502 KAR 12:010. Sexual assault medical protocol.

      RELATES TO: KRS 216B.400

      STATUTORY AUTHORITY: KRS 15A.160, 216B.400(2)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 15A.160 and 216B.400(2) authorize the cabinet to promulgate administrative regulations developing a statewide medical protocol for sexual assault examinations. This administrative regulation establishes the procedures to be followed by medical staff before, during, and after the examination of a victim of a sexual assault.

      Section 1. Definitions. (1) "Facility" means a hospital emergency room, or any facility established for the purpose of providing medical care and collecting forensic evidence for victims or sexual assault.

      (2) "Rape crisis center advocate" means a victim advocate who:

      (a) Has met the requirements of KRS 421.570; and

      (b) Works for a rape crisis center regulated by the Cabinet for Health Services, pursuant to KRS 210.410, 210.450, and 908 KAR 2:070.

      (3) "Victim" means a person who reports or has suffered direct, threatened, or attempted physical or emotional harm from the commission or attempted commission of:

      (a) A sexual offense, pursuant to KRS Chapter 510;

      (b) Incest, pursuant to KRS 530.020;

      (c) An assault or related offense, pursuant to KRS Chapter 508;

      (d) An offense relating to:

      1. The use of a minor in a sexual performance, pursuant to KRS 531.310;

      2. Promoting a sexual performance by a minor, pursuant to KRS 531.320; or

      3. An unlawful transaction with a minor, pursuant to KRS 530.064, 530.065, or 530.070; or

      (e) An offense that endangered the welfare of an incompetent person, pursuant to KRS 530.080.

      Section 2. Preforensic Examination Procedure. When a victim reporting one (1) of the designated offenses described in Section 1 of this administrative regulation arrives at a health facility, the following process shall be completed and documented by the appropriate staff at the facility prior to conducting the forensic examination:

      (1) Contact the rape crisis center to inform the on call advocate that a victim has arrived at the health facility for an examination;

      (2) Ask if the victim wishes to have a rape crisis center advocate present for the examination.

      (3) Inform the victim that all statements made during the interview, and the evidence collection process, to physicians, nurses, other hospital personnel, law enforcement officers or to rape crisis center advocates are not privileged and may be disclosed;

      (4) Provide a detailed explanation of the forensic examination, the reasons for conducting the exam and the effect on a criminal prosecution if a forensic examination is not performed;

      (5) Advise the victim that photographs and other documentation may be used as evidence and that the photographs may include the genitalia;

      (6) Advise the victim that the forensic examination shall be conducted free of charge, but costs related to medical treatment may be incurred;

      (7) Inform the victim that consent for the forensic evidence collection process may be withdrawn at any time during the examination;

      (8) Inform the victim of the need for a physical examination due to the risk of sexually transmitted diseases, pregnancy, injury or other medical problems whether or not the victim chooses to have the evidence collected;

      (9) Obtain documented consent from the victim prior to conducting the forensic rape examination.

      Section 3. The Forensic Examination. (1) A physical examination may be conducted for the collection of evidence in all cases of sexual assault, regardless of the length of time which may have elapsed between the time of the assault and the examination itself;

      (2) If the sexual assault occurred within ninety-six (96) hours prior to the forensic examination, a Kentucky State Police Sexual Assault Evidence Collection Kit shall be used. This kit consists of:

      (a) Instructions;

      (b) Evidence envelope;

      (c) Comb; and

      (d) Swabs;

      (3) Personnel in attendance during the forensic examination shall be limited to the following persons:

      (a) Examining physician or sexual assault nurse examiner, as defined in KRS 314.011(14);

      (b) Attending nurse;

      (c) Rape crisis center advocate; and

      (d) Other persons who are:

      1. Dictated by the health needs of the victim; or

      2. Requested by the victim;

      (4) Photographs including photographs of the genitalia may be taken if the appropriate equipment is available at the health facility and the victim has consented to having photographs taken;

      (5) The following types of evidence may be collected during the examination:

      (a) Hairs from the head or pubic region;

      (b) Fingernail cuttings;

      (c) Clothing fibers, or other trace evidence;

      (d) Bodily fluids, including:

      1. Semen;

      2. Blood; and

      3. Saliva;

      (e) Clothing; and

      (f) Other evidence that could be presented at a trial;

      (6) Evidence shall not be collected if the victim is unconscious unless the collection is consistent with appropriate and necessary medical treatment;

      (7) The collection of evidence shall cease immediately if the victim dies during the process.

      (8) The coroner shall be contacted if the victim dies during the collection of evidence process and the evidence collected up to that time shall be delivered to the coroner or the designee of the coroner;

      (9) The coroner shall be notified in accordance with the law and evidence shall not be collected if the victim is deceased upon arrival.

      Section 4. Postforensic Examination Procedures. At the conclusion of the forensic examination the appropriate personnel at the health facility shall provide the victim with:

      (1) Information regarding follow-up procedures and appointments concerning:

      (a) Sexually transmitted diseases;

      (b) Pregnancy;

      (c) Urinary tract or other infections; and

      (d) Similar assault related health conditions;

      (2) Information regarding the availability of follow-up counseling and support services available from a rape crisis center or other mental health agency;

      (3) Information from the law enforcement officer regarding who to contact about the prosecution of the offense;

      (4) A garment or other appropriate clothing to wear in leaving the hospital, or provide assistance in obtaining other personal clothing;

      (5) Information about:

      (a) The Crime Victim’s Compensation Board, as addressed in KRS Chapter 346; and

      (b) The following administrative regulations providing aid to a crime victim:

      1. 107 KAR 1:005;

      2. 107 KAR 1:010;

      3. 107 KAR 1:015;

      4. 107 KAR 1:025; and

      5. 107 KAR 1:040. (25 Ky.R. 2479; Am. 26 Ky.R. 378; eff. 8-16-99.)