S-2900

AN ACT Relating to the collection and preservation of physical evidence resulting from sex offenses against adults and children; adding a new chapter to Title 70 RCW; prescribing penalties; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Chain of custody" means the process of identifying each individual who handles the evidence collected, and verifying this by recording the signature, date, time, and place of the transfer of evidence among individuals until such time as the evidence is picked up by the police for legal processing.

(2) "Charting" means the documentation of information obtained from the patient and retained by the medical practitioner as confidential medical records.

(3) "Commission" means the eleven-member commission appointed by the governor under section 4 of this act.

(4) "Department" means the department of health.

(5) "Evidence collection procedures" means written procedures for obtaining physical evidence during the physical examination of a victim as established by the commission.

(6) "Medical care" means the practice of medicine as defined in RCW 18.71.011, which is undertaken by any medical practitioner and rendered to a victim.

(7) "Medical-legal evidence" means physical evidence collected as prescribed by evidence collection procedures to be established by the commission and other recorded information that is obtained from a sex offense victim during the physical examination and used for criminal investigation and prosecution of sex offenders.

(8) "Medical practitioner" means any physician licensed under chapter 18.71 RCW or advanced registered nurse practitioner licensed under RCW 18.88.175 and employed in a hospital emergency department, public or private clinic, or private practice, who performs adult or child sex offense medical examinations.

(9) "Patient" means a victim of a sex offense receiving medical care from a medical practitioner.

(10) "Person" means an individual involved with administering health care assistance to a victim of a sex offense and includes, but is not limited to, individuals such as nurses, physician assistants, psychologists, and social workers.

(11) "Protocols" means the written requirements and provisions established in this chapter and the written evidence collection procedures established by the commission.

(12) "Report" means that the sex offense victim, any medical practitioner or person providing care to the victim, or any other individual, directly contacts and informs the police either by phone or in person that a sex offense has been committed and provides pertinent facts and information relating to the incident. The adult sex offense victim must give prior consent to this report.

(13) "Sex offense" means:

(a) Any offense that is a violation of chapter 9A.44 RCW or RCW 9A.64.020. The offenses include: (i) Rape in the first, second, or third degree; (ii) rape of a child in the first, second, or third degree; (iii) child molestation in the first, second, or third degree; (iv) sexual misconduct with a minor in the first or second degree; (v) indecent liberties; and (vi) incest; or

(b) Any federal or out-of-state offense that under the laws of this state would be classified as a sex offense under (a) of this subsection.

(14) "Sex offense examination kits" are prepackaged evidence collection kits containing those materials necessary to conduct a sex offense examination for the collection of physical evidence from the sex offense victim.

(15) "Special populations" are individuals who may be at risk and more vulnerable to sex offenses, or who may have special needs due to age, physical, emotional, or intellectual incapacity, language, or cultural barriers. Such populations include the elderly, children, some ethnic minorities, physically handicapped, developmentally disabled, or the mentally ill.

(16) "Standards" means evidence samples collected from a patient that are characteristic of that individual and no other individual and are representative of the type of samples collected from that individual, including any range of variation.

(17) "Triage" means the process of screening patients and identifying priorities for their care and treatment.

(18) "Victim" means any individual who presents him or herself as having suffered from a sex offense.

(19) "Victim compensation assistance" is financial help available to victims of violent crimes administered under the state crime victims compensation program. Assistance includes the payment of medical and nonmedical benefits directly to the victim, when the victim has cooperated with the police and the assault has been reported to the police within seventy-two hours.

NEW SECTION. Sec. 2. (1) A medical practitioner who provides medical care to any sex offense victim shall adhere to the protocols established in this section and the evidence collection procedures established by the commission.

(2) The required protocols for medical care for sex offense victims shall include:

(a) A written statement explaining protocols established in this section and the evidence collection procedures established by the commission shall be given to patients and parents or guardians of any patient who is an unemancipated minor;

(b) A requirement that the patient and parents or guardians of any patient who is an unemancipated minor be informed of medical care and evidence collection procedures;

(c) A requirement that the consent of a patient and parents or guardians of any patient who is an unemancipated minor to medical care and evidence collection be sought;

(d) Description of the physical examination and additional medical history information to be obtained from the patient, including a description of the sex offense;

(e) Evidence collection procedures required by the commission;

(f) Procedures for collecting and documenting presence or absence of motile spermatozoa;

(g) Provision for secure refrigeration and dry storage space for the collected evidence;

(h) A requirement that collected evidence be stored for the following time periods:

(i) Up to seventy-two hours from the time the sex offense is known to have been reported to police; or

(ii) For at least thirty days from the date of the incident, if it is unknown whether the sex offense has been reported;

(i) Transfer of evidence procedures requiring careful documentation to preserve the chain of custody of evidence collected;

(j) Requirements for stocking and maintaining sex offense examination kits, or other appropriate packaging, and the necessary equipment to properly administer medical care and collect medical-legal evidence;

(k) Training of personnel and staff concerning the proper collection and storage of evidence; and

(l) Charting procedures and appropriate forms to be used during patient treatment.

(3) The protocols for medical care for sex offense victims may include:

(a) Prearrival instructions to the sex offense victim, if appropriate;

(b) Triage instructions for personnel or staff;

(d) Crisis intervention techniques used to provide emotional support and advocacy assistance to the victim;

(e) Medical care of special populations;

(f) Explanation to the patient about the physical examination, medical treatment, reasons for collecting medical-legal evidence, and procedures being used;

(g) Explanation to the patient about the reasons and procedures for reporting, with written reporting instructions readily available for the patient's use, if requested;

(h) Procedures for admissions, emergency room, nursing, physician, social worker, and any other category of staff coming in contact with the patient;

(i) Referrals for counseling and victim advocacy and follow-up medical care;

(j) Discharge instructions including the availability of and steps for obtaining victim compensation assistance from the state of Washington.

(4) A medical practitioner who does not adhere to the protocols in subsection (2) of this section and the evidence collection procedures as required by the commission shall refer sex offense victims to a medical practitioner who has implemented the protocols. If the victim's condition warrants, the referring physician may treat the victim for any emergent or life-threatening injuries before referring the patient for treatment and evidence collection related to the sex offense.

(5) It is a violation of this chapter for a medical practitioner to fail to follow the protocols established in this section, or fail to ensure that the protocols are followed by a person who is employed or supervised by the medical practitioner.

NEW SECTION. Sec. 3. (1) The department shall send written notice of chapter ... Laws of 1991 1st ex. sess. (this act) to all medical practitioners who may conduct adult or child medical examinations on victims. The notice shall summarize the requirements of this chapter and state the requirement for attendance at a training workshop. The notice shall be sent no later than one hundred twenty days from the effective date of this section.

(2) The department shall sponsor workshops for medical practitioners starting no later than one hundred eighty days from the effective date of this section. The workshops shall include information about the requirements of this chapter, the reasons for the requirements, suggestions for how the requirements can be met, explanations of the roles of the law enforcement agency, the state crime laboratory, the department, county prosecutor's offices, the state attorney general, the commission, and other persons administering care to victims as well as any other information deemed necessary or useful by the department.

(3) The department shall compile and make available to the public a list of: (a) All medical practitioners who have established protocols in compliance with this chapter; (b) the commission evidence collection requirements; and (c) persons eligible to treat victims.

(4) The department shall provide public education and information about this chapter, its purpose, scope, and importance to the investigation of sex offenses and the prosecution of sex offenders. The department shall further educate state residents as to the need for cooperative community efforts in addressing the problems of sex offenses; the need for an increase in victim reporting; the availability of counseling, advocacy groups, and victims' compensation assistance services; and the availability of the list of medical practitioners who have established protocols in compliance with this chapter.

(5) The county departments of public health shall compile annual data concerning the number of reported sex offenses, the number for which treatment is provided and evidence is collected, the number of cases prosecuted, the number of convictions obtained, and shall report to the commission annually by February 15th about the information collected for the preceding calendar year.

NEW SECTION. Sec. 4. (1) An evidence collection and preservation commission is established. The commission shall establish evidence collection and preservation procedures for use by medical practitioners who provide medical care to sex offense victims. The commission shall annually review and update the procedures, allowing for advancements in medical procedures and technology.

(2) The commission shall be composed of the secretary of the department or the secretary's designee and ten other members. Ten members shall be appointed by the governor as follows: (a) Three medical practitioners, one each from a hospital, a medical clinic, and a private practice; (b) two law enforcement officers whose duties include the investigation of sex offenses, one each from a state and local law enforcement agency; (c) a forensic expert; (d) two members of advocacy groups, one each representing children and adults; and (e) two attorneys involved in the prosecution of sex offense cases, one each from a prosecutor's office and the attorney general's office.

(3) The secretary of the department or the secretary's designee shall serve as chair of the commission.

(4) Commission members shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

(5) The department shall provide clerical and other support to the commission to enable it to perform its functions.

NEW SECTION. Sec. 5. All records and information obtained from a victim under this chapter shall be kept confidential by all persons providing medical care to the victim until and unless the victim has provided a written statement authorizing release of the information.

NEW SECTION. Sec. 6. Any person who knowingly and willfully violates any provision of section 2 of this act shall be assessed a civil penalty of five hundred dollars per violation.

NEW SECTION. Sec. 7. Sections 1 through 6 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 8. Sections 2 and 6 of this act shall take effect January 1, 1993.

NEW SECTION. Sec. 9. Sections 1, 3, 4, and 5 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.