S T A T E O F N E W Y O R K
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6428--A
Cal. No. 156
2017-2018 Regular Sessions
I N S E N A T E
May 18, 2017
___________
Introduced by Sens. HANNON, KRUEGER, LARKIN, MURPHY, RITCHIE, TEDISCO,
VALESKY -- read twice and ordered printed, and when printed to be
committed to the Committee on Health -- recommitted to the Committee
on Health in accordance with Senate Rule 6, sec. 8 -- reported favora-
bly from said committee, ordered to first and second report, ordered
to a third reading, amended and ordered reprinted, retaining its place
in the order of third reading
AN ACT to amend the public health law and the executive law, in relation
to establishing a sexual assault survivor bill of rights; and to amend
the executive law, in relation to maintenance of sexual assault
evidence, establishing a victim's right to notice prior to destruction
and requiring a study relating to the feasibility of establishing a
statewide tracking system for sexual offense evidence kits
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 2805-i of the public health law,
as amended by chapter 504 of the laws of 1994, is amended to read as
follows:
2. The sexual offense evidence shall be collected and kept in a locked
separate and secure area for not less than thirty days unless: (a) such
evidence is not privileged and the police request its surrender before
that time, which request shall be complied with; or (b) such evidence is
privileged and (i) the alleged sexual offense victim nevertheless gives
permission to turn such privileged evidence over to the police before
that time, or (ii) the alleged sexual offense victim signs a statement
directing the hospital to not collect and keep such privileged evidence,
which direction shall be complied with. The sexual offense evidence
shall include, but not be limited to, slides, cotton swabs, clothing and
other items. Where appropriate such items must be refrigerated and the
clothes and swabs must be dried, stored in paper bags and labeled. Each
item of evidence shall be marked and logged with a code number corre-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11584-08-8
S. 6428--A 2
sponding to the patient's medical record. The alleged sexual offense
[victim] SURVIVOR shall be notified [that after thirty days, the refrig-
erated] TEN DAYS PRIOR TO THE TRANSFER OF SEXUAL OFFENSE EVIDENCE, THAT
THE evidence will be [discarded in compliance with state and local
health codes and the alleged sexual offense victim's clothes will be
returned to the alleged sexual offense victim upon request] TRANSFERRED
TO A CENTRALIZED LOCATION TO BE MAINTAINED FOR AT LEAST TWENTY YEARS
PURSUANT TO SECTION EIGHT HUNDRED THIRTY-EIGHT-A OF THE EXECUTIVE LAW.
THE SURVIVOR SHALL BE GIVEN THE OPTION OF PROVIDING CONTACT INFORMATION
SHOULD HE OR SHE WISH TO RECEIVE NOTICE OF THE PLANNED DESTRUCTION OF
THE EVIDENCE AFTER THE EXPIRATION OF THE TWENTY YEAR PERIOD.
§ 2. Subdivision 6 of section 2805-i of the public health law is
renumbered subdivision 7 and a new subdivision 6 is added to read as
follows:
6. (A) THE DEPARTMENT, IN CONJUNCTION WITH THE DIVISION OF CRIMINAL
JUSTICE SERVICES, THE DEPARTMENT OF LAW AND THE OFFICE OF VICTIM
SERVICES, IN CONSULTATION WITH HOSPITALS, OTHER HEALTH CARE PROVIDERS
AND VICTIM ADVOCACY ORGANIZATIONS, SHALL ESTABLISH A SEXUAL ASSAULT
SURVIVOR BILL OF RIGHTS FOR PURPOSES OF INFORMING SEXUAL OFFENSE VICTIMS
OF THEIR RIGHTS UNDER STATE LAW. SUCH BILL OF RIGHTS SHALL BE IN PLAIN,
EASY TO UNDERSTAND LANGUAGE, AND INCLUDE, AT A MINIMUM:
(1) THE RIGHT OF THE VICTIM TO CONSULT WITH A LOCAL RAPE CRISIS OR
VICTIM ASSISTANCE ORGANIZATION, TO HAVE A REPRESENTATIVE OF SUCH ORGAN-
IZATION ACCOMPANY THE VICTIM THROUGH THE SEXUAL OFFENSE EXAMINATION
UNDER PARAGRAPH (B) OF SUBDIVISION ONE AND SUBDIVISION THREE OF THIS
SECTION, AND TO HAVE SUCH AN ORGANIZATION BE SUMMONED BY THE MEDICAL
FACILITY, POLICE AGENCY OR PROSECUTORIAL AGENCY BEFORE THE COMMENCEMENT
OF THE PHYSICAL EXAMINATION OR INTERVIEW, UNLESS NO RAPE CRISIS OR
VICTIM ASSISTANCE ORGANIZATION CAN BE SUMMONED;
(2) THE RIGHT OF THE VICTIM TO 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 UNDER PARAGRAPH (C) OF
SUBDIVISION ONE OF THIS SECTION AND SUBDIVISION THIRTEEN OF SECTION SIX
HUNDRED THIRTY-ONE OF THE EXECUTIVE LAW;
(3) THE RIGHT TO 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) THE RIGHT TO RECEIVE INFORMATION RELATING TO AND THE PROVISION OF
EMERGENCY CONTRACEPTION UNDER SECTION TWENTY-EIGHT HUNDRED FIVE-P OF
THIS ARTICLE;
(5) THE RIGHT TO BE OFFERED CONTACT INFORMATION FOR THE POLICE AGENCY
OR PROSECUTORIAL AGENCY WITH JURISDICTION OVER THE SEXUAL OFFENSE AND BE
INFORMED, UPON REQUEST OF THE VICTIM, WITH NOTICE OF THE DATE AND
LOCATION UPON WHICH THEIR SEXUAL OFFENSE EVIDENCE KIT WAS ASSESSED FOR
COMBINED DNA INDEX SYSTEM (CODIS) ELIGIBILITY AND ANALYZED, WHETHER A
CODIS ELIGIBLE PROFILE WAS DEVELOPED AND/OR A DNA MATCH WAS IDENTIFIED;
(6) THE RIGHT TO BE NOTIFIED PRIOR TO THE TRANSFER OF AN UNREPORTED
SEXUAL OFFENSE EVIDENCE KIT FROM THE HOSPITAL TO A CENTRALIZED STORAGE
FACILITY, THE RIGHT TO HAVE AN UNREPORTED SEXUAL OFFENSE EVIDENCE KIT
MAINTAINED AT A CENTRALIZED STORAGE FACILITY FOR AT LEAST TWENTY YEARS
AND THE RIGHT TO BE NOTIFIED BY SUCH FACILITY IN A MANNER OF COMMUNI-
CATION DESIGNATED BY THE VICTIM AT LEAST THIRTY DAYS IN ADVANCE OF
PLANNED DESTRUCTION OF THE SEXUAL OFFENSE EVIDENCE KIT PURSUANT TO
S. 6428--A 3
SUBDIVISION FOUR OF SECTION EIGHT HUNDRED THIRTY-EIGHT-A OF THE EXECU-
TIVE LAW; AND
(7) THE RIGHT TO BE INFORMED WHEN THERE IS ANY CHANGE IN THE STATUS OF
HIS OR HER CASE OR REOPENING OF THE CASE.
(B) BEFORE A MEDICAL FACILITY COMMENCES A PHYSICAL EXAMINATION OF A
SEXUAL OFFENSE VICTIM, OR A POLICE AGENCY OR PROSECUTORIAL AGENCY
COMMENCES AN INTERVIEW OF A SEXUAL OFFENSE VICTIM, THE HEALTH CARE
PROFESSIONAL CONDUCTING THE EXAM, POLICE AGENCY OR PROSECUTORIAL AGENCY
SHALL INFORM THE VICTIM OF HIS OR HER RIGHTS AND PROVIDE A COPY OF THE
SEXUAL ASSAULT SURVIVOR BILL OF RIGHTS.
§ 3. Section 838-a of the executive law, as amended by chapter 6 of
the laws of 2017, is amended to read as follows:
§ 838-a. Maintenance of sexual offense evidence kits. 1. The following
requirements shall apply to all sexual offense evidence kits REPORTED,
surrendered to or collected by, at the request of, or with cooperation
of a police agency or prosecutorial agency, WITH THE CONSENT OF THE
VICTIM:
(a) Each such police agency and prosecutorial agency shall submit any
sexual offense evidence kits in its custody or control to an appropriate
forensic laboratory within ten days of receipt.
(b) Each forensic laboratory receiving sexual offense evidence kits
after the effective date of this section shall assess case specific
information for Combined DNA Index System (CODIS) eligibility and, if
eligible, analyze the kits and attempt to develop CODIS eligible
profiles of any potential perpetrators from the evidence submitted. The
forensic lab shall report the results to the submitting agency and
appropriate prosecutorial entity within ninety days after receipt of a
kit.
(c) Each police agency and prosecutorial agency that has one or more
sexual offense evidence kit in its custody or control shall, within
ninety days after the effective date of this paragraph, inventory such
kits and report the total number of such kits to the division and to the
forensic laboratory where such kits will be submitted pursuant to para-
graph (a) of this subdivision. The division shall provide such invento-
ries to the senate and assembly leaders by March first, two thousand
seventeen. Every police and prosecutorial agency shall update this
report each month thereafter until paragraph (a) of this subdivision has
become effective.
(d) Each police agency and prosecutorial agency that, prior to the
effective date of paragraph (a) of this subdivision, has one or more
sexual offense evidence kits in its custody or control shall, within
thirty days after the effective date of this section, submit all
untested kits in its possession or control to an appropriate forensic
laboratory.
(e) Each forensic laboratory, within one hundred twenty days after
receiving each sexual offense evidence kit pursuant to paragraph (d) of
this subdivision shall assess case specific information for CODIS eligi-
bility and, if eligible, analyze the kits and attempt to develop CODIS
eligible profiles for any potential perpetrators and shall, within nine-
ty days of such assessment, report the results to the submitting agency
and the appropriate prosecutorial entity.
(f) The failure of any such police agency, prosecutorial agency or
forensic laboratory to comply with [a time limit specified in] this
section OR SECTION EIGHT HUNDRED THIRTY-EIGHT-B OF THIS ARTICLE shall
not, in and of itself, constitute a basis for a motion to suppress
S. 6428--A 4
evidence in accordance with section 710.20 of the criminal procedure
law.
2. (a) Each forensic laboratory in the state shall report to the divi-
sion, on a quarterly basis, in writing, on (i) the number of REPORTED
sexual offense evidence kits it received UNDER SUBDIVISION ONE OF THIS
SECTION, (ii) the number of such kits processed for the purpose of
developing Combined DNA Index System (CODIS) eligible profiles of any
potential perpetrators, and (iii) the number of REPORTED kits not proc-
essed for testing, including, the reason such kits were ineligible for
processing.
(b) Each police agency and prosecutorial agency shall report to the
division on a quarterly basis, in writing, on (i) the number of all the
sexual offense evidence kits it received, (ii) the number of such kits
it submitted to a forensic laboratory for processing, (iii) the number
of kits in its custody or control that have not been processed for test-
ing, and (iv) the length of time between receipt of any such sexual
offense evidence kit and the submission of any such kit to the forensic
laboratory.
(c) The division shall provide to the senate and assembly leaders such
quarterly reports received from the forensic labs and police and prose-
cutorial agencies pursuant to paragraphs (a) and (b) of this subdivision
by January first, two thousand eighteen and annually thereafter.
3. EACH POLICE AGENCY AND PROSECUTORIAL AGENCY WITHIN THIS STATE SHALL
ADOPT POLICIES AND PROCEDURES CONCERNING CONTACT WITH THE VICTIMS AND
THE PROVISION OF INFORMATION TO VICTIMS, UPON REQUEST, CONCERNING THEIR
SEXUAL OFFENSE EVIDENCE KITS. THE POLICIES AND PROCEDURES SHALL BE
SURVIVOR-FOCUSED, MEANING SYSTEMATICALLY FOCUSED ON THE NEEDS AND
CONCERNS OF A VICTIM TO ENSURE THE COMPASSIONATE AND SENSITIVE DELIVERY
OF SERVICES IN A NONJUDGEMENTAL MANNER, AND SHALL INCLUDE, AT A MINIMUM,
A REQUIREMENT THAT:
(A) THE POLICE AGENCY AND PROSECUTORIAL AGENCY DESIGNATE AT LEAST ONE
PERSON, WHO IS TRAINED IN TRAUMA AND VICTIM RESPONSE THROUGH A PROGRAM
MEETING MINIMUM STANDARDS ESTABLISHED BY THE DIVISION OF CRIMINAL
JUSTICE SERVICES FOLLOWING NATIONAL GUIDELINES FROM THE SUBSTANCE ABUSE
AND MENTAL HEALTH SERVICES ADMINISTRATION, WITHIN ITS AGENCY TO RECEIVE
ALL INQUIRIES CONCERNING SEXUAL OFFENSE EVIDENCE KITS FROM VICTIMS; AND
(B) AT THE TIME THAT A SEXUAL OFFENSE EVIDENCE KIT IS COLLECTED, A
VICTIM SHALL BE PROVIDED WITH CONTACT INFORMATION, INCLUDING A PHONE
NUMBER AND E-MAIL ADDRESS, FOR THE INDIVIDUAL DESIGNATED BY SUBDIVISION
TWO OF THIS SECTION AT THE POLICE AGENCY AND PROSECUTORIAL AGENCY WITH
JURISDICTION OVER THE SEXUAL ASSAULT OFFENSE.
4. UNREPORTED SEXUAL OFFENSE EVIDENCE KITS, MEANING SEXUAL OFFENSE
EVIDENCE KITS COLLECTED IN INSTANCES IN WHICH A VICTIM HAS NOT CONSENTED
TO REPORT TO LAW ENFORCEMENT, SHALL BE MAINTAINED FOR AT LEAST TWENTY
YEARS IN A SECURE, CENTRALIZED LOCATION DESIGNATED BY THE DIVISION OF
CRIMINAL JUSTICE SERVICES, IN CONJUNCTION WITH THE DEPARTMENT OF HEALTH,
THE DEPARTMENT OF LAW AND THE OFFICE OF VICTIM SERVICES, IN CONSULTATION
WITH HOSPITALS, OTHER HEALTH CARE PROVIDERS AND VICTIM ADVOCACY ORGAN-
IZATIONS, TAKING INTO CONSIDERATION FEDERAL GUIDANCE PERTAINING TO MAIN-
TENANCE OF SEXUAL OFFENSE EVIDENCE KITS. SEXUAL OFFENSE EVIDENCE KITS
MAINTAINED FOR TWENTY YEARS OR MORE SHALL ONLY BE DESTRUCTED UPON
PROVIDING AT LEAST THIRTY DAYS NOTICE TO THE VICTIM, IN THE FORM OF
COMMUNICATION DESIGNATED BY THE VICTIM, OF SUCH PLANNED DESTRUCTION.
5. The division shall undertake actions designed to ensure that all
police agencies and prosecutorial agencies in the state and all forensic
laboratories are educated and aware of the provisions of this section.
S. 6428--A 5
§ 4. The executive law is amended by adding a new section 838-b to
read as follows:
§ 838-B. VICTIM'S RIGHT TO NOTICE. EACH POLICE AGENCY AND PROSECUTORI-
AL AGENCY WITH JURISDICTION OVER THE SEXUAL ASSAULT OFFENSE SHALL, UPON
REQUEST OF THE VICTIM WHO HAS CONSENTED TO REPORT TO LAW ENFORCEMENT,
PROVIDE THE SEXUAL OFFENSE VICTIM WITH NOTICE OF THE DATE AND LOCATION
UPON WHICH HIS OR HER SEXUAL OFFENSE EVIDENCE KIT WAS ASSESSED FOR CODIS
ELIGIBILITY AND ANALYZED, AND WHETHER A CODIS ELIGIBLE PROFILE WAS
DEVELOPED AND/OR A DNA MATCH WAS IDENTIFIED. THE POLICE OR PROSECUTORIAL
AGENCY IN POSSESSION OF THE REPORTED SEXUAL ASSAULT OFFENSE EVIDENCE KIT
SHALL NOTIFY THE SEXUAL ASSAULT VICTIM AT LEAST THIRTY DAYS IN ADVANCE
OF ANY PLANNED DESTRUCTION OF THEIR SEXUAL OFFENSE EVIDENCE KIT IN A
MANNER OF COMMUNICATION DESIGNATED BY THE VICTIM, UNLESS SUCH INFORMA-
TION WOULD IMPEDE AN ONGOING INVESTIGATION.
§ 5. The executive law is amended by adding a new section 838-c to
read as follows:
§ 838-C. STUDY AND REPORT ON ESTABLISHING A STATEWIDE SEXUAL OFFENSE
EVIDENCE KIT TRACKING SYSTEM. THE DIVISION SHALL CONDUCT A STUDY AND
DEVELOP A PLAN, IN CONSULTATION WITH STAKEHOLDERS INCLUDING HOSPITALS,
OTHER HEALTH CARE PROVIDERS, LAW ENFORCEMENT AGENCIES, EVIDENCE MANAG-
ERS, FORENSIC LABORATORIES, PROSECUTORS, AND VICTIM ADVOCACY ORGANIZA-
TIONS, TO ESTABLISH A STATEWIDE SEXUAL OFFENSE EVIDENCE KIT TRACKING
SYSTEM, TO STREAMLINE LAW ENFORCEMENT TRACKING, CREATE GREATER TRANSPAR-
ENCY AND ACCOUNTABILITY IN ENSURING COMPLIANCE WITH THIS ARTICLE AND TO
PROVIDE A WAY FOR SURVIVORS TO CHECK THE STATUS OF THEIR SEXUAL OFFENSE
EVIDENCE KIT THROUGHOUT THE ENTIRE PROCESS, FROM COLLECTION TO
CONVICTION. THE TRACKING SYSTEM SHALL BE SECURE AND ACCESSIBLE ONLY BY
AUTHORIZED ENTITIES OR INDIVIDUALS SUCH AS HOSPITALS, LAW ENFORCEMENT
AGENCIES, EVIDENCE MANGERS, PROSECUTORS, AND VICTIMS AND DESIGNED TO
PROVIDE SECURE ELECTRONIC ACCESS THROUGH WHICH A VICTIM CAN ANONYMOUSLY
TRACK THE STATUS OF THEIR SEXUAL ASSAULT EVIDENCE KIT. THE COMMISSIONER
SHALL SUBMIT A REPORT OF THE DIVISION'S FINDINGS AND RECOMMENDATIONS TO
THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF
THE ASSEMBLY ON OR BEFORE MAY FIRST, TWO THOUSAND NINETEEN.
§ 6. This act shall take effect immediately; provided that the divi-
sion of criminal justice services shall designate and establish the
secure centralized location required by subdivision 4 of section 838-a
of the executive law, as added by section three of this act, within 180
days of the effective date of this act; and provided, further, that
notwithstanding the provisions of section 2805-i of the public health
law to the contrary, every hospital shall retain custody of unreported
sexual offense evidence kits until such time as the centralized storage
facility is established and designated pursuant to subdivision 4 of
section 838-a of the executive law.
