2022 -- H 8035

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LC003386

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO CRIMINAL PROCEDURE -- SEXUAL ASSAULT SURVIVORS BILL OF

RIGHTS

     

     Introduced By: Representatives Felix, Batista, Amore, Craven, Alzate, Williams,
Morales, McEntee, Potter, and Henries

     Date Introduced: March 23, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is hereby

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amended by adding thereto the following chapter:

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CHAPTER 28.1

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SEXUAL ASSAULT SURVIVORS BILL OF RIGHTS

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     12-28.1-1. Short title.

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     This act shall be known and may be cited as the "Sexual Assault Survivors Bill of Rights."

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     12-28.1-2. Definitions.

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     As used in this chapter the following terms shall have the following meanings unless the

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context clearly requires otherwise:

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     (1) "Crime laboratory" means the state crime laboratory as established in chapter 1.2 of

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title 12.

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     (2) “Law enforcement official” means any peace officer as defined in § 12-7-21 or any

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person employed by a private police agency of any educational institution located in this state.

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     (3) “Medical provider” means any qualified health care professional, hospital, other

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emergency medical facility, or any other facility conducting a medical evidentiary or physical

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examination of a sexual assault survivor.

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     (4) “Sexual assault forensic evidence” or “sexual assault collection kit” or “kit” means a

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human biological specimen or specimens collected by a medical provider during a forensic medical

 

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examination from the victim of a sexually oriented criminal offense or a sexual assault survivor,

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including, but not limited to, toxicology kits.

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     (5) “Sexual assault survivor” or "survivor" means any person who is a victim of a crime

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defined under chapters 37 or 67.1 of title 11 and if the survivor is incompetent as defined in § 40.1-

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5-2, deceased, or a minor who is unable to consent to counseling services, the parent, guardian,

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spouse, or any other person related to the survivor by consanguinity or affinity to the second degree,

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or any other lawful representative of the survivor, unless such person is the alleged assailant.

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     12-28.1-3. Attachment and duration of rights.

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     (a) The rights provided to survivors in this chapter attach whenever a survivor is subject to

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a medical evidentiary, or physical examination and whenever a survivor is subject to an interview

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by a law enforcement official, prosecutor, or defense attorney, during and in relation to any

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investigation or court hearing of a sexual assault complaint made by the survivor.

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     (b) A survivor retains all the rights contained in this chapter at all times, regardless of

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whether the survivor agrees to participate in any investigation or generally, in the criminal justice

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system of any court of this state and regardless of whether the survivor consents to a medical

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evidentiary or physical examination to collect sexual assault forensic evidence.

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     12-28.1-4. Rights - Generally.

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     (a) A sexual assault survivor has the right to be reasonably protected from the defendant

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and persons acting on behalf of the defendant, pursuant to the procedure set forth in chapter 37.2

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of title 11.

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     (b) A sexual assault survivor has the right to be free from intimidation, harassment, and

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abuse and the courts shall make reasonable efforts to provide the survivor and the survivor’s family

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members, friends, and witnesses with a secure waiting area or room that is separate from the waiting

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area of the defendant and the defendant’s family members, friends, witnesses, and attorneys; and

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separate from the attorney general's office located in the various courthouses.

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     (c) A sexual assault survivor has the right to be treated with fairness and respect for his or

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her privacy and dignity and the courts shall, upon the request of the survivor, clear the courtroom

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of all persons when the survivor is testifying regarding the sexual assault in any civil or criminal

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trial, except that parties to the cause and their immediate families or guardians, attorneys and their

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staff, court reporters, officers of the court and jurors. Newspaper reporters or broadcasters,

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members of the public and witnesses designated by the prosecutor may remain in the courtroom, at

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the request of the survivor.

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     (d) A sexual assault survivor shall not be required to submit to a polygraph examination as

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a prerequisite to filing an accusatory pleading or to participating in any part of the criminal justice

 

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system.

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     (e) A sexual assault survivor has the right to be heard through a survivor impact statement

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at any proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release

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decision, or any other proceeding where a right of the survivor is at issue, pursuant to chapter 28

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of title 12 and the right to provide a sentencing recommendation to the probation department official

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conducting a pre-sentence investigation.

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     12-28.1-5. Right to a sexual assault counselor and support person.

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     (a) A survivor has the right to consult with a sexual assault counselor during any medical

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evidentiary or physical examination, as well as the right to have a support person of the survivor’s

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choosing present during any interview by a law enforcement official, prosecutor, or defense

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attorney. A survivor retains this right even if the survivor has previously waived it during prior

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examinations or interviews.

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     (b) Communications between a survivor and a sexual assault counselor are confidential

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and privileged, including any information disclosed in the presence of any third parties during a

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medical evidentiary or physical examination or during any interview by a law enforcement official,

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prosecutor or defense attorney, except where a court of competent jurisdiction determines that

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disclosure is required to comply with due process requirements.

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     (c) The presence of a sexual assault counselor during any medical evidentiary or physical

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examination or during any interview by any law enforcement official, prosecutor or defense

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attorney, is privileged and does not operate as a waiver of any other existing privilege guaranteed

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by law.

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     (d) Notwithstanding any waiver of privilege, a survivor’s communications with a sexual

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assault counselor, or waiver of the right to a sexual assault counselor, shall not be admissible into

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evidence for any purpose except with the consent of the survivor, except where a court of competent

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jurisdiction determines that disclosure is required to comply with due process requirements.

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     12-28.1-6. Collection of sexual assault forensic evidence.

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     (a) No costs incurred by a medical provider for the medical evidentiary examination portion

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of the examination of a survivor shall be charged directly or indirectly to the survivor.

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     (b) Before a medical provider commences a medical evidentiary or physical examination

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of a survivor, the medical provider shall:

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     (1) Provide a copy of the survivor’s rights on a form prepared by the department of health

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in conjunction with the department of attorney general, which copy shall be signed by the survivor

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prior to any medical evidentiary or physical examination;

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     (2) Inform the survivor of the right to consult with a sexual assault counselor, who shall be

 

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summoned by the medical provider prior to the commencement of any medical evidentiary or

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physical examination, unless a sexual assault counselor cannot be summoned in a reasonably timely

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manner; and the survivor’s right to have at least one support person of the survivor’s choosing

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present during any examination;

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     (3) Inform the survivor of the ramifications of delaying the medical evidentiary or physical

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examination in the event a sexual assault counselor cannot be summoned in a reasonably timely

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manner; and

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     (4) Permit the survivor, after the medical evidentiary or physical examination, to shower

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at the medical facility, at no cost. If there is no shower facility available, the survivor shall be so

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notified.

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     12-28.1-7. Interview with law enforcement, prosecutor or defense attorney.

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     (a) Prior to the commencement of an interview of a survivor, a law enforcement official,

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prosecutor or defense attorney shall inform the survivor of the following:

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     (1) The survivor’s rights pursuant to this chapter and other relevant law by providing the

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survivor with a document prepared in accordance with § 12-28.1-6(b)(1). The survivor shall sign

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the document acknowledging its receipt.

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     (2) The survivor’s right to consult with a sexual assault counselor during any interview by

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a law enforcement official, prosecutor or defense attorney, to be summoned by the interviewer prior

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to any commencement of any questioning, unless no sexual assault counselor can be summoned in

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a reasonably timely manner;

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     (3) The survivor’s right to have a support person of the survivor’s choosing, present during

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any interview, unless the law enforcement official, prosecutor or defense attorney determines in

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their good faith professional judgment, that the presence of a support person would be detrimental

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to the purpose of the interview; and

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     (4) The survivor, during interviews by law enforcement officials, shall have the right to

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choose the gender of the interviewer. If no law enforcement official of that gender is reasonably

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available, the survivor may be interviewed by an available law enforcement officer only with the

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survivor’s consent.

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     (b) No law enforcement official, prosecutor or defense attorney shall, for any reason,

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discourage a survivor from seeking or receiving a medical evidentiary or physical examination.

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     12-28.1-8. Right to counsel.

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     A survivor retains the right to have counsel present during all stages of any medical

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examination, interview, investigation, or other interaction with representatives from the legal or

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criminal justice system within the state. Treatment of the survivor should not be affected or altered

 

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in any way as a result of the survivor’s decision to exercise the right to have counsel present at any

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stage of the investigation.

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     12-28.1-9. Analysis of sexual assault forensic evidence.

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     (a) A survivor has the right to prompt analysis of sexual assault forensic evidence obtained

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as a result of or from any medical evidentiary or physical examination,

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     (b) A medical care provider shall, upon conducting and completing a medical evidentiary

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and/or physical examination to collect sexual assault forensic evidence, inform the survivor that:

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     (1) The sexual assault forensic evidence shall be transported to the crime laboratory and

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analyzed within ninety (90) days, unless the survivor requests in writing at any time prior to

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analysis, for the crime laboratory to defer analysis of the evidence;

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     (2) If the survivor requests the analysis be deferred, they can request the crime laboratory

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to conduct the analysis at any later date before the expiration of the retention period contained in

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subsection (3) of this subsection.

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     (3) The crime laboratory shall retain the sexual assault forensic evidence for a period of

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time to be no less than the conclusion of any prosecution of the offender and subsequent appeals,

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or alternatively, if the testing is deferred at the request of the survivor pursuant to subsection (b)(1)

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of this subsection, for a period of time up to the expiration of the statute of limitations for the

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offense(s) charged, and if the survivor was a minor at the time of the assault, until the survivor

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reaches the age of forty (40) years of age.

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     (c) Upon completion of collecting sexual assault forensic evidence, the medical provider

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shall, within twenty-four (24) hours, notify the law enforcement agency having jurisdiction over

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the investigation.

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     (d) The relevant law enforcement agency shall, upon receiving notification from the

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medical provider that the forensic evidence has been collected, collect and take possession of the

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evidence and within forty-eight (48) hours, assign the evidence criminal complaint numbers,

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preserve it according to accepted standards of chain of custody and deliver the forensic evidence to

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the crime laboratory for further testing.

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     (e) If it is determined that the investigating law enforcement agency does not have

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jurisdiction over the alleged assault, it shall notify the appropriate law enforcement agency having

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proper jurisdiction within twenty-four (24) hours of making that determination and within forty-

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eight (48) hours, transmit all evidence, reports, notes witness statements, and any other physical

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evidence to the appropriate law enforcement agency. The law enforcement agency having proper

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jurisdiction shall adhere to all guidelines and rights set out in this chapter.

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     (f) Any law enforcement agency that submits sexual assault forensic evidence to the crime

 

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laboratory shall, immediately following such submission, notify the survivor of the name, address,

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and telephone number of the laboratory. The law enforcement agency shall further notify the

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survivor of the information listed in this section.

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     (g) The state crime laboratory shall within ninety (90) days of receipt and testing of any

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forensic evidence, upload any available deoxyribonucleic acid (DNA) profiles into the combined

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DNA index system (CODIS) and otherwise comply with the mandates of chapter 1.5 of title 12

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relative to DNA detection.

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     (h) A survivor has the right to be informed, upon their request, of the results of the analysis

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of their sexual assault forensic evidence kits, including whether the analysis yielded a DNA profile,

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and whether the analysis yielded a DNA match, either to the named perpetrator or to a suspect

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already in CODIS. This information shall be provided to the survivor through a secure and

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confidential message, in writing, from the state crime laboratory.

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     (i) A defendant or suspect in a sexual assault investigation, shall have no standing to object

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to any failure to comply with any provisions of this section and the failure to comply may not be

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used by a defendant to have the conviction or sentence vacated or overturned.

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     (j) The failure of a law enforcement agency to take possession of and deliver sexual assault

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forensic evidence within the time frames set out in this section shall not alter its authority to take

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possession of the evidence or submit the evidence to the crime laboratory for testing. Further, any

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delay shall not alter the authority of the crime laboratory to take possession of the evidence from

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the law enforcement agency, conduct testing or enter the evidence into CODIS. The failure to

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comply with the requirements of this chapter shall not constitute grounds in any criminal or civil

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proceeding for challenging the validity of the information and no court shall exclude the evidence

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on those grounds.

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     12-28.1-10. Bar to prosecution.

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     (a) No sexual assault forensic evidence shall be used:

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     (1) To prosecute a survivor for any misdemeanor crimes of any defined under chapter 28

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of title 21;

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     (2) As a basis to search for further evidence of any unrelated misdemeanor crime of any

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crime under chapter 28 of title 21, that may have been committed by the survivor.

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     12-28.1-11. Notice to survivors.

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     (a) Upon initial interaction with a survivor, a law enforcement officer or medical provider

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shall provide the survivor with a document prepared in accordance with § 12-28.1-6(b)(1). The

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document shall also include other relevant law and shall be in clear language that is comprehensible

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to a person proficient in English at the fifth grade level, be accessible to persons with visual

 

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disabilities and be available in all major languages of the state. The document, in addition to

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informing the survivor of the rights contained in this chapter, shall contain:

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     (1) A clear statement that a survivor is not required to participate in the criminal justice

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system or to receive a medical evidentiary or physical examination in order to retain the rights

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contained in this chapter;

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     (2) Telephone and Internet means of contacting nearby rape crisis centers and sexual

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assault counselors;

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     (3) Forms of law enforcement protection available to the survivor, including the availability

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of temporary protection orders, and the process for obtaining such orders;

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     (4) Instructions for requesting the results of the analysis of the survivor’s sexual assault

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forensic evidence; and

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     (5) Information on state and federal compensation funds for medical and other costs

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associated with the sexual assault as well as information on any municipal, state, or federal right to

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restitution for survivors in the event of a criminal trial.

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     (b) A law enforcement agency shall, upon written request by the survivor, furnish within

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ten (10) business days of receiving such a request, a free, complete and unaltered copy of, subject

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to the limitations contained in chapter 2 of title 38, all law enforcement reports concerning the

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sexual assault, regardless of whether the investigation has been closed by the law enforcement

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agency.

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     (c) The department of attorney general shall, upon written request by a survivor, provide:

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     (1) Timely notice of any pretrial disposition of the case as provided in chapter 28 of title

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12;

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     (2) Timely notice of the final disposition of the case, including the conviction, sentence,

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and place and time of incarceration, if any;

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     (3) Timely notice of a convicted defendant’s location, including, whenever the defendant

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receives a temporary, provisional, or final release from custody; escapes from custody; is moved

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from a secure facility to a less secure facility; or re-enters custody; and

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     (4) A convicted defendant’s information on a sex offender registry, if any.

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     12-28.1-12. Creation of tracking system for SAEC Kits.

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     There shall be established by the Rhode Island crime laboratory in consultation with the

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Rhode Island state police and the department of health, within one year of the enactment of this

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chapter, a system for tracking sexual assault evidence collection (SAEC) Kits that permits a victim

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of sexual assault to track, by telephone or Internet, the location and status of his or her kit. Once

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established, whoever administers a kit shall furnish the victim of sexual assault with written

 

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information, created by the department of health, about how to use and access the tracking system.

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     12-28.1-13. Reporting on backlog of SAEC Kits.

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     (a) Inventory of unanalyzed SAEC Kits.

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     (1) By January 1, 2023, all law enforcement agencies and departments charged with the

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maintenance, storage and preservation of SAEC Kits shall conduct an inventory of all such kits

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being stored by the agency or department which have not been submitted for testing. The inventory

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shall be transmitted to the department of attorney general.

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     (2) By June 1, 2023 the department of attorney general shall prepare and transmit a report

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to the president of the senate and speaker of the house of representatives containing the number of

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untested SAEC Kits being stored by each county, by each law enforcement agency or department,

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the date the untested kit was collected, the corresponding statute of limitations for prosecution for

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the crime associated with each kit, and shall consult with the Rhode Island crime laboratory on a

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plan for addressing the untested kits.

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     (b) Annual Report.

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     (1) The department of health shall obtain annually the number of SAEC Kits taken

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possession of by each law enforcement agency in the state, the number of SAEC Kits analyzed and

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unanalyzed by the Rhode Island crime laboratory or the department of health, the date each kit was

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collected, the time taken for each kit to be analyzed, and the corresponding statute of limitations

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for prosecution of the crime associated with each kit.

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     (2) The department of health shall compile all of the data into an annual report that shall

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be posted on a publicly accessible Internet website by June 30 of each year. The report shall also

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be issued to the legislature by June 1 of each year.

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     12-28.1-14. Creation of the Rights of Victims of Sexual Assault Task Force.

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     (a) There is hereby established a rights of victims of sexual assault task force consisting of

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not more than fifteen (15) members, whose board members shall serve without compensation. The

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board shall be selected, unless otherwise indicated, and staffed by the department of health and

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shall consist of:

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     (1) The director of the department of health, or designee;

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     (2) A survivor who is a citizen or lawful resident of Rhode Island;

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     (3) A representative of the department of attorney general;

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     (4) A representative of a rape crisis center licensed by the state of Rhode Island;

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     (5) The superintendent of the Rhode Island state police, or designee;

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     (6) A law enforcement official working for a city or town police department designated by

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the Rhode Island Police Chiefs' Association;

 

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     (7) A representative of the Rhode Island Crime Laboratory;

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     (8) An attorney designated by the Rhode Island Bar Association;

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     (9) A representative from either the University of Rhode Island or Rhode Island College

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whose occupational duties include the provision of direct services to victims of sexual assault and

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whose employers are not under investigation by the department of education for alleged violations

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of the federal Clery Act or Title IX of the United States Education Amendment Act of 1972;

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     (10) A representative of organizations that provide services, education, or outreach to

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communities of color or immigrant communities;

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     (11) A representative of an organization that provides services, education, or outreach to

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lesbian, gay, bisexual, and transgender individuals;

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     (12) A certified sexual assault nurse examiner; and

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     (13) Other individuals or representatives selected by department of health.

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     (b) The task force shall study nationally recognized best practices and make

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recommendations regarding:

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     (1) The development and implementation of an effective mechanism for submitting,

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tracking, and investigating complaints regarding the handling of, or response to, a sexual assault

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report or investigation by any agency or organization involved in the response;

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     (2) Whether a need exists for additional sexual assault counselors for victims of sexual

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assault, and if such a need does exist, the task force shall:

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     (i) Develop criteria to certify sexual assault counselors;

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     (ii) Create a plan for how Rhode Island can provide, in conjunction with rape crisis centers,

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victim’s advocates organizations, and additional sexual assault counselors, to meet the needs

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identified; and

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     (iii) Determine the cost of funding such a plan;

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     (3) Whether a need exists to expand the right to a sexual assault counselor beyond the

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hospital and law enforcement interview settings, such as meetings and conversations with

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prosecutors, and if such a need does exist, the task force shall:

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     (i) Identify the scope and nature of the need; and

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     (ii) Make recommendations on how best to fill that need, whether legislatively or

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otherwise;

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     (4) Whether a need exists to provide for ongoing evaluation of the implementation of these

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rights, and if such a need does exist, the task force shall:

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     (i) Identify the scope and nature of the need; and

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     (ii) Make recommendations on how best to fill that need, whether legislatively or

 

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otherwise; and

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     (5) Whether there is an ongoing need to maintain the task force after it issues its final report,

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pursuant to subsection (e) of this section.

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     (c) In fulfilling its requirements under subsection (b) of this section, the task force shall

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collect data regarding sexual assault reporting, arrest, prosecution rates, access to sexual assault

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victims services, and any other data important for its deliberations and recommendations. If such

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data does not exist, then the task force shall encourage its creation and maintenance by the

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department of health.

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     (d) In fulfilling its requirements under subsection (b) of this section, the task force shall

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collect feedback from stakeholders, practitioners, and leadership throughout the state and local law

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enforcement, victim services, forensic science practitioners, and health care communities to inform

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the development of future best practices or clinical guidelines regarding the care and treatment of

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sexual assault survivors.

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     (e) No later than eighteen (18) months after enactment of this chapter, the task force shall

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produce a report that includes the result of the assessments, developments, and recommendations

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completed pursuant to subsections (b), (c), and (d) of this section. The task force shall transmit the

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report to every member of the general assembly, the governor, the attorney general, the

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superintendent of the state police, the director of department of health and victims’ rights

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organizations and rape crisis centers.

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     (f) The task force shall be reconvened on an ongoing basis every five (5) years in

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perpetuity, or until it is determined that all rights contained within this chapter have been effectively

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implemented to ensure the rights of all survivors in Rhode Island. A determination of effective

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implementation of the rights contained in this chapter such that the task force is no longer needed

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shall only be made by a majority vote of the current members of the task force at the completion of

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their duties as delineated in subsections (b), (c), and (d) of this section.

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     (g) In undertaking its duties, the task force shall be empowered to retain independent

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experts who may:

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     (1) Request files and records from any law enforcement official; provided, however, that

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all such information shall be kept strictly confidential and reported on only as aggregated or

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anonymized;

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     (2) Conduct confidential interviews with law enforcement officials, medical examiners,

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sexual assault counselors, and others with direct knowledge of how the sexual assault response

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process is functioning; and

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     (3) Within the bounds of confidentiality, provide advice and recommendations to the task

 

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force.

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     12-28.1-15. Authorization of appropriations.

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     (a) There is hereby appropriated out of money not otherwise appropriated, the sum of two

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hundred fifty thousand dollars ($250,000) for each of fiscal years 2023 through 2026 for the

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operation and maintenance of this program.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE -- SEXUAL ASSAULT SURVIVORS BILL OF

RIGHTS

***

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     This act would establish a sexual assault survivors bill of rights and would provide that no

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sexual assault victim can be questioned without being provided his or her rights under this act

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which include the right to consent to the police pursuing any charges or investigation of a complaint

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of sexual assault, the right to be provided an attorney before questioning, and the right to be

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provided a sexual assault counselor before questioning. The act would also impose time limits as

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to when the police must transport evidence to the crime lab or department of health and impose

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time limits as to when those entities must test and file the results. Additionally, it would make all

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arrest reports and lab results available to the complaining witness and would mandate that the

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prosecuting authorities and the courts provide the complaining witness with the right to be heard

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relative to any disposition of the case or sentencing. The act would further allow the complaining

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witness to request that all court proceedings be closed to the public during his or her testimony,

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with certain exceptions. Finally, it would also create a rights of victims of sexual assault task force.

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Appropriations for operating this program would be provided in the amount of two hundred fifty

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thousand dollars ($250,000) per year for fiscal years 2023 through 2026.

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     This act would take effect upon passage.

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