An Act Regarding Sexual Assault Forensic Examinations
Maine Legislature, Session 122, LD 1873
Committee: Judiciary
Sponsors: PELLETIER-SIMPSON, PINGREE
Amends: 14 MRSA §171, 18-A MRSA §5, 25 MRSA §3821

Legislative Document 
No. 1873 
H.P.1313 
House of Representatives, January 3, 2006 
An Act Regarding Sexual Assault Forensic Examinations 
Submitted by the Department of the Attorney General pursuant to Joint Rule 204. 
Received by the Clerk of the House on December 28, 2005. Referred to the Committee on 
Judiciary pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 401. 
17/~/h.~ 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative PELLETIER-SIMPSON of Auburn. 
Cosponsored by Representative: PINGREE of North Haven. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 14 MRSA §171 is enacted to read: 
SI7l. 
laaunity fo~_rformimce oL.fQX'~lt.sic examination on 
alleged victim of gross sexual assault 
1. 
Hos.,pital or practitioner iDmune when consent of alleged 
victim obtained. 
A licensed hospital or licensed health care 
practitioner is immune from criminal or civil liability for an 
act or omission in performing 
a 
fQrensic 
examinatiQn on 
an 
alleged victim Qf gross sexual assault if: 
A. 
The 
hQspital 
or 
practitioner 
that 
CQnducts 
the 
examinatiQn 
uses 
a 
standard 
forensic 
examination 
kit 
pursuant to Title 25, section 2915; 
B. 
The hQspital or practitioner conducts the examination 
using due care; and 
C. 
The hospital or practitioner obtains the CQnsent Qf the 
alleged victim. 
2. 
Hospital or practitioner immune in absence of consent of 
alleged yictilll. 
If a licensed hQspital Qr licensed heal th care 
practitiQner is unable to Qbtain CQnsent to conduct a fQrensic 
examination Qf an alleged victim of grQss sexual assault due to 
the 
victim's 
inability 
tQ 
CQnsent 
Qf 
inability 
to 
decline 
CQnsent, the hQspital Qr health care practitiQner is immune frQm 
criminal Qr civil liability fQr an act Qr QmissiQn in perfQrming 
a 
fQrensic eXamination Qn 
an alleged victim Qf 
grQSS 
sexual 
assault if: 
A. 
The 
hQspital 
Qr 
practitiQner 
that 
cQnducts 
the 
examinatiQn 
uses 
a 
standard 
fQrensic 
examination 
kit 
pursuant to Title 25, section 2915; 
B. 
The hQspi_tal or practitioner conducts the examination 
using due care; and 
C. 
The 
examination 
is 
conducted 
under 
circumstances 
warranting 
a 
reasonable 
persQn to 
cQnclude that exigent 
circumstances 
justify conducting 
the 
examination in 
the 
absence of consent. 
Any kit cQl1ected in accQrdance with this subsectiQn must be 
cQllected anQnymQusly and treated in accQrdance with Title 25, 
sectiQn 3821. 
Page l-LR2940(1) 
.. 
~ 
Sec. 2. 18-A MRSA §5-312, sub-§(a), ,(3), as amended by PL 1995, 
c. 378, Pt. B, §2, is further amended to read: 
(3) 
A guardian may give or withhold consents or approvals 
related to medical or other professional care, 
counsel, 
treatment or service for the ward, except that a guardian 
may 
not 
decline 
consent 
for 
a 
sexual 
assault 
forensic 
examination of the ward. 
Except as authorized by a court 
of 
competent 
jurisdiction, 
a 
guardian 
shall 
make 
a 
health-care 
decision 
in 
accordance 
with 
the 
ward's 
individual instructions, if any, and other wishes expressed 
while the ward had capacity to the extent known to the 
guardian. 
Otherwise, the guardian shall make the decision 
in accordance 
with 
the 
guardian's 
determination of 
the 
ward's 
best 
interest. 
In 
determining 
the 
ward's 
best 
interest, the guardian shall consider the ward's personal 
values to the extent known to the guardian. 
A decision of a 
guardian to withhold or withdraw life-sustaining treatment 
is effective without court approval unless the guardian's 
decision is made against the advice of the ward's primary 
physician and in the absence of instructions from the ward 
made while the ward had capacity. 
Sec. 3. 18-A MRSA §5-506, sub-§(a), as amended by PL 1995, c. 
378, Pt. B, §3, is further amended to read: 
(a) 
A durable health care power of attorney is a durable 
power of attorney by which a principal designates another as 
attorney-in-fac:. to make decisions on the principal's behalf in 
matters concerning the principal's medical or health treatment 
and care. 
An attorney-in-fact designated under a durable health 
care power of attorney may be authorized to give or withhold 
consents or approvals relating to any medical, health or other 
professional care, counsel, treatment or service of or to the 
principal 
by 
a 
licensed or professional certified person or 
institution engaged in the practice of, or providing, a healing 
art, including life-sustaining treatment when the principal is in 
a 
terminal 
condition 
or 
a 
persistent 
vegetative 
state. 
Notwithstanding any 
prov~s~on contained in the durable health 
care power of attorney, the designated attorney-in-fact may not 
decline consent for a sexual assault forensic examination of the 
principal. 
Sec. 4. 18-A MRSA §5-802, sub-§(b), as amended by PL 1999, c. 
711, §2, is further amended to read: 
(b) 
An adult or emancipated minor with capacity may execute 
a power of attorney for health care, which may authorize the 
agent to make any health-care decision the principal could 
have made while having capacity, except that the agent may 
not 
decline 
consent 
for 
a 
sexual 
assault 
forensic 
examination of the principal. 
The power must be in writing 
and 
signed 
by 
the 
principal 
and 
witnesses. 
Notwithstanding any 
law validating electronic or digital 
signatures, signatures of the principal and witnesses must 
be made in person and not by electronic means. 
The power 
remains 
in effect notwithstanding 
the principal's later 
incapacity and may include individual instructions. 
Unless 
related to the principal by blood, marriage or adoption, an 
agent may 
not be 
an 
owner, 
operator 
or 
employee of 
a 
residential long-term health-care institution at which the 
principal is receiving care. 
Sec. 5. 18·A MRSA §5·805, sub·§(a), as amended by PL 1999, c. 
411, §2, is further amended to read: 
(a) 
A surrogate may 
make 
a 
decision to 
withhold or 
withdraw life-sustaining treatment for a patient who is an adult 
or emancipated minor if the patient has been determined by the 
primary physician to lack capacity, no agent or guardian has been 
appointed or the agent or guardian is not reasonably available 
and the patient is in a 
terminal condition or 
a persistent 
vegetative state as determined by the primary physician. 
A surrogate also is authorized to make any other health care 
decision for a patient who is an adult or emancipated minor if 
the patient has been determined by the primary physician to lack 
capacity and no agent or guardian exists, except that a.surrogate 
may not deny surgery, procedures or other interventions that are 
lifesaving and medically necessary and may not decline consent 
for a sexual assault forensic examination. 
A medically 
necessary 
procedure 
patient-appropriate intervention or 
and effectively given. 
is 
one 
providing 
the 
most 
procedure that can be safely 
Sec. 6. 25 MRSA §3821, as enac ted by PL 1999, c. 719, §4 and 
affected by §11, is amended by adding a new 2nd paragraph to read: 
In the case of a kit collected pur~uant to Title 14, section 
171, 
subsection 2, if an alleged victim does not regain the 
capacity to consent within 60 days, the State may file a motion 
in District Court requesting an order that the kit be transported 
to the Maine State Police Crime Laboratory for processing. 
The 
District Court shall consider the best interest of the victim 
4.6 
when considering the State's motion. 
... .. 
SUMMARY 
This bill provides hospitals and health care practitioners 
immunity from criminal or civil liability for an act or omission 
in performing a 
forensic examination on an alleged victim of 
gross sexual assault under certain circumstances .