported? • How is it tracked? • Decide whether or not it will be processed through FBI’s CODIS

21. National TA Project • MCASA is a designated National Technical Assistance provider by the USDOJ Office on Violence Against Women • MCASA is researching, designing and disseminating a toolkit to aid States in becoming compliant • Phone: (410) 974-4507 Debra Bright, National TA Project Director Email: d.bright@mcasa.org