DAL 16-19 - Requirements Regarding Emergency Services for Victims of Sexual Offense

December 1, 2016


Dear Chief Executive Officer:

The purpose of this letter is to clarify the requirements for hospitals regarding emergency services for victims of sexual offense, and the collection and maintenance of sexual offense evidence. It is imperative that these services meet the health care needs of victims, provide emotional support and maintain sexual offense evidence for potential legal proceedings.

Treatment of Sexual Offense Victims

Under New York State Public Health Law §2805-i, it is the duty of every hospital providing treatment to alleged victims of sexual offense to contact a rape crisis or victim assistance organization, and offer and make available HIV post-exposure treatment therapies. New York State Public Health Law §2805-p also requires every hospital providing emergency treatment to a rape survivor to provide written information about emergency contraception; inform them about its availability, use and efficacy; and provide emergency contraception, unless contraindicated, upon her request.

Under State health regulation 10 NYCRR §405.9(c), it is duty of the hospital to provide appropriate assessment, emergency treatment and referrals to meet health care needs. These regulations detail additional prophylaxis against sexually transmitted diseases, availability of rape crisis services and options of reporting the sexual offense to the local law enforcement.

Due to the traumatic nature of sexual offenses, it is important to provide victims with timely, compassionate, victim-centered care. Hospitals should maintain up-to-date protocols regarding the care of sexual offense victims and the collection and maintenance of sexual offense evidence. Patients should be advised of the availability of services provided by a local rape crisis or victim assistance organization, and the hospital should secure such services if requested by the victim. Special consideration should be for an appropriate and safe discharge from the hospital with suitable attire, transportation and other appropriate arrangements to meet patient needs.

Maintenance of Forensic Evidence

Under New York State Public Health Law §2805-i, it is the duty of every hospital providing treatment to alleged victims of sexual offense to maintain sexual offense evidence with a chain of custody, in a separate locked and secure area, for not less than thirty days. The sexual offense victim may sign a statement directing the hospital not to collect and keep privileged evidence. If they request evidence collected, they may request that the privileged evidence be turned over to the police before that time. The victim should be notified that after thirty days, the refrigerated evidence will be discarded and any clothing maintained as evidence will be returned to the victim upon request.

Privileged sexual offense evidence is defined in 10 NYCRR §405.9(c)(2)(iv) as evidence collected during a hospital examination and treatment of injuries sustained as a result of a sexual offense. Section 405.9(c)(2)(v) defines sexual offense evidence that is not privileged as that resulting from child abuse or other alleged crimes committed simultaneously with the sexual offense.

Proper evidentiary examination to collect and preserve evidence is critical for law enforcement and future legal proceedings. All evidence must be properly collected, labeled and stored to preserve for potential future forensic laboratory examination. Hospitals should establish and implement written policies and procedures that are consistent with regulations and apply to all service units of the hospital which may treat victims of sexual offense.

Hospitals that are utilizing trained examiners from an outside group (e.g. another hospital, a Visiting Nurse Service or a private practice) must ensure that they are appropriately certified by the Department of Health and have been credentialed by the hospital. The hospital continues to be responsible for the contracted service and compliance with the laws and regulations related to treatment of sexual assault victims and maintenance of forensic evidence.

The New York State Department of Health is working with the other state agencies to update the forensic evidence collection kit and instructions and to clarify the information to be obtained to assist with potential legal proceedings. We expect that revised training will be available for hospitals in the near future.

Should you have any questions, please contact Kristine Mesler or Ann-Margret Foley at 518-474-0535.


Lauren J. Tobias
Division of Family Health

Ruth Leslie
Division of Hospitals and Diagnostic & Treatment Centers