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Every state and territory receiving STOP (Services, Training, Officers, Prosecutors)Violence Against Women Grant Program (STOP Program)^[1] formula grant funds from the U.S. Department of Justice, Office on Violence Against Women (OVW), must certify by January 5, 2009, that it is in compliance with the revised forensic medical examination requirements of the Violence Against Women Act of 2005^[2] (VAWA 2005) in order to remain eligible for funding. This document, known as a “Toolkit,” is designed to help states and territories address compliance with this requirement codified in federal statute 42 U.S.C.A. § 3796gg-4, which states, 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 forensic medical exam, reimbursement for charges incurred on account of such an exam, or both. This means that states must ensure that victims of sexual assault can get a forensic medical exam free of charge or with full reimbursement regardless of whether they report the crime to police or otherwise cooperate with the criminal justice system.

Instituting the medical forensic examination certification requirement certainly poses implementation challenges, many of which states and territories will continue to face well after the January 5, 2009, compliance deadline. Therefore, the purpose of the “Toolkit” is to provide states and territories with information, resources, considerations, and examples of how to implement compliant policies and procedures with an emphasis on a victim-centered and multi-disciplinary approach. The Toolkit is a product of the Violence Against Women Act (VAWA) Forensic Compliance Project, and was produced cooperatively through the U.S. Department of Justice Office on Violence Against Women and the Maryland Coalition Against Sexual Assault, with the collaboration of three pilot sites: North Dakota, Virginia and Wyoming and the input and guidance of a national working group comprised of members representing states, law enforcement, prosecution, health care and victim advocacy.

The Violence Against Women Act (VAWA) was first signed into law as part of the Violent Crime Control and Law Enforcement Act of 1994, recognizing the need to address violent crimes that disproportionately impact women.^[3] It was reauthorized in 2000 and in 2005. Acknowledging the prevalence of violence against women and the persistently low reporting rates of such crimes, VAWA and subsequent legislation affirm the need for a comprehensive response to address domestic violence, dating violence, sexual assault and stalking, with dual objectives of enhancing the criminal justice system's ability to hold offenders accountable and enhancing victim services. The legislation passed with strong bipartisan support and broad agreement among lawmakers that a coordinated, multi-disciplinary effort is essential to meet victims' needs and bring offenders to justice. VAWA strongly encourages states and territories to convene law enforcement, prosecutors, courts, victim advocates and other stakeholders to establish an implementation plan for responding to violence against women within their respective jurisdictions.

When Congress reauthorized VAWA in 2000 and again in 2005, it established groundbreaking new initiatives to enhance the justice system's response to domestic violence, dating violence, sexual assault and stalking and expand victim services. With respect to sexual violence, VAWA 2005 initiatives included requirements related to sexual assault forensic medical examinations, ^[4]

The STOP Program is a formula grant program authorized by VAWA of 1994.^[5] Each year, eligible states and territories receive a base amount of $600,000, plus an additional amount based on population,^[6] to enhance the criminal justice system's response to violence against women and provide services to victims of domestic violence, dating violence, sexual assault and stalking.

STOP grant recipients (i.e., states and territories) are required to allocate 25% of their award for law enforcement, 25% for prosecution, 5% for courts, and 30% for victim services. The remaining 15% is discretionary, allowing states and territories to direct funds as needed within the scope of the STOP Program.^[7] The STOP Program places a special emphasis on programs for un-served and/ or underserved populations such as immigrants, minorities and individuals with disabilities.

The Office on Violence Against Women (OVW), a component of the U.S. Departmentof Justice, administers the grant programs authorized by VAWA and subsequent legislation.^[8] OVW provides “national leadership in developing the nation's capacity to reduce violence against women through VAWA,”^[9] Overview. overseeing administration of the federal grant programs and providing financial and technical assistance to states, territories and local communities throughout the nation to implement programs in an effort to reduce domestic violence, dating violence, sexual assault and stalking.^[10]

OVW is committed to assisting states and territories in negotiating what may be a significant overhaul of current procedures by providing them the necessary technicalassistance as they work to implement their medical forensic examination obligations. To this end, OVW entered into a cooperative agreement with the Maryland Coalition Against Sexual Assault (MCASA) to create the national technical assistance project known as the VAWA Forensic Compliance Project.

The VAWA Forensic Compliance Project has an overriding commitment to victim-centered, multidisciplinary approaches to resolving forensic compliance issues. Strategies included in this document, the Toolkit, demonstrate solutions that promote and prioritize the needs and well-being of the victim while ensuring the four core disciplines: law enforcement, prosecution, health care and victim advocacy are partners in the development, implementation and delivery of services to meet the compliance mandates.

To ensure MCASA's work reflects a diversity of views, regional and national perspectives, and a multi-disciplinary approach, OVW and MCASA formed a National Working Group (NWG). These experts have significantly contributed to the framework and development of the Toolkit. More importantly, the NWG was responsible for the scope of the content, helping to identify promising practices for multi-disciplinary, victim-centered response and barriers to implementation. The NWG also provided significant guidance on particular issues and, in conjunction with the VAWA Forensic Compliance Project, responds to technical assistance requests as needed. A complete roster of NWG members is attached as Exhibit A.

Throughout the course of the Forensic Compliance Project,^[11] technical assistance is available to states and territories upon request. Answers are provided to such questions as the practical application of the statutory mandates, types of compliant systems, information regarding what other states or territories have implemented, and emerging promising practices.

Between December 2007 and January 2008, all states and territories were surveyed to ascertain the “state of the nation” and identify promising practices. Surveys were directed to all STOP Administrators and the directors of state sexual assault or dual coalitions.^[12] Responses were received from 59% of the jurisdictions surveyed,^[13] providing a wealth of information concerning their current status, barriers they face in implementing compliant procedures, and strategies they have adopted. The survey tool is attached as Exhibit B. Information from the survey as well as lessons learned from the day-to-day provision of technical assistance have been synthesized and interpreted in aggregate form. You will find the results highlighted throughout this document.

For most states and territories, the forensic compliance requirement is a monumental change in public policy, as it directly impacts the way states and territories make available forensic exams to victims of rape and sexual assault.^[14] Although the policy change will most likely be enacted on a state level, it must also be implemented in local jurisdictions to result in meaningful change for sexual assault victims and ensure compliance with the federal statute. Recognizing the challenges set forth by the federal statute, OVW and MCASA sought to provide customized, intensive technical assistance to a limited number of jurisdictions. Applications were solicited from states and territories seeking individualized assistance, with three states: North Dakota, Virginia and Wyoming selected as pilot sites to receive dedicated assistance from project staff and to benefit from the expertise of the National Working Group. Each of the three pilot sites is separate and distinct, with unique challenges associated with the implementation of policies and procedures designed to ensure that all victims of sexual assault are able to obtain a forensic medical examination without being required to report the sexual assault to law enforcement.

The variety of challenges presented, and the diverse approaches to problem solving employed to overcome them within the pilot sites' respective jurisdictions, are not necessarily unique. The challenges faced by the pilots are consistent with survey results of all states and territories. The processes that the North Dakota, Virginia and Wyoming pilot sites have undertaken are shared in aggregate throughout the Toolkit. The lessons learned are among the most significant influences on the content of the Toolkit. They are included to guide others' implementation of policy changes within their own jurisdictions.

This document, “the Toolkit,” is designed to meet the needs of a variety of audiences: STOP Administrators, sexual assault coalition directors, statewide planning entities, and other stakeholders. In addition to serving as a planning tool for states and territories, the Toolkit is intended to serve as a resource for law enforcement, health care providers, victim advocates and other stakeholders for issues specific to their respective areas of expertise.

This Toolkit serves a dual purpose. The Toolkit is designed to serve as a checklist for those states and territories not currently able to confidently certify that every sexual assault victim within their state or jurisdiction is able to receive a forensic medical examination if the victim chooses not to report the assault to law enforcement. The Toolkit will assist these states in assessing what aspects of the system's response in their own jurisdictions may still require work, and provides a framework to assist jurisdictions with their planning processes and policy development. Equally important, for those states and territories able to certify they are compliant with VAWA 2005 and satisfied that all victims of sexual assault throughout their jurisdiction are able to receive a forensic medical examination whether or not they immediately report the sexual assault to law enforcement, this Toolkit will serve as a mechanism to enhance current policies and procedures to meet the standards of promising practice in addition to implementing compliant policies.

The Toolkit will also provide guidance to those jurisdictions that wish to transform their current “letter of the law” approaches to strategies that are more victim-centered. Readers will learn from the promising practices adopted by other jurisdictions. Through the use of the Toolkit, states and territories will also learn from the challenges other jurisdictions have faced, the problem-solving processes undertaken, and the solutions uncovered.

VAWA 2005 clearly mandates that states and territories certify that sexual assault victims are able to access sexual assault forensic medical examinations throughout their state. Although the federal statute provides the incentive for policy change, it is silent regarding the logistics of implementation, deferring to states and territories. This Toolkit is designed to assist states and territories with the process, articulating the issues to be considered, potential barriers, and, perhaps most importantly, presenting possible solutions that other states may learn from and adopt.

The approaches used by states and territories as they work to implement compliant policies and practices will vary greatly throughout the nation. For some, the planning process, discussed within Steps Towards Establishing a Compliant System Working Toward a Compliant System (page 14), may involve strategic planning to tackle numerous issues related to both access and the reimbursement process. Another course of action could be to develop an ad hoc committee to troubleshoot emerging issues associated with implementation of the new statute. Others may use a top-down approach to communicate policy changes and to ensure compliance within their jurisdiction. This Toolkit provides examples of how several states successfully changed their policies.

Methods for effecting change will also vary greatly throughout the nation. Some states have enacted enabling legislation; others have developed statewide policies. Some have produced directives for dissemination throughout their jurisdiction(s), while others have determined there is a need for local autonomy and have deferred to their local jurisdictions to develop policies. Recognizing that one size does not fit all, this Toolkit provides several examples of methods used throughout the nation.

Policies, practices and resources related to initial responses to sexual assault victims who present to health care facilities^[15] vary greatly throughout the nation. Some jurisdictions benefit from a comprehensive coordinated Sexual Assault Response Team (SART) whose policies and procedures allow specially trained professionals to provide a consistent, comprehensive response to victims of sexual assault within the health care setting and greater community. Other jurisdictions, however, struggle with inconsistent responses. For example, health care facilities may or may not have professionals who are specially trained to provide sexual assault forensic medical examinations. Advocacy services, if available, provide support to the victim and, if the victim requests, accompaniment during the examination. In some jurisdictions advocates may not be available to victims around the clock; or a victim may present at a hospital where forensic medical examinations are not routinely performed and be asked to travel to an alternative facility, thus leaving the transportation logistics to the victim.

It is not uncommon for states to struggle with one or more of these issues. Even in states with excellent programs, services may be geographically limited, resulting inservice gaps. The implementation of mobile SANEs to travel to victims, being considered by some low-population jurisdictions, may also present obstacles. In addressing the challenges that victims may face when presenting, states and territories will have taken the first steps towards developing a response where all victims are able to access forensic medical examinations.

Jurisdictions will need to identify responses that are reasonable for their communities given the physical and financial constraints they face. Regardless of local jurisdictions' limitations, a consistent, uniform response providing an established standard of care for victims of sexual assault is strongly encouraged. Whether a jurisdiction has a coordinated, multi-disciplinary, victim-centered response, or has a limited number of trained examiners and few advocates, there are several basic premises states and territories should consider as they work toward compliance, keeping in mind that a positive professional first response is critical to ensuring that all victims have access to forensic medical examinations. This Toolkit reviews the principles critical to implementing successful strategies.

States and territories must also consider evidentiary issues. The integrity of evidence collected and the chain of custody must be maintained. This Toolkit discusses points for states and territories to consider in developing policies that maintain the integrity of the evidence and chain of custody when responding to victims who participate in a forensic medical examination but defer reporting the assault to law enforcement to a later date. The victim's decision to delay a report may certainly have an impact on the prosecutor's decision to prosecute the case and/or potential litigation. Further details regarding the potential benefits and risks of delaying a report are explained in Background—Criminal Justice Philosophy (page 11).

The Toolkit also presents several different “types” of systems states have adopted. The chapters of Types of Compliant Systems (page 38) discuss overriding themes of each compliance type, as well as practical considerations. Examples from jurisdictions throughout the nation are illustrated and specific policies are attached as exhibits.

This Toolkit will guide states and territories as they work beyond certification and continue to implement and enhance policies and procedures toward a multi-disciplinary, victim-centered response in all communities. Included in the Toolkit are ideas to help states and territories educate stakeholders throughout their jurisdictions on established compliance protocols and to encourage continual monitoring of performance.

“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 ustice system or cooperate with law enforcement in order to be provided with a forensic medical exam, reimbursement for charges incurred on account of such an exam, or both.” 42 U.S.C.A. § 3796gg-4(d)(1)

VAWA 2005 included a requirement specific to the availability of and payment, or reimbursement, for sexual assault forensic medical examinations for all victims of sexualassault.^[16] Prior to VAWA 2005, the state, Indian tribal government, unit of local government 16 42 U.S.C.A. § 3796gg- 4(a)(1).or other governmental entity was required to pay for the sexual assault forensic medical examinations or ensure victims were provided reimbursement for the exams; but, because the statute was silent on the matter, they had the discretion to make such payment or reimbursement contingent upon a victim's decision to report to law enforcement.^[17] VAWA 2005 includes a requirement that to be eligible for STOP funding, states must ensure access to sexual assault forensic medical examinations for victims who choose not to report the sexual assault to law enforcement. An additional eligibility requirement for STOP funding is that states must assure that victims are provided a forensic medical examination free of charge or with full reimbursement, without being required to report to law enforcement and/or participate in the criminal justice system as a condition of the payment or reimbursement.

All states, territories, and the District of Columbia are currently eligible to apply for and receive STOP formula grant funds. To continue to be eligible for STOP funds, they must certify by January 5, 2009—three years from the date of enactment of VAWA 2005—that they meet the statutory eligibility requirements of VAWA 2005.

The changes within VAWA 2005 are designed to promote a more victim-centered approach to reporting among victims of sexual assault. They also aim to enhance prosecution of sexual assault cases and create a more victim-friendly environment that will ensure that all victims of sexual assault have access to a forensic medical examination. However, these changes present a number of challenges for states and territories as they work to develop and implement VAWA-compliant policies and procedures.

For example, hospitals and medical providers, law enforcement agencies, prosecutors, rape crisis centers and other victim service providers must develop policies and procedures to address the handling of evidence collected from victims who defer reporting to law enforcement. Concerns to be addressed include where the “non-reported” forensic evidence will be stored during the period when the victim is deciding whether to report the sexual assault to law enforcement, for how long the evidence will be held and, in localities utilizing an “anonymous” reporting system, the individual or agency responsible for retaining the information necessary to link the victim's identity to the evidence gathered. Logistical challenges also exist around the payment for forensic medical exams in jurisdictions where payment has traditionally been tied to law enforcement involvement, since an examination may no longer be conditioned upon the victim’s choice to participate by reporting the sexual assault.

The challenges states and territories face may be significant. Complying with the STOP statute requirements related to forensic medical examinations may translate to the removal of gatekeepers who have historically authorized the forensic medical exam to be conducted by a health care provider. Often, this gatekeeper has been a law enforcement agency. Many law enforcement agencies, in addition to providing authorization for the examination to be conducted, also purchase and house the sexual assault evidence collection kit^[18] until an exam is needed. Further, many states have required a police report for purposes of reimbursement for the examination, documenting that the victim not only underwent the examination but also reported the assault to law enforcement. States and territories will benefit by involving all stakeholders in the development of policies and procedures.

Data from the Uniform Crime Report tell us more than 92,000 forcible rapes were reported to law enforcement in 2006.18 Unfortunately, this statistic does not accurately portray the incidence of rape and sexual assault in our nation. It reflects only those crimes captured as forcible rapes and does not include many other forms of sexual assault. Perhaps more significantly, the number is contingent upon the forcible rape crimes being reported to police. Sexual assaults, including rape, remain the most under-reported crimes in our nation,^[19] with only 36% of rapes being reported to police.^[20]

Randomized, confidential surveys of individuals throughout the country have attempted to determine a more accurate representation of the incidence of rape andsexual assault. Recently published findings from the National Crime Victimization Survey (NCVS)^[21] confirm the underreported nature of these crimes, reporting over 270,000 rape or sexual assault crimes occurring within the same year. Another study found that 18% of all women surveyed and 3% of all men surveyed had been raped in their lifetime.^[22] Given these findings, it is projected that one out of six women, and one out of every thirtythree men, will be sexually assaulted in their lifetime.^[23]

The crimes of rape and sexual assault do not discriminate, as females and males of all ages, races, ethnicities, abilities, sexual orientations, and socio-economic backgrounds may be victimized by sexual violence. There are, however, several subpopulations experiencing higher rates of rape and sexual assault.

Women are more likely to be the victims of sexual assault than men.^[24] When men experience sexual violence, they are much more likely to be victimized at an earlier age, with 70% of all male victims reporting they were “raped before their 18th birthday.”^[25] The same research found the rate at which women were raped as children or adolescents continues to climb annually.^[26] Fifty-four percent (54%) of the female rape victims identified within the survey were under 18 years old when they experienced their first rape.

American Indian/Alaska Native women are much more likely to be sexually assaulted than African American, White or Hispanic women.^[27] Research findings clarified that these data were based upon individuals reporting victimization in the survey, therefore challenging that the findings may in fact represent reporting trends, rather than trends in incidence.^[28] The rates of sexual victimization among White, African American and “other races” of women were found to be equal.^[29] Women of mixed race, however, reported “… significantly higher rates of rape victimization”^[30] than any other race.

Another population particularly vulnerable to sexual violence is women on college campuses, among whom the rate of sexual victimization far exceeds that of the general population. A research study completed by the National Institute of Justice found that approximately 3% of all female college students were victims of a completed or attempted rape during an academic year.^[31] Projecting reporting rates from the academic year survey period over the average five-year college career, it is estimated that one in every five female students will experience rape during her college years.^[32]

The majority of victims are assaulted by someone they know. Over 80% of all sexual assault victims indicate they were attacked by an intimate, other relative, friend or acquaintance.^[33] Seventeen percent(17%) of all women and 23% of all men are sexually assaulted by strangers.^[34] The majority of sexual assaults do not occur in a public environment, but within a home, hotel or vehicle.^[35]

Extensive research has been conducted to determine the prevalence of sexual violence—reported and unreported—with studies consistently concluding that rape and sexual assault remain among the most underreported crimes in our nation.^[36] Depending on the particular study, the range of reporting rates for rapes and sexual assaults reported to police vary between 16 and 41%,^[37] meaning more than half of all rapes and sexual assaults go unreported.

A comprehensive study conducted by Dean Kilpatrick and others found formal reporting rates to tend toward the lower end of the spectrum.^[38] A randomized study conducted of approximately 5,000 individuals nationwide revealed that only 16% of all victims of rape chose to report the crime to police.^[39] Although reporting to police has increased over the past thirty years,^[40] the increase was attributed to third-party reporting, such as another member of the family, neighbor, bystander, or friend, as opposed to reporting by the victims themselves.^[41]

Certain populations are less likely than the general population to report a sexual assault. For example, the reporting rate for college students is significantly lower than for the general population, with only 5 to 10% of all sexual assault victims attending college reporting the rape to police.^[42]

There are many factors that may contribute to a victim's decision not to report an assault to law enforcement. National Crime Victimization Survey (NCVS) responses indicate that in the majority of sexual assaults the victim knows the offender as an intimate, other relative, friend or acquaintance.^[43] In these cases, the victim may have ongoing interaction with the offender, complicating the decision-making process behind reporting. The victim may reside with or near the offender, be reliant upon the offender for financial support, or share children in common.

Other factors that may affect a victim's decision not to report include: considering the rape or sexual assault to be a “personal matter,” “reporting to a different official,” and concern for “police bias.”^[44] Additionally, “being blamed by others,” “family finding out,” and a victim's “name(s) being made public by the news media” also have been found to contribute to a victim's reluctance to report the crime to police.^[45] Perhaps most notably, one-half of all female victims and one-fifth of all male victims indicated they were afraid of being killed when the rape was committed.^[46]

Changes enacted by VAWA 2005 mean a sexual assault victim now has the right to have a forensic medical examination without being forced to decide, immediately after an assault, whether or not to report the assault to law enforcement. The option to have evidence collected and preserved in a timely manner now exists, allowing the victim to defer the decision of whether to officially report the crime to police.^[47]

The timely collection of evidence may impact the likelihood of conviction. Forensic medical exams, prompt reporting, and scientific evidence are directly related to an increased rate of arrest of sexual offenders, as well as an increased number of prosecutions, and have a positive influence on the outcome of sexual assault prosecutions.^[48] However, it is important to recognize that when an assault is not reported to law enforcement as soon as possible, the prospect of conducting a thorough investigation may be diminished.

The opportunities for law enforcement to conduct interviews of witnesses, thoroughly investigate the crime scene, or collect additional evidence from alternative crime scenes may be eliminated completely. The impact of a deferred report to law enforcement and the potential negative bearing of a delayed investigation upon prosecution should be shared with the victim prior to the collection of evidence in an honest and neutral manner, so that a victim is informed not only of her or his options, but also of the benefits and risks of deciding not to report to law enforcement at the time of the forensic examination.^[49]

Nevertheless, successful evidence collection during forensic medical examinations has a direct correlation to successful prosecution of cases.^[50] The circumstances under which evidence is collected play an essential role in the future of the case long before it enters the courtroom. For example, physical evidence connecting the suspect to the crime is a critical variable prosecutors consider when determining if and/or how they will proceed with a case.^[51]

The quality of forensic medical examinations (also known as SAFE exams [Sexual Assault Forensic Examinations]) in relation to enhanced sexual assault prosecutions has been demonstrated, as well.^[52] Forensic medical exams can document evidence of the sexual assault and in some instances find evidence of sexual contact, including penetration (if applicable), identify injury consistent with forcible sexual contact, and/or document injury consistent with the victim's description of assault. Although forensic evidence can be collected for up to 96 hours or longer, collecting evidence within 24 hours of an assault has been associated with more positive outcomes within the criminal justice system.^[53] The benefit of a trained, experienced Sexual Assault Nurse Examiner (SANE) supports a prosecutor’s case, as studies “suggest that SANE programs increase prosecution.”^[54]

A recent study conducted jointly by the National District Attorneys Association (NDAA) and Boston College has reported tangible outcomes regarding the efficacy of forensic medical exams conducted by a Sexual Assault Nurse Examiner.^[55] The study found that forensic medical exams conducted by SANEs “significantly increase the likelihood that charges would be filed in sexual assault cases.”^[56]

Studies in New York State produced similar results. The Manhattan District Attorney's Office, in conjunction with St. Luke's/Roosevelt Hospital Center (Crime Victims Treatment Center) and the New York City Alliance Against Sexual Assault (NYCASA), conducted their own study of the role of forensic medical examination evidence in the disposition of sexual assault cases. Their results were published in a report entitled “The Impact of Medical Evidence on Criminal Justice Outcomes.”^[57] The study found that prosecutors utilized evidence from the forensic medical examinations in 39.3% of all cases. Prosecutors reported that documentation of injuries, the determination of the presence of semen, and DNA testing were the primary benefits of the forensic medical examination as they tried their cases.^[58] Prosecutors also suggested that the evidence was equally important to jurors to “corroborate the victim's story.”^[59]

Recently released research sponsored by the National Institute of Justice confirmed that media heavily influence potential jurors. Heavily-watched crime-related shows such as Crime Scene Investigation (CSI) and Law and Order were found to have a significant bearing on individuals' expectations regarding the role evidence plays in trials. Only 14% of those surveyed indicated they would find the defendant in a rape trial guilty without “scientific evidence” accompanying the victim's testimony.^[60] Twenty-six percent indicated that if there were no scientific evidence, they would find a defendant charged with rape not guilty.^[61] Because some jurors report they require scientific evidence before being willing to convict a defendant of rape, and forensic medical examinations may produce that evidence, access to forensic medical exams plays a central role in successful investigation and prosecution.

Sexual assault victims' increased access to forensic medical exams provides an opportunity to address immediate medical concerns, as well as an occasion to address the potential long-term health and psychological effects of sexual assault. Currently, the vast majority of rape and sexual assault victims do not seek medical care following the assault. Victims who report to law enforcement, however, are more likely to receive medical care.^[62] Research found that 59% of all victims choosing to report the victimization to law enforcement received medical treatment. In contrast, only 17% of all rape victims who did not report the victimization to police received medical care. It is important that victims have access to medical care to address immediate medical concerns, including the possibility of sexually transmitted diseases or even pregnancy, as 4.7% of all rapes result in pregnancy.^[63] Medical care may also serve as an opportunity to educate sexual assault victims on the link between sexual assault and potential future health problems.

The National Violence Against Women Survey (NVAWS) found that 32% of women and 16% of men who were sexually assaulted sustained physical injuries in addition to the sexual assault.^[64] Victims reported a variety of injuries including scratches, lacerations, bruises, welts, broken bones, dislocated joints, chipped or broken teeth, sprained muscles and internal injuries.^[65] In this same study, slightly over 3% of all victims reported having contracted a sexually transmitted disease as a result of the rape.^[66]

Of victims receiving injuries in addition to the sexual assault itself, only 36% seek medical treatment, leaving over 60% of injured victims without medical care.^[67] Research indicates a sexual assault victim benefits in numerous ways from a consistent response, streamlined services, and increased quality of care provided by a trained forensic examiner who fully understands the issues associated with victimization.^[68]

The changes in VAWA 2005 reflect the hope that victims will be more likely to seek medical care if they are afforded the opportunity to obtain a forensic medical examination as a part of the care they receive, regardless of whether they choose to report the incident to police. Increased access to medical care, with the forensic medical examination component to that care, has the potential to improve survivors' physical and mental health, increase rates of prosecution and conviction in criminal sexual assault cases, and result in healthier, safer communities.

A Checklist for States and Territories

Working Toward a Compliant System: A Checklist for States and Territories

The federal statute encouraging the enhanced protections for sexual assault victims, as it relates to forensic medical examinations, essentially defines a two-prong test for states and territories. The first prong is to ensure all sexual assault victims are afforded the opportunity to have a forensic medical examination without requiring them to report the assault to law enforcement. While the statute provides the framework for the mandate, it does not dictate how it should be implemented. States and territories have great autonomy to determine how to ensure their jurisdiction complies with the federal law. There are a variety of ways to effectuate the necessary changes. Legislation, statewide policy, and guidelines for local jurisdictions are all viable options. Each option is discussed in further detail in the chapters ahead.

The second prong for compliance is to ensure that all forensic medical examinations are provided with no cost to the victim or with full reimbursement. Jurisdictions can accomplish this in a variety of ways:

Further:

If a state's or territory's existing regulation and/or statute dictates that a police report or other documentation of the victim's cooperation with the criminal justice system be provided in order for the costs of the forensic medical examination to be reimbursed, that requirement must be remedied in order to comply with VAWA 2005.

The first step in assessing and/or ensuring compliance is to identify and convene the stakeholders. The STOP Administrator is a key player, because the agency designated to administer the STOP funds is required to certify that its jurisdiction is VAWA-compliant. Prospective partners include the sexual assault or dual (sexual assault and domestic violence) coalition; representatives from a statewide sexual assault task force and/or Sexual Assault Response Team (SART) or other statewide planning entity, if one exists; the state health department; the area hospital association; medical providers; forensic nurses; law enforcement; and prosecution representatives.

Input from the statewide stakeholders group is necessary in designating a lead agency and/or convener. In considering an appropriate leader to facilitate this initiative, the state might draw upon prior experience with previous statewide initiatives such as the VAWA Implementation Planning Committee, statewide legislative initiatives, or perhaps ad hoc committees convened for a common purpose. Once a state or territory has identified the facilitating entity, the state must then identify appropriate stakeholders to include. Some states establish a formal agreement among the stakeholders to ensure successful implementation of the process. A checklist of agencies to consider for inclusion within this process is found in Exhibit C.

The Michigan Domestic Violence Prevention and Treatment Board offered an interesting opportunity for launching statewide planning discussions in the form of a “Think Tank.” A variety of policylevel advocates and stakeholders met on March 19, 2008, to discuss the sexual assault forensic medical examination requirements within VAWA 2005. Discussions began with a review of the federal statutory requirements and a comparison of the state's statute, current policies and procedures, and practices throughout the state. The forum continued with a presentation of the different “types” of compliance that may be viable options for their state.

Participants quickly followed with a brain-storming session, tackling each option individually and identifying pros and cons for each. The forum resulted in several creative ideas for problem-solving, as well as an action plan for the future to continue the strategic discussions.

Start with the basics to ensure that all stakeholders have a complete understanding of the issues. This includes an overview of the compliance statute, the basics of a victimcentered approach, as well as ideas on how to develop policy into practice, to include the “types” of compliant systems (described in further detail within the chapters of Types of Compliant Systems [page 38]).^[71] To assist stakeholders with this, a PowerPoint presentation, entitled Compliance Overview, has been developed and is attached as Exhibit D.^[72]

Typically, once stakeholders understand the forensic compliance mandates it quickly becomes apparent which rules, policies and practices need to be revised. The Compliance Overview PowerPoint (Exhibit D) may help set the stage for discussions, as it outlines barriers that states and territories commonly face. In the event that stakeholders are not aware of how the exams are currently conducted and how they are paid, an overview of that information should be presented. Stakeholders should be made aware of current statutes, administrative regulations, and other dynamics pertaining to the provision of the examinations and payment of those exams, as this will assist in identifying areas that need to be addressed.

The North Dakota Department of Health, Division of Injury Prevention and Control, in partnership with the Office of the Attorney General and the North Dakota Council on Abused Womens Services/ Coalition Against Sexual Assault in North Dakota, were selected to represent North Dakota as one of three pilot sites throughout the nation benefiting from intensive technical assistance through the VAWA Forensic Compliance Project. One of the first tasks as part of the pilot site project was to assess the current health care response to victims of sexual assault throughout the state. Additionally, the survey was to serve as a tool to assess the reimbursement process health care facilities were accessing to seek reimbursement for the costs associated with performing forensic medical examinations.

The statewide survey, conducted in May and June of 2008, produced a 67% response rate from health care facilities throughout the state. The results of the survey were enlightening, and served as a needs assessment with regard to professional resources dedicated to the provision of forensic medical examinations and the need for additional training of examiners. Additionally, the survey results revealed the need to provide additional education to hospital administrators and billing personnel within health care facilities throughout the state regarding the reimbursement process.

Survey results are available as Exhibit E.

Jurisdictions can better prepare for the new examination and payment protocols if they know what to expect. This includes an estimate of the number of exams likely to be conducted for their state or jurisdiction.

Inevitably, one of the first questions that arise regarding implementation of the new policy relates to what can be anticipated in terms of an increased volume in the number of forensic medical examinations. This information is valuable to fully understanding the potential impact initiating such a policy will have upon the health care and criminal justice systems, as well as for projecting the costs associated with the anticipated increase in volume, and planning accordingly.

Unfortunately, since very little research exists, the question of how to project the increase in the number of forensic medical exams is difficult to answer. There is one venue, however, where research has provided some insight into the effect of initiating these types of policies: the military.

In June 2005, the U.S. military implemented a “Restricted Reporting”^[73] policy, where military victims of sexual assault have the option to report an incident of sexual assault to a health care provider, victim advocate, chaplain, or Sexual Assault Response Coordinator, but the incident is not investigated. Utilizing a Restricted Reporting process, victims are afforded services such as a forensic medical examination, advocacy, and counseling, while reserving the right to “officially” report the assault at a later date. In contrast, the Unrestricted Reporting process, when initiated, will automatically generate an investigation. Obviously, all parties are identified when the Unrestricted policy is implemented. During the first six months of implementation, 18% of all sexual assault reports were Restricted.^[74] During the next twelve months, overall reports of sexual assault increased by 24%, with 26% of those victims exercising the Restricted Reporting option.^[75]

In 2006, 11% of all victims who originally reported through the Restricted policy eventually elected to change the report to Unrestricted. In 2007, 14% of all Restricted reports ultimately were changed to Unrestricted. Although the trend is to be noted, it is also important to discern that the military is a unique subpopulation and may not be reflective of the general population. The rate of underreporting in the general population should be taken into account, and be used as a catalyst for discussions. See Exhibit F for a one-page handout containing statistics regarding the underreporting of sexual assault.

As previously noted, any policies and procedures related to the provision of direct services for sexual assault should be victim-centered and multi-disciplinary. The importance of a multi-disciplinary approach to sexual assault is well-documented. When a community formalizes a comprehensive collaborative approach by establishing a Sexual Assault Response Team (SART), its increased collaborations can improve prevention efforts, enhance the response provided to victims, and provide better management of offenders.^[76] Generally speaking, likely participants on a SART include law enforcement officers, prosecutors, advocates and volunteers from the rape crisis center, and Sexual Assault Nurse Examiners (SANEs). Studies have found that more services are being offered to victims in communities where SARTs exist.^[77]

Victims report services are more effective when “agencies work together to meet their needs.”^[78] Victim satisfaction surveys indicate that when agencies work together to address domestic or sexual violence, victims report increased levels of satisfaction with the criminal justice system and case outcomes.^[79]

A combined SANE/SART response, as offered in some communities, also yields a significant impact upon outcomes within the criminal justice system and has been found to have “the greatest impact on charging decisions in adult female sexual assault cases and is a contributing factor in the likelihood suspects will be identified and arrested.”^[80] A combined SANE/SART response to a victim of sexual assault was found to increase the likelihood of charges being filed by 3.3%.^[81] Finally, a combined SANE/SART response was also found to increase the chances of producing a conviction for the sexual assault by 3.5%.^[82]

The mission of the Wyoming Sexual Assault Response Team (WySART) is to promote a healthy, respectful and appropriate response for victims of sexual assault within Wyoming communities through support, policy, education and training. WySART members, appointed by the Wyoming Attorney General, are charged to serve as a model multi-disciplinary team to local communities who are committed to improving their response to sexual assault victims.

WySART is comprised of two members from each of the following disciplines: advocacy, law enforcement, the Wyoming State Crime Lab, prosecution, medical administration, and practicing SANEs or SANE trained nurses. Demonstrations of this successful collaboration include statutory changes to allow sexual assault nurse examiners (SANEs) to conduct forensic medical examinations. Prior to the statutory changes, only physicians were authorized to provide these exams.

WySART created a unique training opportunity with the Crime Lab. When Wyoming revised its Biological Evidence Collection Kit (“Bio Kit”), a statewide training was conducted, requiring community members to attend the training prior to receiving the new kits. This created an opportunity to develop and provide training over and above training on the Bio Kit, encouraging a victimcentered collaborative response to sexual assault.

WySART successfully trained all 23 counties, as well as the Wind River Indian Reservation, within a period of one year.

Once a plan for compliance measures has been identified and developed and is being pursued, it is also important to ensure that the plan is communicated to stakeholders throughout the jurisdiction. A broad dissemination of informational materials describing the requirements under VAWA is essential. It is equally necessary to communicate the strategy for responding to the mandates. This may be accomplished through the distribution of a statewide policy, accompanied by a training/ general education component designed to articulate the proposed process for serving sexual assault victims who do not wish to report to law enforcement and/or the criminal justice system. States and jurisdictions are encouraged to consider establishing multi-disciplinary training teams representative of the individuals targeted for training.

There are many audiences to consider for training, some of which are listed below:

States are encouraged to target the training to multi-disciplinary audiences that are representative of the multiple stakeholders responding to victims of sexual assault.

In July 2008, the Minnesota Coalition Against Sexual Assault (MNCASA) conducted a Webinar entitled “VAWA Forensic Compliance Issues for Advocates: Requirements and Best Practices: Translating the forensic compliance mandates within the Violence Against Women Act (2005) into practice within Minnesota.” The Webinar provided an opportunity for advocates throughout the state to be provided information on the forensic examination requirements. MNCASA staff, along with a forensic nurse examiner, provided a comparison of their state statute and practices, highlighting issues that remained to be resolved. The Webinar provided an opportunity for advocates to discuss barriers and to identify next steps. MNCASA followed the presentation with a survey asking participants to evaluate the educational opportunity, providing feedback to both MNCASA staff and Webinar presenters.

Jurisdictions may wish to consider implementing a process for monitoring the effectiveness of the system, both to ensure the successful implementation of new policies and procedures and to maintain the integrity of the system established. A monitoring system would be dependent upon an established case tracking system (described in further detail within Ensuring Access to Examinations—Storage, Transportation and Destruction of Evidence [page 31]). The case tracking system is designed to track the evidence from the sexual assault examination evidence collection kit from the time the examination is initiated to the disposition of the evidence, as well as, in those states or jurisdictions utilizing “anonymous” kits, the coded identity of the victim whose evidence is collected. It is imperative for states and territories to establish a reliable and valid case tracking system in conjunction with the implementation of new protocols.

The case tracking system will be valuable in collecting information regarding the number of exams for any given period of time and will also provide information regarding what, if any, increases are seen not only in the number of exams, but also in the resources necessary to ensure victims are not held responsible for the costs associated with the examinations. States and territories are also strongly encouraged to consider linking the case tracking system to a longer-term monitoring mechanism to measure several variables:

As jurisdictions work toward implementing compliant systems, the longitudinal monitoring of such cases should be actively explored.

Federal Statute

Violence Against Women and Department of Justice Reauthorization Act of 2005

Purpose of Program and Grants

(a) General Program Purpose

The purpose of this subchapter is to assist States, State and local courts (including juvenile courts), Indian tribal governments, tribal courts, and units of local government to develop and strengthen effective law enforcement and prosecution strategies to combat violent crimes against women, and to develop and strengthen victim services in cases involving violent crimes against women.

42 U.S.C.A. § 3796gg-0(a)

Rape Exam Payments

(d) Rule of Construction

(1) In General

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 forensic medical exam, reimbursement for charges incurred on account of such an exam, or both.

42 U.S.C.A. § 3796gg-4

Consistent with the intent of the federal statute,^[84] prompt evidence collection offers the opportunity to provide medical and supportive care to every victim of sexual assault as soon as possible following the assault.^[85] With evidence collected, the victim may either report the assault immediately or at a later time. For victims, the dilemma of having to make the decision to report immediately is removed, yet the possibility for the criminals to be apprehended and prosecuted in the future is retained.

VAWA 2005 requires that states and territories desiring to remain eligible to receive STOP Program funding must—by January 5, 2009—provide sexual assault victims access to a forensic medical examination without requiring the victim to report the assault to law enforcement. A further eligibility requirement for STOP Program funding is that the state, Indian tribal government, unit of local government, or another governmental entity incur the full out-of-pocket cost of forensic exams. In many jurisdictions, significant changes in policies and practice may be necessary to achieve compliance with the forensic medical examination access and payment requirements of VAWA 2005.

This section of the Toolkit provides states and territories information on how to implement a multidisciplinary, victim-centered approach to establishing compliant protocols. It is our hope that states and territories will strengthen victim services by striving to meet both the letter and the spirit of the law. To that end, this Toolkit will help you build upon the foundation that you have established, providing information on promising practices and victim-centered policies and procedures and highlighting successful strategies employed by the pilot sites and other states throughout the nation. States and territories are encouraged to continually monitor and assess their policies for gaps in service delivery, as newly implemented policies often require enhancements.

Communicating Options to the Sexual Assault Victim Who Is Presenting the Reporting Options to the Victim of Sexual Assault?

Considerations:

States and territories are encouraged to consider the various points of entry to which a sexual assault victim may present to report the assault or to seek medical care. Consideration should be given to all possible points of entry into the system to ensure a uniform, consistent response to all sexual assault victims throughout the jurisdiction. Victims of sexual assault may present to a variety of audiences—friends, family members, clergy, rape crisis centers, other supportive services programs, the criminal justice system, and/or the health care system. For purposes of this document, however, greater emphasis is placed upon those victims presenting to health care providers, rape crisis centers or the criminal justice system.

One of the first considerations is to determine who will be communicating to the victim the victim's options in reporting or not reporting the assault to law enforcement. A victim-centered response would uniformly and consistently provide all reporting options to the sexual assault victim as soon as reasonably possible after the victim presents to the criminal justice system, rape crisis center or health care system so the victim is able to make informed decisions. Because how the victim is provided the reporting options is important, who provides the information plays a critical role in the process.

Various scenarios are presented below for states and territories to consider. The Forensic Compliance Project surveyed state STOP Administrators and coalition directors to ascertain current practices employed throughout the nation.^[86] These practices are integrated into the scenarios provided below. Exhibit G—First Responders to Victims and Exhibit H—Who Communicates Options to Victims provide summary information on survey results.

In some states and territories, victim advocates are responsible for providing reporting options to victims. Victim advocates,^[87] from private non-profit agencies dedicated to serving victims of sexual assault, offer an array of services to the victim including, at the victim's discretion, accompaniment and support during the forensic medical examination. In this scenario, the sexual assault victim advocate is responsible for presenting all of the reporting options available and discussing the pros and cons of each option with the sexual assault victim; and the victim advocate supports and advocates for the victim as the victim makes an informed decision. Designating the victim advocate to present reporting options to the victim would be a victim-centered approach, ensuring the best interest of the victim is prioritized and maintained.

Relying upon victim advocates to respond to sexual assault victims in all cases is possible in jurisdictions that have advocacy organizations with adequate staffing and financial resources to respond to every sexual assault victim. However, having advocates provide the reporting options to victims may not be viable for all jurisdictions. Not all jurisdictions have the benefit of continuity of victim advocacy services. Only 31% of the nation indicate that an advocate is one of the first individuals responding to a victim of sexual assault and designated to provide reporting options to the victim.^[88]

It is not uncommon for a jurisdiction to have limited advocacy services, including limited shifts as well as periods during which an advocate is unavailable. An alternative system may need to be considered in order to provide reporting options to victims during times when advocacy services are not available.

Another professional that may be considered to communicate the reporting options to the sexual assault victim is the health care provider conducting the sexual assault forensic medical examination. A growing trend across the United States is the use of Sexual Assault Nurse Examiners (SANEs) to conduct the exam. SANEs are registered nurses who receive specialized education and fulfill clinical requirements to perform these exams. Some nurses have been certified as SANEs-Adult and Adolescent (SANE-A) through the International Association of Forensic Nurses (IAFN). Others are specially educated and fulfill clinical requirements as forensic nurse examiners (FNEs), enabling them to collect forensic evidence for a variety of crimes. The terms “sexual assault forensic examiner” (SAFE) and “sexual assault examiner” (SAE) are often used more broadly to denote a health care provider (e.g., a physician, physician assistant, nurse, or nurse practitioner) who has been specially educated and completed clinical requirements to perform this exam. VAWA Forensic Compliance Project National Survey^[89] results indicated that in 69% of cases, a SANE is one of the first responders to victims of sexual assault.

Barriers to recruiting, training, and retaining specially trained forensic examiners mean that their use will not be a viable option for some states.^[90] Many jurisdictions do not have SANEs or other trained forensic examiners on staff. In North Dakota, for example, approximately 72% of all health care facilities indicated that they do not have SANEs on staff providing the forensic medical examinations.^[91]

Consequently, sexual assault patients frequently are examined by Emergency Department physicians or Registered Nurses. The VAWA Forensic Compliance Project National Survey found that in 50% of all cases, the first responder is an Emergency Department physician.^[92] While this may often be true in rural areas, it is certainly not limited to geographical areas with limited resources. In areas with a high volume of sexual assault cases, the demand for specially-trained forensic examiners can outweigh the supply, forcing hospitals to either transfer patients to alternative locations or provide the forensic medical examinations with untrained examiners. In Wyoming, a statewide survey of health care facilities indicated that 67% of physicians had not completed formal training regarding the collection of evidence from sexual assault victims.^[93]

The lack of trained forensic examiners is one of the formidable challenges states and territories may face as they work to develop protocols. The accessibility of dedicated personnel should be carefully evaluated prior to making a recommendation for SANEs or SAFEs to take on the role of relaying the options to the sexual assault victim. It is important to note that STOP formula grant funds can be used to train forensic examiners.

Depending upon the facility's procedures, the first individual within the medical system who may be interacting with the victim is the person responsible for registering and/or conducting an assessment of the patient at the point of admission. The VAWA Forensic Compliance Project National Survey results reflect that in 39% of all cases that present, “other hospital personnel” are providing information regarding the reporting options to the victim.^[94]

Development of protocols, training in policies and procedures, and education of those professionals performing the forensic medical exams need to be made priorities. Health care personnel who may interact with victims of sexual violence should be wellversed on the federal statute and on the interpretation of the federal statute within their state's and/or local jurisdiction's policies, protocols and procedures. Also important, information as to how a victim of sexual assault may access forensic medical examination services, and how a victim who received a forensic medical examination but did not immediately report the assault may reconnect with the system to file a report or to retrieve personal items stored as evidence, should be broadly disseminated to rape crisis centers, advocacy organizations, hospitals and other medical facilities, law enforcement agencies, and other settingswhere victims may seek assistance. Those agencies should assure that their staff are aware of the information and have ready access to it. More information regarding training and education for a variety of disciplines can be found in Steps Towards Establishing a Compliant System—Working Toward a Compliant System (page 14).

The federal statute specifically addresses law enforcement in relation to access to forensic medical examinations. Section 3796gg-4(d)(1) of the statute provides that “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 forensic medical exam, reimbursement for charges incurred on account of such an exam, or both.”

Some jurisdictions continue to have health care personnel contact law enforcement as part of their routine protocol when a sexual assault victim responds to the health care facility.^[95] In a nationwide survey, 39% of all survey respondents indicated that law enforcement is contacted when a victim presents for medical care.^[96] States and jurisdictions may wish to re-evaluate this practice, provided there are no mandatory reporting laws requiring the report to law enforcement.^[97] A law enforcement officer in uniform, asking to speak with the sexual assault victim immediately following the trauma, may be viewed as an authority figure, and the victim could perceive no choice but to cooperate with the officer.

Historically, a law enforcement officer may have responded to the medical facility's Emergency Department and met with the sexual assault victim. The law enforcement officer, by conducting an interview with the victim concerning details of the assault and observing the victim, would make a determination as to whether or not the elements of a crime existed. After obtaining preliminary information from the victim and determining that there existed reasonable suspicion a crime had occurred, law enforcement would then authorize the forensic medical exam and proceed with investigating the crime and securing alternative crime scenes as appropriate. If, however, the officer determined there was not reasonable suspicion of a crime, the officer may not have authorized a forensic medical examination.

Denying a victim of sexual assault the opportunity for a forensic medical examination based on her or his decision not to report the sexual assault to law enforcement would preclude a state or territory from certifying to compliant practices after January 5, 2009. If the practice of a law enforcement officer responding to all victims of sexual assault continues as a matter of policy or practice, jurisdictions must ensure the law enforcement officer does not deny the sexual assault victim the opportunity for the forensic medical examination if the victim chooses not to report. Law enforcement agencies in these jurisdictions should be required to establish clear, concise standard operating procedures with respect to responding to these types of events to ensure that a victim-centered approach is maintained. If the victim indicates to law enforcement officers or health care professionals that she or he is not interested in reporting or cooperating with a law enforcement investigation, the victim is to be given the option of having the forensic medical examination conducted and the evidence collected and stored for a designated period of time.

Considerations:

When reporting options are presented, there are two choices for the sexual assault victim to consider: immediately reporting the assault to law enforcement, or declining to report the assault to law enforcement at the time of the forensic medical examination while retaining the prerogative to report at a later time. In the event a sexual assault victim desires to not immediately report the sexual assault to law enforcement, but elects to continue with a forensic medical examination,^[98] the victim should be informed of the potential pros and cons of not reporting the assault to law enforcement immediately; provided information regarding identification, storage and retrieval of the evidence collected during the forensic medical exam; furnished contact information to be used in the event the victim desires to report to law enforcement at a later date; and given contact information for rape crisis center or other support services.

States and territories should communicate in detail with the sexual assault victim not only the reporting options, but also the pros and cons associated with reporting to law enforcement and not reporting to law enforcement, including a delayed report.

Pros

Cons

Pros

Cons

An example of a disclaimer drafted by a state regarding the potential impact of a delayed report and its bearing upon future prosecution is found within an informed consent form used in the state of Utah. Utah incorporates a disclaimer that there may, in fact, be ramifications for not reporting the assault immediately. A copy of Utah's Informed Consent Form is found as Exhibit I.

The State of Virginia furnishes another excellent example of information provided on how a delayed report may affect the outcome of a case. Virginia's Frequently Asked Questions, written for a variety of audiences, is attached as Exhibit J.^[99]

In addition to being informed of the ramifications associated with reporting, not reporting, or delayed reporting to law enforcement, a victim should be provided specific information regarding the logistical details related to the evidence being stored. The following specifics, each described in more detail later in this chapter, should be communicated to the victim of sexual assault:

Considerations:

In addition to considering what reporting option information professionals will provide to the victim, jurisdictions should determine how the options will be communicated. Verbally informing sexual assault victims is certainly an important method, however jurisdictions are strongly encouraged to provide information in writing regarding the reporting options, instructions for the victim in the event the victim desires to report the assault in the future, as well as the risks associated with reporting and not reporting to law enforcement, discussed above under Victims' Options in What Information Will Be Provided to the Sexual Assault Victim (page 27).

Some jurisdictions accomplish this communication while obtaining informed consent for the forensic medical examination and evidence collection. The National Protocol for Sexual Assault Medical Forensic Examinations states, “Patients should understand the full nature of their consent to each procedure, whether it be medical or forensic (e.g., what the procedure entails, possible side effects, and potential impact). The only way to put patients in the position of being able to make informed decisions about whether to allow a procedure is by presenting them with all relevant information. Patients can decline any part or all of the examination. However, the informed consent process includes making patients aware of the impact of declining a procedure, as it may negatively affect the quality of care and the usefulness of evidence collection.” The National Protocol also states, “Health care providers and other responders must refrain from any judgment or coercive practice in seeking patients' consent. It is contrary to ethical and professional practices to influence their decisions.”^[101] The informed consent form could also provide contact information should the victim have questions after discharge. All information for victims of sexual assault should be available in multiple formats to meet the needs of individuals who speak languages other than English, have low literacy levels, or have cognitive or physical disabilities.

Another option for communicating information related to reporting options is in a separate letter or form provided to the victim at the time of the exam. The City of Albuquerque, New Mexico, has produced a draft for an informed consent form regarding items collected from the forensic medical examination of non-reporting victims that includes pertinent information regarding the steps to be taken should the victim decide to report the assault at a later time (Exhibit K).

Because the victim may not retain the contact information provided at the point of examination, it is imperative that the procedures for victims to report the assault at a later date be communicated throughout the jurisdiction. All agencies should be familiar with how a delayed report is initiated, including whom to contact and how to reach them.

Considerations:

Where will the evidence be stored in cases where the victim chooses not to immediately report the sexual assault?

Determining the location for the storage of evidence collected from victims of sexual assault who initially choose not to report the assault to law enforcement may be challenging. Law enforcement officers are accustomed to having custody of evidence and maintaining the chain of custody^[102] for cases they have investigated. Cases where the victim has initially chosen not to report the assault to law enforcement are unique, in that evidence is collected and presented when a law enforcement officer has not investigated or documented the sexual assault by writing a crime report. Further, the evidence may present as “anonymous,” with only numeric identifiers.

Based upon responses to the VAWA Forensic Compliance Project National Survey, states and territories often use local law enforcement agencies to store forensic medical examination evidence.^[103] Approximately 60% of all respondents indicated that evidence is stored locally in one or more jurisdictions. Forty percent (40%) of all respondents indicated that jurisdictions store evidence in a state crime lab. Oftentimes practices are contingent upon local policy and vary throughout the majority of states. National survey findings pertaining to the storage locations used throughout the nation may be found as Exhibit M.^[104]

Determination of the appropriate storage location may be based upon existing policies, procedures and facilities. Generally speaking, local law enforcement agencies have been storing evidence within their own agency facilities. In addition, states sometimes have statutes with defined parameters for evidence storage that may limit storage options for “anonymous” evidence. Virginia, for example, has a statute clearly defining not only the mission of the state’s crime lab facility, but also the parameters of what is eligible for storage within the facility.^[105] Virginia’s statute clearly defines the scope of what can be accepted in the facility. It is interpreted to be exclusively evidence for which there is an active investigation, which precludes the facility accepting evidence from cases where the victim initially chooses not to report or proceed. Statewide, many of Virginia’s law enforcement agencies have been sending all sexual assault evidence collection kits directly to the crime lab for processing, and had never been challenged with identifying a repository for evidence collected that was not associated with a report and an active investigation. Local law enforcement departments within Virginia were not equipped with evidence storage repositories, which illustrates the importance of determining up front if there are any existing statutes or policies directing the storage location.

The chain of custody must be maintained for all evidence from the point of collection through disposition. If the evidence cannot be accounted for at all times beginning with the collection, there exists the possibility that the evidence was compromised. It is difficult for evidence to be admitted if the chain of custody is not intact.

Hospitals may serve as storage repositories and may be successful in meeting both short-term and long-term requirements of protecting the integrity of evidence. However, storing evidence, especially long term, is not a role hospitals are accustomed to fulfilling. Maintaining evidence on a short-term basis while awaiting law enforcement to transport it to their agency may be a responsibility hospitals are more willing to accept than that of a permanent repository. Thirty-one percent (31%) of all respondents to the nationwide survey indicated that hospitals are utilized to store evidence within their state.^[106] Survey responses, however, indicated there were multiple storage options within their respective jurisdictions, suggesting that many states defer to local law enforcement agencies to identify the appropriate evidence storage repository in cases where the victim does not elect to report the assault to law enforcement.

The length of time evidence is being stored within hospitals varies throughout the nation. There are jurisdictions that store the evidence for up to two weeks until law enforcement arranges to pick up the evidence and transport it to their agency for longterm storage. Other jurisdictions store evidence up to 30 days.

In Types of Compliant Systems—Heathcare-based System (page 38), the discussion highlights that a common characteristic of that system is that hospitals store the evidence. Law enforcement is contacted only in the event that the sexual assault victim chooses to report. New York is an excellent example of a state that requires that all hospitals maintain evidence for at least 30 days (and many will hold the kits longer, if not indefinitely).^[107] This allows a victim the opportunity to decide whether or not to turn the evidence over to law enforcement. In addition, the New York State Department of Health has created certified SAFE Center of Excellence Hospitals.^[108] These hospitals are charged with maintaining certification standards, recruiting and training specially trained forensic examiners, and providing coverage around the clock.^[109]

Considerations:

Results of a national survey conducted of STOP Administrators^[110] clearly demonstrated that nationwide the primary transporter of evidence from health care facilities to evidence storage facilities is local law enforcement. Over 55% of all respondents indicated local law enforcement officers assisted with transporting evidence from the health care facility to the evidence storage facility.^[111]

The issue of transportation is directly linked to the “type” of system implemented within a jurisdiction.^[112] If, for example, a Healthcare-based System is utilized, the evidence may be retained and stored at a local hospital. If an Anonymous System is used, law enforcement officers are generally not initially involved unless the victim chooses to report the assault. However, in cases where the sexual assault victim chooses not to report the assault initially, it may require law enforcement officers’ involvement in terms of transportation of the evidence to the local law enforcement agency for storage. If this is the case, this may present as a barrier for law enforcement, as they may be redirected from patrolling or responding to calls to retrieve the evidence and transport it back to the evidence storage facility. It may also be a resource issue for many departments and may be viewed as a barrier in some jurisdictions. Law enforcement in rural environments may experience even greater challenges, given limited resources and greater distances between destinations.

To address resource issues related to transporting evidence in cases where the victim does not wish to initially report the assault to law enforcement, several jurisdictions have implemented creative solutions. For example, hospitals may serve as short-term repositories for evidence storage, maintaining the evidence and chain of custody while allowing local law enforcement to schedule to transport the evidence at a convenient time, anywhere from a shift (eight hours) to two weeks later.

Some jurisdictions utilize alternative services to transport evidence from the health care facility to the evidence storage facility. The nationwide survey^[113] revealed that courier services such as FedEx and UPS are used to retrieve the evidence and deliver it to the evidence storage facility in approximately 2% of the nation.^[114] Most commonly, the use of courier services is found in rural areas where transportation is a primary barrier.^[115] The use of courier services that are familiar with using chain of custody transportation and storage for toxicological testing may be a viable option for health care facilities. Courier services may be able to adapt these methods for the transportation of evidence kits.

Regardless of the systems identified for evidence transportation and storage, the integrity of the evidence must be maintained. Prosecutors should be included in the multidisciplinary planning process through which evidence transportation and storage system policies are crafted and approved. It is the prosecutor who must withstand challenges to evidence in the courtroom.

Considerations:

Another issue to consider is the length of time evidence will be stored. Jurisdictions often struggle in establishing guidelines for the maximum length of time sexual assault forensic medical examination evidence will be stored. Practical matters, such as the space required within the storage facility to store evidence long-term, emerge as issues to be addressed to accommodate cases where the victim chooses not to initially report the assault.

In a national survey of STOP Administrators in early 2008,^[116] 27% reported their jurisdictions store evidence for the statute of limitations. For those jurisdictions without a statute of limitations, this poses a dilemma. Does this mean that jurisdictions are storing evidence “forever”? States generally are cautious, if not reluctant, to go beyond what may be articulated within their statute to define an alternative period of storage in cases where the victim chose not to report. For jurisdictions identifying an alternative period of time for storage, the key to success is ensuring that consistent policies are maintained. A summary of the nationwide survey findings regarding length of storage can be found as Exhibit O.

Prosecutors and law enforcement may be reluctant to destroy evidence before the statute of limitations mexpires. An important consideration for jurisdictions is whether there are any existing state statutes pertaining to the destruction, or disposal, of evidence. States may look to state statute pertaining to the length of time evidence is to be stored for felonies pending prosecution as well as after prosecution and conviction. Alternatively, policies specific to the storage of evidence collected from non-reporting victims may be developed, such as in New Mexico, whose draft policy proposes holding evidence for 365 days,^[117] and New York, which stores evidence for a minimum of 30 days.^[118] The same authority may govern the conditions under which evidence is to be destroyed.

Jurisdictions may deliberate processing the evidence collected in cases where the victim does not wish to report the offense to law enforcement at the time the forensic medical examination is conducted. States that consider processing all evidence in nonreporting cases generally do so in the interest of preserving the evidence in the event the victim decides to report at a later time. Oftentimes this recommendation is brought up by a prosecutor or an experienced investigator who may be concerned about serial rapists or general public safety issues for the greater community. States and jurisdictions may also be attracted by the prospect of processing the evidence immediately to avoid logistical concerns regarding the facilities and space needed to protect the integrity of the evidence long term, such as maintaining optimal temperature conditions.

Jurisdictions should, however, take into account the potential ramifications of processing evidence in non-report cases. First, jurisdictions are strongly encouraged to consider the potential repercussions for victims, including their emotional and physical well-being. Second, jurisdictions also need to consider larger aspects, such as it has not established that a crime has occurred and consensual partners have not been excluded.

A strong victim-centered policy is strongly encouraged when considering the processing of all evidence in non-reported cases, as it may directly impact a victim’s decision whether to receive an examination. For instance, what if the processing of the evidence within the sexual assault evidence collection kit produces a “hit,” a lead to the perpetrator? Would the victim be contacted? If so, how will this contact take place? If the victim were to remain reluctant to report the assault to law enforcement, what would be the response from law enforcement and/or prosecution?

If evidence will be processed, victims should be advised of this as part of the informed consent process and this information should be included in the informed consent form provided to the victim for review and signature prior to the collection of evidence. All information for victims of sexual assault should be available in multiple formats to meet the needs of individuals who speak languages other than English, have low literacy levels, or have cognitive or physical disabilities.

States and territories must consider what procedures will be followed when a victim later chooses to report the assault. There are numerous logistical details that need to be considered as procedures are developed.

Considerations:

Some of these considerations lead to more questions than answers, as each jurisdiction must develop policies that work for its particular state or locality. What may work in one jurisdiction may not work in another. For example, if in one jurisdiction there is a coordinated and comprehensive Sexual Assault Response Team (SART), the procedures may be developed with current SART protocols in mind. Another jurisdiction may not have a coordinated response program, and may elect to develop alternative procedures. Regardless, states and jurisdictions should strive for consistency within their policies regarding the response to victims who later choose to report the assault to law enforcement and make plans to assure that all of those involved in sexual assault cases know where to refer a survivor who contacts them with a request to report. All stakeholders should be familiar with the protocols and understand how to access the delayed reporting system.

Considerations:

STOP Administrators and Coalition Directors surveyed in early 2008^[121] revealed a variety of case tracking methods currently being employed by jurisdictions that choose to implement Anonymous Systems.^[122] Of those responding to the survey, the large majority of jurisdictions reported that they use the serial number, or other identifying number, from the sexual assault evidence collection kit. Other jurisdictions choose to utilize the patient’s medical identification number, or to create a dedicated non-identifying numeric system. Another case tracking system implemented has been a numeric system utilizing the forensic nurse examiner’s identification number along with the date and time of the exam, thereby creating a unique identifier. This system has the added benefit of providing a method to connect a victim and kit at a later date should the victim not have retained the required information. Exhibit P^[123] includes survey findings regarding case tracking methods.

Regardless of the system employed within a jurisdiction, a key to success is consistency with the tracking mechanism. All stakeholders who will be utilizing the system should be familiar with the protocols, understand the case tracking system, and understand how an identification number is generated.

Guiding Principle:

Emphasis is on a health-care response to victims of sexual assault and prompt evidence collection.

Characteristics:

Guiding Principle:

Emphasizes protecting victim anonymity and confidentiality.

Characteristics:

Guiding Principle:

Responds to statutorily defined mandates of health care providers, while maintaining an anonymous system of reporting.

Characteristics:

Guiding Principle:

Proper evidence collection may allow prosecutors to proceed in prosecuting the case with physical evidence only.

Characteristics:

As discussed in Steps Towards Establishing a Compliant System—Working Toward a Compliant System (page 14), each state and territory is charged with assessing the status of its jurisdictions’ current policies and procedures regarding forensic medical exams for victims presenting within the health-care setting or presenting to other points within the system. Bringing these policies and procedures into compliance with VAWA 2005 can be achieved through a variety of methods, including statutory changes, statewide policy development, or statewide guidelines for adaptation by local jurisdictions. Regardless of the method, a uniform and consistent response supporting a victimcentered standard of care is strongly encouraged.

As part of the planning process, stakeholders must consider the mechanism for establishing policies and procedures throughout their state or territory. For some, crafting new legislation will be the desired approach, as that may historically have been the vehicle for effectuating policy change within the state. This is a strategy often used to drive law enforcement policy, providing recommendations for local jurisdictions to adopt. Another option for jurisdictions is to craft statewide guidelines, providing significant direction while affording local jurisdictions the autonomy to customize logistical details.

States and territories are strongly encouraged to conduct statewide planning in a multi-disciplinary, victim-centered manner. A multi-disciplinary approach ensures planning is conducted with—at a minimum—all core disciplines (law enforcement, prosecutors, health care and advocacy) represented. Committing to a victim-centered approach to policy development signifies that the guiding principle for the planning entity is to ensure the needs of the sexual assault victim are prioritized.

As planning bodies convene, issues are discussed and policy developed, it is imperative to always consider how the practical application of policies will impact victims as they move through the system. Policies developed to address the needs of sexual assault victims who choose not to report the assault to law enforcement immediately benefit from a comprehensive perspective that addresses both the system’s immediate response to the victim as well as the system’s later response, if and when the victim chooses to report to law enforcement. One way to ensure the victim’s perspective is represented is to include survivors in the planning process.

One of the first steps in the planning process is to determine what, if any, policies and protocols will be developed and/or directed on the state level, and what issues will be deferred to local communities and/or Sexual Assault Response Teams (SARTs) for development. If change will be implemented through the creation or modification of state statute, or statewide policy developed, the objective is to create the policy with the goal of uniform and consistent adaptation throughout.

A jurisdiction choosing to develop model policies or guidelines to be adapted by various localities will need to determine the mechanism by which information will be communicated and disseminated throughout the state. Additionally, states and territories may want to identify a central contact person to provide technical assistance to the various localities as they work to apply the guidelines provided by the state within their local jurisdictions.

States and territories are strongly encouraged to develop a system to monitor local jurisdictions throughout the state on the implementation of policies to ensure victims are provided access to forensic medical examinations without requiring victims to report the assault to law enforcement and/or participate in the criminal justice system. The responsibility of certifying that victims throughout the state are able to access forensic medical examinations falls upon the administrative agency within each state and territory designated to administer the STOP Violence Against Women Act funding.^[139]

Statutory Changes

Several states have chosen to bring about change to ensure that victims of sexual assault are provided access to forensic medical examinations through statutory initiatives. This may be accomplished through modification of an existing statute, often directly linked to the reimbursement and/or payment process for the examinations. Florida, for example, viewed the VAWA 2005 certification issues as an opportunity to craft omnibus legislation regarding the provision and payment of sexual assault forensic examinations.^[140]

States and territories should, however, be cautioned that statutory changes require comprehensive strategies for communicating them throughout the state. For instance, statutory changes may require policy direction to articulate practical application for stakeholders throughout the state. States often begin work toward statewide policy development once statutory changes have been implemented. Florida is an example of such an initiative.^[141] The Florida Council Against Sexual Violence convened a statewide workgroup comprised of prosecutors, law enforcement professionals, victim advocates, forensic examination and medical providers, and crime lab professionals to address implementation issues, identify best practices, and support communities implementing the statutory requirements. As a result, this State enacted comprehensive legislation regarding VAWA certification and corresponding protocols. Florida’s statute is attached as Exhibit T, and the Guidelines for Forensic Examinations for Sexual Assault Victims Not Reporting to Law Enforcement developed by the Florida Council Against Sexual Violence’s workgroup are attached as Exhibit U.

States and territories may choose to develop statewide protocols directing standard operating procedures for agencies responding to sexual assault victims. This is often found in jurisdictions where there are collaborative entities addressing the issue of sexual assault statewide. New Hampshire is an example of a statewide approach to responding to sexual assault victims through the development of a statewide protocol.^[142] There are several benefits to statewide policy development, including the establishment of a consistent standard of care for victims of sexual assault. Additionally, a consistent, uniform response protocol may be more amenable to oversight and monitoring by the STOP Administrative Agency.

States may choose to develop protocols for local jurisdictions to adopt and adapt to suit their specific local needs. Policies and procedures to ensure victims access to forensic medical examinations may be incorporated into statewide SART protocols, for example, or perhaps a statewide recommended policy that jurisdictions may easily adapt to local practices. Oregon is an example of a state establishing the expectation that local jurisdictions develop anonymous systems for victims who choose not to report the sexualassault immediately.^[143] Additionally, Oregon created recommended law enforcement and medical facility policies for local jurisdictions to consider. The model policies remain available on the website of Oregon’s Attorney General’s Sexual Assault Task Force,^[144] and are provided in their entirety as Exhibit V. Jurisdictions may wish to consider implementing a process for monitoring the effectiveness of the system, both to ensure the successful implementation of new policies and procedures and to maintain the integrity of the system established Steps Towards Establishing a Compliant System—Working Toward a Compliant System (page 14).

Other states, such as Wyoming, have developed a model law enforcement policy providing direction to law enforcement entities throughout the state while maintaining control and providing direction of certain elements within the policy.^[145] Wyoming has established several significant elements within its model policy:

Wyoming’s concise policy, attached as Exhibit X, was vetted through the Wyoming Chiefs and Sheriffs Association for endorsement. Using a multi-tiered approval process, the Chiefs and Sheriffs Association, the Wyoming Division of Victim Services, and the Wyoming Coalition Against Domestic Violence and Sexual Assault are developing a consistent communication and marketing strategy for dissemination of the policy, while providing an opportunity for the state to provide technical assistance to local law enforcement departments as they work to develop interagency policies and procedures among health care facilities, law enforcement, prosecutors, and advocates. This type of policy development is commonly referred to as a hybrid model, as policies may vary within jurisdictions throughout the state.

In order to develop victim-centered policies and procedures, the process should follow a multidisciplinary approach and should include, at minimum, representatives from health care, advocacy, law enforcement and prosecution, and when appropriate, the voices of survivors. In addition, it is important that states and jurisdictions incorporate into the planning process methods for the monitoring of victim access to forensic medical exams throughout the state in order to document compliance and identify opportunities for improvement.

Regulation

U.S. Code Annotated Title 42—The Public Health and Welfare

Chapter 46—Justice System Improvement

Subchapter XII-H—Grants to Combat Violent Crimes Against Women

42 U.S.C.A. § 3796gg-4

Rape exam payments

(b) Medical costs

A State, Indian tribal government, or unit of local government shall be deemed to incur the full out-of-pocket cost of forensic medical exams for victims of sexual assault if any government entity

VAWA 2005 includes a requirement specific to the payment, or reimbursement, for sexual assault forensic medical examinations for all victims of sexual assault.^[146] The full cost for performing a forensic medical examination is to be covered. The forensic medical examination has been defined as an “…examination provided to a sexual assault victim by medical personnel trained to gather evidence of a sexual assault in a manner suitable for use in a court of law.”^[147] The forensic medical examination “…should include, at a minimum”:

The statute speaks only to the forensic medical examination itself and does not address the fees for services rendered in treating injuries resulting from the sexual assault. Some states, however, voluntarily cover the cost of all medical services provided as a result of the sexual assault.

Prior to VAWA 2005, states were required to pay for sexual assault forensic medical examinations or ensure victims were provided reimbursement for the exams. States had the discretion to make such payment or reimbursement contingent upon a victim’s cooperation with law enforcement.^[149] In instances where direct reimbursement was provided to the health-care facility providing the examination, it was common for states to require confirmation of the victim’s interaction with the criminal justice system, included among the administrative forms submitted with the reimbursement request. In Maryland, for instance, a “…police central complaint number or a similar police case identifier”^[150] was required for the reimbursement to be processed. This requirement, articulated within the regulations governing the administrative agency charged with processing the reimbursements, 152 was incorporated as a part of the reimbursement form.^[151]

With the enactment of VAWA 2005, access to sexual assault forensic medical examinations has been extended to victims regardless of whether they report to law enforcement and/or participate in the criminal justice system, including payment for the exam. States now must provide a forensic medical examination free of charge or with full reimbursement to all victims regardless of whether the victim reports the sexual assault to law enforcement. In light of this change, a thorough review of the reimbursement process, including any governing statute, current procedures, and forms, should be conducted to ensure there are no obstacles blocking the provision of a forensic medical examination, including payment or reimbursement to victims.

States and territories utilize a variety of funding sources to pay for, or reimburse victims for, the cost of the sexual assault forensic medical examination (Exhibit Y).^[152] Results from a nationwide survey administered in early 2008^[153] indicated more than half of states and territories use Victims of Crime Act (VOCA) Criminal Injuries Compensation funding.^[154] Sixteen percent (16%) of the nation uses state funds as a primary payment source, with an additional sixteen percent (16%) using local funds. Seven percent (7%) of the nation defers to local law enforcement to cover the costs of the sexual assault forensic medical examinations. Each of these funding streams presents opportunities and challenges to states and local jurisdictions.

The Crime Victims Fund (the Fund), established by the Victims of Crime Act of 1984 (VOCA), is a major funding source for victim services throughout the Nation. Millions of dollars have been deposited into the Fund annually from criminal fines, forfeited bail bonds, penalties, and special assessments collected by U.S. Attorneys' Offices, federal U.S. courts, and the Federal Bureau of Prisons.

Funding from the VOCA program funds several programs, including child abuse programs, the Federal Criminal Justice System, and the Antiterrorism Emergency Reserve. The remaining fund deposits are divided between the Victims of Crime Assistance Program and the Victims of Crime Compensation Fund, also known as the Criminal Injuries Fund. To date, Fund dollars have always come from offenders convicted of federal crimes, not from taxpayers.

All 50 states, the District of Columbia, and several U.S. territories receive VOCA assistance and compensation grants. A state is eligible for a VOCA compensation grant if it meets the criteria set forth in VOCA and OVC program rules. The amount of VOCA compensation grant funding a state receives is based on a percentage of the payments to crime victims from state funding sources in the previous year.^[155]

Criminal Injuries Compensation Boards paid over 22 million dollars in 2007 to cover costs associated with sexual assault forensic medical examinations.^[156] The National Association of Crime Victims Compensation Boards (NACVCB) confirms that 26 states indicate Criminal Injuries Compensation is their primary funding source for the costs associated with forensic medical exams.^[157] The number of states looking to Criminal Injuries Compensation as their primary source to fund the costs associated with performing the examination has steadily climbed over the past two years, from 15 in 2006^[158] to 26 in 2008, a 43% increase. The NACVCB recognizes this trend, and attributes the increase to the fact that with VAWA 2005, states and territories must fund the cost of additional forensic medical examinations for those individuals who choose not to report the crime initially.

Guidelines for the Criminal Injuries Compensation Program stipulate that victims are to cooperate with law enforcement as a requirement for eligibility.^[159] The program eligibility requirements, however, provide several caveats in addressing the cooperation requirement. One exception to the cooperation requirement presented within the guidelines is for states to consider accepting “…proof of the completion of a medical evidentiary examination”^[160] as evidence of cooperation. Many states have approved the acceptance of the completed sexual assault forensic medical examination as meeting the requirement to cooperate with law enforcement. Several jurisdictions, including Iowa^[161] and the District of Columbia,^[162] have stipulated within their statutes that the action of the victim undergoing the examination is to be acknowledged as cooperation with law enforcement.

According to national survey results,165 approximately 40% of the nation provides funding for the forensic medical examinations through state or local funds.^[163] States that utilize general funds have established their fund through statute, as in Iowa,^[164] or through administrative rules or regulations, as in Maryland.^[165] These statutes and administrative rules or regulations delineate the specific services to be covered by the reimbursement. The administrative agency designated to oversee the reimbursement process may also be articulated within the governing authority, as well as parameters surrounding the reimbursement process itself.

There are several states where the cost of the forensic medical exams is the responsibility of the local jurisdiction where the offense occurred. In these cases, the forensic medical examination is conducted for purposes of evidence collection related to the prosecution of a case and is viewed as a local expenditure. In states where reimbursements for forensic medical examinations are processed by local jurisdictions, reimbursement has often been tied to the authorization of the examination by local law enforcement officers and/or prosecutors who have determined there is reasonable suspicion that a crime has occurred. When this is the case, technical assistance from the VAWA Forensic Compliance Technical Assistance Project^[166] may be helpful to local jurisdictions working toward developing policies and procedures to ensure all victims of sexual assault, whether or not they report to law enforcement and/or participate in the criminal justice system, have access to forensic medical examinations and do not incur out-of-pocket expense.

With VAWA 2005, states and territories are now eligible to use STOP funds to pay for the cost of the sexual assault forensic medical examination, provided the jurisdictions meet two criteria:

However, although VAWA 2005 requires forensic medical examinations to be conducted by trained examiners if states use STOP formula grants as a funding source, it does not specify the type of training to be used. Some specially-trained examiners for victims of sexual assault are known as Sexual Assault Forensic Examiners (SAFEs). According to the National Training Standards for Sexual Assault Medical Forensic Examiners,^[168] some communities refer to SAFEs by different terms/acronyms based on the discipline of the practitioners and/or specialized education and clinical experience. Sexual Assault Nurse Examiners (SANEs) are registered nurses and advanced practice nurses (can include nurse practitioners and nurse midwives) who receive specialized education and fulfill clinical requirements to perform these exams. Some nurses have been certified to perform adolescent and adult exams (referred to as SANE-Adult and Adolescent or SANE-A) through the International Association of Forensic Nurses (IAFN). Others are specially educated and fulfill clinical requirements as forensic nurse examiners (FNEs), enabling them to collect forensic evidence for a variety of crimes. SAFEs and sexual assault examiners (SAEs) are often used broadly to denote health care providers (e.g., physicians, physician assistants, nurses, nurse practitioners, or midwives) who are specially educated and clinically prepared to perform this examination. A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents, further describes a forensic medical examiner as one who is:

While educational programs offered to train professionals on the collection of forensic evidence vary throughout the nation, there are national training standards for sexual assault forensic medical examiners that are based on the National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents. The goal is that every person who reports or discloses a recent sexual assault will have access to a specially educated and clinically prepared SAFE who can validate and address their health concerns, minimize their trauma, promote their healing, and maximize the detection, collection, preservation, and documentation of physical evidence related to the assault for potential use by the legal system. Uniformity in SAFE training can aid in evaluating the effectiveness of examiner response. In addition, the use of these standards is meant to support a coordinated community response to sexual assault and promote responses that recognize and address the unique needs and circumstances of each patient.

States and territories are encouraged to implement the SAFE and SANE protocols discussed above. While many have done so, others have developed their own systems. The State of New York encourages its sexual assault forensic examiners to be certified as SANE-A (Sexual Assault Nurse Examiner, Adult/Adolescent) and to complete 15 hours of continuing education every three years to be recertified.^[170] Pima County Arizona requires SANE training, but has no state certification process for sexual assault forensic examiners.^[171] California, on the other hand, has its own training curricula.^[172] Wyoming's innovative approach to statewide training is discussed in the section on the Wyoming Sexual Assault Response Team (WySART) in Steps Towards Establishing a Compliant System-Working Toward a Compliant System(page 14).

In North Dakota, the Department of Health’s Division of Injury Prevention and Control, teaming with the Office of the Attorney General and the North Dakota Council on Abused Women’s Services/ Coalition Against Sexual Assault in North Dakota, convened a Stakeholders Group to discuss the need for additional funds to support the reimbursement of fees for the provision of sexual assault forensic medical examinations. The Stakeholders Group included representatives from the core agencies named above as well as Blue Cross/Blue Shield (BC/BS), the North Dakota Medical Association, the North Dakota Hospital Association, local hospital billing staff, a SANE representative, victim advocates, and the director of the VOCA program.

The group discussed the intent of the proposed senate bill,^[173] the current status of forensic medical exams in North Dakota, the definition for “forensic medical examination,” potential coverage for adults and children, the Crime Victims Compensation Fund, which procedures would be covered by the state funds, and sustainability at the end of the 2007– 2009 biennium.

The Stakeholders Group resolved the issues and, with the leadership of BC/BS, also created a new funding stream proposing the use of funds from the Insurance Regulatory Trust Fund in the state treasury to pay for the costs associated with performing sexual assault forensic medical examinations. The Insurance Regulatory Trust Fund is a fund to which all insurance companies within North Dakota are contributors.^[174] With the private partners at the planning table, this unique approach to funding forensic medical exams became a reality.

Regardless of the source of funding, when reimbursement is provided directly to the victim, VAWA 2005 requires states and territories to allow victims to seek reimbursement for one year following the date the examination was performed. Reimbursement must be made within ninety (90) days of receipt of the victim’s claim.

As stated in Ensuring Access to Exams—Initial Response (page 23), all materials provided to victims of sexual assault should be provided in a variety of formats to meet the needs of individuals who speak languages other than English, have low literacy levels, or have cognitive or physical disabilities, as required by VAWA. Ideally, victims should be informed of reimbursement procedures both verbally and in writing. Written materials regarding the reimbursement procedures should be available to victims in a variety of languages, taking into consideration the demographics of the community.