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EVAWI > Resources > Best Practices > FAQs > Advocacy Role
Q Do victims have a legal right to have an advocate present during the medical forensic exam or various steps taken during an investigation or prosecution?
Q I am a mental health professional working in an adolescent correctional facility – is it appropriate for me to conduct the interview AND offer therapeutic support for the victims?
Q How should advocates provide victims the time they need to make decisions about participating in the medical forensic exam and reporting to law enforcement – when a decision has to be made?
Q As advocates, we often wait with victims for the sexual assault nurse examiner to arrive. We don't want to have them tell their story more than once. So what should we be talking to them about?
A Do victims have a legal right to have an advocate present during the medical forensic exam or various steps taken during an investigation or prosecution?

Several states have legislation in place that specifically addresses the presence of an advocate in sexual assault cases. AEquitas: The Prosecutor’s Resource on Violence Against Women, has prepared a Statutory Compilation of the states that have a laws specific to the presence of an advocate.

In some states, victims of sexual assault have a legal right to have an advocate present during any stage of the medical forensic exam, investigation or prosecution. For example, in California, state law (Penal Code Section 679.04) gives victims of sexual assault the right to have an advocate present during any stage of the investigation and prosecution. This means the advocate cannot be excluded by law enforcement professionals or prosecutors, if the victim wants the advocate to be present. California law also gives victims the right to have an additional support person of their choosing present at all interviews and other investigative procedures, unless the law enforcement professional or prosecutor deems that the support person is likely to be disruptive.

In Oregon, state law (OR 70.125.060) provides victims who are at least 15 years old with a legal right to have a “personal representative” present with them during most phases of a law enforcement investigation, including the medical forensic examination. The statute (known as the “personal representative law”) states the following:

  • The victim may choose anyone 18 years or older (advocate, friend, or family member) to be their personal representative.
  • The personal representative may not be a suspect in the criminal case, or a witness or party to the criminal case.
  • The personal representative’s role is to provide emotional support for the victim.
  • The personal representative may not be prohibited from accompanying a victim unless a health care provider, law enforcement agency, protective service worker, or court believes the personal representative would compromise the process.

Other states, such as Florida, Iowa, and others, also have laws that address the presence of an advocate during the medical forensic exam, during interviews with law enforcement and prosecutors, and in courtroom proceedings. For detailed information on these statutes, please see the Statutory Compilation from AEquitas.

This does not mean, however, that states without such a law do not allow advocates to be present during these procedures. It simply means that the presence of an advocate is not protected by state statute, so the determination of whether or not an advocate will be present is left up to each individual facility or jurisdiction.

These laws can be helpful because victims benefit from the presence of an advocate in many ways. Advocacy services facilitate victim recovery and increase access to the entire community response system; this includes the criminal justice system as well as other social services. When an advocate is present, victims are more likely to have a police report taken, more likely to receive quality medical care, and are less reluctant to seek further help from community response systems. As a result, they have better recovery outcomes. For detailed information on the benefit of having an advocate present, please see the FAQ on this topic.

A I am a mental health professional working in an adolescent correctional facility – is it appropriate for me to conduct the interview AND offer therapeutic support for the victims?

No. While it makes sense to use your expertise to conduct this interview, it creates problems with role confusion if you are serving both as the investigator as well as the support person. One can easily imagine a situation where a young person would want to discuss something with a support person but not the investigator, or vice versa. However, the former is perhaps of more concern because your role as a support person is particularly compromised if you are also serving as the investigator. Therefore, we would have to answer your question with a “no,” it is not appropriate, because it denies victims the benefit of an advocate whose sole purpose is to watch out for their interests, and provide them with information, support, and (neutral) assistance with decision making.

A How should advocates provide victims the time they need to make decisions about participating in the medical forensic exam and reporting to law enforcement – when a decision has to be made?

We would begin by asking why a decision ‘has to be made.’ The reality is that it doesn’t. Presumably, the time pressure is seen as resulting from the need to collect and document evidence during the medical forensic exam – and/or to conduct the law enforcement interview and capture the victim’s memory of events while it is still ‘fresh.’ Yet neither of these issues is as simple or straightforward as they may appear. This is described in our training bulletin entitled, When to Conduct an Exam or Interview:

We know that biological evidence deteriorates over time – so, all things being equal – it seems logical that it would be better to do the exam sooner rather than later. But of course all things are NEVER equal, and we have historically both UNDERestimated the benefits of letting the victim sleep and OVERestimated the loss in evidence quality that would result from postponing the exam for a day or two.

Emerging research documents that biological evidence lasts far longer than we ever imagined, so we are not losing as much as we thought with the delay. Moreover, health care providers can triage some evidence collection. For example, if the patient permits, the nurse may collect some swabs right away (if evidence may be lost, as in the case of an oral assault where materials are only present for a short time) or collect a urine specimen (in the case of possible drug-facilitated sexual assault), but then wait to gather a detailed patient history and conduct the rest of the exam at a later point.

We are also learning from the research that the victim’s memory of events is likely to improve after a day or two, with the benefit of sleep and support, rather than deteriorate as we have long believed. As a result, there are many situations where a health care provider will actually get better evidence – both from the patient’s body as well as the medical history – by postponing the exam and allowing the victim to sleep and simply digest the fact that they’ve been the victim of a crime. This could be accomplished either by providing a safe place to rest within the exam facility or letting the victim go home – depending on the specific circumstances and limits on what is reasonable for a particular facility.

This question also connects with the issues of VAWA forensic compliance, the term that is used to describe compliance with certain provisions of the Violence Against Women Act pertaining to the medical forensic examination and law enforcement involvement.

There are two key provisions in VAWA that are commonly referred to as forensic compliance:

  • Victims of sexual assault must be provided with access to a medical forensic examination free of charge, and;
  • This exam must be provided without requiring victims to cooperate with law enforcement or participate in the criminal justice system.

In other words, VAWA states that a decision does not have to be made regarding law enforcement involvement at the time of the medical forensic exam. Thus, the response of victim advocates should generally be to provide victims with support, options, and information, including the advantages and disadvantages of various courses of action.

For more information on this topic, please see the forensic compliance section of our website, which includes links to a number of articles, resources, and other tools designed to assist communities with implementation. Another valuable resource is our OnLine Training Institute (OLTI) module entitled: The Earthquake in Sexual Assault Response: Implementing VAWA Forensic Compliance. In addition to providing background information and a detailed discussion of the underlying philosophy, the module also includes a number of resources and tools communities can adapt for their own use when implementing forensic compliance.

A As advocates, we often wait with victims for the sexual assault nurse examiner to arrive. We don't want to have them tell their story more than once. So what should we be talking to them about?

If the advocate is the first person to make contact with the victim and/or is waiting with the victim for the sexual assault nurse examiner (or police officer) to arrive, this is the perfect opportunity to provide victims with the information, options, and support they need to help make the many decisions they are about to be presented with. For example, the advocate can explain the basic procedures involved with the medical forensic exam and the law enforcement investigation – and provide information about the advantages and disadvantages of participating in each. Advocates can also describe the services they offer victims, and begin meeting whatever needs they can.

For example, this is a good time to ask victims what their most pressing concern is at the moment, and see if anything can be done to help alleviate it. Advocates can also help victims to identify the sources of support victims already have in their life as well as describing other resources available to assist them in the community. However, some victims may not want to engage in this type of process. Some simply want to pass the time with small talk, whereas others may want the advocate to talk with friends or family members. Still others may want to be left alone, with time to gather their thoughts, or simply to rest in peace and quiet. More than a few may use the time to sleep.

Again, there is no hard and fast rule regarding how to use this time. If the victim wants to begin talking about the sexual assault, there is no reason they shouldn’t be able to. The advocate can respond by clarifying that the victim does not have to tell the advocate what happened – emphasizing the difference between the role of an advocate and a police officer or health care provider who will be asking them for information. The advocate is the only person who doesn’t need to know anything about the sexual assault in order to provide services for the victim. In this way, victims can be advised that they do not have to talk about the sexual assault if they don’t want to or if they want to avoid having to repeat themselves. However, if they want to talk about it, the advocate is absolutely willing and able to listen. For some victims, that may be helpful.

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