HOUSE BILL 528

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Zachary J. Cook

AN ACT

RELATING TO CRIMES; AMENDING THE SEXUAL CRIMES PROSECUTION AND TREATMENT ACT TO PROVIDE FOR ADDITIONAL RIGHTS FOR VICTIMS OF SEXUAL CRIMES; ENUMERATING ADDITIONAL CRIMES IN THE CRIME VICTIMS REPARATIONS ACT FOR WHICH REPARATIONS MAY BE MADE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 29-11-1 NMSA 1978 (being Laws 1978, Chapter 27, Section 1) is amended to read:

     "29-11-1. SHORT TITLE.--[This act] Chapter 29, Article 11 NMSA 1978 may be cited as the "Sexual Crimes Prosecution and Treatment Act"."

     SECTION 2. Section 29-11-3 NMSA 1978 (being Laws 1978, Chapter 27, Section 3, as amended) is amended to read:

     "29-11-3. DEFINITIONS.--As used in the Sexual Crimes Prosecution and Treatment Act:

          A. "active case" means a felony sexual assault crime reported to law enforcement that:

                (1) includes as evidence a sexual assault examination kit;

                (2) has remained unsolved for less than two years; or

                (3) is requested by the law enforcement investigating agency or is requested by a prosecutor for a pending prosecution;

          [A.] B. "administrator" means the director of the [mental health division of the department of health] behavioral health services division of the human services department or such person or office as the administrator may designate to act in [his] the administrator's stead;

          C. "cold case" means a sexual assault examination kit from an alleged felony crime reported to law enforcement that has remained unsolved for over two years after the crime was initially reported to law enforcement and for which the applicable statute of limitations has not expired;

          [B.] D. "evidence" means that evidence relating to the commission of a sexual crime;

          [C.] E. "medical and psychological treatment" includes that medical, mental or emotional treatment provided a victim of a sexual crime. In addition to the improved physical and emotional condition of a victim, the treatment should result in the improved ability of a victim to make informed and rational choices about serving as a witness in the prosecution of a suspect of a sexual crime; [and

          D.] F. "sexual crime" includes any act [which] that may be alleged to be a sexual offense or an attempted sexual offense under the provisions of Sections 30-9-10 through [30-9-16] 30-9-14.3 and 30-10-3 NMSA 1978;

          G. "unreported sexual assault examination kits" means sexual assault examination kits that are being held while the victim decides if the victim will report the alleged crime;

          H. "victim" means a person against whom a sexual crime has been committed. For purposes of the victim's right to notification, "victim":

                (1) includes the parent or guardian of a minor victim, or if the victim is killed or incapacitated, one of the following, in the order of priority listed:

                     (a) the victim's spouse;

                     (b) the victim's parent;

                     (c) the victim's adult child;

                     (d) the victim's grandparent;

                     (e) the victim's sibling; or

                     (f) any other person related to the victim by consanguinity or affinity to the second degree or any other lawful representative of the victim; but

                (2) does not include the accused, even if the accused is one of the persons listed in Paragraph (1) of this subsection; and

          I. "victim advocate" means a person who is employed or authorized by a public or private entity to provide counseling, treatment or other supportive assistance to crime victims."

     SECTION 3. Section 29-11-7 NMSA 1978 (being Laws 1995, Chapter 91, Section 2) is amended to read:

     "29-11-7. FREE FORENSIC MEDICAL EXAMS FOR VICTIMS OF SEXUAL CRIMES.--

          A. The administrator shall:

                [A.] (1) provide free forensic medical exams to victims of sexual crimes;

                [B.] (2) arrange for victims of sexual crimes to obtain free forensic medical exams; or

                [C.] (3) reimburse victims of sexual crimes for the cost of forensic medical exams; provided that:

                     [(1)] (a) the reimbursement covers the full cost of the forensic medical exam, without any deductible requirement or limit on the amount of the reimbursement;

                     [(2)] (b) the victim of a sexual crime is entitled to apply for reimbursement for a period of one year from the date of the forensic medical exam;

                     [(3)] (c) reimbursement is provided not later than ninety days after the administrator receives written notification of the expense incurred by the victim for the forensic medical exam; and

                     [(4)] (d) all victims of sexual crimes, including victims with limited or no English proficiency, are provided with information at the time of the forensic medical exam regarding how to obtain reimbursement for the cost of the exam.

          B. For active cases:

                (1) law enforcement shall assist the victim, upon request, in obtaining medical treatment necessitated by the sexual crime, including providing assistance in obtaining transportation to a health care facility offering post-sexual-crime medical care or medical forensic exams; and

                (2) law enforcement and victim advocates shall notify the victim of the victim's right to be accompanied by a victim advocate at any proceeding related to a sexual crime, including a sexual crime medical forensic exam.

          C. The statewide sexual assault coalition shall work with law enforcement to develop standards for:

                (1) consent for the collection, testing and release of test results of the forensic medical evidence;

                (2) consent forms that notify victims of the potential effects of each step of the process, including the collection and testing of medical forensic evidence and release of forensic laboratory test results, and that require acknowledgment of consent for each step of the process;

                (3) who may give consent and when it is required;

                (4) who may withdraw consent and when it may be withdrawn; and

                (5) when, how, to whom and for what purposes the results of any tests may be released.

          D. Law enforcement shall adhere to the standards established pursuant to Subsection C of this section.

          E. Law enforcement and medical personnel shall not, for any reason, discourage a victim from receiving a medical forensic exam."

     SECTION 4. A new section of the Sexual Crimes Prosecution and Treatment Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO NOTICE REGARDING ACTIVE CASE INVESTIGATION AND FORENSIC EVIDENCE.--

          A. At the time of the initial contact between a victim and a law enforcement agency, the agency shall provide the victim notice of the victim's rights under the Sexual Crimes Prosecution and Treatment Act.

          B. After the initial contact between a victim and a law enforcement agency, the law enforcement agency shall provide the victim written notice of the victim's rights pursuant to this section. The victim shall have the following rights, upon request:

                (1) the right to receive a free copy of the initial incident report; and

                (2) the right to be informed regarding the status of any analysis being performed on any DNA evidence that was collected during the investigation of the offense, including:

                     (a) when a request is submitted to a crime laboratory to process and analyze any evidence that was collected during the investigation of the offense;

                     (b) whether a DNA profile of the assailant was obtained from that analysis; and

                     (c) when a request is submitted to compare any biological evidence collected during the investigation of the offense with DNA profiles maintained in a state or federal DNA database.

          C. To ensure objectivity of forensic personnel, all requests made pursuant to Subsection B of this section shall be made in writing through the law enforcement agency's investigating officers."

     SECTION 5. A new section of the Sexual Crimes Prosecution and Treatment Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO NOTICE IN COLD CASES.--

          A. The law enforcement agency responsible for investigating a sexual crime shall provide the victim in a cold case with information concerning any change in the status of the case, including the reopening of the case to resume investigation, unless such disclosure would unreasonably interfere with the investigation.

          B. Upon the written request of the victim, the law enforcement agency shall provide an update at least annually to the victim concerning the status of a cold case."

     SECTION 6. A new section of the Sexual Crimes Prosecution and Treatment Act is enacted to read:

     "[NEW MATERIAL] RIGHT TO NOTICE IN COLD CASES.--No law enforcement agency or crime lab responsible for processing sexual assault exam kits shall process cold case kits or forensic evidence until the following steps have been taken:

          A. no later than January 1, 2016, a "victims' rights task force for sexual assault cold cases" shall be formed and shall include:

                (1) the director or designee from the department of public safety;

                (2) the director or designee from the New Mexico association of district attorneys;

                (3) a sex crimes law enforcement investigator designated by the chief of the Albuquerque police department;

                (4) a chief of police, or the chief's designee, from a rural area of the state;

                (5) the director of the Albuquerque police department's crime laboratory, or the director's designee;

                (6) the director of the statewide sexual assault coalition or the director's designee;

                (7) the director of a rape crisis center from southern New Mexico or the director's designee;

                (8) the director of a rape crisis center from northern New Mexico or the director's designee;

                (9) the director of the crime victims reparation commission or the director's designee;

                (10) the chief public defender or the chief's designee;

                (11) a representative of the New Mexico criminal defense lawyers association;

                (12) a representative appointed by the governor;

                (13) a representative appointed by the president pro tempore of the senate; and

                (14) a representative appointed by the speaker of the house of representatives;

          B. no later than July 1, 2016, the victims' rights task force for sexual assault cold cases shall:

                (1) establish, implement, and complete a process for conducting an inventory of all sexual assault cold case exam kits and forensic evidence;

                (2) report the results of the inventory to the appropriate legislative interim committee that studies courts, corrections and justice-related issues;

                (3) create standards for what evidence must be submitted to any crime laboratory in New Mexico;

                (4) create time frames for when the evidence must be submitted, analyzed and compared to DNA databases;

                (5) create victim notification and consent procedures and forms that include:

                     (a) standards for consent for the collection, testing and release of test results of the forensic medical evidence; and

                     (b) consent forms that clearly and plainly: 1) explain the potential effects of each step of the process, including collection, testing and release of test results, and require acknowledgment of consent for each step of the process; 2) give the victim the right to withdraw consent at any point in the process; 3) explain when and how results of tests may be released and for what purposes; and 4) set forth the date by which a law enforcement agency must analyze its backlog of forensic medical evidence if it does not forward such evidence to the appropriate crime laboratory;

                (6) create recommendations on how long to store unreported sexual assault examination kits;

                (7) create recommendations on how to destroy unreported sexual assault examination kits;

                (8) create recommendations on how to destroy sexual assault examinations kits from other cases; and

                (9) create recommendations concerning any changes or clarifications to the procedures set forth in Section 30-9-19 NMSA 1978;

          C. on or before January 1, 2017, each law enforcement agency in the state shall comply with the standards established by the victims' rights task force for sexual assault cold cases; provided, however, that the failure of a law enforcement agency to comply with the standards shall not affect:

                (1) the authority of the agency to submit evidence to crime laboratories; or

                (2) the admissibility of the evidence in any court;

          D. all medical facility personnel performing forensic medical examinations in sexual assault cases shall comply with the standards established by the victims' rights task force for sexual assault cold cases; and

          E. all persons having custody of forensic medical evidence collected in connection with an alleged sexual assault or the results of tests conducted on the evidence shall comply with the standards established by the victims' rights task force for sexual assault cold cases."

     SECTION 7. A new section of the Sexual Crimes Prosecution and Treatment Act is enacted to read:

     "[NEW MATERIAL] REQUEST FOR INFORMATION BY A VICTIM.--

          A. A victim who requests notification pursuant to Section 4, 5 or 6 of this 2015 act shall provide a current address, telephone number and email address, as applicable, to the attorney representing the state and the law enforcement agency that is investigating the offense. The victim must inform the attorney representing the state and the law enforcement agency of any change in the victim's contact information.

          B. A victim may designate a person, including an entity that provides services to victims of sexual crimes or the victim's attorney, to receive any notice requested pursuant to Section 4, 5 or 6 of this 2015 act. The designation must include a current address, telephone number and email address, as applicable, for the designee."

     SECTION 8. A new section of the Sexual Crimes Prosecution and Treatment Act is enacted to read:

     "[NEW MATERIAL] RIGHTS SUPPLEMENTAL TO VICTIMS OF CRIME ACT.--The rights enumerated in the Sexual Crimes Prosecution and Treatment Act shall be supplemental to the rights included in the Victims of Crime Act."

     SECTION 9. Section 31-22-8 NMSA 1978 (being Laws 1981, Chapter 325, Section 8, as amended) is amended to read:

     "31-22-8. CRIMES ENUMERATED.--

          A. The crimes to which the Crime Victims Reparation Act applies and for which reparation to victims may be made are the following enumerated offenses and all other offenses in which any enumerated offense is necessarily included:

                (1) arson resulting in bodily injury;

                (2) aggravated arson;

                (3) aggravated assault or aggravated battery;

                (4) aggravated assault against a household member;

                (5) assault against a household member with intent to commit a violent felony;

                (6) aggravated battery against a household member;

                [(4)] (7) dangerous use of explosives;

                [(5)] (8) negligent use of a deadly weapon;

                [(6)] (9) murder;

                [(7)] (10) voluntary manslaughter;

                [(8)] (11) involuntary manslaughter;

                [(9)] (12) kidnapping;

                [(10)] (13) criminal sexual penetration;

                [(11)] (14) criminal sexual contact of a minor;

                [(12)] (15) homicide by vehicle or great bodily injury by vehicle, as provided in Section 66-8-101 NMSA 1978;

                [(13)] (16) abandonment or abuse of a child;

                [(14)] (17) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;

                [(15)] (18) aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; and

                [(16)] (19) human trafficking.

          B. No award shall be made for any loss or damage to property."

     SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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