SB 388

This bill would create the Sexual Assault Survivors Bill of Rights and provide certain rights to all victims of sexual assault

This bill would require written notification of the rights be provided to sexual assault victims

This bill would require submission and forensic testing of sexual assault kits within a certain time frame

This bill creates a civil cause of action against anyone who violates his or her responsibilities or duties under this act

This bill requires the Attorney General, in cooperation with others, to create a sexual assault kit tracking system, compile data, and submit reports to the Legislature

This bill also creates a Rights of Survivors of Sexual Assault Task Force

Relating to sexual assault victims; to provide certain rights to victims of sexual assault; to require written notification of rights be provided to victims; to require submission and forensic testing of sexual assault kits within a certain time frame; to create a civil cause of action against anyone who violates his or her responsibilities or duties under this act; to require the Attorney General, in cooperation with others, to create a sexual assault kit tracking system, compile data, and submit reports to the Legislature; and to create a Rights of Survivors of Sexual Assault Task Force.

Section 1

This act shall be known and may be cited as the Sexual Assault Survivors Bill of Rights.

Section 2

As used in this act, the following terms shall have the following meanings: (1) COUNSELOR. Any employee or supervised volunteer of a victim counseling center or other agency, business, or organization that provides counseling to victims who is not affiliated with a law enforcement agency or a prosecuting attorney's office and whose duties include treating victims for any emotional or psychological condition resulting from a sexual assault or a person who is employed or authorized by a public entity or a private entity that receives public funding primarily to provide counseling, treatment, or other supportive assistance to crime victims. (2) KIT or SEXUAL ASSAULT EXAMINATION KIT. A sexual assault forensic evidence kit containing a human biological specimen collected from an alleged sexual assault survivor by a medical provider during a medical evidentiary examination. (3) LABORATORY. A Department of Forensic Sciences laboratory as established in Section 36-18-3, Code of Alabama 1975. (4) LAW ENFORCEMENT OFFICER. A law enforcement officer employed by the law enforcement agency either responding to the report of the crime of the victim or another person, or having responsibility for investigating the crime. (5) MEDICAL EVIDENTIARY EXAMINATION. A medical evidentiary examination or physical examination to collect sexual assault forensic evidence. (6) MEDICAL PROVIDER. A qualified health care professional, hospital, other emergency medical facility, or other facility conducting a medical evidentiary or physical examination of the survivor. (7) SEXUAL ASSAULT. Any sexual offense enumerated in Sections 13A-6-60 through 13A-6-70, Code of Alabama 1975. (8) SURVIVOR. A person who is a victim of a sexual assault and, if the survivor is incompetent, deceased, or a minor who is unable to consent to counseling services, the parent, guardian, spouse, or any other person related to the survivor, or any other lawful representative of the survivor, unless the person is the alleged perpetrator.

Section 3

(a) The rights provided to a survivor in this act attach when a survivor consents to receive a medical evidentiary examination or when a survivor consents to an interview about a sexual assault with a law enforcement officer, prosecuting attorney, or defense attorney. (b) Once attached pursuant to subsection (a), a survivor shall retain all the rights provided pursuant to this act regardless of whether the survivor agrees to continue to participate in the criminal justice system.

Section 4

(a) A survivor has the right to consult with a counselor during any medical evidentiary examination or during any interview with a law enforcement officer, prosecuting attorney, or defense attorney. A survivor retains this right even if the survivor has waived the right in a previous examination or interview. (b) Communications between a survivor and a counselor are confidential and privileged, including information disclosed in the presence of any third person conducting a medical evidentiary examination or a law enforcement interview. (c) The presence of a counselor does not negate any existing privilege otherwise guaranteed by law. (d) A survivor's waiver of the right to a counselor is privileged. (e) Notwithstanding any waiver of privilege, a survivor's communications with a sexual assault counselor, or waiver of the right to a sexual assault counselor, is not admissible into evidence for any purpose, except with the consent of the survivor.

Section 5

(a) A medical provider may not charge a survivor for the cost of the medical evidentiary examination portion of a medical examination either directly or indirectly. (b) Prior to a medical provider commencing a medical evidentiary examination of a survivor, the survivor shall be informed of the survivor's rights under this act. The survivor shall be entitled to all the following: (1) To receive a survivor notification document developed by the Attorney General which contains survivor's rights under this act and other relevant material. (2) To consult with a counselor, summoned by a medical provider before the commencement of the medical evidentiary examination, unless a counselor is unable to be summoned in a timely manner. (3) To know the ramifications of delaying the medical evidentiary examination if a counselor is unable to be summoned in a timely manner. (4) To shower, at no cost, unless showering facilities are not available after the medical evidentiary examination. (c) A support person may be excluded from a medical evidentiary examination if a law enforcement officer or medical provider determines that the presence of that individual would be detrimental to the purpose of the examination.

Section 6

(a) Before commencing an interview with a survivor, a law enforcement officer or prosecuting attorney shall inform the survivor of all the following: (1) The survivor's rights pursuant to this act and other relevant law by providing the survivor with a document to be developed by the Attorney General, which document shall be signed by the victim of sexual assault to confirm receipt. (2) The survivor's right to consult with a counselor during any interview by a law enforcement officer, prosecuting attorney, or defense attorney unless no counselor can be summoned in a timely manner. (3) The survivor's right to have a support person of the survivor's choosing present during any interview by a law enforcement officer, prosecuting attorney, or defense attorney, unless the law enforcement officer, prosecutor, or defense attorney determines in his or her good faith professional judgment that the presence of that individual would be detrimental to the purpose of the interview. (4) For interviews by a law enforcement officer, the survivor's right to be interviewed by a law enforcement official of the gender of the survivor's choosing. If no law enforcement official of that gender is reasonably available, the survivor may be interviewed by an available law enforcement official only upon the survivor's consent. (b) A law enforcement officer, prosecutor, or defense attorney, for any reason, may not discourage a survivor from receiving a medical evidentiary or physical examination.

Section 7

A survivor shall have the right to have counsel present during all stages of any medical examination, interview, investigation, or other interaction with representatives from the legal or criminal justice system. Treatment of the survivor should not be affected or altered in any way as a result of the survivor's decision to exercise this right to have counsel present during any interaction with the legal or criminal justice system.

Section 8

(a) A survivor has the right to prompt analysis of sexual assault forensic evidence. (b) A medical provider, upon conducting a medical evidentiary examination to collect sexual assault forensic evidence, shall inform the survivor of all of the following: (1) The sexual assault forensic evidence shall be transported to the laboratory within five days and analyzed within 60 days, unless the survivor requests in writing at any time prior to analysis for the crime laboratory to defer analysis of the sexual assault forensic evidence. (2) The crime laboratory shall retain the sexual assault forensic evidence for a minimum of 10 years before it is destroyed, or until the survivor reaches 40 years of age, if the survivor was a minor when the assault occurred. (3) If the survivor has requested deferred analysis, as described in subdivision (1), the survivor can request the crime laboratory to analyze the sexual assault forensic evidence at any later date before the expiration of the retention period defined in subdivision (2). (c) A medical provider, upon conducting a medical evidentiary examination, shall collect sexual assault forensic evidence for placement in a kit. The kit shall be delivered to the law enforcement agency believed to have jurisdiction over the sexual assault within 24 hours of collecting any sexual assault forensic evidence. (d) The law enforcement agency with jurisdiction over the sexual assault shall deliver the kit to the laboratory as soon as possible or within five days of receiving the kit, unless the survivor requests in writing for the laboratory to defer analysis of the evidence. If a law enforcement agency determines that it does not have jurisdiction, it shall notify the law enforcement agency having proper jurisdiction of that fact after taking possession of the kit. The law enforcement agency having proper jurisdiction shall take possession of the kit from the other law enforcement agency and submit the kit to the laboratory as soon as possible or within five days of taking possession of the kit. (e) Any law enforcement agency that submits sexual assault forensic evidence to a crime laboratory, immediately following such submission, shall notify the survivor of the name, address, and telephone number of the crime laboratory. The law enforcement agency shall also notify the survivor of the information listed in subsection (b). (f) A laboratory that receives the kit on or after the five-day submission period shall analyze that evidence and when able, upload any available DNA profiles into the federal combined DNA index system within 60 days, unless the survivor has requested in writing that the laboratory defer analysis of that evidence. (g) The laboratory shall retain the kit for a minimum of 10 years before it is destroyed, or until the survivor reaches 40 years of age, if the survivor was a minor when the sexual assault occurred. (h) The survivor has the right to be informed, upon the survivor's request, of the results of the analysis of the survivor's sexual assault forensic evidence, whether the analysis yielded a DNA profile, and whether the analysis yielded a DNA match, either to the named alleged perpetrator or to a suspect already in the federal combined DNA index system. The survivor has the right to receive this information through a secure and confidential message in writing from the laboratory or law enforcement officer. The message shall include the telephone number of the laboratory or law enforcement agency so that the survivor can call to receive the results. (i) A defendant or person accused or convicted of a crime against the survivor shall have no standing to object to any failure to comply with this act, and the failure to provide a right or notice to the survivor under this act shall not be used by a defendant to seek to have the conviction or sentence reversed or set aside. (j) The failure of a law enforcement agency to take possession of a kit or to submit that evidence for analysis does not alter the authority of a law enforcement agency to take possession of that evidence or to submit that evidence to the laboratory, and does not alter the authority of the laboratory to accept and analyze the evidence or to upload the DNA profile obtained from that evidence into the federal combined DNA index system. (k) The kit shall not be used to prosecute the survivor for any misdemeanor crimes or serve as a basis to search for further evidence of any unrelated misdemeanor crimes. (l) This section does not require a laboratory to test all items of forensic evidence obtained in a kit. A laboratory is considered to be in compliance with this section when representative samples of the evidence are processed by the laboratory in an effort to detect the alleged perpetrator. (m) This section does not require a DNA profile to be uploaded into the federal DNA combined index system if the DNA profile does not meet federal guidelines regarding the uploading of DNA profiles into the federal DNA combined index system.

Section 9

(a) The Attorney General shall develop a survivor notification document to be distributed by a law enforcement officer or a medical provider upon initial contact with a survivor. The document shall include, but shall not be limited to: (1) A clear statement that a survivor is not required to participate in the criminal justice system, participate in an interview with a law enforcement officer, prosecuting attorney, or defense attorney, or receive a medical evidentiary examination. However, the rights of a survivor attach when the survivor consents to participate in such an interview or consents to a medical evidentiary examination. (2) Telephone and Internet contact information for nearby rape crisis centers and counselors. (3) The forms of law enforcement protection available to the survivor, including temporary protection orders, and the process to obtain such protection. (4) Instructions for requesting the results of any analysis of the forensic evidence obtained from the survivor. (5) Information about state and federal compensation funds available for medical or other costs associated with the case, and information on any municipal, state, or federal right to restitution for survivors in the event of a criminal proceeding. (b) A law enforcement official, upon written request by a survivor, shall furnish a free, complete, and unaltered copy of all law enforcement reports concerning the sexual assault, regardless of whether the report has been closed by the law enforcement agency, unless the law enforcement officer or prosecutor determines in his or her good faith professional judgment that early release of the reports would be detrimental to the investigation or prosecution. (c) A prosecutor, upon written request by a survivor, shall provide all of the following: (1) Timely notice of any pretrial disposition of the case. (2) Timely notice of the final disposition of the case, including the conviction, sentence, and place and time of incarceration. (3) Information regarding availability of methods to determine the incarceration status and location of the defendant, if any. (4) A convicted defendant's information on a sex offender registry, if any. Section 10. (a) Each person, corporation, agency, officer, or employee who has a responsibility or responsibilities to survivors under this act or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that survivors and witnesses receive the information and services to which they may be entitled under applicable law. (b) If the Attorney General believes from satisfactory evidence that any person, corporation, agency, officer, or employee has failed to make efforts as required in subsection (a), or has violated any of the enumerated rights and provisions contained in this act, the Attorney General may bring an action in the name and on behalf of the people of Alabama to enjoin such acts or practices, including through mandatory injunction, and to obtain restitution for any survivors affected directly or indirectly from any act or omission. (c) If, after investigation, the Attorney General determines that there is reasonable cause to proceed with an action, and before any violation of this section is sought to be enjoined, the Attorney General shall give notice to the person against whom the proceeding is contemplated by certified mail and an opportunity to show in writing within five business days after receipt of notice why proceedings should not be instituted against him or her, unless the Attorney General finds, in any case in which he or she seeks preliminary relief, that to give the notice and opportunity is not in the public interest. (d) In any action under this section, it shall be a complete defense that the act or practice is subject to and complies with the rules and regulations of, and the statutes administered by any official department, division, commission, or agency of the United States as such rules, regulations, or laws are interpreted by the department, division, commission, or agency or the federal courts. (e) In connection with any proposed proceeding under this section, the Attorney General is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the Alabama Rules of Civil Procedure. (f) This section applies to all violations of this act, whether or not subject to any other law of this state, and shall not supersede, amend, or repeal any other law of this state under which the Attorney General is authorized to take any action or conduct any inquiry pursuant to this act. (g) In addition to the right of action granted to the Attorney General pursuant to this section, any person who has been injured by reason of any violation of this act or the enumerated rights and provisions contained in this act may bring an action in his or her own name to enjoin, including through mandatory injunction, such unlawful act or practice, an action to recover his or her actual damages or one thousand dollars ($1,000), whichever is greater, or both actions. The court, in its discretion, may increase the award of damages to an amount not to exceed three times the actual damages up to six thousand dollars ($6,000), if the court finds the defendant willfully or knowingly violated this section. (h) The court may award reasonable attorney's fees to a prevailing plaintiff. Section 11. The Attorney General, in cooperation with the Alabama State Law Enforcement Agency, the Office of Prosecution Services, the Department of Forensic Sciences, and other law enforcement agencies, by October 1, 2019, shall establish a system for tracking sexual assault kits that permits a victim of sexual assault to track, by telephone or Internet, the location and status of his or her kit. Once established, whoever administers a kit shall furnish the victim of sexual assault with written information about how to use and access the tracking system. Section 12. (a) The Attorney General, in cooperation with the Alabama State Law Enforcement Agency, the Office of Prosecution Services, the Department of Forensic Sciences, and other law enforcement agencies, by January 15, 2020, and every five years thereafter, shall compile data and submit a report to the Legislature and shall publish the report on the Internet site of the Department of Forensic Sciences. The report shall include all of the following: (1) The total number of all sexual assault kits kept, maintained, or stored by all law enforcement agencies and departments which have not been submitted for analysis, including separate sets of data by jurisdiction. (2) The total number of kits which are being tracked in the statewide tracking system, including separate sets of data by jurisdiction. (3) The total number of kits tested, including separate sets of data by jurisdiction. Section 13. (a) There is established a Rights of Survivors of Sexual Assault Task Force whose members shall serve without compensation. The task force shall be staffed and led by the Attorney General. The task force shall consist of the following members: (1) The State Health Officer or his or her designee. (2) A resident and survivor of sexual assault, appointed by the Attorney General. (3) A representative of the Alabama Crime Victim's Compensation Commission. (4) A representative of a sexual assault or rape crisis center, appointed by the Attorney General. (5) The Secretary of the Alabama State Law Enforcement Agency or his or her designee. (6) The Director of the Department of Forensic Sciences or his or her designee. (7) A representative of a four-year public institution of higher education, appointed by the Alabama Commission on Higher Education, whose occupational duties include the provision of direct services to victims of sexual assault. (8) The President of the Alabama Association of Chiefs of Police. (9) The President of the Alabama Sheriffs Association. (10) An attorney, appointed by the Alabama Bar Association. (11) A representative of an organization that provides services, education, or outreach to communities of color or immigrant communities, appointed by the Attorney General. (12) A representative of an organization that provides services, education, or outreach to lesbian, gay, bisexual, and transgender individuals, appointed by the Attorney General. (13) A certified sexual assault nurse examiner, appointed by the Alabama Board of Nursing. (14) Other individuals or representatives selected by the Attorney General, with the total task force not to exceed 15 members. (b) The appointing authorities shall coordinate their appointments to assure the task force membership is inclusive and reflects the racial, gender, geographic, urban, rural, and economic diversity of the state (c) The task force shall study nationally recognized best practices and make recommendations regarding all of the following: (1) The development and implementation of an effective mechanism for submitting, tracking, and investigating complaints regarding the handling of, and responses to, sexual assault-related crimes by any agency or organization involved in the handling or response. (2) Whether a need exists for additional sexual assault counselors for victims of sexual assault, and if such a need does exist, the task force shall do all of the following: a. Develop criteria to certify sexual assault counselors. b. Create a plan for how the state can provide, in conjunction with rape crisis centers and victims' advocate organizations, additional sexual assault counselors to meet the needs identified. c. Determine the cost of funding such a plan. (3) Whether a need exists to expand the right to a sexual assault counselor beyond the medical examination and law enforcement interview settings, and if such a need does exist, the task force shall identify the scope and nature of the need and make recommendations on how best to fill that need, whether legislatively or otherwise. (4) Whether a need exists to provide for ongoing evaluation of the implementation of these rights, and if such a need does exist, the task force shall identify the scope and nature of the need and make recommendations on how best to fill that need, whether legislatively or otherwise. (5) Whether there is an ongoing need to maintain the task force after it issues its final report, pursuant to subsection (g). (d) The task force shall hold its first meeting no later than August 1, 2018, with the date, time, and location of the meeting determined by the Attorney General. At the first meeting, the task force shall elect a chair, vice chair, and other officers as determined by the task force. (e) In fulfilling its requirements under this section, the task force shall collect data regarding sexual assault reporting, arrest, prosecution rates, access to sexual assault victims' services, and any other data important for its deliberations and recommendations. If the data does not exist, the task force shall encourage its creation and maintenance by the Attorney General. (f) In fulfilling its requirements under this section, the task force shall collect feedback from stakeholders, practitioners, and leadership throughout the state and local law enforcement, victims' services, forensic science practitioners, and health care communities to inform development of future best practices or clinical guidelines regarding the care and treatment of survivors. (g) No later than the 15th Legislative day of the 2019 Regular Session, the task force shall produce a report that includes the result of the assessments, developments, and recommendations completed pursuant to this section. The task force shall transmit the report to the Legislature, the Governor, and offices or agencies charged with responsibilities under this act and victims' advocates organizations and rape crisis centers. (h) The task force shall be reconvened on an ongoing basis every five years in perpetuity, or until it is determined that all rights contained within this act have been effectively implemented to ensure the rights of all survivors in this state. A determination of effective implementation of the rights contained in this act such that the task force is no longer needed shall only be made by a majority vote of the current members of the task force at the completion of their duties. (i) In undertaking its duties, the task force may retain independent experts who may do any of the following: a. Request files and records from any law enforcement officer, but all information shall be kept strictly confidential and reported on only as aggregated or anonymized data. b. Conduct confidential interviews with officers, medical providers, counselors, and others with direct knowledge of the process of collecting evidence relating to a sexual assault. c. Provide advice and recommendations to the task force within the bounds of confidentiality. Section 14. (a) In either a civil or criminal proceeding relating to the sexual assault, a survivor has the right to be reasonably protected from the alleged perpetrator and persons acting on behalf of the alleged perpetrator. (b) A survivor has the right to be free from intimidation, harassment, and abuse. During the course of any judicial proceeding, the court shall make reasonable efforts to provide the survivor and the survivor's family members, friends, and witnesses with a secure waiting area or room that is separate from the waiting area for the defendant and the defendant's family members, friends, witnesses, and attorneys, and separate from the prosecuting attorney's office. (c) A survivor has the right to be treated with fairness and respect for the survivor's privacy and dignity. During the course of a judicial proceeding, the court, upon the request of the survivor, shall clear the courtroom of all persons when the survivor is testifying regarding the case in any civil or criminal trial, except that parties to the case and their immediate families or guardians, attorneys, and their staff, officers of the court, jurors, members of the media, court reporters, and, at the request of the survivor, witnesses designated by the prosecuting attorney may remain in the courtroom. (d) A survivor may not be required to submit to a polygraph examination as a prerequisite to filing an accusatory pleading, or to participating in any part of the criminal justice system. (e) A survivor has the right to be heard through a victim impact statement pursuant to Article 3, Chapter 23 of Title 15, Code of Alabama 1975, at any proceeding involving a postarrest release decision, plea, sentencing, postconviction release decision, or any other proceeding where a right of the survivor is at issue, and the right to provide a sentencing recommendation to the person conducting a presentence investigation. Section 15. This act is contingent upon an appropriation from the Legislature during the 2018 Regular Session. If an appropriation is not made during the 2018 Regular Session, this act is void. Section 16. This act shall become effective on October 1, 2018, following its passage and approval by the Governor, or its otherwise becoming law.