HB2849 - 551R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 13, chapter 40, Arizona Revised Statutes, is amended by adding section 13-4444, to read:

START_STATUTE13-4444. Sexual assault survivor rights; definitions

A. In addition to the rights enumerated in the victims' bill of rights, article II, section 2.1, Constitution of Arizona, a sexual assault survivor has the following rights:

1. to consult with a sexual assault victim advocate during any medical evidentiary or physical examination and during any interview by a peace officer, prosecutor or defense attorney. A sexual assault survivor retains this right even if the survivor has waived this right in a previous examination or interview.

2. In addition to the privilege prescribed in section 12-2240, to have the Communications between a sexual assault survivor and a sexual assault victim advocate be confidential and privileged, including information disclosed in the presence of third persons conducting a medical evidentiary or physical examination or a law enforcement interview. The presence of a sexual assault victim advocate does not defeat any existing privilege otherwise guaranteed by law.

3. To have a waiver of the right to a sexual assault victim advocate be privileged.

4. To not be charged directly or indirectly for any costs incurred by a qualified health care professional, hospital or other emergency medical facility for the medical evidentiary examination of a sexual assault survivor.

5. Before a medical facility commences a medical evidentiary or physical examination of a sexual assault survivor, to be informed by the medical facility of the following:

(a) the survivor's rights pursuant to this section and other relevant laws in a document that is developed by the attorney general and that is signed by the survivor to confirm receipt.

(b) the survivor's right to consult with a sexual assault victim advocate who is summoned by the medical facility before the medical evidentiary or physical examination commences unless a sexual assault victim advocate cannot be summoned in a reasonably timely manner.

(c) if a sexual assault victim advocate cannot be summoned in a reasonably timely manner, the ramifications of delaying the medical evidentiary or physical examination.

(d) after the medical evidentiary or physical examination, the survivor's right to shower at no cost unless showering facilities are not available.

6. Before commencing an interview, to have a peace officer or prosecutor inform the sexual assault survivor of the following rights:

(a) The survivor's rights pursuant to this section and other relevant laws in a document that is developed by the attorney general and that is signed by the survivor to confirm receipt.

(b) The survivor's right to consult with a sexual assault victim advocate during an interview by a peace officer, prosecutor or defense attorney. The interviewer must summon the sexual assault victim advocate before commencing the interview unless a sexual assault victim advocate cannot be summoned in a reasonably timely manner.

(c) The survivor's right to be interviewed by a peace officer or prosecutor of the same gender or opposite gender as the survivor unless a peace officer or prosecutor of the same gender or opposite gender is not reasonably available.

7. To not be discouraged by A peace officer, for any reason, from receiving a medical evidentiary or physical examination.

8. To have counsel present during all stages of any medical examination, investigation or other interaction with representatives from the legal and criminal justice systems as prescribed by this section. Treatment of the survivor should not be affected or altered in any way as a result of the survivor's decision to exercise the right to have counsel present during any interaction with the legal and criminal justice systems.

9. To a prompt analysis of sexual assault kit evidence as provided by section 13-1426.

10. To have a medical provider, on conducting a medical evidentiary examination to collect sexual assault kit evidence, inform the sexual assault survivor that:

(a) The sexual assault kit evidence will be transported to the crime laboratory and analyzed as soon as practicable unless the survivor requests in writing that the crime laboratory defer analysis of the sexual assault kit evidence.

(b) The crime laboratory will retain the sexual assault kit evidence in accordance with section 13-4221.

(c) The survivor may request that the crime laboratory analyze the sexual assault kit evidence at any later date that is before the expiration of the retention period prescribed in section 13-4221.

11. To have a medical provider, within forty-eight hours after collecting sexual assault kit evidence, notify the law enforcement agency that has jurisdiction over the alleged assault as prescribed in section 13-1426.

12. To have a law enforcement agency that receives notice under paragraph 11 of this subsection take possession of the sexual assault kit evidence from the medical provider and submit it to the crime laboratory within fifteen business days after receiving the notice and, if the survivor has given written consent to file a criminal complaint, assign a criminal complaint number to that evidence within five days after receiving the notice. If a law enforcement agency determines that it does not have jurisdiction, the law enforcement agency shall notify the law enforcement agency that has proper jurisdiction of that fact within five days after taking possession of the sexual assault kit evidence. The law enforcement agency that has proper jurisdiction shall take possession of the sexual assault kit evidence from the law enforcement agency that does not have jurisdiction and submit it to the crime laboratory within five days after receiving the notice.

13. To not have sexual assault kit evidence used:

(a) to prosecute a sexual assault survivor for a misdemeanor offense or any offense included in chapter 34 of this title.

(b) as a basis to search for further evidence of any unrelated misdemeanor offense or any offense included in chapter 34 of this title that may have been committed by the sexual assault survivor.

14. To be reasonably protected from the defendant and persons acting on behalf of the defendant as provided by this chapter.

15. To be free from intimidation, harassment and abuse from the defendant. A court shall make reasonable efforts to provide the survivor and the survivor's family members, friends and witnesses with a secure waiting area or room that is separate from the waiting area of the defendant and the defendant's family members, friends, witnesses and attorneys and separate from the prosecutor's office.

16. to be treated with fairness and respect for the survivor's privacy and dignity. On the request of the survivor, the court shall clear the courtroom of all persons when the survivor is testifying regarding the sexual assault in any civil or criminal trial, except that parties to the action and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters and, at the request of the survivor, witnesses designated by the prosecutor may remain in the courtroom.

17. To not be required to submit to a polygraph examination as a prerequisite to filing an accusatory pleading or to participating in any part of the criminal justice system.

18. To be heard through a survivor impact statement at any proceeding involving a postarrest release decision, a plea, sentencing, a postconviction release decision or any other proceeding in which a right of the survivor is at issue, as provided under this chapter, and the right to provide a sentencing recommendation to the probation department official conducting a presentence investigation under this chapter.

B. On initial interaction with a sexual assault survivor, a peace officer or medical provider shall provide the survivor with a document that is developed by the attorney general and that explains the rights of sexual assault survivors pursuant to this section and other relevant laws in clear language that is comprehensible to a person proficient in English at the fifth grade level, accessible to persons with visual disabilities and available in all major languages of this state. This document must include:

1. a clear statement that a sexual assault survivor is not required to participate in the criminal justice system or to receive a medical evidentiary or physical examination in order to retain the rights provided by this section and other relevant laws.

2. Telephone and internet means of contacting nearby sexual assault crisis centers and sexual assault victim advocates.

3. forms of law enforcement protection available to the sexual assault survivor, including temporary protection orders and the process to obtain an order of protection.

4. instructions for requesting the results of the analysis of the sexual assault survivor's forensic evidence.

5. state and federal compensation monies available for medical and other costs associated with the sexual assault and information on any municipal, state or federal rights to restitution for sexual assault survivors.

C. On written request by a sexual assault survivor, a peace officer shall furnish a free, complete and unaltered copy of all law enforcement reports concerning the sexual assault, regardless of whether the report has been closed by the law enforcement agency.

D. On written request by a sexual assault survivor, a prosecutor shall provide:

1. Timely notice of any pretrial disposition of the case as required by this chapter.

2. Timely notice of the final disposition of the case, including the conviction, sentence and place and time of incarceration, as required by this chapter.

3. Timely notice of a convicted defendant's location, including whenever the defendant receives a temporary, provisional or final release from custody, escapes from custody, is moved from a secure facility to a less secure facility or reenters custody, as required by this chapter.

4. A convicted defendant's information on a sex offender registry, if any.

E. For the purposes of this section:

1. "CRIME LABORATORY" MEANS a laboratory that is operated by a political subdivision, that has at least one regularly employed forensic scientist who holds a minimum of a bachelor's degree in a physical or natural science and that is registered as an analytical laboratory with the drug enforcement administration of the United States department of justice for the possession of all scheduled controlled substances.

2. "SEXUAL ASSAULT kit EVIDENCE" OR "KIT" MEANS ANY HUMAN BIOLOGICAL SPECIMEN that is COLLECTED BY A MEDICAL PROVIDER DURING A FORENSIC MEDICAL EXAMINATION FROM AN ALLEGED SEXUAL ASSAULT SURVIVOR, INCLUDING, WHEN CIRCUMSTANCES INDICATE THE NEED, A TOXICOLOGY KIT.

3. "SEXUAL ASSAULT SURVIVOR" OR "SURVIVOR" MEANS A PERSON WHO IS A VICTIM OF sexual assault pursuant to section 13-1406 and INCLUDES THE PARENT, the GUARDIAN, the SPOUSE, ANOTHER PERSON RELATED TO THE SURVIVOR BY CONSANGUINITY OR AFFINITY TO THE SECOND DEGREE OR a LAWFUL REPRESENTATIVE OF THE SURVIVOR IF THE SURVIVOR IS INCOMPETENT, DECEASED OR A MINOR WHO IS UNABLE TO CONSENT TO COUNSELING SERVICES UNLESS the lawful representative IS THE ALLEGED ASSAILANT.

4. "SEXUAL ASSAULT victim advocate" has the same meaning prescribed in section 12-2240. END_STATUTE