2023 New York Laws › PBH - Public Health › Article 28 - Hospitals › 2805-I - Treatment of Sexual Offense Victims and Maintenance of Evidence in a Sexual Offense.

§  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.
8.  (a) The division of criminal justice services in consultation with
the department, the office of victim services,  the  division  of  state
police,  and  the  New York State Coalition Against Sexual Assault shall
develop a statewide electronic tracking system for  evidence  collection
kits  used to collect and preserve evidence of a sexual assault or other
sex offense that are submitted to the custody of law  enforcement.  Such
statewide   electronic   tracking  system  shall  not  include  evidence
collection kits not in the custody of law enforcement.
(b) The division of criminal justice services shall  promulgate  rules
and  guidelines  to  ensure that sexual assault evidence collection kits
that are submitted to the custody of law enforcement are trackable on  a
statewide   electronic   tracking  system  developed  pursuant  to  this
subdivision, and that survivors are given notice of how they  may  track
their  own  sexual  assault  evidence  collection  kit after it has been
submitted to the custody of law enforcement. Any law enforcement agency,
forensic laboratory, or prosecutor that has taken custody of an evidence
collection kit used for a forensic medical examination shall comply with
the established protocols,  rules  and  guidelines  established  by  the
division of criminal justice services pursuant to this paragraph.
(c) The statewide electronic tracking system shall:
(1)  Track  the  location  and  status of each evidence collection kit
after such kit has been submitted to the custody of law enforcement;
(2) Allow a  law  enforcement  agency,  accredited  crime  laboratory,
prosecutor,  employees  of the long-term sexual offense evidence storage
facility, or any other entity  providing  a  chain  of  custody  for  an
evidence  collection kit, to update and track the status and location of
the kits that have been submitted to the custody of law enforcement; and
(3) Allow a survivor to anonymously track or receive updates regarding
the  status and location of such survivor's evidence collection kit that
has been submitted to the custody of law enforcement.
(d) No later than January first, two  thousand  twenty-five,  any  law
enforcement agency, accredited crime laboratory, prosecutor, employee of
the  long-term  sexual  offense  evidence storage facility, or any other
entity providing a chain of custody for an evidence  collection  kit  to
update  and track the status and location of such kit, shall participate
in the tracking system and comply with all established protocols,  rules
and  guidelines. A participating entity shall be permitted to access the
entity's tracking information through the statewide electronic  tracking
system.
(e) Records entered into the tracking system are confidential. Records
relating  to  an  evidence  collection kit shall be accessed only by the
survivor for whom the evidence collection kit was completed.
(f) The provisions of this subdivision shall  apply  to  all  evidence
collection  kits  submitted prior to, on, or after the effective date of
this subdivision.
(g) For purposes of this section:
(1) "evidence collection kit" shall mean a human  biological  specimen
or  specimens  collected  by  a  healthcare  provider  during a forensic
medical examination from the victim of a sexual  assault  or  other  sex
offense; and
(2)  "survivor" shall mean an individual who is the victim of a sexual
offense from whom a human biological specimen or specimens collected  by
a healthcare provider during a forensic medical examination.