Should health care professionals report a sexual assault to law enforcement, if they do not have a legal requirement to do so?

No. If there is no mandated report required, the decision of whether or not to contact law enforcement should be left to the victim. If a victim does not want law enforcement contacted, health care providers should not take it upon themselves to report the sexual assault without a legal requirement. This clearly violates the spirit of the forensic compliance provisions of the Violence Against Women Act (VAWA), which are designed to increase access to medical forensic examinations for victims who are unsure about reporting to law enforcement or participating in an investigation.

This practice of reporting without a legal mandate also violates the Health Insurance Portability and Accountability Act (HIPAA). HIPAA clearly states that health care providers can only report a patient’s disclosure of sexual assault to law enforcement when one of two conditions are met:

• The report is required or expressly authorized by state law, and/or

• The patient has consented to the report being made.

If there is no legal mandate or patient consent, health care providers should not provide any information about the suspected sexual assault of a patient to law enforcement.

For more information, please see the website for the US Department of Health and Human Services. Also see EVAWI’s 2-part training bulletin series: (1) Notification of Advocates and HIPAA and (2) More on Advocates, Routine Notification, and HIPAA.

How do I determine the mandated reporting laws in my state?

Medical mandated reporting can be complicated, especially when it intersects with the forensic compliance provisions of the Violence Against Women Act (VAWA) and other alternative reporting options. The term medical mandated reporting is used to refer to any legal requirement that health care providers must report to law enforcement when a patient discloses ‒ or the provider has a reasonable basis for suspecting ‒ that the patient has been the victim of a certain crime. For example, the provider may observe indicators that a sexual act was committed against a child or dependent adult.

Laws vary dramatically in terms of what activates a reporting requirement:

• All states require medical professionals to report sexual assault when the victim is achild (as defined by state law).

• In addition, most states require medical professionals to report sexual assault when the victim is adependent adult. The definition of what constitutes a dependent adult is also defined in state law, but it generally includes such factors as advanced age, severe cognitive disability, or other factors.

• Most state laws also require mandated reporting of any sexual assault committed by a caregiver or other authority figure, although the exact provisions of these reporting requirements vary by state.

• Most states do not require health care providers to report sexual assault of a competent adult. However, a few states do. In these jurisdictions, a report is required every time someone presents to a health care facility as a result of being sexually assaulted.

• Some states also require a report when patients present with certain types of injuries, such as gunshot or knife wounds, or other injuries that are non-accidental, result from violent crime, or involve the use of a deadly weapon. In these states, health care providers are required to notify law enforcement that a patient has presented with the specified injury, however, they may not have to say that the patient was also sexually assaulted.

• Finally, a few states have medical mandated reporting for intimate partner violence. In these states, health care providers are required to notify law enforcement when a patient discloses that a sexual assault occurred within the context of intimate partner violence (or when the health care provider has reason to suspect this is the case).

For medical mandated reporting requirements in each US state, please see the legal compilation created by the National District Attorneys Association: Mandatory Reporting of Domestic Violence and Sexual Assault Statutes (2010). Also see State Laws and the Nurse Practice Act by the US Department of Justice, Office for Victims of Crime (OVC).

When a mandated report is made to law enforcement by a health care provider, is the victim required to talk with a law enforcement officer?

No. When victims have a medical forensic exam, but they have not (yet) decided to talk with law enforcement or participate in an investigation, some communities have a practice of allowing officers to make personal contact with the victim, so they can introduce themselves, offer their services, and confirm the victim’s non-participation.

It is easy to understand why officers might want this type of contact, because it gives them a chance to establish rapport with victims, and ensure the information about reporting options has been presented fairly. They can also demonstrate their competence and compassion for victims. It can be frustrating for officers to feel “shut out” of the process, especially if their law enforcement agency pays for the costs of a forensic medical examination.

Yet the forensic compliance provisions of the Violence Against Women Act (VAWA) are clear that sexual assault victims must have access to a medical forensic exam without requiring them to “cooperate with law enforcement” or “participate in the criminal justice system.” If victims are willing to talk with an officer, this can provide an opportunity for the officer to make contact with the victim and offer information. But, if victims are not willing to talk with an officer, they should never be forced to.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.

Is medical mandated reporting compliant with VAWA?

Yes. The US Department of Justice, Office on Violence Against Women (OVW) determined that states with medical mandated reporting can be compliant with the Violence Against Women Act (VAWA), as long as victims are not required to “cooperate with law enforcement” or “participate in the criminal justice system.” When a mandated report is filed, this means victims cannot be required to personally talk with an officer or participate in the investigation. In other words, victims do not have the option of deciding whether a mandated report will be made. They do decide whether they want to talk to law enforcement or provide any information in connection with the report.

Victims should also be advised which agency (or agencies) will receive the mandated report, what information will be included, and whether it must identify the victim (or suspect, if known) by name. These requirements are typically outlined in state law.

For more information, please see two Online Training Institute (OLTI) modules: (1) The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance and (2) Opening Doors: Alternative Reporting Options for Sexual Assault Victims.