COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 100
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 7, 1996.]
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A BILL to amend and reenact section one, article eight-b, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto four new sections, designated
sections fifteen, sixteen, seventeen and eighteen, all
relating to the definition of terms; creating forensic
medical examination fund; payment from the forensic medical
examination fund of the costs of forensic medical exams
given to victims of certain sexual offenses; reimbursement
study; recordkeeping; disclosure; confidentiality; and
rulemaking.
Be it enacted by the Legislature of West Virginia:
That section one, article eight-b, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto four new sections, designated
sections fifteen, sixteen, seventeen and eighteen, all to read as
follows:
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-1. Definition of terms.
In this article, unless a different meaning plainly is
required:
(1) "Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as
might reasonably be expected under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a
person in fear of immediate death or bodily injury to himself or
another person or in fear that he or another person will be
kidnapped; or
(c) Fear by a
child person under sixteen years of age caused
by intimidation, expressed or implied, by another person
who is
at least four years older than the victim.
For the purposes of this definition "resistance" includes
physical resistance or any clear communication of the victim's
lack of consent.
(2) "Married," for the purposes of this article in addition
to its legal meaning, includes persons living together as husband
and wife regardless of the legal status of their relationship.
(3) "Mentally defective" means that a person suffers from a
mental disease or defect which renders such person incapable of
appraising the nature of his conduct.
(4) "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his or her
conduct as a result of the influence of a controlled or
intoxicating substance administered to such person without his or her consent or as a result of any other act committed upon such
person without his or her consent.
(5) "Physically helpless" means that a person is unconscious
or for any reason is physically unable to communicate
unwillingness to an act.
(6) "Sexual contact" means any intentional touching, either
directly or through clothing, of the anus or any part of the sex
organs of another person, or the breasts of a female or
intentional touching of any part of another person's body by the
actor's sex organs, where the victim is not married to the actor
and the touching is done for the purpose of gratifying the sexual
desire of either party.
(7) "Sexual intercourse" means any act between persons not
married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact
between the sex organs of one person and the mouth or anus of
another person.
(8) "Sexual intrusion" means any act between persons not
married to each other involving penetration, however slight, of
the female sex organ or of the anus of any person by an object
for the purpose of degrading or humiliating the person so
penetrated or for gratifying the sexual desire of either party.
(9) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition.
(10) "Serious bodily injury" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
(11) "Deadly weapon" means any instrument, device or thing
capable of inflicting death or serious bodily injury, and
designed or specially adapted for use as a weapon, or possessed,
carried or used as a weapon.
(12) "Forensic medical examination" means an examination
provided to a possible victim of a violation of the provisions of
this article by medical personnel qualified to gather evidence of
such violation in a manner suitable for use in a court of law, to
include: An examination for physical trauma; a determination of
penetration or force; a patient interview; and the collection and
evaluation of other evidence that is potentially relevant to the
determination that a violation of the provisions of this article
occurred and to the determination of the identity of the
assailant.
§61-8B-15. Creation of a forensic medical examination fund.
There is hereby created "The Forensic Medical Examination
Fund" created as a special fund in the state treasury into which
shall be deposited the appropriations made to such fund by the
Legislature. Expenditures from the fund shall be made by the
West Virginia prosecuting attorneys institute, created by the
provisions of section six, article four, chapter seven of this
code, for the payment of the costs of forensic medical
examinations as such are defined in section sixteen of this
article and for the reimbursement to the institute of its
expenses in administering the payment of such costs from the
fund.
§61-8B-16. Payment for costs of forensic medical examination.
(a) When any person alleges that he or she has been the
victim of an offense proscribed by this article, 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 this person 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 seventy-two hours of the alleged violation;
(4) The licensed medical facility must apply for payment of
the costs of a forensic medical examination from the fund within
ninety days of the examination;
(5) The licensed medical facility shall submit a statement
of charges to the prosecuting attorney in the county in which the
alleged offense occurred and the prosecuting attorney shall
certify, if proper, that the forensic medical examination was
conducted as a part of a criminal investigation; and
(6) The prosecuting attorney shall, within sixty days of
receipt of a statement of charges from the licensed medical
provider, forward the statement of charges and the certification to the West Virginia prosecuting attorneys institute for payment
from the fund and for the reimbursement of the Institute from the
fund for the reasonable costs of processing and recording such
payment.
(b) No licensed medical provider may collect the costs of
a forensic medical examination from the victim of an alleged
violation of this article 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
subsection (a) of this section.
§61-8B-17. Study of reimbursement; recordkeeping; disclosure;
confidentiality.
(a) The West Virginia prosecuting attorneys institute is
hereby directed to undertake a study of the viability of the
state seeking reimbursement from private insurance companies for
the cost of forensic medical examinations. Such study shall be
completed prior to the first day of the regular legislative
session of the year one thousand nine hundred ninety-seven and
provided to the president of the Senate and the speaker of the
House of Delegates.
(b) The West Virginia prosecuting attorneys institute shall
develop and maintain a database for use by law-enforcement
personnel, prosecuting attorneys and persons engaged in lawful
research of the information collected pursuant to its
administration of the forensic medical examination fund. Said
database shall include the number of examinations performed, the
facilities performing the examination and where feasible, other information deemed to be of assistance to law-enforcement and the
prosecution of sexual offenses. The database shall be maintained
in a manner which assures the confidentiality of the information.
§61-8B-18. Rule-making authority.
The executive council of the West Virginia prosecuting
attorneys institute, created by the provisions of section six,
article four, chapter seven of this code, shall promulgate rules
for the administration of the forensic medical examination fund,
establishing qualifications for medical personnel performing a
forensic medical examination and any rules necessary to the
implementation of this program. The institute shall also create
and distribute to all licensed medical facilities, law
enforcement agencies and prosecuting attorneys' offices the
instructional manuals and forms necessary to perform forensic
medical examinations and to receive payment from the fund. From
the effective date of this section until the date of the
promulgation of these rules, the executive council of the West
Virginia prosecuting attorneys institute may file rules as
emergency rules in accordance with the applicable provisions of
this code in order to govern during this period of time the
administration of the fund.
NOTE: A bill to create a fund to pay the cost of forensic
medical examinations for victims of sexual assault. This bill
will bring the State of West Virginia in compliance with the
federal Violence Against Women Act, which compliance is necessary
for continued funding under the act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language that would be added.
§61-8B-15, 16, 17 and 18 are new, therefore, strike-throughs
and underscoring have been omitted.
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