National Protocol for Sexual Assault Medical Forensic Examinations 2nd Edition
Major Updates
Introduction
This document summarizes the major categories of revisions made in the second edition
of the National Protocol for Sexual Assault Medical Forensic Examinations (SAFE
Protocol, 2d). Effective collection of evidence is of paramount importance to
successfully prosecuting sex offenders. Just as critical is performing sexual assault
forensic exams in a sensitive, dignified, and victim-centered manner.
In the nine years since the protocol was initially released, the “state of the art” for
forensic medical examinations has improved. The revised edition of the protocol has the
same emphasis and values as the original, but is updated to reflect current technology and
practice. It is also updated to include additional information reflecting changes from the
Violence Against Women Act of 2005. For this revision, OVW solicited input from
technical assistance providers representing the relevant disciplines, such as doctors,
forensic nurses, prosecutors, law enforcement, advocates, and civil attorneys, as well as
the National Institute of Justice and experts in the field including physicians, nurses, law
enforcement officers, prosecutors, forensic scientists, and experts on underserved
populations.
Overview of Updates
The protocol offers recommendations to help standardize the quality of care for sexual
assault victims throughout the country and is based on the latest scientific evidence.
Updated definitions are provided that better describe advocate and law enforcement
duties and their role in the forensic medical exam process. The updated protocol
provides an increased focus on addressing patients’ health care needs and collecting
evidence suitable for possible use in the criminal justice system. This version provides
additional information on how victims can have a forensic medical exam completed
without entering the criminal justice system and provides clarification on reimbursements
for the exam. Updates on evidence collection times and techniques based on the latest
scientific research are provided. This version also provides more information on issues
related to confidentiality and special issues that arise when dealing with older, disabled,
and military victims. More information was added on drug- and alcohol-facilitated
sexual assault, including providers asking more questions about the use of drugs or
alcohol during the altercation.
The following are significant improvements in the revised SAFE Protocol:
Medical Forensic Exam – The medical forensic exam is a single exam with an
overarching purpose to address patients’ health care needs and collect evidence when
appropriate for potential use within the criminal justice system. (Section A, 1 –
Coordinated Team Approach)

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Quality Assurance – Review of both active and resolved cases provides opportunities to
improve performance of individuals and of the team as a whole. (Section A, 1 –
Coordinated Team Approach)
Medical Screening Exam – A thorough medical assessment is the first step upon
approaching the sexual assault patient to determine if the patient is seriously injured or
impaired. Acute injury, trauma care and safety needs must be addressed before evidence
collection. If a patient is unconscious or has an altered mental status, the examiner
should follow facility policy regarding such patients and delay the start of the exam.
(Sections A, 2 – Victim-Centered Care and B, 2 – Triage and Intake)
Victims with Disabilities and Older Victims – People with disabilities may be
victimized by caretakers, family members, or friends. In such cases, offenders may bring
victims to the exam site, and jurisdictional and facility policies should be in place to
provide guidance on how staff should screen for and handle situations that are threatening
to patients or facility personnel. Do not mistake disabilities (such as hearing loss or
aphasia) or acute stress reaction following assault for senility. If an older victim has
limited capacity, evidence collection may be especially important because the victim may
be unable to provide a statement or testify but the exam should not be done without their
consent. (Section A, 2 – Victim-Centered Care)
Civil Attorneys Role – Civil attorneys protect the interests of sexual assault victims,
address concerns that affect immediate everyday life and long-term wellbeing of victims,
represent victims in civil legal matters, and ensure victims’ rights are upheld during the
criminal justice process. Civil legal matters may include: privacy, safety, immigration,
education, housing, employment, and financial issues. (Section A, 2 – Victim-Centered
Care)
Confidentiality Details – Before making any disclosures, patients should be advised
whether their communications are confidential and whether the confidentiality of the
statements is covered by a privilege. The Protocol encourages practitioners to be aware
of the difference between community-based victim advocates and system-based victim
assistants (such as those in police departments or prosecutor’s offices) in terms of the
degree of confidentiality they can offer in your jurisdiction. In some jurisdictions,
patients who are minors have fewer or more limited confidentiality rights than adults.
(Section A, 4 – Confidentiality)
HIPAA Privacy Rule – With respect to disclosures to victim advocacy organizations,
the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits
hospitals and other health care providers to alert a victim advocacy organization to the
presence of a victim of sexual assault at the hospital without giving any identifying
information about the victim. Further, once the advocate is at the hospital, if the victim is
informed in advance and agrees or does not object, or the hospital reasonably infers from
the circumstances, based on professional judgment, that the victim does not object, then
the Privacy Rule permits hospital staff to introduce the advocate to the victim and share

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information pertinent to the advocate’s involvement in the victim’s care. (Section A, 5 –
Reporting to Law Enforcement)
Polygraphs – Under the Violence Against Women Act of 2005, as a condition of STOP
Violence Against Women Formula Grant funding, states must also certify that law
enforcement officers, prosecutors, and other government officials do not ask or require
victims of sex offenses to submit to polygraph exams or other truth telling devices as a
condition for proceeding with the investigation or prosecution of the offense.1 (Section
A, 5 – Reporting to Law Enforcement)
Alternative Reporting Procedures – Jurisdictions considering an alternative reporting
procedure will need to decide whether to use anonymous reporting (meaning that the law
enforcement would have no identifying information on the victim) or confidential
reporting (meaning that law enforcement would have the information but not use it
except in certain specified instances, such as to contact the victim if other victims of the
same offender have come forward). Jurisdictions also need to decide under what
circumstances they might contact the victim (if the victim consents) and who would make
that contact and how. (Section A, – 5 Reporting to Law Enforcement)
Reimbursement for the Forensic Medical Exam – Under the Violence Against Women
Act of 2005, states must certify, as a condition of receiving STOP Violence Against
Women Formula Grant Program funds, that victims are not required to participate in the
criminal justice system or cooperate with law enforcement in order to receive a forensic
exam.2 States are permitted to use STOP Program funds to pay for the exams if they
meet two conditions.3 First, the exam must be performed by a “trained examiner for
victims of sexual assault.” Second, the state may not require victims of sexual assault to
seek reimbursement from their insurance carriers. If the state has mandatory medical
reporting laws, they are still compliant with the VAWA requirement, but examiners
should clearly articulate to patients what they are required to report prior to performing
the exam. (Section A, – 6 Payment for the Examination under VAWA)
Military Exams and Confidentiality – In cases of victims associated with the U.S.
Military Services, sexual assault forensic examinations may be covered under Tricare for
service members. (Section A, 6 – Payment for the Examination under VAWA) The
Military offers victims who are service members the option of Restricted Reporting or
Unrestricted Reporting.4 Restricted Reporting allows a sexual assault victim to
confidentially disclose the details of his or her assault to specified individuals and receive
medical treatment and counseling, without triggering the official investigative process or
command notification. Restricted Reporting can be voided if the medical facility
contacts law enforcement or other professionals other than advocates, chaplains, and
1

42 U.S.C. 3796gg-8.
42 U.S.C. 3796gg-4(d). Please note that the Violence Against Women Act of 2013 amended the
requirements for forensic exam payment to remove the option of reimbursing victims, instead they must
provide the exams free to the victim or arrange for the victim to obtain the exams free of charge.
3
42 U.S.C. 3796gg-4(c).
4
For more information on reporting in the military, please see http://www.sapr.mil/.
2

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military Sexual Assault Response Coordinators. Medical facilities that provide exams for
military installations are encouraged to draft Memoranda of Understanding to address
such issues as confidentiality and storage of evidence. (Sections A, 2 – Victim-Centered
Care and A, 4 – Confidentiality)
DNA Evidence Success and Urine Testing – Many jurisdictions have extended the
standard evidence collection cutoff time beyond the traditional 72 hours to 5 days or 1
week. The use of such timeframes is supported by empirical evidence. Advancing DNA
technologies continue to extend time limits because of the stability of DNA and
sensitivity of testing. In addition, urine may reveal traces of certain drugs up to 120
hours after ingestion. (Section B, 5 – Timing Considerations for Collecting Evidence)
Biological evidence should be retained for as long as possible, as storage space permits.
Some jurisdictions require storage of evidence for the full statute of limitations of the
offense. (Section B, 6 – Evidence Integrity)
Documentation by Health Care Personnel – Examiners are responsible for
documenting the details of the medical forensic exam and treatment provided in the
medical record, as well as documenting required data for the evidence collection kit,
according to jurisdictional policy. This evidence collection kit report usually includes
patient consent forms related to evidence, the history of the assault, and information
pertaining to evidence collection that will assist the crime lab in material identification
for analysis.5 If the case is reported, the criminal justice system will use the entire
medical forensic record of the sexual assault visit, along with collected evidence,
photographs and video images, and victim/witness statements, as a basis for investigation
and possible prosecution. The overall medical forensic record kept by examiners and
other clinicians follows a standard approach of addressing acute complaints, gathering
pertinent historical data, describing findings as well as evidence collection procedures,
and documenting treatment and follow-up care. The complete medical forensic record of
the sexual assault visit should be maintained separately from the patient’s medical record
to limit disclosure of unrelated information and to preserve confidentiality. (Section C, 3
– Documentation by Health Care Personnel)
Drug- and Alcohol-Facilitated Sexual Assaults – Examiners should ask for information
such as whether there was memory loss, lapse of consciousness, vomiting, whether the
patient was given food or drink by the suspect, or whether the patient voluntarily ingested
drugs or alcohol. Collecting toxicology samples within 120 hours of the suspected
ingestion is recommended if there was either loss of memory or lapse of consciousness,
according to jurisdictional policy. (Section C, 4 – The Medical Forensic History)
Evidence Collection Purposes and Techniques – Evidence collected during the exam
mainly includes biological and trace evidence. To reconstruct the events in question,
evidence collected is used in four potential ways in sexual assault cases: to identify the
suspect, to document recent sexual contact, to document force, threat, or fear, and to
Documentation of exam findings should include patients’ demeanor and statements related to the assault not already recorded on the
medical forensic history. Such documentation can be admitted as evidence at trial in most states. Local prosecutors can provide more
detailed information on this type of documentation.
5

4

corroborate the facts of the assault. The Protocol is updated to encourage the use of a
moist swab to collect dry secretions, followed by a dry swab instead of recommending to
flake off dried secretions for collection. Other evidence may be collected beyond what is
needed for the sexual assault evidence collection kit including toxicology samples and
additional swabs depending on the area of contact noted in the medical forensic history.
Some jurisdictions are collecting wet to dry swabs from the surfaces surrounding orifices
penetrated or that had touch contact during an assault. It should be noted that the use of
dental floss is not recommended for additional evidence collection in cases with oral
penetration because of the opportunity for infection. (Section C, 6 – Exam and Evidence
Collection Procedures)
Access to Toxicology Results – Victims should be given access to the results of any
toxicology screening performed and should be given information on how to obtain a copy
of the results. (Section C, 7 – Alcohol and Drug-Facilitated Sexual Assault)
Pregnancy Risk Evaluation and Care – The Protocol provides updated information on
the possibility of pregnancy and the types of pregnancy tests that may be administered. It
encourages the discussion of treatment options with patients, including emergency
contraception (EC) options such as Plan B. It notes that most programs offer pregnancy
prevention or interception for sexual assault patients if they are seen within 120 hours of
the rape. It is recommended that all medical facilities that conduct medical forensic
examinations of sexual assault patients should have policies in place regarding sexual
assault and pregnancy prevention. This section includes a “conscience clause” to protect
health care providers with religious or moral objections to contraception, while ensuring
access for victims to timely care: “A victim of sexual assault should be offered
prophylaxis for pregnancy, subject to informed consent and consistent with current
treatment guidelines. Conscience statutes will continue to protect health care providers
who have moral or religious objections to providing certain forms of contraception. In a
case in which a provider refuses to offer certain forms of contraception for moral or
religious reasons, victims of sexual assault must receive information on how to access
these services in a timely fashion.” (Section C, 9 – Pregnancy Evaluation and Care)
Delayed Reporting Information – For patients who have not made a report and where
law enforcement is not involved, patients should be given information on whom to
contact and how if they decide that they do want to make a report. They should also be
given information on where the kit will be stored, how it will be tracked (for example, if
there is a tracking number, it should be provided), and the length of the storage. (Section
C, 10 – Discharge and Follow-up)

5


National Protocol for Sexual Assault Medical Forensic Examinations 2nd Edition
Major Updates
This document summarizes the major categories of revisions made in the second edition
of the National Protocol for Sexual Assault Medical Forensic Examinations (SAFE
Protocol, 2d). In the nine years since the protocol was initially released, the “state of the
art” for forensic medical examinations has improved. The revised edition of the protocol
has the same emphasis and values as the original, but is updated to reflect current
technology and practice. The protocol offers recommendations to help standardize the
quality of care for sexual assault victims throughout the country and is based on the latest
scientific evidence.
Following are key areas of improvement:











Updated definitions are provided that better describe advocate and law
enforcement duties and their role in the forensic medical exam process.
The updated protocol provides an increased focus on addressing patients’ health
care needs and collecting evidence suitable for possible use in the criminal justice
system, including an emphasis on the medical forensic exam as a single exam
designed to primarily meet patient needs and secondarily meet criminal justice
system needs.
Increased information is provided on quality assurance and medical screening
exams.
This version provides additional information on how victims can have a forensic
medical exam completed without entering the criminal justice system and
provides clarification on reimbursements for the exam.
Updates on evidence collection times and techniques based on the latest scientific
research are provided.
This version also provides more information on issues related to confidentiality,
including information about the HIPAA Privacy Rule, and special issues that arise
when dealing with older, disabled, and military victims.
More information was added on drug- and alcohol-facilitated sexual assault,
including providers asking more questions about the use of drugs or alcohol
during the assault.
The updated protocol provides more information on proper documentation by
healthcare personnel.
More information is provided on issues related to pregnancy, including
emergency contraception. Specifically, it recommends that a victim of sexual
assault should be offered prophylaxis for pregnancy, subject to informed consent
and consistent with current treatment guidelines. Conscience statutes will
continue to protect health care providers who have moral or religious objections
to providing certain forms of contraception. In a case in which a provider refuses
to offer certain forms of contraception for moral or religious reasons, victims of
sexual assault must receive information on how to access these services in a
timely fashion.

1


U.S. Department of Justice
Civil Rights Division

Office ofSpecial Counselfor Immigration-Related
Unfair Employment Practices· NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509

February 25, 2013

By Email (mgoeschl@morganlewis.com)

Malcolm K. Goeschl
Morgan, Lewis & Bockius LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Dear Mr. Goeschl:
This letter is in response to your January 7, 2013, email seeking technical assistance on
behalf of a client that "has a policy of not hiring employees who require export licenses and
would like to prescreen applicants who will require such a license." We apologize for the delay
in our response. Your email poses four questions:
1. May the employer prescreenjob applicants from certain countries who will require
export licenses?
2. If yes, do you have recommendations on how the employers should do this without
violating employment verification antidiscrimination laws? Would any of the
following questions be acceptable to put on ajob application?
a. Are you a national of a country that may require the employer to obtain an
export license? (This question may be problematic because the applicant will
not likely know whether this is the case or not, and because if the applicant is
a LPR, he/she would not need an export license).
b. Are you currently in nonimmigrant status (e.g., F-1, H-1B, L-1), and a
national of a country that may require the employer to obtain an export
license?
c. Are you currently in nonimmigrant status (e.g., F-1, H-1B, L-1), and a
national of one of the following countries [the list would be countries that the
employer knows trigger export license requirements]?
d. Do you now or will you in the future require immigration sponsorship to work
at [the employer]? If you answered yes to this question, please answer the
following question: are you a national of one of the following countries: [the

list would be countries that the employer knows trigger export license
requirements ]7
3. Do you have any other suggested questions to prescreen applicants who require
export licenses?
4. Assuming the employer cannot, or chooses not to pre screen applicants who require
export licenses, may it rescind its offer to an employee once it learns that he/she
requires such a license? This would typically happen as soon as the employee accepts
, the offer of employment, and provides documentation to begin the immigration
sponsorship process.
As you may know, OSC enforces the anti-discrimination provision of the Immigration
and Nationality Act ("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision
prohibits four types of unlawful conduct: (1) citizenship or immigration status discrimination; (2)
national origin discrimination; (3) unfair documentary practices during the employment
eligibility verification (Form 1-9) process ("document abuse"); and (4) retaliation for filing a
charge or asserting rights under the anti-discrimination provision. Although OSC cannot give
you an advisory opinion on any set of facts involving a particular individual or company, we are
pleased to provide some general guidelines regarding compliance with the anti-discrimination
provision of the INA.
We understand your questions regarding employment of individuals who may require an
export license to refer to the requirements of the International Traffic in Arms Regulations
("IT AR") ,and/or the Export Administration Regulations ("EAR"). Your questions appear to
relate to the employment of individuals who are not considered "u. S. persons" under ITAR and
individuals who are covered by the export control rule under the EAR. Under the ITAR, a "U.S.
person" includes a lawful permanent resident or a protected individual as defined by 8 U.S.C. §
1324b(a)(3). See 22 C.F.R. § 120.15. The statutory definition of "protected individuals" under the
anti-discrimination provision of the INA includes, among other individuals, U.S. citizens and
nationals, refugees and asylees. See 8 U.S.C. § 1324b(a)(3)(B). Please note that guidance on the
licensing of foreign persons by the U.S. Department of State states that while the ITAR imposes
licensing requirements, ~~the ITAR does not, however, impose requirements on U.S. companies
concerning the recruitment, selection, employment, promotion or retention of a foreign person." U.S.
Department of State, Directorate of Defense Trade Controls, "Licensing of Foreign Persons
Employed by a U.S. Person - UPDATED" (07118/2012), available at
http://www.pmddtc.state.gov/licensing/documents/WebNotice LictmsingForeign2.pdf. Under the
EAR, the export control rule does not apply to an individual admitted for lawful permanent residence
or a protected individual as defined by 8 U.S.C. § 1324b(a)(3). See 15 C.F.R. § 734.2(b)(2)(ii).
Citizenship status discrimination occurs when individuals are not hired or are fired
because of their citizenship or immigration status. 8 U.S.C. § 1324b. However, an employer
may consider citizenship status if it is required in order to comply with a law, regulation, or
executive order, or the terms of a Federal, State, or local government contract. 8 U.S.C. §
1324b(a)(2)(C). Under the INA, only "protected individuals" as defined by 8 U.S.C. §
1324b(a)(3) are protected from citizenship status discrimination. Therefore, an employer that

has a policy of not hiring individuals who are not "protected individuals" based solely on the
person's citizenship status would not be in violation of the INA's anti-discrimination provision.
With respect to your questions relating to asking applicants whether they are currently in
nonimmigrant status, your questions as posed may screen out refugees and asylees who, as noted
above, are protected from citizenship status discrimination, and who may misunderstand the
question to preclude their eligibility for employment. If the information is sought for compliance
with export licensing requirements, and not for employment eligibility verification or any
. discriminatory purposes, inquiring about an applicant's citizenship or country of origin for this
purpose would not appear to violate the INA's anti-discrimination provision as long as such
inquiries are made uniformly and without the intent to discriminate on the basis of national
origin or citizenship status.
Notwithstanding the limited scope of protection from citizenship status discrimination,
please note that all work-authorized individuals are protected from national origin
discrimination, document abuse and retaliation under 8 U.S.C. § 1324b. This office investigates
claims of national origin brought against employers with four to 14 employees and the Equal
Employment Opportunity Commission investigates national origin discrimination claims against
employers with more than 14 employees. As a result, an employer that refuses to hire a work
authorized individual who is not a "protected individual" for citizenship status, but rather, based
on that individual's country of origin and/or country of citizenship may be committing prohibited
national origin discrimination. To the extent an employer screens out all applicants from
particular countries or rescinds job offers for certain applicants based on the assumption that the
employer would need to obtain an export license for those individuals at some point during the
employment relationship, the applicants may allege national origin discrimination in a charge
filed with OSC (or with the EEOC depending upon the size of the employer). An allegation of
this nature would prompt an OSC investigation if the employer is determined to have four to 14
employees or would be referred to the EEOC in the case of a larger employer.
We hope this information is helpful. For more information on the INA's anti
discrimination provision, please call OSC's employer hotline at 1-800-255-8155 or visit OSC's
website at www.usdoj.gov/crtlabout/osc.

SeemaNanda
Deputy Special Counsel