Law Enforcement Response
IMPORTANT: PLEASE NOTE
Per the 2007 legislation and per statutory changes effective July 1, 2007, the law states that a victim of sexual assault is NOT required to participate in the criminal justice system OR cooperate with law enforcement in order to have a forensic medical examination. (West Virginia Code §61-8B-16)
When a victim presents to the hospital and chooses to involve law enforcement, an investigating officer or local police agency should be contacted immediately following hospital protocol.
Ideally, the forensic medical examination should be conducted by a sexual assault nurse examiner (SANE). Payment will not be refused based on qualifications of the medical personnel performing the examination when the forensic medical examination is conducted by a licensed health care professional acting within the scope of practice at a licensed medical facility.
A licensed medical facility may not bill the
victim of a reported sexual assault for costs
associated with a forensic medical
WEST VIRGINIA PROTOCOL
Prosecution Response
A sexual assault victim has been subjected to one of the most traumatic experiences possible. As a prosecutor carries out his constitutional duty of representing the state in a sexual assault case, an important consideration is the victim’s need to be informed about the reasons motivating decisions that may appear to be adverse to the interests of the victim.
General Prosecution Protocol
• Notify the victim of all hearings and changes in schedules.
• Consider the needs of the victim when scheduling case-related activities (i.e., religious holidays, health requirements, family commitments and occupational requirements).
• Facilitate the victim's participation in all activities at which the victim has a right to be present.
• Establish communication methods to avoid unnecessary trips to the courthouse (i.e., electronic pagers, an on-call system for victims, or a voice mail system so victims may call in and receive current case status information).
• Object to continuances unless they benefit the victim.
• Establish and maintain direct liaison with victim/witnesses and rape crisis centers advocates.
• Recognize the impact that sexual assault has on child and adult victim and their families.
Initial Appearance, Arraignment and Bail Hearing
• Discuss conditions of release with the victim prior to bail hearing and allow the victim to express concerns about the suspected assailant. • Request that any suspected offender’s release on bail or release on their
own recognizance (ROR) include a protection order for the victim. • Inform the victim how to stay current on the detention status of the
Plea Negotiations
• Inform the victim of reasons to consider a negotiated plea. • Describe optional courses of action other than a negotiated plea. • Determine what courses of action the victim wants to take.
• Consider the needs of the victim in determining whether to accept a plea (i.e., restitution, protection, and emotional security).
Trial
• Provide separate areas for the victim and defense witnesses. • Attempt to provide court accompaniment for the victim.
• Keep the victim informed about court schedules: dates, times and places.
Sentencing
• Comply with WV Code 61-11A- et. sequiem (Victim Act of 1984) • Ensure an opportunity for the victim impact statement to be part of
sentencing considerations.
• Include the victim’s needs as part of the sentencing recommendations (i.e., restitution, protection, emotional security).
Post Sentencing
• Notify the victim about changes in offender status, if known. • Notify the victim of scheduled parole hearings, if known.
• Provide priority prosecution for violations of release conditions.
Responsibilities of the WV Prosecuting Attorneys Institute
The WV Prosecuting Attorneys Institute was charged with the responsibility of administering the Forensic Medical Examination Fund and providing reimbursement to licensed medical facilities performing forensic medical examinations according to WV Code §61-8B-1 and WV Code §61-8B-15.
The Forensic Medical Examination Fund is restricted to the payment of all reasonable and customary costs of a forensic medical examination, which must be conducted within a reasonable time of the reported sexual assault.
No payment shall be made from this fund for non-forensic procedures or treatment. The legislation provides that following the forensic medical examination, the
medical facility shall certify that the forensic medical examination was performed and submit an original invoice and completed certification form to the WV Prosecuting Attorneys Institute requesting reimbursement from the fund for the forensic medical examination.
IMPORTANT: PLEASE NOTE
[Per 2007 legislation and per statutory changes effective July 1, 2007 the law states that a victim of sexual assault is NOT required to participate in the criminal justice system OR cooperate with law enforcement in order to have a forensic medical exam. (West Virginia Code §61-8B-16)]
The major objective of the Forensic Medical Examination Fund is to provide payment for forensic medical examinations in sexual assault cases. However, additional benefits include providing a more effective prosecution of persons reported to have committed a sexual assault, while protecting the rights and dignities of victims of sexual assault.
Payment For Costs of the Forensic Medical Examination
a.) The West Virginia Prosecuting Attorneys Institute shall pay to a licensed medical facility from the Forensic Medical Examination Fund the cost of the forensic medical examination for a victim of sexual assault on the following conditions and in the following manner:
1. The payment shall cover all reasonable, customary and usual costs of the forensic medical examination;
2. The costs of additional non-forensic procedures performed by the licensed medical facility, including, but not limited to, prophylactic treatment, treatment of injuries, testing for pregnancy and testing for sexually transmitted diseases, may not be paid from the fund;
3. The forensic medical examination must have been conducted within a reasonable time of the reported sexual assault;
4. The licensed medical facility must apply for payment of the costs of a forensic medical examination from the fund within a reasonable time of the examination;
5. The licensed medical facility shall certify that the forensic medical examination was performed and submit a statement of charges to the West Virginia Prosecuting Attorneys Institute along with a completed certification form for payment from the fund.
• No licensed medical facility may collect the costs of a forensic medical examination from a victim of sexual assault or from the victim’s insurance company.
• A victim of sexual assault is not required to participate in the criminal justice system OR to cooperate with law enforcement in order to be provided a forensic medical examination.
b.) No licensed medical facility may collect the costs of a forensic medical examination from the victim of a sexual assault if the reasonable, customary and usual costs of the forensic medical examination qualifies for payment from the Forensic Medical Examination Fund as set forth in WV Code §61- 8B-16.
According to changes to the “Effect of Amendment of 1999”(a)(3), the West Virginia State Police Forensic Laboratory has informed us that ninety-six (96) hours is the “reasonable time” and outside limit for conducting the forensic medical examination and (a)(4), a reasonable time for submitting a statement of charges for costs of the forensic medical examination is “ninety (90) days”.