June 25, 2018
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Virginia may change laws on gathering sexual assault evidence to match Maine’s

By Frank Green, Richmond Times-Dispatch

A small number of sexual-assault victims treated in Virginia emergency rooms each year are unable to consent to an examination that could recover critical biological evidence.

The victims may have been rendered unconscious by injuries, drugs or alcohol; be mentally disabled; or be a minor. But state law requires patients be advised of the procedure’s consequences and alternatives and give consent.

And while the inability to give informed consent to the invasive forensic examination could last for hours or days or even be permanent, the evidence may need to be collected quickly or it may be lost.

The coming Virginia General Assembly session will consider a solution to the problem that would allow hospital staff to make such examinations without involving the criminal justice system and fear of criminal charges or civil liability.

“Right now there’s no clear direction as to what you do in [these] situations,” said Sen. George L. Barker, D-Fairfax. Barker introduced a bill in the last session that was tabled so that the Virginia State Crime Commission could study the issue.

Barker said he was contacted by the Inova Fairfax Hospital, which cares for many sexual-assault victims. A small percentage “are in this category where there’s sort of no clear guidance,” he said.

The commission staff surveyed other states and found that 10 require consent from the victim before the examination can be performed and only one, Maine, allows an examination of an unconscious victim who cannot consent.

Six states permit a minor to consent to an examination. In California, consent is not required from parents or guardians in cases of known or suspected child abuse.

At a recent commission meeting, the chairman, Del. Robert B. Bell, R-Albemarle, said that the wishes of victims may vary. Bell favored some oversight by the criminal justice system, such as getting the permission of a magistrate or judge before proceeding with an examination without consent.

However, in the end the commission decided to support proposed legislation that would allow the nurse or physician to conduct the examination with the approval of another medical professional who is not involved with the victim’s treatment.

That would give hospitals an additional means specifically granted under state law to conduct the examinations if a patient is unable to give consent.

Dr. William Hauda, an emergency physician and medical director of the Ewing Forensic Assessment and Consultation Team Department at Inova Fairfax, estimated there are four to six such patients a year at his hospital.

Typically their condition or the situation in which they were found suggests there may have been a sexual assault but they are not adequately aware to grant consent, he said.

“While the exam itself is not that uncomfortable, it is invasive. We are looking inside a vagina, we are doing swabs inside a vagina, we’re collecting things beyond what a normal doctor would collect,” Hauda said.

“I think most patients — given a choice — would want the evidence collected,” so they could later go to court and seek justice, he said. “If we don’t do the exam, then there’s very little opportunity for them to do that because the evidence is lost.”

In one case handled at his hospital, Hauda said an elderly woman unable to give consent was believed to have been sexually assaulted at her nursing home. Her guardian, a family member, was on a cruise ship and unreachable.

“Those are the kinds of situations where we as physicians and nurses want to be able do what the patient would want us to do in most situations,” Hauder said.

Hauder said it is not known how many victims would decline in an effort to protect the alleged assailant or for other reasons.

According to a recent study by the crime commission staff, forensic sexual-assault examinations fall in a “gray area” between providing care and collecting evidence.

Evidence in suspected sexual assaults is collected and preserved using a Physical Evidence Recovery Kit, or PERK. In the past five years, the Virginia Department of Forensic Science has received an average of 566 PERKs a year.

The examinations are frequently performed by specially trained forensic nurse examiners who also have regular nursing duties. They may conduct the examination for a hospital, at the request of law enforcement, or as part of a sexual-assault response team.

Medical professionals are split on what to do when consent cannot be obtained. Some say a court order or legal authority is necessary to perform the examination while others say they are not required, said the commission staff.

The staff surveyed some forensic nurse examiners who felt that the current practice of getting the evidence without consent in appropriate cases is adequate. If warranted, they said, a search warrant or other judicial approval can be obtained or the Department of Social Services can be contacted about minor victims.

However, some of the nurses think that a specific law authorizing them to perform the examinations without consent would help protect them and the victim.

Delays in performing the procedure could make it more difficult to collect evidence, and there is concern among hospital personnel that nurses could be subject to civil or even criminal liability regardless of whether the examination is performed.

It is possible to obtain a search warrant authorizing an examination, but that would involve the criminal justice system. The staff study said that there are no provisions under Virginia law specifically permitting sexual-assault examinations without consent.

Distributed by MCT Information Services


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