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Forensic Compliance Frequently Asked Questions
Note: The information on this website is designed to:
(a) communicate the requirements of the Violence Against Women Act (as
reauthorized in 2005), and (b) offer best practices for implementation.
The goal is to highlight examples of communities striving to achieve a
higher standard of the “spirit of the law,” rather than simply meeting
the “letter of the law” for VAWA 2005 forensic compliance. It is
critically important that readers consult state laws and regulations, as
well as local policies and protocols, because they may have additional
requirements beyond those included in VAWA 2005. For more information specific to your state or territory, contact the STOP Grant Administrator or coalition of advocacy organizations providing services for sexual assault victims. A listing is available from the website for the Office on Violence Against Women, U.S. Department of Justice.
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What is “forensic compliance?”
When the Violence Against Women Act was authorized in 2005, it included a provision that states and
territories may not “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.” In the past,
states were required by previous versions of the Violence Against Women
Act to offer such exams to victims free of charge or with full
reimbursement, but police could require that victims cooperate with the
investigation in order to do so. The 2005 reauthorization (often
referred to as VAWA 2005) was designed to change that. VAWA 2005 seeks
to ensure that all victims of sexual assault have free access to a
forensic exam, regardless of whether they report the crime to police and
participate in the investigation.
The VAWA 2005 provision
regarding forensic compliance actually has two prongs. First, victims of
sexual assault must have access to a medical forensic examination
without paying for it, or with full reimbursement if they do pay
out-of-pocket costs. VAWA 2005 does not specify, however, what agency or
entity will cover these costs. The legislation requires only that
states, territories, and the District of Columbia certify that it or
another governmental entity “incurs the full out-of-pocket costs of
forensic medical exams” for victims of sexual assault. In other words,
the state or territory must ensure that these exams will be paid for
through some mechanism, or at least they must do so if they want to
continue to receive STOP grant funds.
The
second prong of forensic compliance requires that victims of sexual
assault have access to a medical forensic examination without being
required to “participate in the criminal justice system or cooperate
with law enforcement.” Initially, there was some question whether this
provision would conflict with state laws mandating medical providers to
report to law enforcement when a patient discloses that a sexual assault
has occurred. Yet OVW has declared that this is not the case. Some of these questions are addressed in the “Frequently Asked Questions” document published by the Office on Violence Against Women (OVW), U.S. Department of Justice. In it, OVW clarifies
that states with medical mandated reporting requirements can be
compliant with this provision of VAWA 2005 “as long as the victim
retains the ability to choose not to cooperate with law enforcement or
the criminal justice system and receives a forensic examination free of
charge or with full reimbursement.”
Because these two rules have significantly changed the criminal justice response to sexual assault, they have been referred to as “the earthquake in sexual assault response.” However, VAWA 2005 forensic compliance mandates primarily affect the response to adult and adolescent victims of sexual assault. Therefore, the resources on our website will only address this population, and will not focus on the medical or legal response to child victims/pediatric patients.
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What was the deadline for compliance?
All states and territories must now certify (as of January 5, 2009) that
they are in compliance with these requirements in order to remain
eligible for STOP Grant funds from the Office on Violence Against Women
(OVW). Yet communities face considerable challenges in designing a
protocol for the initial response to a sexual assault disclosure, as
well as addressing questions regarding payment for the medical forensic
examination, mandatory reporting to law enforcement, storage and
transportation of evidence, case tracking and retrieval, processing of
evidence, and the potential for evidence-based prosecution (i.e.,
without the victim’s cooperation). For many states and territories, the
changes that are required in public policy and daily practice have been
described as “monumental.” Some of these questions are addressed in the “Frequently Asked Questions” document published by OVW. |
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