HB2836 - 571R

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

Section 1. Section 12-2240, Arizona Revised Statutes, is amended to read:

START_STATUTE12-2240. Sexual assault victim advocate; privilege; exception; training; supervision; definition

A. In a civil action, a sexual assault victim advocate shall not be examined as to any communication made by the sexual assault victim to the sexual assault victim advocate.

B. This section does not apply to:

1. A civil action brought pursuant to title 36, chapter 37, relating to the civil commitment of sexually violent persons.

2. A sexual assault victim advocate's duty to report pursuant to section 13-3620.

C. Unless the sexual assault program or service provider has immunity under other provisions of law, the communication is not privileged if the sexual assault victim advocate knows or should have known that the victim will give or has given perjurious statements or statements that would tend to disprove the existence of sexual assault.

D. A party to an action may make a motion for disclosure of privileged information under this section and, if the court finds reasonable cause, the court shall hold a hearing in camera as to whether the privilege should apply.

E. To qualify for the privilege prescribed in this section, a sexual assault victim advocate must have at least thirty hours of training in assisting victims of sexual assault. A portion of this training must include an explanation of privileged communication and the reporting requirements prescribed in section 13-3620. The training may be provided by the sexual assault program or service provider or by an outside agency that issues a certificate of completion. The records custodian of the sexual assault program or service provider must maintain the training documents.

F. A sexual assault victim advocate who is a volunteer shall perform all activities under qualified supervision.

G. COMMUNICATIONS BETWEEN A SEXUAL ASSAULT SURVIVOR AND A SEXUAL ASSAULT VICTIM ADVOCATE are CONFIDENTIAL AND PRIVILEGED, INCLUDING INFORMATION that is DISCLOSED IN THE PRESENCE OF THIRD PERSONS durING A MEDICAL EVIDENTIARY OR PHYSICAL EXAMINATION OR during a LAW ENFORCEMENT INTERVIEW. THE PRESENCE OF A SEXUAL ASSAULT VICTIM ADVOCATE DOES NOT DEFEAT ANY EXISTING PRIVILEGE OTHERWISE GUARANTEED BY LAW.

H. If a sexual assault survivor waives THE RIGHT TO A SEXUAL ASSAULT VICTIM ADVOCATE, the waiver is PRIVILEGED.

G. I. For the purposes of this section, "sexual assault victim advocate" means a person who is an employee of or volunteer at a sexual assault program or service provider for victims of sexual assault and who meets the training requirements of this section. END_STATUTE

Sec. 2. 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 sexual assault survivor has waived this right in a previous examination or interview.

2. 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.

3. To be able to obtain a sexual assault forensic medical examination at any qualified health care provider or advocacy center within this state.

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

(a) the sexual assault 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 sexual assault survivor to confirm receipt.

(b) the sexual assault 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 sexual assault survivor's right to shower at no cost unless showering facilities are not available.

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

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

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

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

8. To have a medical provider, when conducting a medical evidentiary examination to collect sexual assault kit evidence, inform the sexual assault survivor of the following:

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

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

(c) that the sexual assault 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.

9. 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.

10. To not have sexual assault kit evidence used for any of the following:

(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.

11. On the request of the sexual assault survivor, to have the court clear the courtroom of all persons when the sexual assault 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, court reporters and, at the request of the sexual assault survivor, witnesses designated by the prosecutor may remain in the courtroom.

12. 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.

13. 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 sexual assault survivor is at issue and the right to provide a sentencing recommendation to the probation department employee who conducts a presentence investigation.

B. On initial interaction with a sexual assault survivor, a peace officer or medical provider shall provide the sexual assault survivor with a document, in addition to the information that is required under section 13-4405, that provides the following:

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 tracking 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 the following:

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":

(a) Means a person who is a victim of sexual assault pursuant to section 13-1406.

(b) Includes the parent, the guardian, the spouse, another person related to the sexual assault survivor by consanguinity or affinity to the second degree or a lawful representative of the sexual assault survivor if the sexual assault 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