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Note: Our summary
of VAWA 2005 provisions was reviewed by Marnie Shiels, Esq.,
from the Office on Violence Against Women (OVW).
In 2005, Congress reauthorized the Violence Against Women Act of
1994 in legislation commonly referred to as VAWA 2005. The
purpose of this Promising Practices article is to describe some
of the provisions that will have an impact on how communities
respond to sexual assault. In particular, we will focus on three
provisions specifying that:
(1) States must
pay for forensic exams for victims of sexual assault, in order
to remain eligible for STOP Violence Against Women Formula
Grants (commonly referred to as STOP Grant funds).
(2) States have discretion regarding whether or not to cover the
costs for medical testing and treatment conducted as part of a
forensic exam.
(3) States may now use federal STOP Grant funds to pay for
forensic exams as long as they are performed by trained
examiners and the costs are not billed to victims or their
private insurance.
(4) To remain eligible for STOP Grant funds, victims cannot be
required to participate in the criminal justice system in order
to obtain a forensic exam. According to the American Prosecutors
Research Institute,
38 states and the District of Columbia have statutes that
may require a rape to be reported before a forensic examination
is paid for.
We will describe
each of these provisions in a bit more detail, and then explore
their implications.
Unfortunately, the issues involved are rather complicated,
because they are also intertwined with the questions of whether
forensic exams are authorized by law enforcement and whether
medical professionals are mandated by law to report sexual
assault. So, let’s get started.
(1) States will pay for forensic exams of sexual assault
victims
Under VAWA 2005, grantees of the STOP Violence Against Women
Formula Grant Program must meet certain requirements concerning
payment for the forensic medical exam in order to receive funds.
Specifically, the State, Territory, or the District of Columbia
must certify that it or another governmental entity "incurs the
full out-of-pocket cost of forensic medical exams" for victims
of sexual assault. If one part of a State or Territory, such as
a county or city, is forcing victims to incur these costs, then
the State or Territory will not be able to certify and will be
ineligible for the grant funds. For the purposes of VAWA 2005, a
sexual assault forensic examination is defined as including, at
a minimum:
-
examination of
physical trauma
-
determination of
penetration or force
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patient
interview; and
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collection and
evaluation of evidence [28 C.F.R. § 90.2(b) (1)]
(2) States
have discretion regarding payment for medical testing and
treatment
Yet VAWA 2005 also states that “the inclusion of additional
procedures (e.g., testing for sexually transmitted diseases) to
obtain evidence may be determined by the state ... in accordance
with its current laws, policies, and practices” [§90.2(b)(2)].
In other words, although VAWA 2005 requires states to pay for
the forensic aspects of the exam (as defined above), they are
given discretion regarding whether to pay for medical aspects of
the exam. The practice therefore varies both as a result of
state laws and specific practices within the community. As a
result, victims of sexual assault may find that all, none, or
some of the costs for medical testing and treatment procedures
are covered.
However, even for those states that do use state funds to pay
for medical services provided as part of a forensic examination
(as opposed to evidence collection), these expenses will often
be paid through the existing Crime Victims Compensation fund.
Victims may therefore be required to pay for the costs of
medical testing and treatment upfront, and then submit an
application to be reimbursed through the Crime Victims
Compensation Fund.
Unfortunately, the eligibility criteria for most state Crime
Victims Compensation funds require victims to report the sexual
assault in a timely manner (often 72 hours to 5 days) and
cooperate with the criminal justice system. As we all know,
victims of sexual assault typically report to law enforcement
after a delay of days or weeks (if they report at all), and many
decide that they are unable to actively participate in the
investigation and prosecution of their sexual assault.
Therefore, even if medical services are reimbursed using state
funds, the eligibility criteria for the Crime Victims
Compensation funds will often limit the availability of these
funds for many victims of sexual assault.
(3) The cost of forensic exams cannot be billed to victims or
their insurance
Another provision of VAWA 2005 is closely related to this issue
of payment. Specifically, states may now use federal STOP Grant
funds to pay for forensic examinations of sexual assault victims
as long as they are performed by trained examiners and victims
are not required to seek reimbursement from their own private
insurance for the cost of the exam. Therefore, although the
current protocol in some states and communities is to bill
victims or their private insurance for the cost of a sexual
assault forensic examination first, this practice may disappear
as alternative legislation and protocols are developed.
(4) Victims cannot be required to participate in the criminal
justice system
A third important provision of VAWA 2005 specifies that any
state receiving STOP Grant funds cannot “require a sexual
assault victim to participate in the criminal justice system or
cooperate with law enforcement in order to be provided with a
forensic medical examination, reimbursement for charges incurred
on account of such an examination, or both.” States violating
this provision will not be eligible to receive continued STOP
Grant funding. At this time, however, it is not entirely clear
how this issue will be reconciled in those states where the law
requires that forensic examinations be authorized by law
enforcement. This is where the issues get particularly
complicated, so we’re going to unpack them separately.
Complicating factors
On the surface, it seems clear enough that VAWA 2005 requires
states to pay for forensic exams of all sexual assault victims,
regardless of whether they report the crime to law enforcement
or participate in the subsequent investigation or prosecution.
Yet it is not entirely clear at this point how this requirement
will be reconciled with other state laws specifying that all
forensic exams must be authorized by law enforcement and
mandating that medical professionals (including forensic
examiners) report any sexual assaults that are committed against
one of their patients.
Therefore, we will now turn toward an explanation of how these
VAWA 2005 provisions are intertwined with the questions of (1)
whether medical professionals are mandated by state law to
notify law enforcement of sexual assaults that are committed
against their patients; (2) whether a forensic examination must
be authorized by law enforcement before it can be conducted,
and; (3) who pays for forensic examinations.
Mandated Reporting by Medical Professionals
In some states, medical professionals are mandated by state law
to notify law enforcement of any sexual assault that is
committed or suspected against one of their patients. These laws
vary dramatically in terms of what triggers the mandated
reporting requirement, what information must be reported, who
must be notified of the report, and what specific procedures
must be followed to comply with this mandated reporting
requirement. In order to clarify these complex issues, the
American Prosecutors Research Institute (APRI), through their
National Center for the Prosecution of Violence Against Women,
recently released a report entitled: “Rape and Sexual Assault
Reporting Requirements for Competent Adult Victims” (2005).
Summary of state laws regarding mandated reporting
As summarized in the APRI (2005) report, some states have
laws explicitly requiring medical professionals to notify law
enforcement officials of a suspected sexual assault against a
competent adult victim. In these states, the victim does not
decide whether or not the sexual assault will be reported to law
enforcement.
Most state laws also require medical professionals to report
a sexual assault committed against any victim who is a minor, or
vulnerable based on their advanced age, severe disability, or
other factors. Most state laws also require mandated
reporting of any sexual assault committed by a caretaker or
other authority figure, although the exact provisions of these
reporting requirements vary by state.
Other state laws require medical professionals to report any
non-accidental or intentional injury against competent adult
victims, including those caused by violent crime. However,
it remains unclear whether some of these state laws require
medical professionals to report a sexual assault against a
competent adult victim that did not result in any physical
injury other than the sexual assault itself.
Other states have laws requiring medical professionals only
to report certain types of injuries against competent adult
victims, such as “injuries caused by firearms, stab wounds,
or non-accidental wounds caused by a knife or sharp pointed
instrument, injuries caused with a deadly weapon and burns,
among others” (APRI, 2005, p. 9). Therefore, medical
professionals would only be required to notify law enforcement
of a sexual assault if it involved this type of specific injury;
otherwise reporting would remain the victim’s decision.
For those states with no mandated reporting requirement
regarding the sexual assault of a competent adult victim, it
typically remains the victim’s decision regarding whether or not
the crime will be reported to law enforcement officials.
However, some hospitals or other forensic exam facilities may
have a policy of reporting sexual assaults, even when they are
not mandated to do so by state law.
Not the time to ask victims about prosecution or even
reporting
It is important to note, however, that regardless of the law in
your state, mandated reporting requirements for medical
professionals never require a victim to actually talk with law
enforcement professionals or to participate in an investigation
or prosecution. The reporting requirement simply mandates that
the health care provider provide information about the sexual
assault to law enforcement authorities (the information that is
provided and the procedure for doing so also varies by states).
Therefore, regardless of whether or not a mandated report is
made by medical professionals, they should never ask sexual
assault victims whether or not they want to report the crime to
law enforcement or “press charges” with criminal prosecution.
Rather, best practice is for health care providers (including
forensic examiners) to simply ask sexual assault victims whether
they are willing to talk with a law enforcement officer about
what an investigation might look like and what criminal justice
outcomes might realistically be expected.
Are victims identified in a mandated report?
In states with mandated reporting requirements for competent
adult victims of sexual assault, victims are not the ones to
decide whether or not the sexual assault will be reported to law
enforcement. Medical professionals in these states are mandated
to report the sexual assault to law enforcement, irrespective of
the victim’s wishes. Yet some of these mandated reporting laws
do not require that any identifying information be provided.
Therefore, the law in these states requires only a blind
(anonymous) report be filed with law enforcement officials.
In other states, the law requires medical professionals to
provide the victim’s identity to law enforcement, along
with other basic information about the sexual assault. Again,
these laws still leave it up to the victim to decide whether or
not to talk with law enforcement professionals or participate in
an investigation and prosecution.
The need for community-wide protocols and outreach efforts
In summary, state laws differ with respect to whether or not
they require medical professionals to report a sexual assault
that has been committed or suspected against one of their
patients. However, the details of these mandated reporting
requirements vary dramatically. Professionals from within law
enforcement and health care must therefore work together to
clarify their own understanding of state laws regarding mandated
reporting and develop a community-wide protocol for complying
with the requirement. Then the community will need to engage in
outreach efforts to inform mandated reporters of their
responsibilities and create procedures for filing mandated
reports. This may include the following (these are quoted
directly from the National Protocol for Sexual Assault
Medical Forensic Examinations recently published by the
Office on Violence Against Women):
Develop public
information initiatives on mandatory reporting – mandatory
reporters need to know applicable statutes regarding reporting
sexual assault cases that involve older vulnerable adults,
persons with severe disabilities, and minors.
A toll-free hotline number exclusively dedicated to abuse
reports may also help simplify reporting and ensure a written
report of each case and referrals to appropriate agencies. Such
a hotline could be operated at a State, tribal, regional, or
local level.
In institutional settings such as prisons, jails,
immigrant detention centers, nursing homes and assisted living
programs, inpatient treatment centers, and group homes, ensure
that victims can report assaults to outside agencies and are
offered protection from retaliation for reporting.
In each case strive to create an environment in which victims
are encouraged to report and are supported – throughout the
criminal justice process and beyond.
Even in those cases that do not develop beyond an initial report
to the police, victims should feel that they are respected
(National Protocol, 2004, p. 48).
Whatever the
specific reporting requirements, they must be clearly explained
to mandated reporters, so they know how to comply, and to
victims, so they know what to expect from the process. Victims
must also be notified of what triggers a mandatory report and
what information would be provided. However, they must also be
informed that even a mandatory report does not obligate them to
talk with law enforcement professionals or participate in the
investigation or criminal prosecution.
Law Enforcement Authorization of Forensic Exams
Another important element that complicates the implementation of
the new VAWA provisions is the fact that state laws vary in
whether or not they require forensic exams to be authorized by
law enforcement personnel before they can be conducted.
Summary of state laws regarding law enforcement authorization
In some states, the law requires law enforcement authorization
of any forensic examination, so victims of sexual assault must
report the crime to law enforcement in order to obtain a
forensic examination. The rationale for this type of requirement
is that part of the role of law enforcement is to determine
whether the elements of a crime have been met, and whether a
forensic examination of the victim would constitute an
appropriate step in the ongoing investigation. This
determination will be based on law enforcement expertise in the
various penal code definitions and elements of criminal sex
offenses, as well as an understanding of forensic evidence and
the likelihood of recovering probative evidence and information
in a forensic examination given the specific circumstances of
any particular case.
In most cases, this does not mean that the victim has to
participate in the resulting investigation or prosecution, but
simply that the crime must be reported to law enforcement
personnel so they can authorize the forensic examination so it
may be conducted by medical professionals. This is typically the
case when local law enforcement agencies or other government
entities have the responsibility for paying for the costs of the
forensic examination.
In other communities, however, victims can obtain a forensic
examination without authorization by law enforcement. The
implications of this practice will be discussed in more detail
in a later section.
The question of timelines for the forensic examination
In communities where the forensic examination must be authorized
by law enforcement, state law, agency policy, or local protocols
may specify certain timelines for how many hours after a sexual
assault incident a forensic examination will be authorized. This
issue was discussed in detail in a
previous Promising Practices article, from May 19th, 2005.
For the purposes of this Promising Practices article, however,
it is sufficient to note that the forensic examination must be
authorized by law enforcement personnel in many communities, and
the decision may be based on timelines that are specified in
state law, agency policy, and/or community protocols.
Forensic examinations without law enforcement involvement
In other communities, victims can obtain a forensic examination
without authorization by law enforcement, although the specific
practices in each community vary dramatically. For example,
victims in some communities may be able to obtain a forensic
examination simply by presenting to their hospital emergency
room or to a specialized medical facility located in a rape
crisis center, local YWCA, or other community organization. This
typically occurs when forensic examinations are paid for by the
hospital, rape crisis center, or other community organization
conducting the examinations, rather than by law enforcement or
another government entity.
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Of course, keep
in mind that the medical professional conducting the forensic
examination may be required by state law to report any
suspected case of sexual assault to law enforcement – even if
the forensic examination does not need to be authorized by law
enforcement.
-
This would be
dictated by state laws governing mandated reporting by medical
professionals, and is unrelated to the question of whether or
not state laws require forensic examinations be authorized
(and/or paid for) by law enforcement.
As with law
enforcement agencies, however, these forensic examination
facilities may have specific guidelines regarding timelines for
how long after the sexual assault a forensic examination will be
conducted. When this kind of facility conducts forensic
examinations without law enforcement’s involvement, however,
they will need to develop detailed policies regarding:
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How long evidence
will be stored at the facility before it is destroyed
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What measures
will be taken to protect the integrity of evidence and chain of
custody
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Whether and how
victims will be contacted for follow-up
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Whether and how
any DNA evidence from the suspect will be submitted to the
national DNA databank (the FBI Laboratory’s Combined DNA Index
System known as CODIS)
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What provisions
will be included in the consent form to be signed by victims
Who Pays for
the Forensic Examination
Related to the issue of whether or not law enforcement must
authorize a sexual assault medical forensic examination is the
question of who pays for it.
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For example, in
many communities, the cost of a forensic examination comes out
of the budget of the local law enforcement agency or
prosecutor’s office. This is often the case when the need for a
forensic examination must be evaluated and authorized by law
enforcement before it can be conducted.
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In other
communities, the cost is covered by: the hospital or other
medical facility conducting the forensic examination; city,
county, or state government; state crime victims compensation
program; the victim’s private insurance; or the victim him- or
herself. (Recall that the new provision of VAWA 2005 will likely
put an end to the practice of billing victims or their private
insurance for the costs of a forensic exam.)
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Yet in some of
these communities, costs are only covered for the forensic
components of the examination, and not medical evaluation and
treatment. This is likely to be in communities where the costs
are covered by a governmental entity such as the local law
enforcement agency, prosecutor’s office, or the city, county, or
state government, or the state crime victims compensation
program. This issue was discussed already.
Some state
laws specify who pays for forensic exams
Again turning to the recent summary by the National Center for
the Prosecution of Violence Against Women at the American
Prosecutors Research Institute (APRI, 2005), a number of states
have laws pertaining to the payment for forensic examinations.
However, the exact provisions of these laws vary dramatically.
Other states do not have any laws outlining who will pay for
sexual assault medical forensic examinations.
In most of the states with laws explicitly addressing this
question, the statute specifies that forensic examinations will
be paid for by the local law enforcement agency or crime
victims compensation fund. Yet some of the state laws
indicating that the crime victims compensation fund will pay for
forensic examinations have severe limitations. For example, some
of these state laws indicate that sexual assault medical
forensic examinations will only be paid for if:
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the victim
reports to law enforcement
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the report is
made within a specified time period (ranging from 72 hours to 5
days)
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the forensic
examination is authorized by law enforcement and/or
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the forensic
examination is approved by the local prosecutor
It is currently
unclear how these requirements will be reconciled with the new
provisions of VAWA 2005, but it appears that states will need to
revise these requirements in order to comply with the new
federal legislation and remain eligible for STOP Grant funding.
Some state laws specify only who will not pay for forensic
exams
Other state laws simply indicate that forensic examinations will
not be billed to victims or their private insurance,
without specifying exactly which entity will cover the costs.
This type of legislation clearly complies with the new provision
of VAWA 2005 by specifying that victims cannot be required to
pay for their forensic examination or seek reimbursement from
their own private insurance. This means that victims cannot be
charged for any of the costs associated with a forensic
examination conducted for the purpose of gathering evidence of a
sexual assault.
However, the fact that these state laws do not specify who will
pay the costs is a source of considerable concern. It is
therefore up to communities, regions, and states to develop
appropriate protocols for designating the source of payment for
medical forensic examinations. This is clearly a task that must
be undertaken with collaboration between all of the various
disciplines involved in responding to sexual assault victims,
such as law enforcement, prosecution, health care, and victim
advocacy. In fact, these disciplines might need to work
collaboratively to develop model language for a new or revised
state statute regarding the payment for forensic examinations.
How the question of payment affects other issues
Of course the question of who pays for the forensic examination
will also affect a number of other issues, such as whether or
not law enforcement is notified and whether or not the victim
can retain confidentiality.
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For example, if
the forensic examination is paid for by a law enforcement agency
or prosecutor’s office, their protocols will typically require
that they be notified of the incident in order to authorize
payment in advance. The forensic examination will then not
typically be confidential, unless the community has a protocol
in place for authorizing and conducting forensic examinations
under a pseudonym (e.g., “Jane Doe”) or blind identification
number.
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In other words,
the fact that the forensic examination is paid for by law
enforcement or prosecution typically means that it will result
in a formal report with the victim’s name and other identifying
information. There may be certain protections of the victim’s
privacy based on state law, agency policy, or local protocol.
However, the report will not usually be anonymous, unless it is
received by the law enforcement or prosecution agency as a
“blind report” (e.g., using a pseudonym such as “Jane Doe” or an
identification number).
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On the other
hand, forensic examinations that are conducted and paid for by a
community-based organization such as a rape crisis center or
YWCA may take place without notifying law enforcement and
regardless of whether the victim chooses to make a report. This
would depend on whether state laws require mandated reporting to
law enforcement and/or whether community protocols specify a
procedure for handling confidential forensic examination results
and evidence collected.
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Finally, although
VAWA 2005 now prohibits the practice, some communities have had
a policy of first billing the victim’s private insurance for
reimbursement of the costs associated with a forensic
examination. Of course, this practice poses a serious threat to
the victim’s confidentiality, which is an important reason why
it is now prohibited. For victims who share insurance coverage
with a spouse, parent(s), or other family members, it may be
impossible to keep these people from finding out about the
forensic examination (and therefore the sexual assault) –
because the reimbursement will show up on the insurance
statement or other records. This can be a particular concern for
students, who are often included on their parents’ insurance
policy.
Clearly, law
enforcement investigators, forensic examiners, and victim
advocates need to understand these complicated issues, so they
can explain to victims the consequences of their decisions –
regarding whether or not to have a forensic examination and
whether or not to report the crime to law enforcement. In
particular, community professionals must be able to explain to
victims the consequences of these decisions as they pertain to
questions of payment for any costs of the forensic exam and the
confidentiality of their exam findings. Victims may also need to
be referred to either community-based or system-based advocacy
organizations for assistance in applying for reimbursement
through the crime victims compensation funds.
Because these issues are complex and determined in large part by
state law, agency policies, community protocols, and local
resources, they must be carefully addressed by each community as
part of their Sexual Assault Response and Resource Team (SARRT)
or other coordinated effort.
For More Information
To find out more about these complicated issues, and the
implications for your state, please see the following resources:
National Protocol for Sexual Assault Medical Forensic
Examination: Adults/Adolescents (2004, September).
Published by the U.S. Department of Justice, Office on Violence
Against Women (NCJ 206554).
“Rape and Sexual Assault Reporting Requirements for
Competent Adult Victims” (2005). Also see the
interactive map created by the American Prosecutors Research
Institute through the National Center for the Prosecution of
Violence Against Women at
State Rape Reporting Requirements
For more information on the Violence Against Women Act 2005
Reauthorization, please see the website for the
National Task
Force to End Sexual and Domestic Violence Against Women
"Statutes Addressing Payment for Forensic Sexual Assault
Examinations",The Voice, published by the American
Prosecutors Research Institute’s National Center for the
Prosecution of Violence Against Women, (page 3)
1-Drawn from A. Vachss (2001). Redefining Rape Response When the
Victim is Elderly or Has a Disability, pp. 6-8 and 10. Quoted in
the National Protocol (2004, p. 48).
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