N.Y. Public Health Law § 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;

* NB Effective until May 9, 2027

* (a) Maintaining the following full-time, part-time, contracted, or

on-call staff:

(1) One or more hospital sexual violence response coordinators who are

designated to ensure that the hospital's sexual violence response is

integrated within the hospital's clinical oversight and quality

improvement structure, to ensure chain of custody is maintained, and to

ensure availability and coordination of certified sexual assault

forensic examiners;

(2) Certified sexual assault forensic examiners sufficient to meet

hospital needs. Such individuals shall:

(i) be a registered professional nurse, certified nurse practitioner,

licensed physician assistant or licensed physician acting within their

lawful scope of practice and specially trained in forensic examination

of sexual offense victims and the preservation of forensic evidence in

such cases and qualified to provide such services, pursuant to

regulations promulgated by the commissioner; and

(ii) have successfully completed a didactic and clinical training

course and post course preceptorship as appropriate to scope of practice

that aligns with guidance released by the commissioner.

* NB Effective May 9, 2027

* (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;

* NB Effective until May 9, 2027

* (b) Ensuring that such sexual assault forensic examiners are on-call

and available on a twenty-four hour a day basis every day of the year;

* NB Effective May 9, 2027

* (c) offering and making available appropriate HIV post-exposure

treatment therapies; including the full regimen of HIV post-exposure

prophylaxis 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

* NB Effective until May 9, 2027

* (c) Ensuring that such sexual assault forensic examiners maintain a

current certification from the department, pursuant to regulations, in

providing sexual assault examinations. The commissioner shall issue

regulations consistent with subparagraph one of paragraph (b) of

subdivision four-b of this section, establishing a process for

individuals to apply for and receive certification upon meeting the

required criteria, as well as a process for recertification.

* NB Effective May 9, 2027

* (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.

* NB Effective until May 9, 2027

* (d) maintaining sexual offense evidence and the chain of custody as

provided in subdivision two of this section;

* NB Effective May 9, 2027

* (e) 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;

* NB Effective May 9, 2027

* (f) offering and making available appropriate HIV post-exposure

treatment therapies; including the full regimen of HIV post-exposure

prophylaxis 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

* NB Effective May 9, 2027

* (g) 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.

* NB Effective May 9, 2027

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.

* NB Effective until December 2, 2027

* (a) All sexual offense evidence shall be kept in a locked, separate

and secure area for twenty years from the date of collection or until

the victim's fortieth birthday, whichever is later; provided that such

evidence shall be transferred to a new location(s) pursuant to this

subdivision.

* NB Effective December 2, 2027

(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.

* NB Effective until December 2, 2027

* (c) Upon collection, the hospital shall notify the alleged sexual

offense victim that, after twenty years or until the victim's fortieth

birthday, whichever is later, 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 or until the victim's fortieth birthday, whichever is later.

* NB Effective December 2, 2027

(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, provided, however, that law enforcement

shall transfer sexual offense evidence that is reported to law

enforcement but for which consent is later withdrawn to the office of

victim services for long-term storage. Storage of reported kits

transferred to the office of victim services or retained by law

enforcement shall comport with the provisions of this subdivision.

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.

* NB Effective until December 2, 2027

* (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

or until the victim's fortieth birthday, whichever is later.

* NB Effective December 2, 2027

(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.

* NB Effective until December 2, 2027

* (i) At least ninety days prior to the expiration of the twenty-year

storage period for any sexual offense evidence or until the victim's

fortieth birthday, whichever is later, 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.

* NB Effective December 2, 2027

* (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 or custodians 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, upon which the hospital collecting such evidence must

record the collection of such evidence in the electronic tracking system

and notify the appropriate law enforcement agency within forty-eight

hours and law enforcement must retrieve the evidence within ten days of

such notice and report such evidence in the statewide electronic

tracking system pursuant to subdivision eight of this section, or (B)

the alleged sexual offense victim signs a statement directing the

custodian or custodians to dispose of the evidence, in which case the

sexual offense evidence will be discarded in compliance with state and

local health codes.

* NB Effective until December 2, 2027

* (j) (i) Notwithstanding any other provision in this section, sexual

offense evidence shall not continue to be stored where: (A) such

evidence is not privileged and law enforcement requests its release, in

which case the custodian or custodians shall comply with such request;

or (B) such evidence is privileged and either (1) the alleged sexual

offense victim gives permission to release the evidence to law

enforcement, upon which the hospital collecting such evidence must

record the collection of such evidence in the electronic tracking system

and notify the appropriate law enforcement agency within forty-eight

hours and law enforcement must retrieve the evidence within ten days of

such notice and report such evidence in the statewide electronic

tracking system pursuant to subdivision eight of this section, or (2)

the alleged sexual offense victim signs a statement directing the

custodian or custodians to dispose of the evidence, in which case the

sexual offense evidence will be discarded in compliance with state and

local health codes. Where the alleged sexual offense victim is under the

age of eighteen, a vulnerable elderly person, or an incompetent or

physically disabled person as defined in section 260.31 of the penal

law, the office of victim services shall not destroy sexual offense

evidence at the direction of a parent, guardian, conservator, or other

party.

(ii) Where the alleged sexual offense victim is under the age of

eighteen and had capacity to independently consent to a forensic rape

exam, such victim may independently request the destruction of sexual

offense evidence or may independently make decisions impacting the

status of their kit as "reported" or "unreported" as defined in

subparagraphs three and four of paragraph (g) of subdivision eight of

this section.

* NB Effective December 2, 2027

* (k) Where the alleged sexual offense victim was under the age of

eighteen at the time of the alleged sexual offense, the office of victim

services shall, upon the victim's eighteenth birthday, make diligent

efforts to contact the alleged sexual offense victim and provide

information described in section six hundred forty-one of the executive

law and subparagraphs one, five, six, seven and eight of paragraph (a)

of subdivision six of this section.

* NB Effective December 2, 2027

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

* NB Effective until December 2, 2027

* (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 or until the victim's fortieth birthday, whichever is later,

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 (i) of subdivision two of this section; and

* NB Effective December 2, 2027

(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. (a) The division of criminal justice services and the office of

victim services, in consultation with the division of state police

forensic investigations center and the department, shall convene a

working group to:

(1) address the creation of a coordinated tracking system for sexual

offense evidence kits;

(2) assess and make recommendations related to the forensic testing of

sexual offense evidence collection kits when a survivor declines to

report to law enforcement; and

(3) make recommendations to strengthen existing sexual offense

evidence collection and testing for all sexual offense evidence kits.

(b) The working group shall report its findings and recommendations to

the governor, the temporary president of the senate, and the speaker of

the assembly on or before November thirtieth, two thousand twenty-six.

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 reported evidence

collection kits used to collect and preserve evidence of a sexual

assault or other sex offense.

(b) The division of criminal justice services shall promulgate rules

and guidelines to ensure that sexual offense evidence collection kits

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 reported evidence collection kit. 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 reported evidence collection

kit from collection to final disposition;

(2) Allow a hospital, 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 a reported evidence collection kit, to update and track the

status and location of the reported evidence collection kits;

(3) Allow a survivor to anonymously track or receive updates regarding

the status and location of such survivor's reported evidence collection

kit; and

(4) Incorporate any relevant findings from the working group

referenced in subdivision seven of this section.

(d) No later than December first, two thousand twenty-seven, any

hospital, 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 a

reported 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 a reported evidence collection kit shall be accessed only by

the survivor for whom the reported evidence collection kit was

completed.

(f) The provisions of this subdivision shall apply to all reported

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;

(2) "survivor" shall mean an individual who is the victim of a sexual

offense from whom a human biological specimen or specimens were

collected by a healthcare provider during a forensic medical

examination;

(3) "reported evidence collection kit" means a sexual offense evidence

kit in which the survivor has consented to evidence collection and

forensic testing; and

(4) "unreported evidence collection kit" means a sexual offense

evidence collection kit for which the survivor has not consented to or

withdraws their consent to release to law enforcement.