Increasing Access to Medical Forensic Exams in Texas
By Chris Kaiser, TAASA Staff Attorney
This year the Texas Legislature passed a law to give sexual assault survivors the choice to have forensic evidence collected at any emergency room in the state. Authored by Sen. Wendy Davis (Ft. Worth) and Rep. Senfronia Thompson (Houston), the bill has generated much discussion among sexual assault advocates, medical professionals, law enforcement officials, and the media.
The impetus for the new law was that survivors in some remote areas of the state had found themselves in an impossible dilemma. They desperately wanted to have evidence of their rapes collected, but the distance to the nearest ER with a SANE program was too far to travel—sometimes several hours away. Against that backdrop, SB 1191 represents the idea that survivors should not have to choose between spending time and money they do not have to travel to the “right” hospital and not having evidence collected at all.
SB 1191 took effect on September 1, 2013. As facilities and response teams across Texas work to implement the law as smoothly as possible, now is an important time to review what to expect at the ER.
Can we still transfer survivors to the local SANE program?
Yes, as long as the survivor consents to the transfer. The law doesn’t prohibit ERs without SANEs from transferring patients to ERs that do have SANEs. In fact, advocates and medical professionals should encourage survivors to utilize the services of certified SANEs whenever possible. In many communities, both urban and rural, a transfer to the nearest facility with a SANE program is relatively quick and will not create significant obstacles for the survivor.
The situation may be different for more remote communities, where the nearest facility with a SANE program may be hours away. In these areas, ERs may still offer the transfer, and survivors may still choose to accept it. However, the longer trip may not be tenable for some survivors, particularly those who lack adequate child care or flexibility in work schedules. Although the law covers all ERs, emergency departments in these areas should be especially prepared to collect evidence for survivors unable to travel.
Does every ER need to have a certified SANE?
No. The law requires each ER to develop a plan to train its personnel on basic sexual assault forensic evidence collection. The continuing education on forensic evidence collection that is already required for nurses working in ERs (Tex. Occ. Code § 301.306; 22 Tex. Admin. Code § 216.3(5)) may satisfy the SB 1191 minimum training requirement. The Board of Nursing will write rules making that determination this fall. The Medical Board will also be creating rules soon to provide direction for physicians.
That said, each community’s criminal district attorney can serve a vital role in developing policies on training and evidence collection. Felony prosecutors have critical insight into what level of expertise is necessary to ensure the integrity of criminal prosecutions. As medical facilities balance these interests with their own legal compliance, DAs’ offices can provide a valuable perspective.
Finally, to help survivors locate the preferred, certified SANE care, the law also requires the Texas Department of State Health Services (DSHS) to publish a list of all ERs with SANE programs and their locations. The list must be included on the DSHS website.
Without a doubt, more questions will arise as time goes on. The Texas Association Against Sexual Assault stands ready to assist rape crisis centers and advocates, SART members, and survivors during this implementation period.