08 HB
1297/AP
House
Bill 1297 (AS PASSED HOUSE AND SENATE)
By:
Representatives Mumford of the
95th,
Levitas of the
82nd,
Benfield of the
85th,
Ralston of the
7th,
Dukes of the
150th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 24 of Title 15 and Title 17 of the Official Code of Georgia
Annotated, relating to sexual assault protocol and criminal procedure,
respectively, so as to afford greater protection to victims of sexual crimes; to
change provisions relating to sexual assault protocol; to provide that failure
to follow the sexual assault protocol shall not preclude the admissibility of
evidence; to provide for preservation of evidence; to allow victims of certain
sexual offenses to have the right to have a free forensic medical examination
even if the victim refuses to otherwise cooperate with law enforcement; to allow
victims of certain sexual offenses to refuse requests for polygraph examinations
or other truth-telling devices; to allow the Criminal Justice Coordinating
Council to waive subrogation under certain circumstances; to provide for related
matters; to provide for an effective date; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
24 of Title 15 of the Official Code of Georgia Annotated, relating to sexual
assault protocol, is amended by revising subsections (d) and (e) of Code Section
15-24-2, relating to the establishment of sexual assault protocol committee and
its purpose, as follows:
"(d)
The protocol committee shall adopt a written sexual assault protocol, a copy of
which shall be furnished to each agency in the judicial circuit that handles
cases of sexual assault. The protocol shall be a written document outlining in
detail the procedures to be used in investigating, collecting evidence, paying
for expenses related to evidence collection, and prosecuting cases arising from
alleged sexual assault
and shall take
into consideration the provisions of Article 4 of Chapter 5 of Title
17. The protocol may provide for different
procedures to be used within particular municipalities or counties within the
judicial circuit. The protocol committee shall adopt a written sexual assault
protocol no later than December 31, 2004. The protocol committee may incorporate
sexual assault protocols used in the judicial circuit as they existed on or
before July 1, 2004.
(e)
The purpose of the protocol shall be to ensure coordination and cooperation
between all agencies involved in sexual assault cases so as to increase the
efficiency of all agencies handling such cases and to minimize the stress
created for the alleged sexual assault victim by the legal and investigatory
process; provided, however, that a failure by an agency to follow the protocol
shall not constitute an affirmative or other defense to prosecution of a sexual
assault,
preclude the
admissibility of evidence, nor shall a
failure by an agency to follow the protocol give rise to a civil cause of
action."
SECTION
2.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by revising subsection (b) of Code Section 17-5-56, relating to
maintenance of physical evidence containing biological material, as
follows:
"(b)
In a case in which the death penalty is imposed, the evidence shall be
maintained until the sentence in the case has been carried out. In a case that
involves the prosecution of a serious violent felony as defined by Code Section
17-10-6.1, a
violation of Code Section 16-6-5.1, or sodomy, statutory rape, child
molestation, bestiality, incest, or sexual battery as those terms are defined in
Chapter 6 of Title 16, the evidence that
contains biological material,
including,
but not limited to, stains, fluids, or hair samples that relate to the identity
of the perpetrator of the crime shall be maintained for ten years after judgment
in the criminal case becomes final or ten years after May 27, 2003, whichever is
later. Evidence in all other felony and misdemeanor cases may be
purged."
SECTION
3.
Said
title is further amended by revising Chapter 5, relating to searches and
seizures, by adding a new article to read as follows:
"ARTICLE
4
17-5-70.
As
used in this article, the term:
(1)
'Forensic medical examination' means an examination by a health care provider of
a person who is a victim of a sexual assault. Such examination shall include a
physical examination, documentation of biological and physical findings, and
collection of physical evidence from the victim.
(2)
'Investigating law enforcement agency' means the law enforcement agency
responsible for the investigation of the alleged sexual assault.
(3)
'Sexual assault' means rape, sodomy, aggravated sodomy, statutory rape, child
molestation, aggravated child molestation, sexual assault against a person in
custody, sexual assault against a person detained in a hospital or other
institution, sexual assault by a practitioner of psychotherapy against a
patient, incest, bestiality, sexual battery, and aggravated sexual battery as
those terms and offenses are set forth and defined in Chapter 6 of Title
16.
17-5-71.
(a)
Except as otherwise provided in subsection (b) of this Code section or Code
Section 17-5-55 or 17-5-56, on or after the effective date of this Act, the
investigating law enforcement agency shall maintain any physical evidence
collected as a result of an alleged sexual assault that contains biological
material, including, but not limited to, stains, fluids, or hair samples that
relate to the identity of the perpetrator of an alleged sexual assault, for ten
years after the report of the alleged sexual assault.
(b)
If the victim does not cooperate with law enforcement in the investigation or
prosecution of an alleged sexual assault, the investigating law enforcement
agency shall maintain any physical evidence collected as a result of such
alleged sexual assault that contains biological material, including, but not
limited to, stains, fluids, or hair samples that relate to the identity of the
perpetrator of the alleged sexual assault, for not less than 12 months from the
date any such physical evidence is collected.
17-5-72.
A
victim shall have the right to have a forensic medical examination regardless of
whether the victim participates in the criminal justice system or cooperates
with law enforcement in pursuing prosecution of the underlying crime. A victim
shall not be required to pay, directly or indirectly, for the cost of a forensic
medical examination. The cost of a forensic medical examination shall be paid
for by the investigating law enforcement agency.
17-5-73.
No
prosecuting attorney, investigating law enforcement agency, or government
official shall ask or require any victim of a sexual assault to submit to a
polygraph examination or any other truth-telling device as a condition precedent
to investigating such alleged crime. The refusal of a victim to submit to a
polygraph examination or any other truth-telling device shall not prevent an
investigation or prosecution of any sexual assault."
SECTION
4.
Said
title is further amended by revising Code Section 17-15-12, relating to the
effect of accepting an award, as follows:
"17-15-12.
(a)
Acceptance of an award made pursuant to this chapter shall subrogate the state,
to the extent of such award, to any right or right of action occurring to the
claimant or the victim to recover payments on account of losses resulting from
the crime with respect to which the award is made.
The board may
waive subrogation when the victim or claimant presents documentation and the
board verifies that judgment, settlement, or other sources have not fully
reimbursed the victim or claimant for expenses compensable under this
chapter.
(b)
Acceptance of an award made pursuant to this chapter based on damages from a
criminal act shall constitute an agreement on the part of the recipient
reasonably to pursue any and all civil remedies arising from any right of action
against the person or persons responsible for or committing the
act."
SECTION
5.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.