The 2005 reauthorization of the Violence Against Women Act (VAWA) contains new requirements effecting the provision of sexual assault forensic exams. All States must be able to certify as of January 5, 2009, that they are in compliance with the new statutory requirements within VAWA or they could jeopardize State eligibility for VAWA STOP funding.

"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 USCA S. 3796gg-4 (d) (1)

The California Emergency Management Agency (formerly Office of Emergency Services) has determined that the existing procedures for obtaining and paying for Sexual Assault Forensic Exams (SAFEs) in California is in compliance with VAWA 2005. This justification relies on two facts:

1. Penal Code Section 13823.95 prohibits the victim of sexual assault from being charged (directly or indirectly) for the cost of the Sexual Assault Forensic Examination.
2. Penal Code Section 13823.95 requires the law enforcement agency in the jurisdiction where the crime occurred to authorize and pay for the SAFE. There is no statutory requirement for the victim to cooperate with law enforcement in order to obtain a forensic medical exam.

It is important to note that VAWA 2005 is a Federal statute that requires California to certify its compliance or risk losing Federal VAWA funding. California has so certified. This Federal statute does not direct or control the activities of individual forensic examiners, forensic examination teams, hospitals, clinics, public health departments, or any other agency or organization that is directly responsible for performing sexual assault forensic examinations.

In clinical forensic practice, situations may arise in which a SAFE is not authorized by law enforcement, yet the patient requests that the exam be done and evidence collected. There is no standardized state mechanism or procedure to address this issue. A local decision must be made regarding the option to develop an independent forensic examination procedure and system. It is essential to understand that any disclosures of sexual assault from the patient to a mandated reporter stimulates the obligation to report the crime to law enforcement (PC§11160). Neither VAWA 2005 nor patient preference eliminates or modifies this responsibility.

If a forensic examiner, forensic examination team, hospital, or other local agency chooses to develop and offer independent forensic medical examinations on demand, a number of important questions must be addressed. Unfortunately, the VAWA 2005 Statute does not specify any details, criteria, or procedures related to the forensic medical exam process. Local decisions must be made regarding:

1. What are the minimum standards and specifications for the independent forensic medical exam? The spectrum ranges from the comprehensive OES 923 Protocol (which takes about 4 hours) to a "minimalist" exam that only collects and documents perishable forensic findings (e.g. gross injuries, potential saliva and semen, and urine toxicology).

2. What education, credentials, training and experience are required to conduct the independent forensic medical exam?

3. What are the procedures for evidence packaging, labeling, management (e.g. drying, handling "wet" evidence), transport and storage?

4. How will proper "chain-of-custody" be assured?

5. How long must forensic medical examination documentation and the collected evidence be retained?

6. Will the victim be notified (and by whom) prior to the destruction of the exam documentation and evidence?

7. What is the procedure if the victim wishes to "activate" (report and participate) the case?

8. Are there any criteria for refusing an "on demand" independent forensic medical exam, or will all requests be granted?
Problematic examples include:
a. Acute exam not indicated, alleged assault occurred three months ago
b. Victim has been interviewed by law enforcement and the officer feels the exam is not indicated and does not authorize
c. Individuals who abuse the system by repeatedly report being sexually assaulted without any supporting evidence to that affect

9. How are all the resultant costs covered?
At minimum, expenses will include the forensic examiner, use of facility, supplies and equipment, evidence management/transport/ storage, and administrative costs.

View a sample examination.

We've included the Frequently Asked Questions compiled by the Department of Justice concerning VAWA 2005. This document was updated in November 2007. If you have additional questions, please fill out the "contact us" form.