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Massachusetts Senate Bill S1078

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1078 Compare Versions

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22 SENATE DOCKET, NO. 2043 FILED ON: 1/20/2023
33 SENATE . . . . . . . . . . . . . . No. 1078
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Michael O. Moore
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act establishing a bill of rights for survivors of sexual assault and related purposes.
1313 _______________
1414 PETITION OF:
1515 NAME:DISTRICT/ADDRESS :Michael O. MooreSecond WorcesterJack Patrick Lewis7th Middlesex1/26/2023 1 of 16
1616 SENATE DOCKET, NO. 2043 FILED ON: 1/20/2023
1717 SENATE . . . . . . . . . . . . . . No. 1078
1818 By Mr. Moore, a petition (accompanied by bill, Senate, No. 1078) of Michael O. Moore and Jack
1919 Patrick Lewis for legislation to establish a bill of rights for survivors of sexual assault and related
2020 purposes. The Judiciary.
2121 The Commonwealth of Massachusetts
2222 _______________
2323 In the One Hundred and Ninety-Third General Court
2424 (2023-2024)
2525 _______________
2626 An Act establishing a bill of rights for survivors of sexual assault and related purposes.
2727 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
2828 of the same, as follows:
2929 1 SECTION 1. The General Laws are hereby amended by inserting after chapter 258E the
3030 2following chapter:-
3131 3 Chapter 258F. Bill of Rights for Survivors of Sexual Assault
3232 4 Section 1. Definitions
3333 5 As used in this chapter, the follow words shall have the following meanings, unless the
3434 6context otherwise requires:-
3535 7 “Crime Laboratory”, the State Police Crime Laboratory or, for the crimes that occurred in
3636 8the City of Boston, the Boston Crime Laboratory.
3737 9 “Law enforcement official”, any officer of a city, town, or regional police agency, or
3838 10deputy sheriff of a country, or officer of the State Police. 2 of 16
3939 11 “Medical provider”, any qualified health care professional, hospital, other emergency
4040 12medical facility, or other facility conducting a medical evidentiary or physical examination of the
4141 13survivor.
4242 14 “Sexual assault forensic evidence”, “SAEC Kit”, or “kit”, any forensic medical,
4343 15evidentiary, or physical examination of a victim of sexual assault, as provided for in section 97B
4444 16of chapter 41, including both a sexual assault evidence collection kit and, when circumstances
4545 17indicate the need, a toxicology kit.
4646 18 “Sexual assault counselor”, as defined in section 20J of chapter 233.
4747 19 “Sexual assault survivor”, “survivor”, any natural person who identifies as a victim of the
4848 20crimes of rape, assault with intent to rape, or indecent assault and battery under sections 13B,
4949 2113B1/2, 13B3/4, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24, 24B, inclusive, of chapter 265,
5050 22or the family member of such person if the victim is younger than 16 years of age, incompetent,
5151 23or deceased, provided that in no instance does this include a family member identified by the
5252 24victim as the perpetrator.
5353 25 Section 2. Attachment and duration of rights
5454 26 The rights provided to survivors in this chapter attach when a survivor seeks a medical
5555 27evidentiary or physical examination, as provided in section 97B of chapter 41; and whenever a
5656 28survivor is subject to an interview by a law enforcement official, prosecutor, or defense attorney.
5757 29A survivor is under no obligation to report the crime to a law enforcement official or participate
5858 30in a criminal prosecution of the assailant, and retains all the rights of this chapter regardless of
5959 31whether a criminal report is made or made and at any point not pursued. A survivor of sexual
6060 32assault is under no obligation to seek medical attention or have administered a rape kit, and 3 of 16
6161 33retains all the rights of this chapter regardless of whether the survivor receives a medical
6262 34examination or administration of a SAEC kit.
6363 35 Section 3. Right to a sexual assault counselor and a support person
6464 36 (a) A survivor has the right to consult with a sexual assault counselor during any medical
6565 37evidentiary or physical examination, as well as the right to have a support person of the
6666 38survivor’s choosing present; and during any interview by a law enforcement official, prosecutor,
6767 39or defense attorney. A survivor retains this right even if the survivor has waived the right in a
6868 40previous examination or interview.
6969 41 (b) As codified in section 20J of chapter 233, communications between a survivor and a
7070 42sexual assault counselor are confidential and privileged, including information disclosed in the
7171 43presence of any third persons during a medical evidentiary or physical examination or during any
7272 44interview by a law enforcement official, prosecutor, or defense attorney. The presence of a
7373 45sexual assault counselor does not operate to defeat any existing privilege otherwise guaranteed
7474 46by law.
7575 47 (c) A survivor’s waiver of the right to a sexual assault counselor is privileged.
7676 48 (d) Notwithstanding any waiver of privilege, a survivor’s communications with a sexual
7777 49assault counselor, or waiver of the right to a sexual assault counselor, shall not be admissible into
7878 50evidence for any purpose except with the consent of the survivor.
7979 51 Section 4. Collection of sexual assault forensic evidence
8080 52 (a) No costs incurred by a medical provider for the medical evidentiary examination
8181 53portion of the examination of a survivor shall be charged directly or indirectly to the survivor. 4 of 16
8282 54 (b) If the survivor of sexual assault is capable of becoming pregnant, whoever
8383 55administers a SAEC kit must inform the survivor of their right to receive emergency
8484 56contraception immediately at no cost to them. If a survivor elects to receive emergency
8585 57contraception, the administering party must, within four hours of administering the kit, provide
8686 58contraception at no cost or facilitate the provision of contraception at no cost.
8787 59 (c) Before a medical provider commences a medical evidentiary or physical examination
8888 60of a survivor, the medical provider shall inform the survivor of the following:
8989 61 (i) the survivor’s rights pursuant to this act and other relevant law in a document to be
9090 62developed by the Massachusetts Office of Victim Assistance, which shall be signed by the
9191 63survivor of sexual assault to confirm receipt;
9292 64 (ii) the survivor’s right to consult with a sexual assault counselor, to be summoned by the
9393 65medical provider before the commencement of the medical evidentiary or physical examination,
9494 66and to have present at least one support person of the survivor’s choosing;
9595 67 (iii) if a sexual assault counselor and/or support person cannot be summoned in a timely
9696 68manner, the ramifications of delaying the medical evidentiary or physical examination; and
9797 69 (iv) after the medical evidentiary or physical examination, the survivor’s right to shower
9898 70at no cost, unless showering facilities are not available.
9999 71 Section 5. Interview with a law enforcement official, prosecutor, or defense attorney
100100 72 (a) Before commencing an interview of a survivor, a law enforcement official,
101101 73prosecutor, or defense attorney shall inform the survivor of the following: 5 of 16
102102 74 (i) the survivor’s rights pursuant to this act and other relevant law by providing the
103103 75survivor with a document to be developed by the Massachusetts Office of Victim Assistance,
104104 76which document shall be signed by the survivor of sexual assault to confirm receipt;
105105 77 (ii) the survivor’s right to consult with a sexual assault counselor during any interview by
106106 78a law enforcement official, prosecutor, or defense attorney, to be summoned by the interviewer
107107 79before the commencement of the interview, unless no sexual assault counselor can be summoned
108108 80in a reasonably timely manner;
109109 81 (iii) the survivor’s right to have a support person of the survivor’s choosing present
110110 82during any interview by a law enforcement official, prosecutor, or defense attorney, unless the
111111 83law enforcement official, prosecutor, or defense attorney determines in his or her good faith
112112 84professional judgment that the presence of that individual would be detrimental to the purpose of
113113 85the interview; and
114114 86 (iv) for interviews by a law enforcement official, the survivor’s right to be interviewed by
115115 87a law enforcement official of the gender of the survivor’s choosing. If no law enforcement
116116 88official of that gender is reasonably available, the survivor may be interviewed by an available
117117 89law enforcement official only upon the survivor’s consent.
118118 90 (b) A law enforcement official, prosecutor, or defense attorney shall not, for any reason,
119119 91discourage a survivor from receiving a medical evidentiary or physical examination.
120120 92 Section 6. Right to counsel
121121 93 A survivor retains the right to have counsel present during all stages of any medical
122122 94examination, interview, investigation, or other interaction with representatives from the legal or 6 of 16
123123 95criminal justice systems within the state as delineated in Section 4 and Section 5 of this bill.
124124 96Treatment of the survivor should not be affected or altered in any way as a result of the
125125 97survivor’s decision to exercise this right to have counsel present during any interaction with the
126126 98legal or criminal justice systems within the state.
127127 99 Section 7. Analysis of sexual assault forensic evidence
128128 100 (a) A survivor has the right to prompt analysis of sexual assault forensic evidence.
129129 101 (i) A medical provider shall, upon conducting a medical evidentiary examination to
130130 102collect sexual assault forensic evidence, inform the survivor that:
131131 103 (A) the sexual assault forensic evidence shall be transported to the crime laboratory and
132132 104analyzed within 90 days, unless the survivor requests in writing at any time prior to analysis for
133133 105the crime laboratory to defer analysis of the sexual assault forensic evidence;
134134 106 (B) the crime laboratory shall retain the sexual assault forensic evidence for a minimum
135135 107of 15 years before it is destroyed, or until the survivor reaches 40 years of age if the survivor was
136136 108a minor when the assault occurred; and
137137 109 (C) if the survivor has requested deferred analysis, as described in subsection (A), the
138138 110survivor can request the crime laboratory to analyze the sexual assault forensic evidence at any
139139 111later date before the expiration of the retention period defined in subsection (B).
140140 112 (ii) A medical provider who administers the SAEC Kit shall, within four hours of its
141141 113administration, notify the law enforcement agency with jurisdiction under section 98 of chapter
142142 11441 over the location of the alleged assault. 7 of 16
143143 115 (iii) A law enforcement agency that receives notice under subsection (2) shall take
144144 116possession of the sexual assault forensic evidence from the medical provider within 24 hours of
145145 117receiving notification. Upon taking such possession, the law enforcement agency shall:
146146 118 (A) Submit it to the crime laboratory with all due speed upon receipt, but no later than 5
147147 119days; and assign a criminal complaint number to that evidence after receiving that notice; or,
148148 120 (B) If the law enforcement agency determines that it does not have jurisdiction over the
149149 121alleged assault, it shall notify the law enforcement agency having proper jurisdiction of that fact
150150 122within with all due speed, but no later than 5 days after taking possession of the sexual assault
151151 123forensic evidence. After receiving such notice, the law enforcement agency having proper
152152 124jurisdiction shall take possession of the sexual assault forensic evidence and submit it to the
153153 125crime laboratory with all due speed, but no later than 5 days upon receipt.
154154 126 (iv) Any law enforcement agency that submits sexual assault forensic evidence to a crime
155155 127laboratory shall, immediately following such submission, notify the survivor of the name,
156156 128address, and telephone number of the crime laboratory. The law enforcement agency shall also
157157 129notify the survivor of the information listed in subsection (1)(A) – (C) of this section.
158158 130 (v) A crime laboratory that receives sexual assault forensic evidence shall analyze that
159159 131evidence and upload any available DNA profiles into CODIS, as provided under as provided
160160 132under section 97B1/2 of chapter 41, within 90 days of receipt of that evidence, unless the
161161 133survivor has requested in writing for the crime laboratory to defer analysis of that evidence.
162162 134 (vi) The failure of a law enforcement agency to take possession of any sexual assault
163163 135forensic evidence as provided in this act or to submit that evidence for analysis within the time
164164 136prescribed under this act does not alter the authority of a law enforcement agency to take 8 of 16
165165 137possession of that evidence or to submit that evidence to the crime laboratory, and does not alter
166166 138the authority of the crime laboratory to accept and analyze the evidence or to upload the DNA
167167 139profile obtained from that evidence into CODIS. The failure to comply with the requirements of
168168 140this act does not constitute grounds in any criminal or civil proceeding for challenging the
169169 141validity of a database match or of any database information, and any evidence of that DNA
170170 142record shall not be excluded by a court on those grounds.
171171 143 (b) A crime laboratory shall retain all sexual assault forensic evidence for a minimum of
172172 14415 years; or until the alleged survivor reaches 40 years of age, if the survivor was a minor when
173173 145the alleged assault occurred.
174174 146 (c) A survivor has the right to be informed, upon the survivor’s request, of the results of
175175 147the analysis of the survivor’s sexual assault forensic evidence, whether the analysis yielded a
176176 148DNA profile, and whether the analysis yielded a DNA match, either to the named perpetrator or
177177 149to a suspect already in CODIS. The survivor has the right to receive this information through a
178178 150secure and confidential message in writing from the Crime Laboratory. This message must
179179 151include the telephone number of the Crime Laboratory so that the survivor can call regarding the
180180 152results.
181181 153 (d) A defendant or person accused or convicted of a crime against a survivor shall have
182182 154no standing to object to any failure to comply with this section, and the failure to provide a right
183183 155or notice to a survivor under this section may not be used by a defendant to seek to have the
184184 156conviction or sentence set aside.
185185 157 (e) A survivor of sexual assault has the right not to have the results of the rape kit used to
186186 158prosecute the victim. No sexual assault forensic evidence shall be used: 9 of 16
187187 159 (1) to prosecute a survivor for any misdemeanor crimes or any crime defined under the
188188 160Controlled Substances Act, chapter 94C; or
189189 161 (2) as a basis to search for further evidence of any unrelated misdemeanor crimes or any
190190 162crime under Controlled Substances Act, chapter 94C, that may have been committed by the
191191 163survivor.
192192 164 Section 8. Notice to survivors
193193 165 (a) Upon initial interaction with a survivor, a law enforcement officer or medical provider
194194 166shall provide the survivor with a document to be developed by the Massachusetts Office of
195195 167Victim Assistance that explains the rights of survivors, pursuant to this act and other relevant
196196 168law, in clear language that is comprehensible to a person proficient in English at the fifth grade
197197 169level, accessible to persons with visual disabilities, and available in all major languages of the
198198 170state. This document shall include, but is not limited to:
199199 171 (i) a clear statement that a survivor is not required to participate in the criminal justice
200200 172system or to receive a medical evidentiary or physical examination in order to retain the rights
201201 173provided by this chapter and other relevant law;
202202 174 (ii) telephone and internet means of contacting nearby rape crisis centers and sexual
203203 175assault counselors;
204204 176 (iii) forms of law enforcement protection available to the survivor, including temporary
205205 177protection orders, and the process to obtain such protection;
206206 178 (iv) instructions for requesting the results of the analysis of the survivor’s sexual assault
207207 179forensic evidence; and 10 of 16
208208 180 (v) state and federal compensation funds for medical and other costs associated with the
209209 181sexual assault; and information on any municipal, state, or federal right to restitution for
210210 182survivors in the event of a criminal trial.
211211 183 (b) A law enforcement official shall, upon written request by a survivor, furnish [within
212212 184[x] business days of receiving such request] a free, complete, and unaltered copy of all law
213213 185enforcement reports concerning the sexual assault, regardless of whether the report has been
214214 186closed by the law enforcement agency.
215215 187 (c) A prosecutor shall, upon written request by a survivor, provide
216216 188 (i) timely notice of any pretrial disposition of the case;
217217 189 (ii) timely notice of the final disposition of the case, including the conviction, sentence,
218218 190and place and time of incarceration;
219219 191 (iii) timely notice of a convicted defendant’s location, including whenever the defendant
220220 192receives a temporary, provisional, or final release from custody; escapes from custody; is moved
221221 193from a secure facility to a less-secure facility; or re-enters custody; and
222222 194 (iv) a convicted defendant’s information on a sex offender registry, if any.
223223 195 Section 9. Creation of the Rights of Victims of Sexual Assault Task Force
224224 196 (a) There is hereby established a Rights of Victims of Sexual Assault Task Force, whose
225225 197members shall serve without compensation. Notwithstanding any provision of section 6 of
226226 198chapter 268A to the contrary, the task force shall be selected, unless otherwise indicated, and
227227 199staffed by the Massachusetts Office of Victim Assistance (“MOVA”) and shall consist of: 11 of 16
228228 200 (i) the Executive Director of MOVA or their designee;
229229 201 (ii) a survivor who is a citizen or lawful resident of Massachusetts;
230230 202 (iii) two representatives of rape crisis centers, as defined by section 20J of chapter 233;
231231 203 (iv) the Superintendent of the Massachusetts State Police or his designee;
232232 204 (v) a law enforcement official working for a city or town police department;
233233 205 (vi) two representatives of Massachusetts-based colleges or universities whose
234234 206occupational duties include the provision of direct services to survivors of sexual assault and
235235 207whose employers are not under investigation by the Department of Education for alleged
236236 208violations of the federal Clery Act or Title IX of the United States Education Amendment Act of
237237 2091972;
238238 210 (vii) two representatives of organizations that provide services, education, or outreach to
239239 211communities of color or immigrant;
240240 212 (viii) a representative of an organization that provides services, education, or outreach to
241241 213lesbian, gay, bisexual, and transgender individuals;
242242 214 (ix) a certified sexual assault nurse examiner;
243243 215 (x) a representative of the Crime Laboratory;
244244 216 (xi) other individuals or representatives selected by MOVA, with the total task force not
245245 217to exceed 15 members. 12 of 16
246246 218 (b) The Task Force shall study nationally recognized best practices and make
247247 219recommendations regarding:
248248 220 (i) the development and implementation of an effective mechanism for submitting,
249249 221tracking, and investigating complaints regarding the handling of, or response to, a sexual assault
250250 222report or investigation by any agency or organization involved in the response;
251251 223 (ii) whether a need exists for additional sexual assault counselors for survivors of sexual
252252 224assault, and if such a need does exist, the Task Force shall:
253253 225 (A) develop criteria to certify sexual assault counselors;
254254 226 (B) create a plan for how the Commonwealth can provide, in conjunction with rape crisis
255255 227centers, victims’ advocates organizations, and MOVA’s existing SAFEPLAN program,
256256 228additional sexual assault counselors to meet the needs identified; and
257257 229 (C) determine the cost of funding such a plan;
258258 230 (iii) whether a need exists to expand the right to a sexual assault counselor beyond the
259259 231medical examination and law enforcement interview settings, and if such a need does exist, the
260260 232Task Force shall:
261261 233 (A) identify the scope and nature of the need; and
262262 234 (B) make recommendations on how best to fill that need, whether legislatively or
263263 235otherwise; and
264264 236 (iv) whether a need exists to provide for ongoing evaluation of the implementation of
265265 237these rights, and if such a need does exist, the Task Force shall: 13 of 16
266266 238 (A) identify the scope and nature of the need; and
267267 239 (B) make recommendations on how best to fill that need, whether legislatively or
268268 240otherwise; and
269269 241 (v) whether there is an ongoing need to maintain the Task Force after it issues its final
270270 242report, pursuant to subsection (e) of this section.
271271 243 (c) In fulfilling its requirements under subsection (b) of this chapter, the Task Force shall
272272 244collect data regarding sexual assault reporting, arrest, prosecution rates, access to sexual assault
273273 245victims services, and any other data important for its deliberations and recommendations. If such
274274 246data does not exist, then the Task Force shall encourage its creation and maintenance by MOVA.
275275 247 (d) In fulfilling its requirements under subsection (b) of this chapter, the Task Force shall
276276 248collect feedback from stakeholders, practitioners, and leadership throughout the state and local
277277 249law enforcement, victim services, forensic science practitioners, and health care communities to
278278 250inform development of future best practices or clinical guidelines regarding the care and
279279 251treatment of survivors.
280280 252 (e) No later than 18 months after passage of this Act, the Task Force shall produce a
281281 253report that includes the result of the assessments, developments, and recommendations
282282 254completed pursuant to subsections (b), (c), and (d) of this section. This Task Force shall transmit
283283 255the report to the legislature, the Governor, the Attorney General, the Superintendent of the
284284 256Massachusetts State Police, and victims’ advocates organizations and rape crisis centers.
285285 257 (f) This Task Force shall be reconvened on an ongoing basis every 5 years in perpetuity,
286286 258or until it is determined that all rights contained within this bill have been effectively 14 of 16
287287 259implemented to ensure the rights of all survivors in Massachusetts. A determination of effective
288288 260implementation of the rights contained in this act such that the Task Force is no longer needed
289289 261shall only be made by a majority vote of the current members of the Task Force at the
290290 262completion of their duties as delineated in subsections (b), (c), and (d) of this section.
291291 263 (g) In undertaking its duties, the Task Force shall be empowered to retain independent
292292 264experts who may:
293293 265 (1) request files and records from any law enforcement official, but all such information
294294 266shall be kept strictly confidential and reported on only as aggregated or anonymized;
295295 267 (2) conduct confidential interviews with law enforcement officials, medical providers,
296296 268sexual assault counselors, and others with direct knowledge of the sexual assault response
297297 269process; and
298298 270 (3) within the bounds of confidentiality, provide advice and recommendations to the Task
299299 271Force.
300300 272 SECTION 2. Section 20J of chapter 233 is hereby amended by inserting after the
301301 273definition of “Sexual Assault Counselor” the following definitions:-
302302 274 “Victim’s rights organization”, an organization or association that works to support
303303 275survivors of sexual assault and is certified as such by the Massachusetts Office of Victim
304304 276Assistance, which shall develop criteria for certifying victim’s rights organizations and maintain
305305 277a public listing of victim’s rights organizations.
306306 278 “Victim’s Advocate”, a person who is a psychologist, social worker, employee, or
307307 279volunteer with a victim’s rights organizations and who has been certified as a victim’s advocate 15 of 16
308308 280by the Massachusetts Office of Victim Assistance, which shall develop criteria for training,
309309 281certifying, and maintaining certification of victim’s advocates and maintain a public listing of
310310 282victim’s advocates.
311311 283 SECTION 3. Said section 20J of chapter 233, as so appearing, is further amended by
312312 284striking the definition of “Confidential communication” and inserting in place thereof the
313313 285following:-
314314 286 “Confidential communication”, information transmitted in confidence by and between a
315315 287survivor of sexual assault and a sexual assault counselor or by and between a survivor of sexual
316316 288assault and a victim’s advocate by a means that does not disclose the information to a person
317317 289other than a person present for the benefit of the survivor, or to those to whom disclosure of such
318318 290information is reasonably necessary to the counselor and assisting of such survivor. The term
319319 291includes all information received by the sexual assault counselor or victim’s advocate that arises
320320 292out of and in the course of such counseling or advocating, including, but not limited to reports,
321321 293records, working papers, or memoranda.
322322 294 SECTION 4. Said section 20J of chapter 233, as so appearing, is further amended in lines
323323 29526 through 31 striking the sixth paragraph and inserting in place thereof the following
324324 296paragraph:-
325325 297 Sexual assault counselors and victim’s advocates shall not disclose such confidential
326326 298communication without the prior written consent of the survivor; provided, however, that
327327 299nothing in this chapter shall be construed to limit the defendant’s right of cross-examination of
328328 300such counselor in a civil or criminal proceeding if such counselor testifies with such written
329329 301consent. No existing forms of privilege under Massachusetts law are waived by the presence of a 16 of 16
330330 302victim’s advocate or sexual assault counselor or by communications with the victim’s advocate,
331331 303sexual assault counselor, or victim’s rights organization. This extends to all records kept thereby.
332332 304 SECTION 5. Sections 1 and 2 shall take effect upon their passage.