Forensic Compliance FAQs

Forensic Compliance FAQs

This information is designed to communicate the requirements of the Violence Against Women Act (as reauthorized in 2005 and 2013), and offer recommended practices for implementation. Our goal is to highlight examples of communities striving to achieve a higher standard of the “spirit of the law,” rather than simply meeting the “letter of the law” for VAWA forensic compliance. 

It is critically important that readers consult state laws and regulations, as well as local policies and protocols, because they may have additional requirements beyond those included in VAWA 2005 and VAWA 2013. For more information specific to your state or territory, contact the STOP Grant Administrator or coalition of advocacy organizations providing services for sexual assault victims.  A listing is available from the website for the Office on Violence Against Women, U.S. Department of Justice.

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The short answer to this question is no. Law enforcement officers should not be required to wait for health care providers to complete the entire examination process. They certainly should not be required to wait and sign a form that is sealed inside the kit. Health care providers have a number of tasks to complete even after the victim leaves the exam facility, including the documentation and packaging of evidence, which do not require law enforcement presence for completion. These tasks require attention to detail, and this could be compromised if forensic examiners feel they have to rush so a waiting officer can sign a form to be sealed inside the kit. Some communities have established protocols that allow examiners to complete the required paperwork and notify the law enforcement agency that it is ready for pick-up, or they may fax the form to law enforcement via a secured fax line or submit it via secure electronic submission.

No. VAWA specifies that victims of sexual assault must be provided access to a medical forensic exam regardless of whether they decide to cooperate with law enforcement or participate in the criminal justice system. Therefore, while a state statute or administrative rule may require law enforcement authorization for the initiation or payment of a medical forensic exam, it cannot require the victim to personally talk with a law enforcement officer

In response to the VAWA forensic compliance provisions, some states began using crime victim compensation (CVC) funds to cover the cost of a medical forensic exam when the victim has not yet decided whether to participate in the criminal justice process.

CVC programs are available in all 50 states, the District of Columbia and three U.S. territories, yet their eligibility requirements can be problematic for meeting the goals of forensic compliance. For example, federal CVC guidelines require that programs must promote victim cooperation with the reasonable requests of law enforcement authorities. To meet this objective, most states require victims to report the crime to law enforcement within 72 hours to be eligible for reimbursement through the CVC program. Additionally, all state requirements say that victims are ineligible for CVC funds if they contributed to their injury or victimization through wrongful conduct or provocation. Given how frequently victims are drinking underage or using recreational drugs at the time of the sexual assault, this may disqualify many from CVC eligibility. Another example is the victim who is sexually assaulted by an intimate partner who is also physically abusive. If the victim engaged in defensive or even retaliatory physical violence, this may similarly preclude CVC eligibility.

Given these concerns, states that utilize CVC funds to pay for medical forensic exams must evaluate their statutory and administrative rules governing eligibility and, at the very least, make exceptions for sexual assault victims who obtain a medical forensic exam. If these eligibility requirements disqualify payment for exams, either because victims are not initially participating in the criminal justice process or are seen as having “contributed” to their sexual assault, this would not be seen as compliant with the forensic compliance provisions of VAWA.

Community protocols need to clarify what rights (if any) victims have for returning clothing or other evidence associated with various forms of reports (e.g., clothing, bedding). This information can then be incorporated into the informational materials created for victims. In communities where evidence is stored anonymously by law enforcement, it may be difficult for victims to have anything returned to them, because some form of identification is typically required before evidence can be returned to its lawful owner. However, if the victim has met with law enforcement at some point during the alternative reporting procedure, it is possible that the officer can make the necessary arrangements to have certain items returned to the victim if requested. This would likely require the victim to show proper identification, with the understanding that the victim’s identity will not be recorded as part of the report.

When evidence in connection with such a report is stored by a SAFE program or other health care facility, it may be easier to return some items to the victim if requested. However, this will likely pertain only to items such as clothing or bedding. Serious concerns would arise if victims were offered the option of requesting other types of evidence (e.g., biological samples collected during a medical forensic examination). Among other concerns, this might create an opportunity for suspects to intimidate victims into requesting to have evidence returned, to obstruct the investigation and potential prosecution. We therefore recommend that informational materials clarify that any biological evidence collected does not belong to the victim and that no process exists for victims to request access to this evidence or have it returned to them.

Under VAWA, jurisdictions could remain in compliance with the forensic compliance provisions even if victims were being billed for the cost of their medical forensic examination – as long as they were fully reimbursed for that expense. However, this option was eliminated in VAWA 2013. States, territories, and tribal governments must now certify that medical forensic exams are available to victims completely free of charge – and this means no out – of – pocket costs for victims.

It is worth clarifying that this does not extend to all aspects of medical testing and treatment. In the text of the federal legislation, VAWA specifies which components of the examination must be offered to victims free of charge. These and other issues are addressed in our OnLine Training Institute (OLTI) module on forensic compliance, entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance. The module also includes a number of resources and tools that can be adapted for use in your community.

As stated above, states, territories, and tribes have discretion regarding which medical services, beyond the forensic exam, will be included in their payment mechanism. It is therefore quite common for victims to be billed for the costs of medical testing and treatment following standard procedures. This may require a co-pay. Victims may be eligible to apply to Crime Victim Compensation to have these expenses reimbursed, if they follow proper application procedures and meet eligibility requirements.

Victims cannot be required to pay for any part of the forensic examination, as defined by VAWA (see above). This includes any co-pay for the exam.

There is a legitimate concern that accessing CVC in cases where the victim has not yet elected to participate in the criminal justice system could compromise their anonymity. It is therefore critical for professionals involved in sexual assault response to identify whether CVC is used as a payment mechanism for medical forensic exams, and if so, determine what specific statutes, eligibility requirements and administrative procedures are associated with the program.

CVC programs are also often used to compensate victims for financial losses resulting from crimes. This can include the costs of medical care (beyond the forensic exam), counseling fees, and lost earnings. These issues are largely outside the scope of the VAWA forensic compliance provisions, which pertain only to medical forensic exams. Therefore, these eligibility requirements could remain in place for this aspect of the CVC program and not create a compliance problem with VAWA.

However, this is another example where the letter of the law may be met while not honoring the spirit of the law. Given that the purpose of the VAWA forensic compliance provisions was to increase victim reporting and access to the criminal justice system, eliminating such financial barriers can go a long way toward meeting the spirit of the law and improving both access and outcomes for victims.

One area of frequent confusion is the mistaken belief that VAWA requires communities to offer anonymous evidence collection and storage. This is not the case. As described in the Frequently Asked Questions (FAQs) about STOP Formula Grants published by the Office on Violence Against Women (OVW), U.S. Department of Justice:

States are not required to institute anonymous reporting. Some states are instituting it voluntarily. Under VAWA 2005, states are only required to ensure that a victim receives access to a forensic examination free of charge regardless of whether the victim chooses to report a sexual assault (for any reason) to law enforcement or cooperate with the criminal justice system.

In other words, anonymity is not required in order to meet the ‘letter of the law’ for VAWA forensic compliance. However, it can be used to achieve the ‘spirit of the law.’

There is no specific difference in the role of DNA evidence for converted cases versus others. However, this is an area that is rife with assumptions, misconceptions, and confusion.

For detailed information on the role of DNA in sexual assault investigations, please see the OnLine Training Institute module entitled: Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations.

There are no data specifically addressing these questions regarding how often DNA is present in converted cases or how often they involve multiple perpetrators. In fact, we need a great deal more information about virtually every aspect of converted cases, and community professionals are encouraged to begin collecting data to track the processing and outcomes of exams that are conducted with a victim who is initially unsure about participating in the criminal justice system.

However, we can speculate that the findings will be generally similar to other sexual assault cases. In most jurisdictions, the evidence collection procedures conducted during an exam are identical, regardless of whether the victim has decided to participate in the criminal justice process. There are some exceptions, however, including California (where a modified exam is often used for victims who have not yet decided to talk with law enforcement) and Texas (where dry storage is used, so victims who are unsure about criminal justice participation are not asked to provide any blood or urine samples). Because the exam is typically the same – regardless of whether or not the victim is initially talking with law enforcement – it is reasonable to speculate that the evidence recovered will be generally similar. Differences would only be seen if there were underlying characteristics of the assaults that varied (e.g., if victims who were assaulted by multiple perpetrators are more or less likely to have an exam without law enforcement involvement). This is a question that only future data collection can answer.

For recommendations on data collection in this area, please see the Data Collection tab within the forensic compliance section of the EVAWI website, as well as the OnLine Training Institute module entitled, The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance.

Additionally, the OnLine Training Institute module entitled Laboratory Analysis of Biological Evidence and the Role of DNA in Sexual Assault Investigations explores the complex role of DNA in a sexual assault investigation, including the alternative sources of DNA evidence and their potential significance or impact on a sexual assault investigation. A number of resources and tools are provided, along with a series of complex and interactive case examples.

Many professionals continue to refer to “law enforcement authorization” when talking about a medical forensic examination with a sexual assault victim. However, this changed in the wake of the Violence Against Women Act (VAWA) forensic compliance provisions, which require that all victims of sexual assault are provided a medical forensic exam free of charge and regardless of their participation in the criminal justice process. With this legislation in place, the terminology of “authorization” is simply no longer appropriate. The reality is that law enforcement agencies are not in the business of “authorizing” exams anymore – even in states like California where law enforcement pays for forensic examinations. Sexual assault victims can – and do – consent to the examination without law enforcement being involved at the time of the examination.

The International Association of Forensic Nurses (IAFN) offers a Sexual Assault Forensic Examination Technical Assistance (SAFEta) project, which provides many valuable resources on a range of topics associated with medical forensic exams and exam payment. One section of their website allows you to click on each state or territory, to find a detailed summary of the exam payment process in that state or territory, along with helpful information on Crime Victim Compensation (CVC) and other pertinent information.

Also, the document entitled, Summary of Laws and Guidelines with Charts:  Payment of Sexual Assault Medical Forensic Examinations was created by AEquitas: The Prosecutors’ Resource on Violence Against Women, in collaboration with EVAWI. You can download the whole 228-page document, which includes the laws and guidelines for each U.S. state and territory, as well as a number of charts summarizing the provisions. For an overview, you can also download the 13-page Summary of Laws and Guidelines.

Yes. When a health care professional is mandated by law to report a suspected sexual assault or injury to law enforcement, it must be clear that victims do not have the option of deciding whether this report will be made. Victims do decide, however, whether they want to provide any information to law enforcement in connection with the report. In other words, just because a mandated report is filed, this does not mean the victim is required to personally talk with an officer. This would be inconsistent with VAWA forensic compliance provisions.

The Office on Violence Against Women (OVW) has determined that states with medical mandated reporting can be compliant with VAWA forensic compliance provisions, as long as victims are not required to participate in the criminal justice process. While the definition of “participation” is not explicitly defined, common sense suggests it means that victims cannot be required to personally talk with an officer – even when a mandated report has been filed with law enforcement.

Contracting of nursing services is common in the health care field. From using agency nurses or “traveling” nurse contractors, most hospitals are familiar with utilizing contract nurses in many areas of the hospital. Nurses may be contracted on an individual basis, or they may work for an organization that contracts with the hospital or law enforcement agency to provide forensic medical services. They may be used to fill in temporary staffing gaps before more permanent staff can be hired, or to fill in for staff nurses on leave or during vacation periods. A SANE program may also consider using contract services for their medical forensic exams — either to augment existing staff by filling in temporary gaps, or as a permanent solution to address staffing needs.

To provide a hypothetical example:

Nurse Hernandez RN might serve as an independent contractor who is contracted by an organization called Forensic Nursing Services (FNS) to provide medical forensic examination services to local hospitals. She contracts with this organization and must supply her own license and liability insurance. She receives no benefits beyond direct compensation from FNS, in accordance with her contract. FNS then puts her on a schedule to work or take call based on Nurse Hernandez’ availability.

Creating Contractual Arrangements

When considering such an arrangement there are a several different options to research. First, it is important to determine if the facility is currently using any agency or contract services. It may save a great deal of time and effort to begin by meeting with human resources or staffing offices within the hospital — to discuss the mechanisms that are already in place for contract nursing services. It may be that these arrangements can be easily adapted for use with contract SANE services.

If there are no existing mechanisms in place for the use of temporary nursing services, more extensive work may be needed to establish a process for hiring non-employee staff. This may include the hospital setting up a process for obtaining practice or hospital privileges that would allow contract SANEs to respond and complete medical forensic exams in hospitals where they are not employed as hospital staff. Unfortunately, the process of obtaining these practice privileges can require an application process that is both expensive, time consuming and administratively complicated.

Requirements for Contract SANEs

Beyond practice privileges, there are a number of requirements for contract SANEs that must be considered when developing a contract. For example, contract SANEs should be required to carry independent professional liability insurance. Contractual staff are also typically required to participate in some form of hospital orientation to ensure they are familiar with hospital policies and safety procedures, and also that they have the minimum required knowledge to practice in the facility in general and in the SANE program. Other considerations include additional expenses such as reimbursement for professional liability costs and annual Continuing Education, as well as SANE-A and/or SANE-P certification costs, if these are required by the hospital or community protocol.

Written Contractual Agreement

Regardless of whether a SANE program is community-based or hospital-based, any arrangement with a non-employee SANE will require developing a written contractual agreement regarding the services provided. The contract will need to include provisions regarding any on-call time and actual examination time, as well as preparation for court and testimony. Any nursing contract should also provide information about the level and extent of care that will be provided to patients, as well as a detailed outline of the responsibilities for both the employing agency and the contract SANE.

Detailed information will also be required for the reimbursement of SANE services performed. This includes outlining the reimbursement for “on-call” time, examination time and court testimony time. If the SANE contractor is being hired as an independent contractor, the contract should also clarify whether the agency will be responsible for deducting payroll taxes and payment terms. Clearly, the cost of contract staff may add up quickly, depending upon the number of contract staff needed. Detailed information should also be provided on the process and turnaround time for payment.

Court Testimony Obligations

It is imperative for any contract SANE to clearly understand the expectations associated with subpoenas, pre-trial preparation, and court testimony. It should be clear that any cases they are responsible for will have associated commitments in these areas for the contracting SANE. Additionally, the contract should specify how SANEs will be compensated for this time and what costs will be covered once the SANE is no longer on contract. SANEs typically have full-time jobs, and they may need to take leave from their primary employment in order to testify in court.

Contract SANEs who are not on staff at a hospital may also be subject to very different facility policies and restrictions (over and above HIPAA) regarding their access to patient records, reports, and photographs. Such restrictions may impede the SANE’s ability to prepare for court and in many cases will require additional time to navigate administrative channels. Typically, contract nurses will need to ask the attorney who called them to testify for access to the report and pictures for trial preparation.

Issues to Address

Scheduling contract SANEs can pose additional challenges for a SANE program manager. There may be a need to modify usual response times and also to address issues such as required response times, inclement weather and other potential delays. It is important to identify these situations in advance and clarify any expectations in the contractual agreement. It is also recommended that the SANE program manager communicate with law enforcement or any other paying agency about any contract SANE services being utilized and how that might impact any contract between the medical facility and law enforcement.

To summarize, any hospital contract for contract SANE services should include clear provisions addressing:

  • On-call pay
  • The number of shifts required during a pay period
  • Required response times for the SANE upon notification of a case
  • Practice privileges (including any fees, if applicable)
  • Exam payments and billing information
  • Court preparation and testimony agreements
  • Training and orientation requirements including any reimbursement
  • Certification requirements
  • Clinical competency with supervision
  • Annual continuing education requirements and reimbursement
  • Professional liability insurance
  • Awareness of and compliance with the existing community/facility exam protocol
  • Peer review

The contract should also include an acknowledgement of subpoena compliance mandates and applicable legal penalties, even in situation where the SANE no longer contracts with the hospital or the agency conducting medical forensic exams.

Administrative Coordination

Any type of contractual arrangement will typically require strong administrative coordination — to manage payment to the forensic examiner as well as billing the agency ultimately responsible for covering exam costs, scheduling, subpoenas, and the other issues mentioned above.

There is an added complication when contract SANEs were former hospital employees. In this situation, the contractor will no longer enjoy the benefit of the hospital providing administrative and policy protections and other managerial assistance. This can be a difficult transition to working as a contract SANE. This is particularly true when it comes to issues of administrative logistics, accounting systems, insurance provisions, tax issues and risk management. There should be clear communication regarding what the hospital will and will not provide to the contractor.

Templates Available

To provide guidance in this area, we have several examples of contract templates. These examples were collected by Diana Faugno with the Eisenhower Medical Center (which is headquartered in Rancho Mirage, California) and Kim Day, who serves as the SAFEta Project Director at the International Association of Forensic Nurses (IAFN). We are grateful for their efforts to provide these contract templates as training resources.

The contract templates are provided in Word format, so they can be easily adapted for your own use. They are drawn from a broad range of programs, so they offer a sense of the diversity that can be seen in free-standing facilities, as well as community-based and hospital-based forensic examiner programs. We hope you find them helpful.

For More Information

Additional resources include the following:

Acknowledgements

We would like to gratefully acknowledge the efforts of several people who contributed significantly to this response:

  • Ann Burdges, CEO / Executive Director of the Gwinnett Sexual Assault Center & Children’s Advocacy Center (GSAC-CAC) and Deputy Director for EVAWI.
  • Kim Day, RN, FNE, SANE-A, SANE-P, SAFEta Coordinator for the International Association of Forensic Nurses (IAFN). Please contact Kim Day at kimday@iafn.org for information and technical assistance on the medical forensic exam and the National SAFE Protocol.
  • Diana Faugno, MSN, RN, CPN, SANE-A, SANE-P, FAAFS, DF-IAFN, Eisenhower Medical Center

This general statement regarding medical testing and treatment also applies to costs for follow-up care, including follow-up surgeries or reconstructive surgeries. These services would not typically be included in the definition of forensic examination – and therefore would not be paid by the entity covering the costs of medical forensic exams – unless this is the protocol established by the state, territory, or tribe (or even by the community or facility providing exams). In most cases, these medical costs will be billed following standard practices and the victim could apply for reimbursement through Crime Victim Compensation if she/he follows the application procedure and meets the eligibility requirements.

Some jurisdictions include treatment for Sexually Transmitted Infections (STIs) and Emergency Contraception (EC) as part of the forensic exam, and costs are covered with the payment mechanism that is used for medical forensic exams. Yet in other places, these services are not included in the definition of a forensic exam and the costs are not covered.

In the National Protocol for Sexual Assault Medical Forensic Examinations, it is recommended that health care providers facilitate evaluation and care for both pregnancy and STIs. Given these services are recommended by the National Protocol, protocols can be created to ensure victim access.

This is the term used to describe a sexual assault case where the victim had a medical forensic examination but was initially unsure about whether or not to participate in the criminal justice process. For victims who later decide that they will participate in the criminal justice process, this is described as ‘converting’ to a standard reporting process. At that point, the case may be handled like any other report coming in to law enforcement following the traditional path.

For military personnel, this will refer to a sexual assault case that begins with a restricted report and later converts to an unrestricted report (whether this is voluntary on the part of the victim or involuntarily, against the victim’s wishes).

VAWA 2013 states that a governmental entity (such as a US state, territory, or tribal government) will only be eligible for STOP grant funding if it:

coordinates with regional health care providers to notify victims of sexual assault of the availability of rape exams at no cost to the victims.

Many communities have developed strategies to reach the public with information about their options – particularly the fact that sexual assault victims can obtain a medical forensic exam free of charge and without having to make a decision about criminal justice participation at the time of the exam. Some have approached this issue through public service announcements, others through media campaigns, and still others through agency websites. All of these approaches can be effective in informing the public, and thus increasing access for victims of sexual assault.

Given that the whole point of forensic compliance is to increase access for victims of sexual assault – both to the medical forensic exam as well as the criminal justice system as a whole – creating a VAWA-compliant system is only half the battle. The other half is ensuring that community members are aware of their options, to increase the likelihood that they will engage the system when they or someone they love has been sexually assaulted.

Generally speaking, VAWA requires that sexual assault forensic exams include, at a minimum:

  • examination of physical trauma;
  • determination of penetration or force;
  • patient interview; and
  • collection and evaluation of evidence (28 C.F.R. § 90.2(b) (1))

However, the legislation does not require states, territories, or tribes to cover the cost for medical testing or treatment (e.g., for injuries, pregnancy, sexually transmitted infections, etc.). In this regard, VAWA 2005 states that:

…the inclusion of additional procedures to obtain evidence may be determined by the state … in accordance with its current laws, policies, and practices (§90.2(b)(2)).

In other words, VAWA does not specifically require that the cost of medical testing and treatment be covered, in order to remain compliant with the letter of the law. However, meeting the spirit of the law would encourage it. After all, medical testing and treatment is a critical component in the National Protocol on Sexual Assault Medical Forensic Examinations (2013). It therefore furthers the goal of providing victims with prompt and unobstructed access to a medical forensic exam, which is the intention of the forensic compliance provisions. Thus, best practice is for communities to include medical testing and treatment in the exam costs that are covered for victims (e.g., for pregnancy, sexually transmitted infections).

Keep in mind that even with standardized guidance provided in documents such as the National Protocol (2013), the specific components included in a medical forensic exam varies from state to state depending on relevant statutes and administrative regulations as well as community practices. It is therefore important for stakeholders to identify what, if any, state statutes or administrative regulations exist that provide guidance on what a medical forensic exam must (or may) include. It is also important to identify what protocols are being followed across the state, territory, or tribe that may not be as a result of legal guidance, but rather local practice.

Under VAWA, grantees of the STOP Violence Against Women Formula Grant Program must meet certain requirements concerning payment for the forensic medical exam in order to receive funds. Specifically, states, territories, and tribes must certify that they or another governmental entity “incurs the full out-of-pocket cost of forensic medical exams” for victims of sexual assault. If one part of the jurisdiction (such as a county or city) is requiring victims to incur any of these costs, they will not be able to make this certification and will be ineligible for STOP grant funds.

For more information, this article was originally published in the Sexual Assault Report in 2006, and it provides a summary on the provisions of VAWA 2005. It is also now available under the Articles tab on the Forensic Compliance Resource Page. However, keep in mind the 2006 publication date; the article does not include information updated since that time.

Although all of the states, territories, and tribal governments are currently in compliance with these rules, many details associated with their implementation remain uncertain. This uncertainty causes confusion for sexual assault victims as well as the professionals providing services to victims. For example, in some jurisdictions, there is confusion about where sexual assault evidence collection kits from victims who have not yet decided whether to talk with law enforcement will be stored – or how long such kits will be stored. Because responsibility for payment of the medical forensic exam falls to various entities in different jurisdictions, there is also great variation in payment practices across the country. In some jurisdictions, the use of alternative reporting options, often referred to as anonymous reporting, can create additional confusion. Few jurisdictions have policies in place that provide an avenue for a victim to change a case that began as unreported to a standard report to initiate an investigation. Few jurisdictions are vigorously investigating or charging converted cases. Finally, few jurisdictions have written policies in place on any of these topics.

So, although jurisdictions are compliant with the letter of the law, more work needs to be done to ensure that they are compliant with the spirit of the law as well. The resources offered by EVAWI are designed to assist jurisdictions across the country with the creation and implementation of written policies on forensic compliance topics. We hope these resources can help eliminate confusion and ensure that victims of sexual assault receive the care that they are due under both federal law and laws at the level of U.S. states, territories, and tribal governments.

Implementing policies that are compliant with the letter of VAWA 2005 is relatively easy: victims must be provided with a medical forensic exam free of charge and without being required to cooperate with law enforcement or participate in the criminal justice process. Making that option viable and meaningful, however, is more complicated and requires collaboration, compromise and commitment among diverse professionals in your jurisdiction. So, your jurisdiction must ask: Once the medical forensic examination is provided to a victim of sexual assault who has not yet decided whether to talk with law enforcement, what happens next? The ultimate question is this:

Is there any possibility that a converted case will be successfully investigated and prosecuted in your jurisdiction?

When thinking of the policies currently in place in your jurisdiction, we hope you can answer “yes” to this “ultimate question.” If so, then you are well on your way to fulfilling the spirit of compliance. If the answer to the ultimate question is “no,” then this document will help you to engage more community partners and create policies that will help you get to “yes.” This chart may help your jurisdiction in the pursuit of the spirit of VAWA 2005, by identifying practices that meet the spirit of the law.

Forensic Compliance refers to two specific provisions that first appeared in the 2005 reauthorization (and remain in place under the most recent reauthorization of VAWA 2013) regarding medical forensic exams for victims of sexual assault. These provisions read as follows:

Nothing in this section shall be construed to permit a State, Indian tribal government, or territorial government to require a victim of sexual assault to participate in the criminal justice system or cooperate with law enforcement in order to be provided with a medical forensic exam, reimbursement for charges incurred on account of such an exam or both (42 U.S.C.A § 3796gg-4(d)(1)(2005)).

There are thus two dictates associated with forensic compliance. VAWA legislation states that victims of sexual assault must be provided with access to a medical forensic examination:

  1. Free of charge, and
  2. Without requiring them to cooperate with law enforcement or participate in the criminal justice system.

VAWA 2013 retains all of the forensic compliance provisions from 2005 and it clarified that victims cannot be required to pay any out-of-pocket costs to obtain a medical forensic exam. Under VAWA 2005, jurisdictions were allowed to bill victims for the cost of the exam as long as they were fully reimbursed. However, this option was eliminated in VAWA 2013.

Increase Victim Access to Prompt Medical Forensic Care

There are several reasons why VAWA 2005 imposed forensic compliance mandates. One purpose is to increase sexual assault victims’ access to medical care and forensic evidence collection in the aftermath of an assault – at the point when medical care is most healing and certain forms of biological and physical evidence are more likely to be present for collection and documentation. Victim advocates recount many crisis calls where victims express fear of injury, pregnancy or sexually transmitted infections (STls), but are deterred from seeking medical care because these fears are outweighed by the fear of speaking with law enforcement or reporting the crime. VAWA 2005 recognizes that victims should not face barriers to seeking critical medical care following an assault.

Prior to VAWA 2005 forensic compliance mandates taking effect on January 5, 2009, some states required law enforcement to first authorize the victim’s medical forensic exam – a policy that deterred many victims from seeking medical care or forensic evidence collection. Now, by ensuring that victims of sexual assault have access to the medical forensic examination without talking with law enforcement (unless they choose to do so) some victims will receive medical care and forensic evidence collection that they may not have otherwise sought.

Prompt medical care benefits victims by providing treatment and options that ensure better physical and mental health in the future. Access to prompt medical care may reduce the number of significant health consequences following the sexual assault, like unwanted pregnancy or STls. Prompt medical care may also decrease chronic health problems like post-traumatic stress disorder, depression, eating disorders, alcohol and substance abuse and pelvic pain suffered by victims.1

In addition, prompt forensic evidence collection increases the chance that probative evidence will be collected and documented; this evidence may be essential to an investigation and criminal prosecution, if the victim chooses to convert the case to a standard report in the future.

1 Rebecca Campbell, Ph.D. has conducted numerous research studies on the chronic health consequences of sexual assault and how medical screening and other interventions can thwart the development of these chronic conditions. Many of Dr. Campbell’s research studies are available online, including two articles that were consulted for this document: (1) Campbell, R., Lichty, L.F., Sturza, M.L., & Raja, S. (2006). The gynecological health impact of sexual assault. Research in Nursing & Health, Vol. 29, p. 399-413 and (2) Campbell, R., Sefl, T. & Ahrens, C.E. (2003). The physical health consequences of rape: Assessing survivors’ somatic symptoms.  Women’s Studies Quarterly, Vol. 31, p. 90-104.

2 Obtaining “justice” means different things to different victims. In recent years, there has been an increased emphasis to pursue forms of justice besides the traditional notion that justice must equal jail or prison time for the offender. For more information about the civil legal approach to ensure victim rights and healing (sometimes characterized by the phrase, “justice is more than jail”), see Jessica E. Mindlin & Susan H. Vickers, Eds., (2008). Beyond the Criminal Justice System: Using the Law to Improve the Lives of Sexual Assault Victims, A Practice Guide for Attorneys and Advocates. Published by the National Victims’ Rights Law Center and available at http://www.victimrights.org/

3 Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The Sexual Victimization of College Women. Washington, DC: U.S. Department of Justice (NCJ 182369); Frazier, P., Candell, S., Arikian, N., & Tofteland, A. (1994). Rape survivors and the legal system. In M. Costanzo & S. Oskamp (Eds.), Violence and the Law (pp. 135-158). Newbury Park, CA: Sage; Kilpatrick, D. G., Edmunds, C. N. & Seymour, A. E. (1992). Rape in America: A Report to the Nation. Arlington, VA: National Crime Victims Center; Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti, M. A., & McCauley, J. (2007). Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study. Washington DC: National Institute of Justice (NCJ 219181); Tjaden, P. & Thoennes, N. (2000). Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Against Women Survey. Washington, DC: U.S. Department of Justice (NCJ 183781).

4 Sarah E. Ullman (2010). Talking About Sexual Assault: Society’s Response to Victims. Washington, DC: American Psychological Association.

Increase Victim Access to Justice

Another purpose of VAWA 2005 is to increase the reporting of sexual assault cases to law enforcement and ultimately increase victim access to justice.2 Research studies show that 80-95% of sexual assaults are never reported to law enforcement,3 so it is clear that sexual assault remains one of the most under-reported crimes in our nation.

There are many logical reasons why victims may initially hesitate to report the assault to law enforcement.4 Some victims think that reporting the crime to law enforcement will be fruitless because they will not be believed. Other victims do not want to believe, or do not recognize, that they have been the victim of a crime. Some victims blame themselves for the assault, and spend time trying to characterize what behavior led to the assault, hoping to avoid such behavior in the future. Many victims are terrified that the assailant will further hurt them or a family member if a law enforcement investigation is pursued. Moreover, many victims are painfully aware of society’s doubt or blame of victims in well-publicized cases. Some victims may have outstanding warrants or may have been engaged in illegal behavior at the time of the assault; facts which may cause them to hesitate to connect with law enforcement. Finally, numerous research studies show how trauma can impact the brain and complicate a victim’s ability to recall, organize and communicate memories. Therefore, the effect of trauma on the brain can also make a victim’s decision to report the assault to law enforcement extremely difficult in the days and months after an assault

While few victims report the assault to law enforcement, many victims disclose the assault to someone else in their lives. Research shows that victim disclosure is usually not a one-time, all-or nothing event.4 Thus, victim disclosure should be viewed as more of a process than an event with victims testing listeners with bits of information and gauging the listener for a supportive response. When victims take a courageous step to disclose the sexual assault to a healthcare professional, they should be rewarded with compassion and concern, not pressure to report the assault to law enforcement. If victims feel believed and supported the first time they disclose the assault, they will most likely feel more empowered to tell others, and may decide to engage law enforcement at some point in the future.

While research shows that victim disclosure is often healing, the legal system was not designed to promote healing.4 The process of reporting the assault law enforcement, participating in the investigation and any subsequent criminal case is often traumatic for victims and may not ultimately increase victim healing. While victims should not be discouraged from reporting the assault to law enforcement, VAWA 2005 requires states to implement special processes that acknowledge and counteract some of the intense pressures faced by sexual assault victims. By eliminating the requirement that victims first speak with law enforcement before receiving the medical forensic exam, one immediate pressure has been eliminated. Although some victims will never decide to report the assault to law enforcement, VAWA 2005 is clear that those individuals must still have access to a medical forensic exam.

2 Obtaining “justice” means different things to different victims. In recent years, there has been an increased emphasis to pursue forms of justice besides the traditional notion that justice must equal jail or prison time for the offender. For more information about the civil legal approach to ensure victim rights and healing (sometimes characterized by the phrase, “justice is more than jail”), see Jessica E. Mindlin & Susan H. Vickers, Eds., (2008 Beyond the Criminal Justice System: Using the Law to Improve the Lives of Sexual Assault Victims, A Practice Guide for Attorneys and Advocates.  Published by the National Victims’ Rights Law Center and available at http://www.victimrights.org/

3 Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The Sexual Victimization of College Women. Washington, DC: U.S. Department of Justice (NCJ 182369); Frazier, P., Candell, S., Arikian, N., & Tofteland, A. (1994). Rape survivors and the legal system. In M. Costanzo & S. Oskamp (Eds.), Violence and the Law (pp. 135-158). Newbury Park, CA: Sage; Kilpatrick, D. G., Edmunds, C. N. & Seymour, A. E. (1992). Rape in America: A Report to the Nation. Arlington, VA:  National Crime Victims Center; Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti, M. A., & McCauley, J. (2007). Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study. Washington DC: National Institute of Justice (NCJ 219181); Tjaden, P. & Thoennes, N. (2000). Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Against Women Survey.  Washington, DC:  U.S. Department of Justice (NCJ 183781).

4 Sarah E. Ullman (2010). Talking About Sexual Assault: Society’s Response to Victims. Washington, DC: American Psychological Association.

Improve Criminal Justice Outcomes

Thus, the VAWA 2005 forensic compliance mandates were designed to spark a significant change in how formal systems like healthcare and the criminal justice system respond to sexual assault. Jurisdictions should adapt or create victim-centered policies that take into account the reality of how few victims disclose to authorities and encourage victims to report in a way that may be more comfortable for them. By doing that, jurisdictions may ultimately see an increase in reports made to law enforcement. Furthermore, by allowing victims who are unsure about reporting access to the medical forensic examination, such evidence will be available in the future if and when that victim chooses to pursue an investigation. The presence of physical evidence capable of being analyzed for DNA or toxicology – along with the documentation of physical injury – often leads to better prosecution outcomes.6  An increase in reports made to law enforcement and more successful prosecutions may mean safer communities for us all. After all, we cannot hold offenders accountable without first hearing from victims. However, this will only occur if the process of reporting the assault to law enforcement is made more comfortable for victims now. This document is intended to assist your jurisdiction in the creation and implementation of victim-centered policies that may achieve these results.

5 For an overview of relevant research studies on how the body and mind respond to trauma in the context of sexual assault, see Kaarin Long, Caroline Palmer & Sara G. Thome (2010, August). A distinction without a difference: Why the Minnesota Supreme Court should overrule its precedent precluding the admission of helpful expert testimony in adult-victim sexual assault cases. Hamline Journal of Public Law and Policy, Vol. 31, No. 2, p. 569-656.

6 See, for example Hon. Donald E. Shelton, Gregg Barak, & Young S. Kim & Gregg Barak (2007). A study of juror expectations and demands concerning scientific evidence: Does the “CSI Effect” exist? Vanderbilt Journal of Entertainment and Technology Law, Vol. 9, No. 2, p. 331-368. Available at: http://works.bepress.com/donald_shelton/5.

When a law enforcement officer signs the forensic examiner’s form, the purpose is not to document verification of the contents of the kit. That is the role of the health care provider conducting the exam. The signature is also not required to document chain of custody – that can and should be handled using a different procedure, not involving the forensic examiner’s form. However, even if the forensic examiner’s form is being used for this purpose of documenting chain of custody, it can simply be attached to the outside of the kit or submitted via a secure fax or electronic transmission.

While the standard of 120 hours is often used as a general guideline, best practice is for each sexual assault to be evaluated on a case by case basis. The question of whether or not to conduct an exam should be based on the facts of the case, the victim’s history, the likelihood of recovering evidence, and the types of evidence that will be needed for successful prosecution. To illustrate, evidence may be available beyond 120 hours in cases where:

  • The victim did not bathe or washed minimally
  • Multiple assailants were involved
  • The victim was seriously injured or describes a great deal of force
  • The victim reports pain and discomfort
  • The victim reports inflicting serious injury on the assailant(s), or
  • The victim is a child, dependent adult or was unconscious or physically helpless during the assault

There may be other circumstances in which it is prudent to conduct an exam beyond the standard timeframe that is used as a cutoff in a particular jurisdiction; however, these examples illustrate the need for greater flexibility when making the determination. In fact, it is worth noting that the 72-hour cutoff that was historically used in many jurisdictions was originally established by the medical community as a window of opportunity for successfully treating sexually transmitted infections (STI’s) and pregnancy. Thus the 72-hour time frame for conducting an exam was originally developed based on medical considerations, not forensics; it generally had nothing to do with the likelihood of recovering forensic evidence.

VAWA does not specify the timeline or corresponding circumstances when evidence should be collected – there is no “letter of the law” on this topic. However, the spirit of the law is to follow the current recommendation for best practice, which is to:

Make decisions about whether to collect evidence on a case-by-case basis, guided by the knowledge that outside time limits for obtaining evidence vary due to factors such as the location of the evidence or type of sample collected… It is important to remember that evidence collection beyond the cutoff point is conceivable and may be warranted in particular cases (U.S. Department of Justice, Office on Violence Against Women, 2004, p. 67).

In other words, best practice is to collect evidence whenever it is available. It is not a good idea to adhere to a rigid time frame that will inevitably limit the collection and documentation of valuable evidence.

In an EVAWI training bulletin, we provide a review of two significant changes in the most recent reauthorization of the Violence Against Women Act (VAWA 2013).

1.  No more out-of-pocket costs

First, under the 2005 reauthorization of VAWA (VAWA 2005),  victims could be required to pay out-of-pocket costs for a medical forensic exam — as long as they were fully reimbursed.  This was never viewed as a best practice in the field, but it was possible for states, territories, and tribes to remain compliant with VAWA 2005 while this practice was in place.

With a critical change in the 2013 version of VAWA, jurisdictions are now required to provide medical forensic exams to victims free of charge and without any out-of-pocket expense.  Specifically, the language states that a “State, Indian tribal government, unit of local government, or other governmental entity” will only be eligible for STOP grant funds if it “incurs the full out-of-pocket cost of forensic medical exams described in subsection (b) for victims of sexual assault.”  VAWA 2013 was enacted on March 7th, 2013, and the deadline for compliance is three years from that date.  Therefore communities have until March 2016 to be in compliance with this change.

However, it is worth noting that this provision still does not extend to all aspects of medical testing and treatment. VAWA specifies which components must be included in the exam that is offered without charge.  These and other issues are addressed in detail in our OnLine Training Institute module on forensic compliance, entitled, The Earthquake in Sexual Assault Response:  Implementing VAWA Forensic Compliance.

2.  Public education required

In a second critical advance, a governmental entity will only be eligible for this funding if it “coordinates with regional health care providers to notify victims of sexual assault of the availability of rape exams at no cost to the victims.” Again, communities have until March 2016 to be in compliance with this new provision of VAWA 2013, which has the potential to create a sea change in public awareness.

Many communities have already developed innovative ways to reach the public with information about their options – particularly the fact that sexual assault victims can obtain a medical forensic exam free of charge and without being required to make a decision about criminal justice participation. Some have approached this issue through public service announcements, others through media campaigns, and still others through agency websites. All of these approaches can be effective in informing the public, and thus increasing access for victims of sexual assault.  Several examples are posted on the EVAWI website, in the forensic compliance resources section, under the tab on Public Notification.  We encourage you to explore some of these examples, as you prepare to work on public information in your community.

Given that the whole point of forensic compliance is to increase access for victims of sexual assault – both to the medical forensic exam as well as the criminal justice system as a whole – creating a VAWA-compliant system is only half the battle. The other half is ensuring that community members are aware of their options, to increase the likelihood that they will engage the system when they or someone they love has been sexually assaulted.

The complete text of VAWA 2005 is available online, and the specific language on forensic compliance can be found on page 15, section (f), AVAILABILITY OF FORENSIC MEDICAL EXAMS. The complete text is also posted for the most recent reauthorization of VAWA 2013.

Source: H.R. 4970 – 112th Congress: Violence Against Women Reauthorization Act of 2012. (2012). In www.GovTrack.us. Retrieved March 15, 2013, from https://www.govtrack.us/congress/bills/113/s47

States, territories and Indian tribal governments were originally given four years after the VAWA 2005 reauthorization – until January 5, 2009 – to certify their compliance with the forensic compliance provisions. However, compliance is not simply a one-time event; states, territories, and tribal governments must remain in compliance in order to retain their eligibility for ongoing STOP grant funding. VAWA 2013 was enacted on March 7th, 2013, and the deadline for compliance is three years from that date. Therefore, communities have until March 2016 to be in compliance with the new provisions of VAWA 2013.

Within VAWA, a sexual assault forensic examination is defined as including, at a minimum: examination of physical trauma determination of penetration or force patient interview; and collection and evaluation of evidence [28 C.F.R. § 90.2(b) (1)] This means that states, territories, and tribes have discretion regarding payment for medical testing and treatment.

The regulations also state that “the inclusion of additional procedures (e.g., testing for sexually transmitted diseases) to obtain evidence may be determined by the state … in accordance with its current laws, policies, and practices” [§90.2(b)(2)].  In other words, although VAWA requires states to pay for the forensic aspects of the exam (as defined above), they are given discretion regarding whether to pay for medical aspects of the exam.

Practices thus vary both as a result of state laws and specific practices within the community. Victims of sexual assault may find that all, none, or some of the costs for medical testing and treatment procedures are covered.

When medical services are provided as part of a forensic examination, the costs will often be paid through the existing Crime Victims Compensation fund.  However, victims may be required to pay for the costs of medical testing and treatment upfront, and then submit an application to be reimbursed through the Crime Victims Compensation Fund.

Unfortunately, the eligibility criteria for most state Crime Victims Compensation funds require victims to report the sexual assault in a timely manner (often 72 hours to 5 days) and cooperate with the criminal justice system. Victims of sexual assault typically report to law enforcement after a delay of days or weeks (if they report at all), and many decide that they are unable to participate in the investigation and prosecution of their sexual assault. Therefore, even if medical services are reimbursed using state funds, the eligibility criteria for the Crime Victims Compensation funds will often limit the availability of these funds for many victims of sexual assault.

All states and territories must now certify (as of January 5, 2009) that they are in compliance with these requirements in order to remain eligible for STOP Grant funds from the Office on Violence Against Women (OVW). This money is an essential resource in the state and local response to violence against women.

A great deal of confusion surrounds the payment for medical forensic exams across state lines. Who should pay for these exams? How should payment be handled? The Sexual Violence Justice Institute (SVJI) at the Minnesota Coalition Against Sexual Assault (MNCASA) developed an informative yet simple fact sheet to offer helpful information about the policies for exam payment in Minnesota and a number of neighboring states. This tool can serve as a model for other organizations that want to create a similar resource.

In other words, “Why bother?”  Why should sexual assault victims go through the ordeal of a medical forensic examination, if they do not want to report to law enforcement or participate in the investigation?  As described in an article in Police Chief magazine:

There is a long version and a short version of the answer to this question.  First, the short one; we hope victims will change their minds.  For victims who initially come into contact with the community response system but are unsure about participating in a law enforcement investigation, they may later decide they can.  If so, it may be critical that forensic evidence was documented and collected at the time.

The longer answer requires a bit more background.  As anyone who works with victims can attest, many simply do not know what they want to do in the aftermath of a sexual assault.  Imagine for a moment the trauma of being sexually assaulted.  Immediately afterward you have no time to make sense of what happened to you, let alone figure out what to do about it.  If you are like most victims, you feel afraid, ashamed, and very confused about what happened.  You may feel exhausted, starving, dying for a cigarette, or still be under the influence of drugs or alcohol.  You are probably not sure who to tell.  But regardless of who you tell, you are likely to be confronted with the question of whether or not you will report to police and “press charges.”  This question is asked, not only by community professionals (such as victim advocates, forensic examiners, and law enforcement professionals); it is also frequently asked by friends and family members as well.  In fact, it is often the first question people ask when victims say they have been sexually assaulted.

Unfortunately, this question is all too often framed as if it were “all or nothing” as well as “now or never.”  Victims often face intense pressure to report their sexual assault to police – frequently by well-meaning friends and family members as well as community responders.  Yet by reporting to police, many victims fear that they are boarding a train that is inevitably headed toward an invasive police investigation, scathing media coverage, and the horror of being cross-examined by a hostile defense attorney at trial.  After all, that’s what they’ve seen on TV.

Victims rarely have a realistic understanding of their choices, or adequate support to evaluate them. They often feel confused, overwhelmed, and terrified of what will happen if they report their sexual assault to police. Is it any wonder, then, that so many victims decide not to report? Unfortunately, victims are all too often given the impression by everyone they talk to that this is a decision they must make RIGHT NOW. As a result, their answer is usually “no” (Lonsway & Archambault, 2012, p. 51).

Source: Kimberly A. Lonsway & Joanne Archambault (2010). The earthquake in sexual assault response: Police leadership can increase victim reporting to hold more perpetrators accountable. Police Chief, Vol. 82, No.9, pp. 50-56.