(This project was supported by Grant No. 96-WT-NX-0007 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position of policies of the U.S. Department of Justice.)

Review of State Sexual Assault Laws, 1998 Legislative Codes

February 1999

Neal Miller, Esq., Principal Associate, Institute for Law and Justice

Laws against rape and other sexual crimes against women are part of the common law heritage that underlies todays criminal laws. Recently, however, increased policy attention has been paid to the need for tougher sexual assault laws. Penal code changes include increased penalties, establishment of new criminal laws directed at marital rape, and elimination of statutes of limitations that restrict prosecution after a period of time has elapsed.

Other, less traditional types of laws have also been enacted. These include laws intended to ease the prosecution of persons charged with sexual assault crimes, increased services to victims of sexual assaults, and sex offender registration laws. They also include laws that authorize Internet posting of sex offender registration information. A last category of laws directed at sexual assault includes laws that authorize civil commitment of recidivistic sex offenders.

Penal Code Enactments

Penal code amendments directed at sexual assault crimes include increased penalties, new marital rape laws, and repeal of applicable statutes of limitations. Changes in the penalty structure for sexual assault structures would require a detailed analysis that compares state criminal laws across the various levels of crime that fall under the rubric of sexual assault, from first-degree rape to misdemeanor touchings. Such an analysis would be far too complex for the present analysis and will be left to others to undertake.

Marital rape laws have become increasingly common as states undertake to repeal the doctrine that rape in the context of marriage is an impossibility. A separate report on domestic violence crimes by this author has already undertaken this analysis. The reader is referred to this report for further information on which states have adopted marital rape laws, which states retain a marital exception rape law, and which states have both.

At least three states have repealed their laws that establish a statute of limitations for sexual assault crimes involving rape. In at least one of these states, Florida, repeal of the statute of limitations for rape was premised, at least in part, on the emergence of DNA testing evidence whose significance is not affected by the passage of time.

More Effective Prosecution

Prosecution of sexual assault crimes can be weakened by the lack of willingness among victims to undergo the ordeal of a criminal prosecution. To help ease victim fears, states have enacted two types of laws: rape shield laws and counselor privilege laws.

Rape Shield Laws

Laws in all 50 states limit the evidentiary use of a victims prior sexual history as part of an effort to undermine the credibility of the victims testimony. Where the prior sexual history is relevant, however, most states laws authorize the judge to permit cross-examination on this topic at the courts discretion.

Counselor-Privilege Laws

Rape victims are often in need of counseling both immediately after the rape is reported and for long-term treatment. While an evidentiary privilege against revealing the contents of a treatment session with a physician, psychiatrist or clinical psychologist is available in almost all states, there is no such privilege for counseling sessions with a rape counseling specialist. In about half the states, legislation has recently been enacted to establish such a privilege.

Other Prosecution-Related Laws

Improved effectiveness in the collection of evidence is an objective of efforts to improve prosecution against persons charged with sexual assault. Among the legislative initiatives identified are

• Establishment of police evidence protocols to ensure uniformity and completeness (9 states)
• Training for health care providers in evidence collection (8 states)
• Victim right to have advocate present at interviews or examinations (1 state).

Increased Victim Services

Federal funding under the Violence Against Women Act includes a significant commitment to increased services for victims of sexual assault. Often this includes funds for treatment centers and battered women shelters. Two areas of specific concern to law enforcement have been state payment of medical exam costs and AIDS testing of offenders.

Medical Exam Costs

The most important evidence of rape comes from the medical examination of the rape victim. At this time, evidence of forced sexual intercourse will be gathered and semen samples from the rapist retrieved. Forty-one states have enacted laws that explicitly provide that the state will pay for the costs of the medical examination. However, in three of these states, the state pays only for costs not covered by insurance. And in Pennsylvania, hospitals are encouraged to bill insurance companies, but may not bill victims. Three states also provide for defendant restitution of victims medical costs to the state upon conviction.

AIDS Testing

Fear of exposure to the HIV virus and AIDS is a common reaction among rape victims. Indeed, there have been several instances of rape victims asking the rapist to use a condom before committing the rape. Thus, 47 states have laws that require that offenders charged or convicted of sexual assault be tested for AIDS and the victim be notified of the test results.

Training in Victim Needs

Rape victims need a number of important services to help with the trauma of rape. These services begin with the initial police contact and continue through short- and long-term counseling. Ten states have laws that require training in handling rape victims for police and prosecutors. These laws are, of course, in addition to other, victim rights laws that provide generally for officer referral to services and more generalized training in dealing with crime victims.

Preventive Measures

Legislation directed at preventing sexual assaults includes laws providing for sex offender registration and for civil commitment of recidivistic sex offenders.

Sex Offender Registration

One recent innovation in legislative efforts to reduce sexual assaults is the enactment of laws requiring convicted sex offenders to register with local police in any community in which they reside. These laws typically also provide that community members may have access to local registration information. Notwithstanding the newness of these laws, every state has now adopted some form of a sex registration law. Expanding on these laws, at least 14 states authorize or require electronic posting of registration information on the Internet.

Civil Commitment

Eighteen states have enacted laws that provide for civil commitment of recidivistic sex offenders. Typically, these laws are used with sex offenders who are deemed dangerous yet who are to be released from prison. An earlier alternative or supplement to civil commitment is life time supervision of sex offenders after release from incarceration; six states have such laws.

Other Sexual Assault Laws

Miscellaneous laws that have recently been enacted against sexual assault include

• Statewide investigative and prosecution unit (1 state)
• Ban on mandatory polygraph of victim by prosecutors or police (5 states)
• Rape units in every police force ((1 state)
• Special telephone number for rape reports (1 state)
• State-wide rape hot-line (2 states).

Summary

Enactment of the federal Violence Against Women Act in 1994 is illustrative of the policy attention being given to sexual assault crimes. Thus, every state has recently passed laws that (1) ease prosecution against persons charged with rape and other sexual assault crimes and (2) increase services available to victims of sexual assaults. The types of laws enacted include rape shield laws, sex offender registration requirements, and rape counselor evidentiary privilege. From a law enforcement perspective, perhaps the most important of these new laws is the development of evidence protocols for police and hospitals handling victims of rape. With the advent of the use of DNA forensic testing evidence, proper collection of biological materials can be critical to successful investigation and prosecution. Legislators need to go further, however, in responding to the implications of DNA testing. Repeal of statutes of limitations in rape cases to allow DNA test results is one obvious such step. With respect to increased services to victims of rape, it seems unconscionable that not every state has enacted laws requiring governmental assumption of costs of medical exams to treat victims and gather evidence for prosecution of the offenders.