2021 California Code
Penal Code - PEN
PART 4 - PREVENTION OF CRIMES AND APPREHENSION OF CRIMINALS
TITLE 6 - CALIFORNIA COUNCIL ON CRIMINAL JUSTICE
CHAPTER 3 - Criminal Justice Planning
Section 13823.11.
The minimum standards for the examination and treatment of victims of sexual assault or attempted sexual assault, including child sexual abuse, and the collection and preservation of evidence therefrom include all of the following:
(a) Law enforcement authorities shall be notified.
(b) In conducting the medical evidentiary examination, the outline indicated in the form adopted pursuant to subdivision (c) of Section 13823.5 shall be followed.
(c) Consent for a physical examination, treatment, and collection of evidence shall be obtained.
(1) Consent to an examination for evidence of sexual assault shall be obtained prior to the examination of a victim of sexual assault and shall include separate written documentation of consent to each of the following:
(A) Examination for the presence of injuries sustained as a result of the assault.
(B) Examination for evidence of sexual assault and collection of physical evidence.
(C) Photographs of injuries.
(2) Consent to treatment shall be obtained in accordance with the usual policy of the hospital, clinic, sexual assault forensic examination team, or other emergency medical facility.
(3) A victim of sexual assault shall be informed that the victim may refuse to consent to an examination for evidence of sexual assault, including the collection of physical evidence, but that a refusal is not a ground for denial of treatment of injuries and for possible pregnancy and sexually transmitted diseases, if the person wishes to obtain treatment and consents thereto.
(4) Pursuant to Chapter 3 (commencing with Section 6920) of Part 4 of Division 11 of the Family Code, a minor may consent to hospital, medical, and surgical care related to a sexual assault without the consent of a parent or guardian, and a minor may consent to, or withhold consent for, a medical evidentiary examination without the consent of a parent or guardian.
(5) In cases of known or suspected child abuse, the consent of the parents or legal guardian is not required. In the case of suspected child abuse and nonconsenting parents, the consent of the local agency providing child protective services or the local law enforcement agency shall be obtained. Local procedures regarding obtaining consent for the examination and treatment of, and the collection of evidence from, children from child protective authorities shall be followed.
(d) A history of sexual assault shall be taken. The history obtained in conjunction with the examination for evidence of sexual assault shall follow the outline of the form established pursuant to subdivision (c) of Section 13823.5 and shall include all of the following:
(1) A history of the circumstances of the assault.
(2) For a child, any previous history of child sexual abuse and an explanation of injuries, if different from that given by parent or person accompanying the child.
(3) Physical injuries reported.
(4) Sexual acts reported, whether or not ejaculation is suspected, and whether or not a condom or lubricant was used.
(5) Record of relevant medical history.
(e) (1) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider.
(2) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim.
(f) (1) Each adult and minor victim of sexual assault who consents to a medical evidentiary examination shall have a physical examination that includes, but is not limited to, all of the following:
(A) Inspection of the clothing, body, and external genitalia for injuries and foreign materials.
(B) Examination of the mouth, vagina, cervix, penis, anus, and rectum, as indicated.
(C) Documentation of injuries and evidence collected.
(2) Children shall not have internal vaginal or anal examinations unless absolutely necessary. This paragraph does not preclude careful collection of evidence using a swab.
(g) The collection of physical evidence shall conform to the following procedures:
(1) Each victim of sexual assault who consents to an examination for collection of evidence shall have the following items of evidence collected, except if the victim specifically objects:
(A) Clothing worn during the assault.
(B) Foreign materials revealed by an examination of the clothing, body, external genitalia, and pubic hair combings.
(C) Swabs from the mouth, vagina, rectum, and penis, as indicated, to determine the presence or absence of semen.
(D) If indicated by the history of contact, the victim’s urine and blood sample, for toxicology purposes, to determine if drugs or alcohol were used in connection with the assault. Toxicology results obtained pursuant to this paragraph shall not be admissible in any criminal or civil action or proceeding against a victim who consents to the collection of physical evidence pursuant to this paragraph. Except for purposes of prosecuting or defending the crime or crimes necessitating the examination specified by this section, any toxicology results obtained pursuant to this paragraph shall be kept confidential, may not be further disclosed, and shall not be required to be disclosed by the victim for any purpose not specified in this paragraph. The victim shall specifically be informed of the immunity and confidentiality safeguards provided by this subparagraph.
(2) Each victim of sexual assault who consents to an examination for the collection of evidence shall have reference specimens taken, except if the victim specifically objects thereto. A reference specimen is a standard from which to obtain baseline information and may be retained for DNA comparison and analysis. Reference specimens may also be collected at a later time if they are needed. These specimens shall be taken in accordance with the standards of the local criminalistics laboratory.
(3) Sexually transmitted infection testing and presumptive treatment based on current guidelines of the federal Centers for Disease Control and Prevention may be provided, if indicated by the history of contact. Specimens for a pregnancy test shall be taken, if indicated by the history of contact and the age of the victim. Baseline testing for sexually transmitted infections shall be done for a child, a person with a disability, or a person who is residing in a long-term care facility, if forensically indicated.
(4) (A) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider.
(B) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim.
(5) For a victim of sexual assault with an assault history of strangulation, best practices shall be followed for a complete physical examination and diagnostic testing to prevent adverse outcomes or morbidity and documentation on a supplemental medical evidentiary examination form.
(h) Preservation and disposition of physical evidence shall conform to the following procedures:
(1) All swabs shall be air-dried before packaging.
(2) All items of evidence including laboratory specimens shall be clearly labeled as to the identity of the source and the identity of the person collecting them.
(3) The evidence shall have a form attached which documents its chain of custody and shall be properly sealed.
(4) The evidence shall be turned over to the proper law enforcement agency.
(5) A hospital, clinic, or other emergency medical facility where medical evidentiary examinations are conducted shall develop and implement written policies and procedures for maintaining the confidentiality of medical evidentiary examination reports, including proper preservation and disposition of the reports if the examination program ceases operation, in order to prevent destruction of the medical evidentiary examination reports.
(i) On or before January 1, 2021, a hospital, clinic, or other emergency medical facility at which medical evidentiary examinations are conducted shall implement a system to maintain medical evidentiary examination reports in a manner that facilitates their release only as required or authorized by law. This subdivision does not require a hospital, clinic, or other emergency medical facility to review a patient’s medical records prior to January 1, 2021, in order to separate medical evidentiary examination reports from the rest of the patient’s medical records.
(Amended by Stats. 2019, Ch. 714, Sec. 8. (AB 538) Effective January 1, 2020.)
