WEST virginia legislature

2017 regular session

Introduced

Senate Bill 69

By Senators Woelfel, Ojeda, Facemire and Jeffries

[Introduced February 8, 2017; referred
to the Committee on the Judiciary; and then to the Committee on Finance]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-11A-9, relating to creation of the Sexual Assault Survivors’ Bill of Rights; declaring additional rights bestowed upon sexual assault survivors regarding medical forensic examinations, sexual assault evidence collection kits and other similar topics; clarifying the right of a victim to be accompanied by a personal representative during certain proceedings; creating a right of confidentiality and privileged communications between a victim and certain trained advocates; declaring certain people be informed or notified of certain rights; incorporating other rights contained in code; and defining terms.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §61-11A-9, to read as follows:

Article 11A.  victim protection act of 1984.

§61-11A-9.  Sexual Assault Survivors’ Bill of Rights.

(a) In addition to those rights provided elsewhere in this code, a sexual assault survivor has the following rights:

(1) The right to, if the victim of a sexual assault so desires, a personal representative of the victim’s choice to accompany the victim to the hospital or other health care facility, and to proceedings concerning the alleged assault, including police and prosecution interviews and court proceedings;

(2) The right not to be prevented from, or charged for, receiving a medical forensic examination.

(3) The right to—

(A) Subject to paragraph (4), have a sexual assault evidence collection kit or its probative contents preserved, without charge, for the duration of the maximum applicable statute of limitations or 20 years, whichever is shorter;

(B) Be informed of any result of a sexual assault evidence collection kit, including a DNA profile match, toxicology report, or other information collected as part of a medical forensic examination, if such disclosure would not impede or compromise an ongoing investigation; and

(C) Be informed in writing of policies governing the collection and preservation of a sexual assault evidence collection kit.

(4) The right to—

(A) Upon written request, receive written notification from the appropriate official with custody of the sexual assault evidence collection kit or its probative contents not later than 60 days before the date of the intended destruction or disposal; and

(B) Upon written request, be granted further preservation of the kit or its probative contents.

(5) The right to communicate confidentially with a sexual assault victim advocate or a trained volunteer of a rape crisis center.  A communication between a sexual assault counselor or trained volunteer and a victim is confidential, for purposes of this subdivision, if it is not intended to be disclosed to third persons other than those persons present to further the interest of the victim in the consultation, examination, or interview, those persons necessary for the transmission of the communication, or those persons to whom disclosure is reasonably necessary to accomplish the purposes for which the sexual assault advocate or the trained volunteer is consulted. Except as required by the mandatory reporting of abuse sections contained in article six, chapter nine of this code, and article two, chapter forty-nine of this code, a sexual assault victim advocate or a trained volunteer of a rape crisis center may not be compelled, without appropriate consent, to give testimony or to produce records concerning confidential communications for any purpose in a criminal, civil, legislative, or administrative proceeding. The claim of a privilege under this subdivision, whether in a present proceeding or upon a prior occasion, is not a proper subject of comment by a judge, hearing officer, legislator, or counsel. An inference may not be drawn from the claim of privilege. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of a claim of privilege without the knowledge of the jury.  Upon request, a party against whom a jury might draw an adverse inference from a claim of privilege is entitled to an instruction that an inference may not be drawn from the claim of privilege.

(6) The right to be informed of the rights under this subsection.

(b) All rights provided to victims of crimes under this code, whether contained in this article or elsewhere, shall apply to sexual assault survivors.

(c) For the purposes of this section:

(1) The term "appropriate consent" means the consent of the victim with respect to the testimony of an adult victim and a sexual assault victim advocate or trained volunteer of a rape crisis center when the victim is an adult;

(2) The term “sexual assault” means any sexual act proscribed by article eight-b of this chapter;

(3) The term “sexual assault victim advocate” means any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual assault or sexual battery; and

(4) The term “trained volunteer” means a person who volunteers at a rape crisis center, has completed 40 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, is supervised by members of the staff of the rape crisis center, and is included on a list of volunteers that is maintained by the rape crisis center.

NOTE: The purpose of this bill is to create the sexual assault survivors’ bill of rights.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.