This section reviews several critical issues as they relate to sexual assault that every SART should know:
Chain of Custody
To maintain chain of custody, you must preserve evidence from the time it is collected to the time it is presented in court. To prove the chain of custody, and ultimately show that the evidence has remained intact, prosecutors generally need service providers who can testify
A National Protocol for Sexual Assault Medical Forensic Examinations, Section C. The Examination Process, Chapter 6: Exam and Evidence Collection Procedures Includes recommendations for how health care providers and other responders can maintain evidence integrity.
Procedure: Initiating and Maintaining a Chain of Custody Provides a standard operating procedure for initiating and maintaining chain of custody.
A challenge in proving chain of custody can arise when service providers fail to properly initial and date the evidence or fail to place a case number with it.
To maintain the chain of custody for evidence collected during medical forensic examinations, label each item of evidence with the initials of everyone who handled it, the date, a description and source of the specimen, the name of the examiner, and the name of the patient. Also, make sure to address chain of custody in your SART's protocols or guidelines. In New Jersey, for example, the Attorney General Standards for Providing Services to Victims of Sexual Assault states the following:1
At the conclusion of the sexual assault medical forensic examination, any evidence collected will be packaged and protected in a manner to ensure the integrity of specimens and the appropriate chain of custody of the evidence. It is recommended that health care facilities work cooperatively with the County Prosecutor's Office to develop a written protocol to ensure proper handling of any identified and collected evidence.
During court hearings, the risk of victim intimidation by assailants may be great. In some cases, typically those involving children, courts allow the use of video or closed-circuit television. For example, closed-circuit television has been used when
Virginia Code § 18.267.9 allows the Commonwealth or the defendant to apply for an order from the court that the testimony of the alleged victim be taken in a room outside the courtroom and be televised by two-way closed-circuit television. Recognizing that few courts have access to this technology or the personnel to operate it, the Department of Criminal Justice Services and State Police purchased closed-circuit television equipment, which they loan to local courts on request, along with trained technicians to set up the equipment and operate it.
Although it is rare for closed-circuit television to be used with adult victims, a research study in New South Wales investigated whether juror perceptions differed if adult sexual assault victims testified via closed-circuit television, prerecorded videotape, or face-to-face in the courtroom.2 The study found that juror perceptions of the complainant or the accused, as well as guilt of the accused, were not affected by the use of closed-circuit television.
Crime Victim Compensation
State compensation programs vary in scope and procedures. Crime victim compensation, available by statute in every state, helps to alleviate financial losses for medical or mental health expenses related to sexual assault. With very few exceptions, compensation programs pay only for expenses related to personal injury and do not cover property that is stolen, lost, or damaged (although exceptions may be made for such things as eyeglasses, hearing aids, and medical prostheses).
Generally, state compensation programs are payers of last resort, meaning that they cannot offer benefits for expenses covered by medical and automobile insurance, other public assistance programs, and restitution paid by offenders. However, under the Violence Against Women Act of 2005 (Public Law 109162), jurisdictions using STOP funds to pay for health care providers' time in conducting forensic examinations must certify that the jurisdiction does not require victims of sexual assault to seek reimbursement from their insurance carriers. Furthermore, if states do not use STOP funds, the Office on Violence Against Women strongly encourages jurisdictions against requiring victims to file with their insurance carriers to help maintain their confidentiality and safety.
Crime Victims Fund Report: Past, Present, and Future
Provides historical information on amounts deposited into the Crime Victims Fund through various sources, how those deposits have been used, changes that have had an overall impact on fund resources, and trends in revenues and expenditures.
Directory of International Crime Victims Compensation Programs 20042005
Identifies how victim compensation programs function in other countries.
Handbook on Justice for Victims
Includes information on the parameters of victim compensation programs nationally and internationally.
National Association of Crime Victim Compensation Boards
Promotes better methods for serving crime victims through various training and technical assistance activities and helps its members establish sound administrative practices, achieve fiscal stability, and engage in effective outreach, communication, and advocacy.
National Association of VOCA Assistance Administrators
Provides links to the VOCA statute, state VOCA administrator's directory, a strategic planning manual, national advocacy organizations, criminal justice organizations, victim-related educational resources, victims' rights compliance and legal assistance programs, state and regional coalitions, and mental health programs.
New Directions from the Field: Victims' Rights and Services for the 21st Century
Deals specifically with promising practices and recommendations related to crime victim compensation.
OVC's Victim Compensation Page
Links to OVC resources related to victim compensation.
Payment of Forensic Exams
Provides information on payment for sexual assault forensic exams under crime victim compensation, including billing standards, restrictions, and funding sources.
Ninety-nine percent of all human DNA is exactly alike. The other one percent is used in DNA testing because it is different from person to person. . . . This one percent of unique DNA is what makes DNA so useful in criminal investigations.3
DNA (deoxyribonucleic acid) can be found in any human cell including hair, saliva, blood, and semen. It determines individuals’ physical characteristics such as eye, hair, and skin color. DNA evidence can be an invaluable tool for identifying and holding perpetrators accountable because it can provide critical information about the offender as well as corroborate the survivor’s account of what happened during the incident.
Read on for information about
DNA & Crime Victims: What Victims Need to Know Covers the basic science of DNA, evidence collection, samples and sources of DNA, profiles and databases, and post-conviction DNA.
Forensic DNA Fundamentals for the Prosecutor: Be Not Afraid Describes nuclear DNA, DNA and STR technology, mitochondrial DNA, forensic identification statistics, the use of DNA evidence in criminal investigations, and prosecution and trial issues.
Sexual Assault Training & Investigations, Publications by Joanne Archambault Features publications from the president and training director for the consulting firm Sexual Assault Training and Investigations Inc. The implications of DNA for law enforcement investigations and the dynamics of sexual assault are covered.
DNA Initiative Describes forensic DNA, the Combined DNA Index System, processing backlogs, using DNA to solve crimes, and other related information and includes tools for forensic scientists and laboratories.
Understanding DNA Evidence: A Guide for Victim Service Providers Explores the information acquired from DNA, forensic DNA testing, and the relevance of DNA to criminal investigations.
According to the DNA Initiative’s Web site, databases that contain DNA profiles have greatly enhanced law enforcement’s profiles, against which DNA profiles developed from crime scene evidence can be compared. 4
The Federal Bureau of Investigation’s Combined DNA Index System (CODIS) software enables state, local, and national law enforcement forensic laboratories to search each other’s databases, thereby comparing DNA profiles electronically. Jurisdictions can link serial crimes to each other and identify suspects by matching DNA profiles from crime scenes with profiles from convicted offenders. Each state has a statutory provision for the establishment of a DNA database.
CODIS–NDIS Statistics Provides data on the number of offender profiles collected, forensic samples, CODIS labs, labs participating in the National DNA Index System, and examples of cases in which investigations were aided by CODIS.
CODIS and National DNA Index System Features frequently asked questions about CODIS and the National DNA Index System, including how they operate, DNA profile requirements, and quality assurance standards.
DNA Evidence: What Every Law Enforcement Officer Should Know Instructs police officers in the proper methods of collecting and managing DNA evidence at crime scenes and reviews the CODIS system.
CODIS Brochure Briefly reviews the CODIS crime-solving tool, which integrates forensic science and computer technology.
Analysis and Backlog
Many jurisdictions have backlogs in entering DNA profiles. Due to the crime-solving potential of DNA, states continue to expand the scope of their convicted offender legislation to increase the number of samples collected and analyzed.5 Eliminating the backlog and addressing how sexual assault evidence collection kits will be processed in the future is imperative. According to a recent report from the National Institute of Justice
As the nation grapples with the discovery of thousands of older sexual assault kits, it is crucial that we balance justice, public safety, and the victims’ needs. The goal is to move beyond the ‘crisis management’ of the moment to the adoption of systematic practices, procedures, and protocols that will prevent this situation from ever happening again.6
The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases Reviews the issue of untested sexual assault evidence stored in evidence collection kits and addresses the ramifications of this for police, crime labs, courts, and victims.
National Forensic DNA Study Report Covers casework backlogs, agency capacity for DNA analysis, CODIS, forensic DNA, crime prevention, cost and benefit questions, and policy implications.
In This Toolkit:
DNA Hits in Cold CasesNotifying Victims Offers practical suggestions for notifying victims following DNA cold case hits.
Using DNA to Solve Cold Cases Reviews the science and technology of DNA testing and databases and describes legal and practical considerations for applying DNA technology to unsolved cases. It also delivers a step-by-step process to help investigators select cases that would most likely be solved with DNA evidence.
The development of CODIS and other DNA databases presents challenges and benefits. The databases have allowed law enforcement to solve cold cases, which can help victims gain a sense of justice. On the other hand, cold case hits can retraumatize victims, who may not want to reopen the pain and fear of the trauma they experienced years earlier. In addition, due to the length of time involved in cold cases, your SART may need to assess and overcome the following issues for each case:
Statutes of Limitation
John Doe DNA Case Filings/Warrants, Denver District Attorney’s Office Links to samples of a John Doe arrest warrant, John Doe complaint with genetic profile, John Doe amended complaint after a cold hit, and a brief in support of John Doe warrants.
Statutes of limitation establish time limits during which criminal charges can be filed. However, due to the viability of DNA over time, some states have eliminated the statute of limitations for certain sexual assaults when a DNA profile is available.
The National Conference of State Legislators’ Web site lists states’ statutes of limitations related to sexual assault (as of 2007); a breakdown follows:7
Other states allow prosecutors who have an identifiable DNA profile for an individual, but no match in the database, to issue John Doe or no-name warrants based on a genetic profile. John Doe DNA warrants and indictments require collecting and testing crime scene evidence within the statute of limitations and require a finding of probable cause that the individual whose genetic profile is described in the warrant or indictment committed the charged offense.More information about state-specific statutes as well as mandatory reporting and confidentiality laws can be found here.
Paul Coverdell National Forensic Sciences Improvement Act
The Paul Coverdell National Forensic Sciences Improvement Act was enacted in 2000 [42 U.S.C. §§ 3797j et seq. (2002)]. The act authorizes federal funds to be used by states to improve procedures for testing DNA samples, hire and train personnel, modernize laboratory equipment, and improve the quality and timeliness of forensic science services. The Coverdell Forensic Science Improvement Grants Program awards the federal funds.
For Victim Assistance ProvidersDNA: Critical Issues for Those Who Work with Victims (Video)
DNA & Crime Victims: What Victim Assistance Professionals Need to Know
Covers the basic science of DNA, evidence collection, samples and sources of DNA profiles, databases, and post-conviction DNA.
Forensics for Survivors
Describes sexual assault-related forensic information, support, and resources in ways that are easy for survivors and advocates to access and understand. It is available in English and Spanish.
Understanding DNA Evidence: A Guide for Victim Service Providers
Provides an introduction to DNA, forensic DNA testing, and DNA’s relevance to criminal investigations.
For Legal and Law Enforcement Professionals
DNA Evidence: What Law Enforcement Officers Should Know
Instructs police officers in the proper methods of collecting and managing DNA evidence at crime scenes and reviews the CODIS system.
DNA Evidence Policy Considerations for the Prosecutor
Provides practical information about identifying, preserving, and collecting DNA to help solve cases.
DNA Forensic Evidence
Describes DNA and its analysis as well as basic considerations in evidence collection.
DNA Forensics Program
Provides written materials about scientific advancements, case law and legislation, and consultation as well as advice on methods for effectively presenting DNA in court. Online training options, including special case circumstances and lab report analysis, are also provided.
DNA Hits in Cold Cases: Notifying Crime Victims
Provides practical suggestions for notifying victims following DNA cold case hits.
Federal Legislation on Forensic DNA
Links to portions of the DNA Identification Act of 1994 as set out in the U.S. Code, which defines requirements for participation in the National DNA Index System.
Forensic DNA Fundamentals for the Prosecutor: Be Not Afraid
Covers the basics of DNA, including DNA testing, trial issues, and potential defense challenges.
The Forensic Panel
Provides information about using behavioral and forensic sciences consultations in the courts.
Principles of Forensic DNA for Officers of the Court
Links to an interactive, self-paced course designed to educate prosecutors, defense attorneys, and judges about forensic DNA cases.
Sexual Assault Training & Investigations, Publications by Joanne Archambault
Features publications from the president and training director for the consulting firm Sexual Assault Training and Investigations Inc. The implications of DNA for law enforcement investigations and the dynamics of sexual assault are covered.
State Laws on DNA Data Banks
Lists offenses, by state, that qualify for DNA collection and defines when in the criminal justice system offenders must provide DNA samples.
Using DNA to Solve Cold Cases
Reviews the science and technology of DNA testing and databases while describing legal and practical considerations for applying DNA technology to unsolved cases. It also presents a step-by-step process to help investigators select cases that would most likely be solved with DNA evidence.
Victim Assistance Unit, Cold Case Program (Denver)
Serves as the main point of contact to the Denver Police Department’s Victim Assistance Unit, its Cold Case Victim and Family Services, and its cold case program coordinator for victims of sexual assault and homicide and their family members.
Provides state statistics regarding the number of investigations aided by DNA evidence using CODIS and NDIS.
Describes forensic DNA, CODIS, processing backlogs, and using DNA to solve crimes and includes tools for forensic scientists and laboratories.
Links to news stories, resource reports, a DNA legislative database, discussions of international DNA issues, and support services.
Presents multiple links to research and development, lab operations and forensic information, and investigative issues.
Identifying Victims Using DNA: A Guide for Families
Explains the process of identifying remains using DNA analysis. This resource is not specific to sexual assault.
The Justice for All Act
Presents information about the Justice for All Act, which seeks to protect crime victims’ rights, eliminate the backlog of DNA samples collected from crime scenes and convicted offenders, and improve and expand the DNA testing capacity of crime laboratories.
National Forensic DNA Study Report
Addresses casework backlogs, agency capacity for DNA analysis, CODIS, forensic DNA, crime prevention, cost and benefit questions, and policy implications.
A National Protocol for Sexual Assault Medical Forensic Examinations
Contains information about blood samples, saliva samples, and buccal swabs that are collected and used in DNA analysis.
Quality Assurance Audit for Forensic DNA and Convicted Offender DNA Databasing Laboratories
Includes an audit review form for compliance with the DNA Advisory Board Quality Assurance Standards for Forensic DNA Testing as well as the guidelines issued for Convicted Offender DNA Databasing Laboratories.
Drug-Facilitated Sexual Assault
Drug-facilitated sexual assault refers to nonconsensual sexual acts while victims are incapacitated or unconscious due to the effects of a chemical agent. Victims of drug-facilitated sexual assault may experience confusion, dizziness, psychomotor impairment, drowsiness, impaired judgment, reduced inhibitions, or slurred speech. According to Guidelines for Medico-Legal Care for Victims of Sexual Violence,8 victims may
Because victims' recall may be sketchy, their uncertainty about what happened may result in an unwillingness to report to law enforcement or to provide samples for forensic analysis.9
In this section, the term "drug" refers to illicit substances and alcohol, unless specifically noted otherwise.
Read on for information about
According to the National Crime Victimization Survey, there were 272,350 victims of rape, attempted rape, or sexual assaults in 2006,10 but it is unknown how many were drug facilitated. Many factors contribute to this lack of data, including the short period of time that drugs can be detected in victims' systems, victims' confusion about what happened, and victims' uncertainty about reporting. There has been some research, however, on sexual assault involving alcohol:11
Estimate of the Incidence of Drug Facilitated Sexual Assault in the U.S. Describes a study that sought to obtain an improved estimate of the rate of drug-facilitated sexual assault and to examine the social aspects linked to it.
Commonly Used Drugs
The drugs most often used in sexual assaults are
According to the National Drug Intelligence Center12
Drugs used in sexual assaults typically are distributed at raves, dance clubs, and bars, but they are increasingly being sold in schools, on college campuses, and at private parties. Some of these drugs also are purchased via the Internet while others [particularly alcohol, over-the-counter drugs, and prescription drugs] are often found in homes.
According to A National Protocol for Sexual Assault Medical Forensic Examinations, toxicology samples should be collected, with informed consent, as soon as possible after suspected drug-facilitated cases are identified, even if victims are undecided about reporting to law enforcement.
To provide informed consent, victims should understand13
The length of time that drugs remain in urine or blood depends on a number of variables:14
Urine samples allow for a longer detection time than blood samples. The sooner a urine specimen is obtained after the assault, the greater the chances of detecting drugs that are quickly eliminated from the body. If victims can't wait to urinate until they arrive at the exam facility, ask them to provide a sample and bring it to the facility, documenting the chain of custody.
The context of the assault and the time after the assault needs to be considered before toxicology screening. For example, before analyzing victims' blood or urine, the Toxicology Unit at the Oklahoma State Bureau of Investigation assesses15
A National Protocol for Sexual Assault Medical Forensic Examinations: Drug-Facilitated Sexual Assault Reviews responses to drug-facilitated sexual assault including training, development of policies, response to voluntary use of drugs and alcohol, testing procedures, sample collection, toxicology labs, and preserving evidence and chain of custody.
Toxicological Investigations of Drug-Facilitated Sexual Assaults Addresses common problems encountered by toxicologists in cases of drug-facilitated sexual assault and provides suggestions for overcoming some of these obstacles.
According to A National Protocol for Sexual Assault Medical Forensic Examinations16
It is important to document patient voluntary use of drugs and alcohol between the time of the assault and the exam. Some victims may self-medicate to cope with post assault trauma and require immediate medical treatment. In addition, ingestion of drugs and/or alcohol during this period may affect the quality of evidence and impede patients' ability to make informed decisions about treatment and evidence collection.
Criminal Justice Implications
There are unique aspects to drug-facilitated rape that require tailored SART strategies during the criminal justice system process:
Successful investigations of drug-facilitated sexual assault cases depend on assessing many factors, including the voluntary use of drugs just before the assault. According to A National Protocol for Sexual Assault Medical Forensic Examinations17
Voluntary drug and/or alcohol use by patients during this period should not diminish the perceived seriousness of the assault. Law enforcement officers and prosecutors should guard against disqualifying cases in which patients voluntarily used illegal drugs or illegally used alcohol.
The National Protocol also advises that prosecutors18
The Drug-Induced Rape Prevention and Punishment Act of 1996 provides penalties of up to 20 years imprisonment and fines for persons who intend to commit sexual assault by distributing a controlled substance to another individual without that individual's knowledge.
The U.S. military addresses victim misconduct (e.g., illegal consumption of alcohol or drugs) by enabling commanders and supervisors to delay any disciplinary actions against victims until after sexual assault allegations have been resolved.19
Prosecuting Alcohol-Facilitated Sexual Assault Discusses the prosecution of alcohol-facilitated sexual assault, focusing on voluntary intoxication. It begins with a basic overview of toxicology and addresses issues relating to charging decisions, credibility, and corroborations.
Practitioners' Manual—The Prosecution of Rohypnol and GHB Related Sexual Assaults (Available for order via NDAA Publications page) Serves as a quick reference for prosecutors and law enforcement on Rohypnol, GHB, and investigation and prosecution strategies.
Links to information from the National Institute on Drug Abuse.
Date Rape Drugs: FAQs
Focuses on MDMA, ketamine, GHB, Rohypnol, and alcohol as date rape drugs.
Designer Drugs and Raves
Examines rave culture, rave-related drugs, and drug-facilitated sexual assault.
GHB, GBL and 1,4BD as Date Rape Drugs
Provides information on GHB analogues and their use as date rape drugs.
Covers distribution and testing of GHB analogs.
Information Bulletin: Raves
Provides a brief history of rave culture and its ties to club drugs.
Intelligence Bulletin: GHB Trafficking and Abuse
Assesses GHB trafficking and abuse in the United States and includes information on the drug's availability, abuse, production, transportation, and distribution.
Intelligence Bulletin: Ketamine
Examines the history, import, and abuse of ketamine, including the use of ketamine in sexual assault.
Patterns of Club Drug Use in the U.S., 2004
Examines the usage and effects of club drugs such as MDMA, GHB, ketamine, LSD, methamphetamine, and Rohypnol.
Includes information on GHB, MDMA, and ketamine, and a special section on prescription and over-the-counter drugs.
Contains more than 2,000 street terms that refer to specific drug types or drug activity.
Focuses on GHB.
Alcohol and Sexual Assault
Covers the prevalence and common characteristics of sexual assault and alcohol-involved sexual assault, how alcohol contributes to sexual assault, general research on alcohol's effects on aggressive and sexual behavior, and alcohol's effects in sexual assault situations.
Beyond "Drink Spiking": Drug and Alcohol Facilitated Sexual Assault
Reviews the prevalence of spiking drinks and drug-facilitated sexual assault and considers the discrepancy between victim-based prevalence estimates and those based on forensic investigation following a report to police.
Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study
Addresses key characteristics of cases involving drug-facilitated and forcible rapes, including the percentage of cases that involve injury, whether they involve stranger versus known perpetrators, whether they are reported to law enforcement, whether they involve receipt of medical care, and whether they enter the criminal justice system.
Drug-Facilitated Rape: Looking for the Missing Pieces
Reviews drug-facilitated sexual assault and appropriate service provider responses.
Drug Facilitated Sexual Assault
Provides an overview of drug-facilitated sexual assault, reviews drugs commonly used, and describes what to do if you suspect you’re a victim of drug-facilitated sexual assault.
Estimate of the Incidence of Drug-Facilitated Sexual Assault in the U.S.
Reviews a study that sought to provide an improved estimate of the rate of drug-facilitated sexual assault and to examine social aspects linked to it.
Substance Abuse and Victimization
Focuses on the relationship between substance abuse and victimization, techniques for assisting victims who abuse drugs or alcohol, and the importance of collaboration in assisting victims with substance abuse issues.
What Happened? Alcohol, Memory Blackouts, and the Brain
Describes alcohol-induced blackouts, blood alcohol concentrations and blackouts, the use of other drugs during blackouts, how alcohol impairs memory, and other brain regions involved in alcohol-induced memory impairments.
Intoxicating Encounters: Allocating Responsibility in the Law of Rape
Discusses legal responsibility and alcohol-facilitated sexual assault.
Practitioners' ManualThe Prosecution of Rohypnol and GHB Related Sexual Assaults
Serves as a quick reference for prosecutors and law enforcement on Rohypnol, GHB, and investigation and prosecution strategies.
Prosecuting Alcohol-Facilitated Sexual Assault
Discusses the prosecution of alcohol-facilitated sexual assault with a special focus on this type of crime when the victim is voluntarily intoxicated.
Understanding Sexual Violence: Prosecuting Adult Rape and Sexual Assault Cases
Explores victim impact, social science research, evidence collection techniques, medical research, and information about sex offenders to inform and assist in case prosecution.
Protocols, Tips, and Guidelines
Drug-Facilitated Sexual Assault
Includes information on drug testing and drug effects.
Drug Facilitated Sexual Assault Alert Sheet
Focuses on drug-facilitated sexual assault.
Drug Facilitated Sexual Assault Bulletin
Covers sample collection, effects and indicators of drug-facilitated sexual assault, and evidence submission.
Guidelines for Medico-Legal Care for Victims of Sexual Violence
Focuses on medical treatment and social services for victims of sexual assault and child sexual abuse.
Medical Facility Management of Sexual Assault, Department of the Army
Reviews responses to drug-facilitated sexual assault, based on the National Protocol for Sexual Assault Medical Forensic Examinations.
A National Protocol for Sexual Assault Medical Forensic Examinations, Chapter 7: Drug-Facilitated Sexual Assault
Reviews responses to drug-facilitated sexual assault, including the training, development of policies, response to voluntary use of drugs and alcohol, testing procedures, sample collection, toxicology labs, and preservation of evidence and chain of custody.
New York State Sexual Offense and Drug Facilitated Sexual Assault Evidence Collection Kits
Serves as a protocol for hospital personnel to use when collecting evidence.
The Response to Sexual Assault: Removing Barriers to Services and Justice
Includes recommendations for addressing drug-facilitated sexual assault and best practices.
State of New York Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault
Addresses drug-facilitated sexual assault and provides screening forms, blood and urine specimen collection instructions, a sample screening form, and a laboratory information form.
Drug Facilitated Sexual Assault Toxicology Request, Supplemental Report and External Chain of Custody (Word)
Serves as a sample toxicology request form.
Federal Bureau of Investigation Laboratory Services
Provides forensic and technical services at no cost to federal, state, and local law enforcement agencies. Laboratory examiners can provide expert witness testimony regarding the results of forensic examinations and provide technical assistance for drug-facilitated sexual assault.
Forensic Toxicology Laboratories
Lists forensic toxicology laboratories in Europe and the United States.
Forensic Toxicology Laboratory Accreditation Manual
Establishes and enhances voluntary standards for the practice of forensic toxicology.
San Diego Police Department: Sex Crime Toxicology Request Form
Serves as a sample toxicology request form.
Emergency Medical Treatment and Active Labor Act
The federal Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. §§ 1395dd) was enacted in 1986 to prevent patient dumpingthe practice of refusing to provide emergency medical treatment to patients who are unable to pay for their care or transferring them to another facility before stabilizing their condition. Essentially, the statute requires that emergency departments provide emergency medical screening. If the screening reveals a need for further medical treatment, the emergency department must provide that treatment until the patient is stable and then may transfer him or her to another hospital. (If the screening reveals no need for treatment, the emergency department is not obligated to provide any.)
On the surface, EMTALA guidelines may seem irrelevant for SARTs. However, "despite the fact that the purpose of the statute is to prevent ‘patient dumping,' several courts have held that there is no requirement that the patient in fact be unable to pay his bills or that there be an economic motivation behind the decision to transfer the patient [see Cooper v. Gulf Breeze Hospital, 839 F. Supp. 1538 (1993)]." For SARTs, this could be interpreted to mean that hospitals should not transfer victims because they are unwilling to perform medical forensic exams at their facilities. In addition, states that receive funding under the Violence Against Women Act's STOP Formula Grant Program must certify that victims will not be held responsible for paying for medical forensic exams.
EMTALA Fact Sheet Defines major provisions under EMTALA and frequently asked questions and answers.
EMTALA.com Contains information about the history of EMTALA, its regulations, case law, frequently asked questions and revisions of EMTALA.
EMTALA Overview Includes a list of EMTALA-related resources.
A National Protocol for Sexual Assault Medical Forensic Examinations, Section B. Operational Issues, 2. Facilities Offers recommendations for transferring sexual assault patients.
According to a national discussion on the SART Listserv hosted by the National Sexual Violence Resource Center, some hospitals that do not have sexual assault medical forensic exam programs medically screen patients according to EMTALA guidelines before transferring patients to facilities with forensic exam programs. Hospitals in other jurisdictions do not consider sexual assault victims to fall under EMTALA guidelines for emergency care and transfer patients without medical screenings.
A National Protocol for Sexual Assault Medical Forensic Examinations recommends that jurisdictions minimize the transfer of sexual assault victims. At a minimum, your SART could provide a list of designated exam sites to all local hospitals, law enforcement agencies, emergency medical services, sexual assault victim advocacy programs, and protective service agencies.20
One jurisdiction developed SART guidelines for transferring victims because, until the protocol was developed, victims were transferred by ambulance and were charged more than $800 per transfer. The charges were not covered because transporting by ambulance was not considered a medical necessity or a part of the criminal investigation. After the protocol was created, hospitals changed their policies from transferring patients (which required being transported by ambulance) to discharging them and referring them to SANE-staffed hospitals or designated medical forensic exam facilities.
Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) establishes national standards for the protection of individually identifiable health information created or held by health care providers, health insurance companies, and health clearinghouses. Congress recognized that improvements in electronic transactions, with a shift away from paper records, had the potential to erode the privacy of personal medical information.
Read on for information about
How HIPAA Affects SARTs
The rule may affect SART programs when individuals are not clear on HIPAA exemptions and permissible disclosures. For example
SARTs should have conversations and create protocols to address this issue before a crime occurs in order to ease the process of getting information and evidence in a timely manner.
What SARTs Are Doing About It
To ensure compliance with HIPAA
In This Toolkit:
Describes HIPAA exceptions for law enforcement and social service agencies.
Lists terms associated with the HIPAA Privacy Rule.
Introduces HIPAA and HIPAA-related resources.
Covers the impact of HIPAA privacy guidelines on sexual assault programs, including the use of advocates in emergency departments.
HIPAA PowerPoint Presentation (National Center on Domestic and Sexual Violence)
Briefly outlines HIPAA.
Describes HIPAA's background, national standards, and compliance and enforcement and provides HIPAA-related links.
Telemedicine is the use of medical information exchanged from one site to another via electronic communications for the purpose of improving a patient’s health. Closely associated with telemedicine is the term “telehealth,” which is often used to encompass a broader definition of remote health care that does not always involve clinical services. The following are all considered part of telemedicine and telehealth:21
The use of telemedicine and telehealth is becoming routine in many areas of medicine, from neurology to critical care pediatrics to dermatology. To date, the application of telemedicine in health care settings generally suggests an improvement in a patient’s care. One area in which telemedicine stands out as particularly effective is in its response to patient care in rural communities.22 Rural communities have been documented as having significant inequities in health care as compared with urban communities, particularly regarding a patient’s access to specialty care.23 Given the special needs of sexual assault patients and the limited access to trained providers in rural areas, greater access to telemedicine resources could prove especially useful for these victims.
Various telemedicine approaches have been used in the field of child maltreatment, specifically child sexual abuse, for some time.24 Telemedicine provides a menu of possible uses for the clinician caring for sexual assault patients.
The cost of implementing a telemedicine program in a health care system varies dramatically. It depends on what the system wants to do, what resources are already available, and what resources must be outsourced. Fees can range from nominal to millions of dollars. Research suggests that implementing telemedicine approaches for specific patient populations can be cost effective,25 or not.26 A literature review of 33 economic evaluations in which both cost and outcome were measured showed highly diverse study contexts and methods, with a final recommendation for further research using standard evaluation techniques.27
In addition to cost, the prospect of telemedicine may bring resistance from clinicians.28 Education regarding how to use telemedicine appropriately and competency training, particularly when use is expected to be infrequent, are key to success.
The use of telemedicine specifically for sexual assault victims will need further research and discussion to determine
In fact, telemedicine could assist with educating clinicians and responding to the shortage of Sexual Assault Forensic Examiners in rural and tribal areas. Even when trainers have been brought in, clinicians frequently have no opportunity to obtain the necessary post-didactic clinical hours because of the area’s limited number of patients. Telemedicine could dramatically alter this and allow for ongoing training as well as technical assistance for the examiner working in underserved communities.
American Telemedicine Association
Promotes professional, ethical, equitable, and accessible health care delivery through telecommunications and information technology. Its resources include an inventory of medical center-based telemedicine networks linking more than 2,500 institutions nationwide, a map of resource centers that can assist areas in implementing telehealth programs to serve rural and medically underserved populations, and guidelines and standards for telemedicine practices.
Center for Telehealth and eHealth Law
Works to overcome the legal and regulatory barriers that affect the use of telehealth and related e-health services.
Children's Sexual Assault Telemedicine Program Assessment
Describes a Children’s Justice Act-funded grant project in 1998, through which cooperating medical personnel from five sites in Texas shared images from medical examinations of suspected child abuse patients and consulted with each other on their evaluations of those images.
Drives improvements in the quality, safety, and efficiency of health care through health information technology.
Telehealth, Health Resources and Services Administration, U.S. Department of Health and Human Services
Describes telemedicine and presents links to publications about the field and available grants and workgroups.
Telemedicine Related Programs
Presents information about telemedicine in general and lists resources from the National Library of Medicine, which supports research and development of telecommunications technology and other applications that may enable providers to diagnose illness, provide information, and deliver health services when they cannot physically be at the health care site.
This section is a brief overview of information found in the National Sexual Violence Resource Center's The Use of Truth-Telling Devices in Sexual Assault Cases. (Adapted with permission.)
According to the Violence Against Women Act and the U.S. Department of Justice Reauthorization Act of 2005 (VAWA 2005), truth-telling devices (e.g., polygraph tests, voice stress analysis) should not be used with sexual assault victims as a condition of charging or prosecution of an offense.
The general suspicion about the truthfulness of rape allegations and the motive of the person making them has been the basis for justifying the use of polygraph tests with people who report sexual assaults. Thus, before the VAWA 2005 provisions, victims of sexual assault were often given polygraph tests at various points of the investigation and prosecution of their claims.
VAWA 2005 amended the STOP Violence Against Women Formula Grant Program (STOP Program) and the Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program to make it a condition of receiving funds under these programs that the jurisdiction prohibits the use of truth-telling devices on victims of sexual assault as a condition for investigating the offense. Beginning January 5, 2009, in order for a state or territory to receive funds under the STOP Program, they must certify that their laws, policies, or practices do not allow officials to ask or require that victims of sexual assault submit to truth-telling devices before investigations can proceed and that refusing to submit to such an examination does not prevent the investigation, charging, or prosecution of the offense.
The use of truth-telling devices often undermines the recommended best practice of using a victim-centered approach in a sexual assault investigation. If a victim refuses a polygraph test or fails it when she is in fact telling the truth and law enforcement decides to close the case, the effect is two-fold: assailants will not be held accountable and will thus be free to commit subsequent acts of sexual violence against other members of the community, and the victim's recovery will be compromised.
Victim Impact Statements
Victim impact statements describe victims' financial, physical, psychological, or emotional damages; harm to relationships; medical treatments or mental health services; the need for restitution; and, in some cases, victims' opinions of appropriate sentences.29 They are used in court to ensure that victims' voices are heard during the criminal justice process.
All 50 states allow some form of victim impact information at sentencing. In a few states, victim impact statements are allowed at bail, pre-trial release, and plea bargain hearings. According to a National Center for Victims of Crime survey, more than 80 percent of crime victims who have given such statements consider them a very important part of the process.30
Some states have strengthened victims' rights to make victim impact statements. In Oklahoma, for example, the governor signed legislation amending and expanding the law concerning victim impact statements (Senate Bill No. 665). The legislation protects victims' absolute right to make a victim impact statement and prohibits anyone other than the victim from amending or excluding the statement from the record. The law also prohibits the cross-examination of victims presenting oral impact statements when the cross-examination is not part of a proceeding before a judge or jury acting as a finder of fact.
Handbook on Justice for Victims
Discusses victim impact statements.
Impact Statements: A Victim's Right to Speak, A Nation's Responsibility to Listen
Reviews victim impact statements and their impact on justice, victim impact statement models, and existing victim impact forms and letters and provides suggestions for completing statements and a financial impact worksheet.
It's Your VoiceVictim Impact Statement Information
Briefly describes victim impact statements; written for Texas but can easily be adapted by other jurisdictions.
Victim Impact Statement Resource Package
Includes materials related to victim impact statements that can be adapted to reflect state law and agency policies. Materials include a cover letter to be sent to victims, suggestions for completing statements, a victim impact statement form, and information about integrating statements into offender casework.
A Review of the American Bar Association's Guidelines for Fair Treatment of Crime Victims and Witnesses
Defines victims' rights that are generally provided on state and federal levels.
Victim ImpactListen and Learn
Includes materials trainers can use to help offenders in institutional and community-based settings become more aware of the impact that crime has on victims, take responsibility for their actions, and begin to make amends. The curriculum includes a facilitator's manual, participant's workbook, video clips of victims speaking about their experiences, and trainer tools.
Responding to questions and providing a narrative account about what happened can be very difficult for victims. Although SARTs' interview styles vary, two models stand out:31
Alaska Statewide Protocols for Sexual Assault Response Teams States that whenever possible, victims should be allowed to speak with victim advocates prior to the start of the interview.
California Penal Code 679.04 Mandates that victims of sexual assault have the right to have victim advocates at any interview by law enforcement authorities, district attorneys, or defense attorneys unless law enforcement or the defense attorney deem the advocate's presence detrimental to the purpose of the interview.
New Jersey Attorney General Standards for Providing Services to Victims of Sexual Assault States that victims should be allowed to speak with a rape care advocate before investigative and forensic interviews or procedures, and that the advocate can be present during the interviews and procedures.
SARTs differ widely as to whether advocates should attend victim interviews with law enforcement. Some SARTs do not have specific protocols or statutes governing the issue and rely on the discretion of law enforcement on a case-by-case basis. Others do not support advocates being present during interviews to ensure privileged communications. Professor Doug Beloof at Lewis and Clark Law School cautions against advocates attending interviews because they could be subpoenaed to testify against victims if their recollections differ from victims.32 This concern, however, can be minimized in jurisdictions in which law enforcement agencies videotape interviews.
In jurisdictions in which advocates are excluded from attending law enforcement interviews, advocates often accompany victims to the agency and provide support directly after the interview. In this way, advocates help victims debrief following the often difficult and painful process of answering questions about their assaults.
All states have laws that address victims' rights. Although there are variations and limitations of those rights nationally, the following categories loosely define the types of rights victims can expect:33
VictimLaw's Searchable Database Reviews rights by topic and provides information and links to state/territory agencies that can assist service providers with victims' rights.
Read on for information about
Despite the fact that state legislatures have enacted more than 27,000 laws advancing victims' rights, enforcing those rights may be challenging.34 Without accountability and enforcement, victims may not receive notice of court hearings, may experience breaches in their privacy protections, and may suffer under a burden of unpaid crime-related bills.
Enforcing and Evaluating Victims' Rights Laws Reviews legislative initiatives that promote victims' rights.
A 1998 study conducted by the National Institute of Justice concluded that "where legal protection is strong, victims are more likely to be aware of their rights, to participate in the criminal justice system, to view criminal justice system officials favorably, and to express more overall satisfaction with the system." 35
Different jurisdictions have taken different approaches to informing victims about their rights and responsibilities. A number of jurisdictions publicize information using brochures or guides; others make specific team members or agencies responsible for informing victims of their rights.36
Here is a sampling of state publications and links about victims' rights:
To implement and enforce victims' rights, you need to be aware of the intent and scope of statutory and constitutional provisions for victims' rights in your jurisdiction. The Center for Law and Public Policy on Sexual Violence published a guide to the legal rights of sexual assault victims that outlines many of the questions you should ask when assessing your current statutes:37
Probation and Parole
In 2006, the U.S. Court of Appeals for the Ninth Circuit issued an opinion upholding the right of federal crime victims to speak at sentencing hearings (Kenna v. United States District Court for the Central District of California, No. 05-73467). Although the decision is related to victims in federal court, your SART may want to consider the following:38
National Crime Victim Law Institute
Focuses on legal advocacy, education, and resource sharing. Its Web site includes a comprehensive list of victims' rights resources including state statutes.
Office of the Victims' Rights Ombudsman
Provides contact information and victims' rights assistance for cases adjudicated in federal court.
Oregon Crime Victims' Services Division
Links to programs, information, and resources for victims and victim service providers, such as the Oregon Crime Victims' Rights Web site and the Word documents Quarterly Report on Crime Victims' Rights Outcome Measures; the Crime Victims' Rights Policy Template, which includes victims' rights request forms; and the Oregon Crime Victims' Rights Compliance Implementation Plan.
Victim Rights Law Center
Assists service providers and victims with civil legal issues.
Crime Victim & Witness Rights
Lists the crime victims' rights that the National Organization for Victim Assistance promotes.
The Crime Victim's Right to Attend Trial: The Reascendant National Consensus
Explains victims' qualified and unqualified rights to attend trials.
The Crime Victim's Right To Be Present
Reviews the restrictions and limitations imposed on the right of crime victims to be present during criminal justice proceedings.
The Crime Victims' Rights Act of 2004 and the Federal Courts
Includes an overview of the Crime Victims' Rights Act, benchbook sections affected by the Act, issues that may arise, case summaries, and the text of the Act.
The Grassroots Beginnings of the Victims' Rights Movement
Reviews the victims' rights movement and the progress made to provide victim-centered responses.
Impact Statements: A Victim's Right To Speak, A Nation's Responsibility To Listen
Looks at victim impact statements and their impact on justice.
Ordering Restitution to the Crime Victim
Explores victim restitution laws.
Rethinking the Role of the State's Attorney
Explores the role of prosecuting attorneys in upholding victims' rights.
A Review of the American Bar Association's Guidelines for Fair Treatment of Crime Victims and Witnesses
Describes the categories of victims' rights on state and federal levels.
Sexual Violence Legal News Online
Provides an application for subscribing to e-mail summaries of recent court decisions.
Survivor Confidentiality and Privacy: Releases and Waivers At-A-Glance
Reviews issues surrounding survivor confidentiality releases and waivers.
Victim Input Into Plea Agreements
Reviews legislation that can better incorporate victim input on negotiated plea agreements.
Victims of CrimeA Social Work Response: Building Skills To Strengthen Survivors
Links to introductory training materials for social workers on victims' rights.
1 Division of Criminal Justice, 2004, Attorney General Standards for Providing Services to Victims of Sexual Assault (Second Edition), Trenton, NJ: New Jersey Department of Law & Public Safety, Division of Criminal Justice, 7.
2 Natalie Taylor, Jacqueline Joudo, and Australian Institute of Criminology, 2005, The Impact of Pre-Recorded Video and Closed Circuit Television Testimony by Adult Sexual Assault Complainants on Jury Decision-Making: An Experimental Study, Research and Public Policy Series, No. 68, Canberra, Australia: Australian Institute of Criminology.
4 "Forensic DNA Databases: Linking Criminals to Crimes," DNA Initiative Web site, accessed June 25, 2010.
6 National Institute of Justice, 2011, The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases, Washington, DC: U.S. Department of Justice, National Institute of Justice.
8 World Health Organization, 2003, Guidelines for Medico-Legal Care for Victims of Sexual Violence, Geneva, Switzerland, 8.
13 Ohio Department of Health, 2004, Protocol for the Treatment of Adult and Adolescent Sexual Assault Patients, Columbus, OH: Ohio Department of Health.
14 Office on Violence Against Women, 2004, A National Protocol for Sexual Assault Medical Forensic Examinations, Washington, DC: U.S. Department of Justice, Office on Violence Against Women.
16 Office on Violence Against Women, A National Protocol for Sexual Assault Medical Forensic Examinations, 102.
17 Office on Violence Against Women, A National Protocol for Sexual Assault Medical Forensic Examinations, 101102.
18 Office on Violence Against Women, A National Protocol for Sexual Assault Medical Forensic Examinations, 102.
19 U.S. Department of Defense, 2006, Sexual Assault Prevention and Response Program Procedures, Washington, DC: U.S. Department of Defense.
20 Office on Violence Against Women, 2004, A National Protocol for Medical Forensic Examinations, Adults/Adolescents, Washington, DC: U.S. Department of Justice, Office on Violence Against Women, 59.
22 Lee H. Schwann, R.G. Holloway, P. Amarenco, H.J. Audebert, T. Bakas, N.R. Chumbler, R. Handschu, E.C. Jauch, W.A. Knight IV, S.R. Levine, M. Mayberg, B.C. Meyer, P.M. Meyers, E. Skalabrin, and L.R. Wechsler, 2009, "A Review of the Evidence for the Use of Telemedicine Within Stroke Systems of Care: A Scientific Statement From the American Heart Association/American Stroke Association," Stroke 40:2616–2634; A.A. Kon and J.P. Marcin, 2005, "Using Telemedicine To Improve Communication During Pediatric Resuscitations," Journal of Telemedicine and Telecare 11(5):261–264; T.S. Nesbitt, J.P. Marcin, M.M. Daschbach, and S.L. Cole, 2005, "Perceptions of Local Health Care Quality in 7 Rural Communities With Telemedicine," Journal of Rural Health 21(1):79–85; and J.P. Marcin, T.S. Nesbitt, H.J. Kallas, S.N. Struve, C.A. Traugott, and R.J. Dimand, 2004, "Use of Telemedicine To Provide Pediatric Critical Care Inpatient Consultations to Underserved Rural Northern California," Journal of Pediatrics 144(3):375–380.
23 M.S. Eberhardt, M.S., D.D. Ingram, D.M. Makuc, E.R. Pamuk, V.M. Freid, S.B. Harper, C.A. Schoenborn, and H. Xia, 2001, Health, United States, 2001 With Urban and Rural Health Chartbook, Hyattsville, MD: National Center for Health Statistics.
24 K.J. MacLeod, J.P. Marcin, C. Boyle, S. Miyamoto, R.J. Dimand, and K.K. Rogers, 2009, "Using Telemedicine to Improve the Care Delivered to Sexually Abused Children in Rural, Underserved Hospitals," Pediatrics 123(1):223–228; and I.M. Thraen, L. Frasier, C. Cochella, J. Yaffe, and P. Goede, 2008, "The Use of TeleCAM as a Remote Web-Based Application for Child Maltreatment Assessment, Peer Review, and Case Documentation," Child Maltreatment 13(4):368–376.
25 S.J. Crow, J.E. Mitchell, R.D. Crosby, S.A. Swanson, S. Wonderlich, and K. Lancaster, 2009, "The Cost Effectiveness of Cognitive Behavioral Therapy for Bulimia Nervosa Delivered via Telemedicine Versus Face-to-Face," Behaviour Research and Therapy 47(6):451–453.
26 L. Franzini, K.R. Sail, E.J. Thomas, and L. Wueste, 2011, "Costs and Cost-Effectiveness of a Telemedicine Intensive Care Unit Program in 6 Intensive Care Units in a Large Health Care System," Journal of Critical Care 26(3):329.
27 T.S. Bergmo, 2009, "Can Economic Evaluation in Telemedicine Be Trusted? A Systematic Review of the Literature," Cost Effectiveness and Resource Allocation 7:18.
28 R. Shapori, M. Hebert, A. Kushniruk, and D. Zuege, 2011, "Telemedicine in the Intensive Care Unit Environment: A Survey of the Attitudes and Perspectives of Critical Care Clinicians," Journal of Critical Care 26:328.
31 Linda Ledray, 2007, SART Model Evaluation, presentation abstract at IAFN Scientific Assembly: "Imagine a World Without Violence, Utah."
33 Center for Law and Public Policy on Sexual Violence, 2005, A Criminal Justice Guide: Legal Remedies for Adult Victims of Sexual Violence, Portland, OR: National Crime Victim Law Institute, Center for Law and Public Policy on Sexual Violence, 2.
35 Dean G. Kilpatrick, David Beatty, and Susan Smith Howley, 1998, The Rights of Crime Victims—Does Legal Protection Make a Difference?, Washington, DC: U.S. Department of Justice, National Institute of Justice, 10.
36 Centre for International Crime Prevention, 1999, Handbook on Justice for Victims, New York, NY: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention, 37–38.
37 Center for Law and Public Policy on Sexual Violence, A Criminal Justice Guide: Legal Remedies for Adult Victims of Sexual Violence.
38 John Gillis, 2006, United States Court of Appeals Rules on First Case Under Crime Victims' Rights Act (CVRA), Washington, DC: U.S. Department of Justice, Office for Victims of Crime.