53rd legislature - STATE OF NEW MEXICO - second session, 2018


Elizabeth "Liz" Thomson and Joanne J. Ferrary

and Angelica Rubio and Patricia Roybal Caballero









     SECTION 1. A new section of Chapter 30, Article 9 NMSA 1978 is enacted to read:


          A. A health care provider who examines and collects a sexual assault examination kit from a survivor of sexual assault shall:

                (1) obtain contact information for the survivor;

                (2) provide the survivor with:

                     (a) a consent form by which the survivor may authorize the release of the kit to the relevant law enforcement agency and information about how the survivor may authorize the release of the kit to the agency at a later date; and

                     (b) a copy of the provider's kit retention policy, which shall require storage of an untested kit for at least twenty-four months before destruction;

                (3) if the survivor consents, notify the relevant law enforcement agency of the sexual assault and collection of the kit;

                (4) upon the survivor's request, notify the survivor when the kit is released to a law enforcement agency; and

                (5) provide the survivor's contact information to the law enforcement agency when the survivor's kit is transferred to that agency.

          B. No costs incurred by a health care provider for the collection of a sexual assault examination kit shall be charged directly or indirectly to the survivor, unless reimbursement to the survivor is provided pursuant to the Sexual Crimes Prosecution and Treatment Act.

          C. A law enforcement agency that receives a sexual assault examination kit from a medical provider shall:

                (1) confirm the survivor's contact information and request that the survivor inform the agency of any changes to that information;

                (2) inform the survivor of the survivor's right to request the following information from the agency:

                     (a) the status of testing of the survivor's kit and the date on which test results are expected, which information shall be provided to the survivor unless providing the information would interfere with the agency's investigation; and

                     (b) whether the agency was able to develop a DNA profile using the samples of biological material in the kit;

                (3) if a DNA profile is developed through testing of a kit, inform the survivor at the time the law enforcement agency submits the profile to a DNA database for comparison with other profiles;

                (4) inform a survivor of any DNA profile matches identified through comparison of the DNA profile developed in the survivor's case with those in a DNA database, unless providing that information would interfere with the agency's investigation; and

                (5) in a case in which the alleged sexual assault offender has not been identified, notify the survivor:

                     (a) if the law enforcement agency determines that the survivor's kit will not be tested; or

                     (b) in writing at least sixty days before destruction of a kit, if the law enforcement agency intends to destroy the survivor's kit, and provide information on how the survivor may appeal the agency's decision to destroy the kit.

          D. Before commencing an interview of a survivor, a law enforcement officer, prosecutor or defense attorney shall inform the survivor of the following:

                (1) the survivor's rights pursuant to this section and other relevant law by providing the survivor with a document to be developed by the department of public safety, which document shall be signed by the survivor to confirm receipt;

                (2) the survivor's right to consult with a sexual assault counselor during any interview by a law enforcement officer, prosecutor or defense attorney, and the counselor shall be summoned by the interviewer before the commencement of the interview, unless no sexual assault counselor can be summoned in a reasonably timely manner;

                (3) the survivor's right to have a support person of the survivor's choosing present during an interview by a law enforcement officer, prosecutor or defense attorney, unless the law enforcement officer, prosecutor or defense attorney determines in good faith professional judgment that the presence of that individual would be detrimental to the purpose of the interview; and

                (4) for interviews by a law enforcement officer, the survivor's right to be interviewed by a law enforcement officer of the gender of the survivor's choosing. If no law enforcement officer of that gender is reasonably available, the survivor may be interviewed by an available law enforcement officer only upon the survivor's consent.

          E. A law enforcement officer, prosecutor or defense attorney shall not, for any reason, discourage a survivor from receiving an examination or allowing collection of a sexual assault examination kit.

          F. In a civil or criminal case relating to a sexual assault, a survivor has the right:

                (1) to be reasonably protected from the defendant and persons acting on behalf of the defendant;

                (2) to not be required to submit to a polygraph examination as a prerequisite to filing an accusatory pleading or participating in any part of the criminal justice system;

                (3) to be heard through a survivor impact statement at any proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release decision or any other proceeding where a right of the survivor is at issue; and

                (4) to provide a sentencing recommendation to the probation department official conducting a pre-sentence investigation.

          G. A survivor retains the right to have legal counsel present during all stages of any medical examination, interview, investigation or other interaction with representatives from the legal or criminal justice systems within New Mexico. Treatment of the survivor should not be affected or altered in any way as a result of the survivor's decision to exercise the survivor's right to have counsel present as provided in this section.

          H. A law enforcement agency may require a survivor's requests for information pursuant to Subsection C of this section to be made in writing, and the agency may communicate its responses to those requests verbally or in writing.

          I. For the purpose of notifications and other communications provided for in this section, a survivor may designate another person to receive notifications and information on the survivor's behalf and the survivor shall provide the designee's contact information to a medical provider or law enforcement agency required to communicate with the survivor pursuant to this section.

          J. In the case of a survivor who is deceased, the following persons shall have the right to receive notifications and information required to be communicated to a survivor pursuant to this section:

                (1) a person who was the deceased survivor's spouse at the time of the survivor's death; or

                (2) the deceased survivor's parent or sibling or child who is eighteen years of age or older.

          K. A prosecutor shall not prosecute a survivor for minor criminal offenses, including underage consumption of alcohol, drug use or prostitution, if the evidence of the commission of the offense is obtained through the examination of and collection of a sexual assault examination kit from the survivor.

          L. Each person who has a responsibility to survivors pursuant to this section or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that survivors and witnesses receive such information and services to which they may be entitled under applicable law. Any failure to make such efforts, or any violation of the enumerated rights or provisions provided in this section, shall be considered a tortious act causing injury to person or property within New Mexico. The court may award reasonable attorney fees to a plaintiff who prevails on a claim pursuant to this subsection.

          M. For the purposes of this section:

                (1) "health care provider" means a sexual assault examination nurse or another health care provider authorized to examine and collect samples of biological material from a survivor of sexual assault following the assault; and

                (2) "sexual assault examination kit" means samples of biological material derived from a human body, including bodily fluid, hair and skin cells, collected during a medical examination of a survivor following a sexual assault."

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