House Bill hb1557

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    Florida House of Representatives - 2001                HB 1557

        By Representative Bucher






  1                      A bill to be entitled

  2         An act relating to sexual violence; providing

  3         requirements for law enforcement agencies in

  4         investigating sexual battery or attempted

  5         sexual battery; requiring that an agency

  6         actively pursue investigations of sexual

  7         violence; providing requirements for

  8         communications personnel with respect to

  9         responding to a report of sexual violence;

10         requiring law enforcement agencies to provide

11         the Sexual Violence Reference Card to officers;

12         providing requirements for the investigating

13         officer; providing requirements for the written

14         police report; prohibiting an officer from

15         disregarding a complaint of sexual violence

16         under specified circumstances; prohibiting an

17         officer from reporting a personal opinion as to

18         the credibility of the victim; providing

19         requirements for a followup investigation;

20         providing requirements for interviews;

21         requiring documentation of the investigation;

22         requiring a review of any case in which an

23         arrest is not made; providing requirements for

24         designating an officer as a sexual violence

25         investigator; providing requirements when a law

26         enforcement officer is alleged to be a sexual

27         violence offender; providing requirements for

28         training and competency; requiring the

29         dissemination of a law enforcement agency's

30         policies; providing an effective date.

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    Florida House of Representatives - 2001                HB 1557

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Sexual violence.--

  4         (1)  The purpose of this section is to establish

  5  guidelines for law enforcement agencies in responding to

  6  allegations of sexual violence.

  7         (2)  This section applies to any offense of sexual

  8  battery or attempted sexual battery committed against a person

  9  16 years of age or older.

10         (3)(a)  The purpose of this section is to reduce the

11  incidence and severity of sexual violence by building strong

12  cases against suspects, protect victims of sexual violence,

13  and provide victims with support through a combination of

14  services from law enforcement agencies and community service

15  agencies.

16         (b)  Each law enforcement agency shall actively pursue

17  any investigation of sexual violence and the response of the

18  agency must not vary based on the characteristics, status, or

19  profession of the victim or perpetrator, including the status

20  of the victim or perpetrator as an employee of the law

21  enforcement agency, or based on the nature of the relationship

22  between the victim and the perpetrator. The law enforcement

23  agency shall ensure the safety of the victim and refer the

24  victim to appropriate services.

25         (4)(a)  Regardless of whether the sexual violence being

26  reported is no longer in progress, the law enforcement agency

27  shall assign the report high priority and respond according to

28  the criteria prescribed by generally applicable departmental

29  procedures to assist the victim and preserve evidence.

30         (b)  Communications personnel shall ascertain the

31  medical condition, physical safety, needs, and location of the

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  1  victim; the location and time of the incident; the description

  2  of the suspect; and whether the suspect is still present, or

  3  the direction and mode of the suspect's travel.

  4         (c)  Communications personnel shall encourage the

  5  victim to preserve evidence by not changing clothes, washing,

  6  using the bathroom, drinking anything, combing his or her

  7  hair, or disturbing the crime scene in any way.

  8         (d)  Communications personnel shall ascertain whether

  9  the victim has special needs, including, but not limited to,

10  situations in which the victim is hearing impaired, does not

11  speak English, or requests a female investigating officer.

12  Communications personnel shall inform the investigating

13  officer of any special need and attempt to make available to

14  the officer the appropriate resources.

15         (e)  Communications personnel may not ask the victim

16  whether he or she plans to prosecute and may not make

17  reference to any future court proceeding.

18         (f)  Whenever possible and appropriate, communications

19  personnel shall stay on the telephone with the victim to

20  provide assistance and comfort until a patrol unit arrives on

21  the scene.

22         (g)  If a caller hangs up the telephone and the call

23  location is known, communications personnel shall attempt to

24  call back and shall dispatch a unit.

25         (h)  Communications personnel may not cancel the

26  agency's response to a complaint of sexual violence,

27  regardless of whether the request is made during the initial

28  call or a follow-up call. However, communications personnel

29  shall advise the investigating officer of the request.

30         (i)  Suspected substance use or impairment must not be

31  a consideration when dispatching an officer.

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  1         (5)  To guide law enforcement officers in responding to

  2  sexual violence, the law enforcement agency shall provide to

  3  each law enforcement officer the Sexual Violence Reference

  4  Card, which provides a summary of sexual violence policy and

  5  other relevant information.

  6         (a)  Regardless of the relationship between the victim

  7  and suspect, the responding officer, investigating officer, or

  8  other appropriate law enforcement personnel shall:

  9         1.  Respond to the scene; administer necessary first

10  aid; request necessary medical support; and protect the crime

11  scene.

12         2.  Determine the location of the actual crime scene if

13  the victim reported the crime from a location other than the

14  crime scene. The officer shall also determine whether the

15  victim was in a vehicle with the suspect before or after the

16  assault. The officer shall immediately attempt to locate and

17  secure any other crime scene. A crime scene specialist shall

18  be called if necessary and if available.

19         3.  Request that a rape crisis counselor or advocate,

20  if available, report to the scene, the medical facility to

21  which the victim is being transported, the law enforcement

22  agency, or other specified location.

23         4.  Together with the rape crisis counselor or

24  advocate, attempt to gain the victim's trust and confidence by

25  showing understanding, patience, and respect for personal

26  dignity and using language that is appropriate to the age,

27  educational level, and emotional condition of the victim.

28         5.  Conduct a preliminary interview with the victim to

29  establish the facts of the reported crime. The initial

30  questioning must be limited to those matters necessary to

31  identify the victim, the suspect, and any witnesses, and to

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  1  describe and locate the suspect, any witnesses, and any

  2  physical evidence. A request that the interview be conducted

  3  by an officer of specific gender must be honored if possible.

  4  A request for the presence during the interview of a rape

  5  crisis counselor or advocate must be honored if practical.

  6         6.  Locate the suspect and conduct a preliminary

  7  interview.

  8         7.  Collect or ensure the collection of physical

  9  evidence, including, but not limited to, taking photographs of

10  the scene and impounding the evidence. If the victim has

11  changed his or her clothes since the assault, the officer

12  shall impound the clothing as evidence.

13         8.  Request, as appropriate, that the victim consent to

14  an initial forensic physical examination, emphasizing its

15  importance to his or her well-being and to the investigative

16  and apprehension efforts. An officer or rape crisis counselor

17  or advocate shall transport or accompany the victim to the

18  health care facility. Before being transported to the

19  facility, the victim must be advised that it may be necessary

20  for clothing to be taken as evidence.

21         9.  If a physical examination is conducted, request

22  that medical or other appropriate personnel take photographs

23  and provide written documentation of the victim's injuries. If

24  the officer suspects that the suspect may have administered a

25  drug or the victim states that a drug was administered which

26  caused the mental incapacitation of the victim, the officer

27  must request that a vial of blood be drawn and a urine sample

28  obtained for drug-testing purposes. The officer shall request

29  that the victim authorize the release of his or her medical

30  records that pertain to the sexual assault. Following the

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  1  Attorney General's protocol, the officer shall sign a sexual

  2  battery claim form.

  3         10.  If a physical examination is conducted, impound as

  4  evidence the examination kit and process it in accordance with

  5  agency procedure.

  6         11.  Following the medical examination, transport the

  7  victim to the location of his or her choice within the local

  8  vicinity.

  9         12.  Provide the victim with a crime victim's brochure

10  as required by section 960.001, Florida Statutes.

11         13.  Not initiate discussion of or accept withdrawal of

12  the complaint. The officer may not request that the victim

13  sign a form waiving prosecution.

14         14.  Follow the requirements of this paragraph

15  regardless of the relationship between the victim and the

16  suspect.

17         (6)(a)  Any law enforcement officer who responds to a

18  complaint of sexual violence shall prepare a written police

19  report and forward it as required by policy of the law

20  enforcement agency.

21         (b)  A law enforcement officer may not disregard a

22  complaint of sexual violence due to:

23         1.  Assertion by the suspect that consensual sex

24  occurred.

25         2.  Chemical dependency or intoxication of the parties.

26         3.  Marital status; sexual orientation; race; age;

27  religion; profession; or cultural, social, or political

28  position of the victim or suspect.

29         4.  Disability status of the victim, including

30  physical, sensory, cognitive, or emotional disability.

31         5.  Status of the suspect as a law enforcement officer.

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  1         6.  Current or previous relationship between the victim

  2  and suspect.

  3         7.  Belief that the victim will not cooperate with

  4  criminal prosecution or that the arrest may not lead to a

  5  conviction.

  6         8.  Occurrence of the crime in a private place.

  7         9.  Disposition of previous calls that involve the same

  8  victim or suspect.

  9         10.  Sexual or criminal history of the victim.

10         11.  Lack of physical resistance.

11         12.  Manner of the victim's dress or behavior.

12         13.  A request by the victim that the suspect use a

13  prophylactic device.

14         14.  An assumption of the tolerance of violence by a

15  particular cultural, ethnic, religious, racial, or

16  occupational group.

17         (c)  The law enforcement officer shall identify the

18  crime as "sexual violence" and not as "alleged sexual

19  violence."

20         (d)  The law enforcement officer shall ensure that all

21  elements of the crime are included in the report. The report

22  must include:

23         1.  Documentation of all verbal or written statements,

24  including excited utterances.

25         2.  Documentation of the names, addresses, phone

26  numbers, and statements of all witnesses. Any information that

27  can be used to identify the victim is confidential in

28  accordance with chapters 119 and 794, Florida Statutes.

29         3.  Documentation of any alternative address if the

30  victim changes location.

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  1         4.  Information concerning the relationship between the

  2  victim and the suspect.

  3         5.  Documentation of all evidence, photography, and

  4  processing of the crime scene.

  5         6.  Documentation of all injuries.

  6         7.  Documentation of unusual or suspicious behavior and

  7  fetishes on the part of the suspect.

  8         8.  Reference to all related reports.

  9         9.  Documentation of the victim's emotional condition.

10         (e)  The law enforcement officer may make objective

11  observations as to the victim's behavior and conditions, if

12  relevant. However, the officer may not include in the report

13  any personal opinion as to the credibility of the victim.

14         (6)  An investigative officer shall be assigned to

15  conduct a followup investigation and shall adhere to all

16  procedures set forth in this subsection. The investigative

17  officer shall:

18         (a)  Read and review the original report and all

19  supporting documents, plan the followup investigation, confer

20  with supervisors concerning the intended investigative plan,

21  coordinate the execution of the plan with the necessary

22  personnel and equipment needed to implement the plan, and

23  maintain ongoing communication with the victim or the rape

24  crisis counselor or advocate, as appropriate.

25         (b)  Determine the need for a second, more in-depth

26  interview. The investigator shall determine the victim's

27  emotional and physical ability to submit to a second interview

28  and schedule it as soon after the incident as possible. If a

29  second interview is conducted, the investigator shall:

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  1         1.  Employ a comfortable setting that affords privacy

  2  and freedom from distractions and attempt to obtain all

  3  necessary information at this time.

  4         2.  Explain the need for obtaining detailed information

  5  concerning the crime, including the details of the sex act;

  6  the suspect's modus operandi, clothing, means of restraining

  7  the victim, and the use or availability of weapons; any words

  8  used or instructions given to the victim, including any

  9  request made during the assault; dialect, marks, scars,

10  tattoos, deformities, or other unusual physical features or

11  body odors of the suspect; any body features noticeable only

12  when the suspect was unclothed; any fetishes of the suspect;

13  and any witnesses, participants, or accomplices.

14         3.  Document the victim's actions and expressions in

15  response to the attack, the physical condition of the victim,

16  and the state of mind of the victim during the attack.

17         4.  Determine the relationship of the suspect and

18  victim.

19         5.  Review the victim's account of the event in order

20  to clarify any discrepancies with earlier accounts and to

21  elaborate on issues of significance to the prosecution.

22         6.  Encourage the victim to cooperate with the

23  investigation and prosecution of the case, emphasizing the

24  importance of prosecution in order to enhance public safety.

25  The investigator shall apprise the victim of future

26  investigative and prosecutorial activities that could require

27  the victim's involvement and cooperation, but the investigator

28  may not make other comments concerning the prosecution of the

29  case.

30         7.  Refer the victim to a rape crisis counselor or

31  advocate if one has not already become involved in the case.

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  1         8.  Work with the state attorney's office to develop

  2  the case.

  3         9.  Assist the victim in obtaining an order of

  4  protection, if appropriate.

  5         (c)  The investigator should not subject a victim to a

  6  polygraph examination or a voice stress test.

  7         (d)  The investigator shall expeditiously interview

  8  witnesses or any other person having information concerning

  9  the case. The investigator may not reveal any personal

10  information concerning the victim to such persons.

11         (e)  If the suspect is known, the investigator shall:

12         1.  Construct a photo lineup, if appropriate.

13         2.  Review the suspect's criminal history.

14         3.  Review open sex crime cases.

15         4.  Confirm the suspect's identify and address.

16         5.  Consider an appropriate time, place, and setting

17  for interviewing the suspect.

18         6.  Interview the suspect.

19         (f)  If the suspect is unknown, the investigator shall:

20         1.  Follow leads to establish the identity of the

21  suspect.

22         2.  Construct a composite and alert other law

23  enforcement agencies, if possible.

24         3.  Confer with other agencies and intelligence sources

25  for leads.

26         4.  Submit information to the Violent Criminal

27  Apprehension Program when program criteria are met.

28         (g)  With respect to physical evidence, the

29  investigator shall:

30         1.  Determine whether the suspect's blood, hair, or

31  saliva are needed to complete the laboratory analysis. If the

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  1  suspect's blood, hair, or saliva are needed, the investigator

  2  shall:

  3         a.  If probable cause exists to obtain blood, saliva,

  4  or hair from the suspect, or to obtain an item of physical

  5  evidence from a location in the control of the suspect, apply

  6  for a search warrant to obtain the necessary evidence before

  7  the case is filed.

  8         b.  Collect blood, hair, and saliva with the consent of

  9  the suspect before the suspect's first court appearance.

10         c.  If the suspect does not consent, seek to obtain a

11  court order for the collection of blood, hair, and saliva from

12  the defendant after the case has been filed.

13         d.  Collect blood, hair, and saliva in accordance with

14  the guidelines published by the Department of Law Enforcement

15  or the Federal Bureau of Investigation, or use the best

16  available practices. Blood must be collected by authorized and

17  licensed personnel. Hair and saliva samples from a defendant

18  must be collected by trained personnel of the same gender as

19  the defendant.

20         e.  Limit the number of people in the chain of custody

21  of physical evidence as much as possible, and keep accurate

22  and thorough records of the chain of custody of the evidence.

23         2.  Review the evidence to determine the need for other

24  procedures, including, but not limited to:

25         a.  DNA typing or serology typing.

26         b.  Micro analysis.

27         c.  Firearm and ballistic analysis.

28         d.  Fingerprint analysis.

29         e.  Analysis using laser technology.

30         f.  Photography.

31         g.  Handwriting analysis.

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  1         h.  Chemical testing.

  2         i.  Forensic dentistry analysis.

  3         (7)(a)  In the supplemental followup report, the

  4  investigating officer shall document the steps of the

  5  investigation, including documentation of interviews and any

  6  other tasks performed which are pertinent to the

  7  investigation.

  8         (b)  The investigator shall complete the victim

  9  notification form if there is a known suspect.

10         (c)  The investigator shall share information related

11  to the investigation with other law enforcement agencies, as

12  warranted.

13         (9)(a)  When the investigation is complete and if

14  probable cause exists and a defendant is identified, the

15  investigator shall:

16         1.  Make an arrest based on probable cause;

17         2.  Obtain a warrant; or

18         3.  File for prosecution of the case with the state

19  attorney.

20         (b)  If there is doubt as to whether probable cause

21  exists, the case shall be referred to the state attorney for

22  review. If probable cause exists, but the investigation is

23  incomplete and lengthy, the case must be referred to the state

24  attorney for consideration with respect to provisions

25  requiring a speedy trial.

26         (c)  If the case is complete, but the suspect is not

27  identified, the case shall be filed as "inactive." A case must

28  remain on file and available to be reactivated within the time

29  limitations set by law. An investigator shall periodically

30  review all unsolved cases.

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  1         (d)  If an arrest is not made, the case shall be

  2  reviewed by a supervisor. The victim must be notified of the

  3  reason for not making an arrest.

  4         (e)  Each law enforcement agency shall establish

  5  written policies governing a decision not to make an arrest.

  6  The law enforcement agency may not discontinue an

  7  investigation of a case of sexual violence until the case is

  8  reviewed by the state attorney.

  9         (10)(a)  If possible, each law enforcement agency must

10  designate at least one officer to investigate sexual violence

11  cases. The officer must be specially trained to deal with the

12  complexities of such cases.

13         (b)  The sexual violence investigator shall:

14         1.  Monitor the agency's compliance with its policies

15  for investigating sexual violence.

16         2.  Ensure that each victim of sexual violence is

17  referred to a rape crisis counselor or advocate, a rape crisis

18  center, or other appropriate followup support, and work with

19  these resources to coordinate victim safety.

20         3.  Ensure coordination with hospitals and the state

21  attorney in order to successfully investigate all cases of

22  sexual violence and to apprehend and prosecute perpetrators.

23         4.  Coordinate the training of other law enforcement

24  officers.

25         (11)(a)  If communications personnel receive a call for

26  assistance at a scene where a law enforcement officer is

27  alleged to be a sexual violence offender, the responding

28  officer's supervisor must be notified and must respond to the

29  scene. In addition, other department personnel must be

30  notified in accordance with department policy. If the officer

31  is arrested, applicable policies with respect to duty status,

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  1  assignment, and suspension must be followed. If a criminal

  2  investigation is required, applicable departmental policy must

  3  be followed. In the absence of departmental policy, the

  4  investigation must be completed before the officer is

  5  interviewed by departmental personnel for any administrative

  6  investigation associated with the event. If the relationship

  7  between the victim and suspect fits the criteria for domestic

  8  violence, appropriate departmental policy must be followed.

  9         (b)  Any law enforcement officer who witnesses or

10  otherwise has firsthand or well-founded knowledge of a sexual

11  violence incident that involves another officer in the

12  department must report that incident to a supervisor.

13         (c)  Any law enforcement agency that makes an arrest of

14  an officer from another agency which is related to sexual

15  violence must notify the employing agency of the arrest, of

16  the specific charge, and of the time of the arrest.

17         (12)(a)  Each law enforcement officer who is designated

18  to investigate sexual violence crimes must receive training in

19  and be competent in the following:

20         1.  The nature, extent, and dynamics of sexual

21  violence.

22         2.  The application of state and federal laws to sexual

23  violence.

24         3.  The duties and responsibilities of law enforcement

25  personnel in responding to sexual violence reports, as set

26  forth in departmental policy.

27         4.  The concerns of victims with respect to the

28  criminal justice system.

29         5.  Techniques for working with and understanding

30  reluctant victims.

31         6.  Rules of evidence in sexual battery cases.

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  1         7.  Interview techniques.

  2         8.  Myths and statistics with respect to the occurrence

  3  of sexual violence.

  4         9.  Physical evidence that is unique to cases of sexual

  5  violence.

  6         10.  A victim's emotional needs and conditions.

  7         11.  A victim's rights and remedies.

  8         12.  The needs of special populations, including

  9  juveniles, the elderly, and disabled adults.

10         13.  The interrelationship between sexual violence and

11  domestic violence.

12         14.  Law and rules governing protocols for medical

13  examination.

14         15.  Requirements for documenting, reporting, and

15  collecting evidence.

16         16.  Policies and procedures of the state attorney's

17  office.

18         17.  Requirements governing the liability of the law

19  enforcement agency and law enforcement officers.

20         (b)  In addition to the requirements of paragraph (a),

21  an officer designated to investigate sexual violence cases

22  must receive additional competency-based training, including

23  courses on investigating sex crimes and conducting interviews

24  and interrogations.

25         (c)  Law enforcement officers must receive training on

26  the use of the Sexual Violence Reference Card.

27         (d)  Law enforcement officers must receive updates and

28  information on current legal and legislative trends and

29  intelligence pertaining to sexual violence.

30         (13)  Each law enforcement agency shall:

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  1         (a)  Ensure that the requirements of this section are

  2  disseminated to all agency personnel.

  3         (b)  Forward copies of the agency's policies relating

  4  to sexual violence to the state attorney and to local

  5  providers of victim services.

  6         (c)  Adopt internal procedures to support the

  7  requirements of this section for disseminating information to

  8  law enforcement personnel.

  9         Section 2.  This act shall take effect July 1, 2001.

10

11            *****************************************

12                          SENATE SUMMARY

13    Provides requirements for law enforcement agencies that
      investigate sexual battery or attempted sexual battery.
14    Requires communications personnel to follow certain
      procedures in responding to a report of sexual violence.
15    Requires law enforcement agencies to provide the Sexual
      Violence Reference Card to officers. Provides
16    requirements for the investigation, for victim and
      suspect interviews, and for the report. Prohibits an
17    officer from disregarding a complaint of sexual violence
      under certain circumstances. Requires that a supervisor
18    review any case in which an arrest is not made. Requires
      that an officer be designated to investigate sex crimes
19    and receive special training. Specifies procedures to be
      followed when a law enforcement officer is alleged to be
20    a sexual violence offender. Provides training
      requirements for officers that investigate sexual
21    violence. (See bill for details.)

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