Related Legislation

 

"The Clery Act"

 

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act

 

Note that the following information is not presented as legal advice, but as basic information which can be provided to victims and colleges for guidance.

 

For additional information visit Clery Center for Security On Campus or see United States Criminal Code 20 USC §1092(f).

 

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) is named after Jeanne Clery. Jeanne was a 19 year old college student who was raped and murdered in 1986 in her Lehigh University dormitory. (Security on Campus, 2010)

 

In 1990, the Clery Act was passed to require higher education institutions whose students receive federal financial aid to collect and report crime data to the U.S. Department of Education (Security on Campus, 2010). Basic components of the Act include (Center for Public Integrity, 2010):

 

  • Campuses must publish and distribute an annual security report that includes crime statistics for the past three years. This report must also include campus security policies.
  • Crimes that pose a serious or continuing threat to the campus community must be reported to the community in a timely manner.
  • If a campus provides a campus police or security department, a public daily crime log must be kept.

The Clery Act defines a "campus security authority" as any person or body with significant responsibility for student and campus activities (e.g., a dean, athletic coach or resident hall advisers), as well as campus police and security staff. These authorities must report allegations of crimes to campus or local police. This reporting applies even if the victim does not file a report with law enforcement. Pastoral and professional counselors are exempt from acting as campus security authority (Center for Public Integrity, 2010).

 

Examples of Clery Act violations include (Center for Public Integrity, 2010), classifying crimes incorrectly (such as not differentiating between forcible and non-forcible rape as defined by the Act); altering crime statistics; and not collecting crime reports from all campus security authorities.

 

 

References

Center for Public Integrity (2010). Reporter's toolkit: Investigating sexual assault cases on your campus. Retrieved from: http://www.publicintegrity.org/investigations/campus_assault/toolkit/.

 

Clery Center for Security on Campus, Inc. (2010). Summary of the Jeanne Clery Act.

Retrieved from: Clery Center for Security On Campus

 

 

Forensic Medical Examination Payment For Costs

 

Chapter 61 Crimes and Their Punishment

Article 8B Sexual Offenses

 

§61-8B-16. Payment for costs of forensic medical examination.

 

  1. (a) When any person alleges that he or she has been the victim of an offense proscribed by this article, the West Virginia prosecuting attorneys institute shall pay to a licensed medical facility from the forensic medical examination fund the cost of the forensic medical examination for the alleged victim on the following conditions and in the following manner:
    1. (1) The payment shall cover all reasonable, customary and usual costs of the forensic medical examination;
    2. (2) The costs of additional nonforensic procedures performed by the licensed medical facility, including, but not limited to, prophylactic treatment, treatment of injuries, testing for pregnancy and testing for sexually transmitted diseases, may not be paid from the fund: Provided, That nothing in this section shall be construed to prohibit a licensed medical facility from seeking payment for services referred to in this subdivision from the alleged victim or his or her insurer, if any;
    3. (3) The forensic medical examination must have been conducted within a reasonable time of the alleged violation;
    4. (4) The licensed medical facility must apply for payment of the costs of a forensic medical examination from the fund within a reasonable time of the examination;
    5. (5) The licensed medical facility shall certify that the forensic medical examination was performed and may submit a statement of charges to the West Virginia Prosecuting Attorneys Institute for payment from the fund.
  3. (b) No licensed medical facility may collect the costs of a forensic medical examination from the alleged victim of a violation of this article or from the alleged victim's insurance coverage, if any.
  4. (c) Nothing in this section shall be construed to require an alleged victim of sexual assault to participate in the criminal justice system or to cooperate with law enforcement in order to be provided a forensic medical examination pursuant to the provisions of this section.

Note: The laws cited in this section were current as of April, 2011 (West Virginia Legislature).

 

Learn more: Forensic Medical Examination

 

 

 

Mandated HIV Testing of Offenders

 

Chapter 16 Public Health

Article 3C Aids-Related Medical Testing and Records Confidentiality Act

 

§16-3C-2. Testing.

 

  1. (f) Mandated testing:
    1. (1) The performance of any HIV-related testing that is or becomes mandatory by court order or other legal process described herein does not require consent of the subject but will include counseling.
    2. (2) The court having jurisdiction of the criminal prosecution shall order that an HIV-related test be performed on any persons charged with any of the following crimes or offenses:
      1. (i) Prostitution; or
      2. (ii) Sexual abuse, sexual assault, incest or sexual molestation.
    4. (3) HIV-related tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation shall be confidentially administered by a designee of the bureau or the local or county health department having proper jurisdiction. The commissioner may designate health care providers in regional jail facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient.
    5. (7) The prosecuting attorney shall inform the victim, or parent or guardian of the victim, at the earliest stage of the proceedings of the availability of voluntary HIV-related testing and counseling conducted by the bureau and that his or her best health interest would be served by submitting to HIV-related testing and counseling. HIV-related testing for the victim shall be administered at his or her request on a confidential basis and shall be administered in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of such request. The victim who obtains an HIV-related test shall be provided with pre- and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test. HIV-related testing and counseling conducted pursuant to this subsection shall be performed by the designee of the commissioner of the bureau or by any local or county health department having proper jurisdiction.

 

Note: The laws cited in this section were current as of June, 2011 (West Virginia Legislature).

 

 

 

 

Mandatory Reporting - Adults

 

Chapter 9 Human Services

Article 6 Social Services for Adults

 

§9-6-1. Definitions.

As used in this article:

 

  1. (1) "Adult protective services agency" means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults;
  2. (2) "Abuse" means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident;
  3. (3) "Neglect" means:
    1. (A) The unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; or
    2. (B) The unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or resident;
  5. (4) "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health;
  6. (5) "Emergency" or "emergency situation" means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult;
  7. (6) "Legal representative" means a person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, medical power of attorney representative, trustee or other duly appointed person;
  8. (7) "Nursing home" or "facility" means any institution, residence, intermediate care facility for individuals with an intellectual disability, care home or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of articles five-c, five-d, five-e or five-h, chapter sixteen of this code;
  9. (8) "Regional long-term care ombudsman" means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the Bureau for Senior Services and meets the qualifications set forth in section seven, article five-l, chapter sixteen of this code;
  10. (9) "Facility resident" means an individual living in a nursing home or other facility, as that term is defined in subdivision (7) of this section;
  11. (10) "Responsible family member" means a member of a resident's family who has undertaken primary responsibility for the care of the resident and who has established a working relationship with the nursing home or other facility in which the resident resides. For purposes of this article, a responsible family member may include someone other than the resident's legal representative;
  12. (11) "State Long-term Care Ombudsman" means an individual who meets the qualifications of section five, article five-l, chapter sixteen of this code and who is employed by the State Bureau for Senior Services to implement the State Long-term Care Ombudsman Program;
  13. (12) "Secretary" means the Secretary of the Department of Health and Human Resources;
  14. (13) "Caregiver" means a person or entity who cares for or shares in the responsibility for the care of an incapacitated adult on a full-time or temporary basis, regardless of whether such person or entity has been designated as a guardian or custodian of the incapacitated adult by any contract, agreement or legal procedures. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult.

 

§9-6-9. Mandatory reporting of incidences of abuse, neglect or emergency situation.

 

  1. (a) If any medical, dental or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility has reasonable cause to believe that an incapacitated adult or facility resident is or has been neglected, abused or placed in an emergency situation, or if such person observes an incapacitated adult or facility resident being subjected to conditions that are likely to result in abuse, neglect or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of section eleven of this article: Provided, That nothing in this article is intended to prevent individuals from reporting on their own behalf.
  3. (b) In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation, any other person may make such a report.
  5. (c) The secretary shall develop a form for the filing of written complaints, as provided by section eleven of this article, and provide these forms to all nursing homes or other residential facilities, hospitals, ombudsmen and adult protective service agencies in this state. The forms shall be designed to protect the identity of the complainant, if desired, and to facilitate the prompt filing of complaints.

 

§9-6-11. Reporting procedures.

 

  1. (a) A report of neglect or abuse of an incapacitated adult or facility resident or of an emergency situation involving such an adult shall be made immediately by telephone to the department's local adult protective services agency and shall be followed by a written report by the complainant or the receiving agency within forty-eight hours. The department shall, upon receiving any such report, take such action as may be appropriate and shall maintain a record thereof. The department shall receive such telephonic reports on its twenty-four hour, seven-day-a-week, toll-free number established to receive calls reporting cases of suspected or known adult abuse or neglect.
  2. (b) A copy of any report of abuse, neglect or emergency situation shall be immediately filed with the following agencies:
    1. (1) The department of health and human resources;
    2. (2) The appropriate law-enforcement agency and the prosecuting attorney, if necessary; or
    3. (3) In case of a death, to the appropriate medical examiner or coroner's office.
  4. (c) If the person who is alleged to be abused or neglected is a resident of a nursing home or other residential facility, a copy of the report shall also be filed with the state or regional ombudsman and the administrator of the nursing home or facility.
  5. (d) The department shall omit from such report in the first instance, the name of the person making a report, when requested by such person.
  6. (e) Reports of known or suspected institutional abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation in an institution, nursing home or other residential facility shall be made, received and investigated in the same manner as other reports provided for in this article. In the case of a report regarding an institution, nursing home or residential facility, the department shall immediately cause an investigation to be conducted.
  7. (f) Upon receipt of a written complaint, the department shall coordinate an investigation pursuant to section three of this article and applicable state or federal laws, rules or regulations.

 

§9-6-14. Failure to report; penalty.

Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars or imprisoned in the county jail for not more than ten days, or both fined and imprisoned.

 

Note: The laws cited in this section were current as of April, 2011 (West Virginia Legislature)

 

 

 

Mandatory Reporting - Children

 

Chapter 49 Child Welfare

Article 6A Reports of Children Suspected To Be Abused or Neglected

 

A second or subsequent conviction for a violation of this section occurring within five years of a prior conviction is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.

 

 

§49-6A-1.Purpose.

It is the purpose of this article, through the complete reporting of child abuse and neglect, to protect the best interests of the child, to offer protective services in order to prevent any further harm to the child or any other children living in the home, to stabilize the home environment, to preserve family life whenever possible, to promote adult responsibility for protecting children and to encourage cooperation among the states to prevent future incidents of child abuse and neglect and dealing with the problems of child abuse and neglect.

 

 

§49-6A-2. Persons mandated to report suspected abuse and neglect.

  1. (a) Any medical, dental or mental health professional, Christian Science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical services personnel, peace officer or law-enforcement official, humane officer, member of the clergy, circuit court judge, family court judge, employee of the Division of Juvenile Services, magistrate, youth camp administrator or counselor, employee, coach or volunteer of an entity that provides organized activities for children, or commercial film or photographic print processor who has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect, shall immediately, and not more than forty-eight hours after suspecting this abuse or neglect, report the circumstances or cause a report to be made to the Department of Health and Human Resources: Provided, That in any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report, or cause a report to be made, to the State Police and any law-enforcement agency having jurisdiction to investigate the complaint: Provided, however, That any person required to report under this article who is a member of the staff or volunteer of a public or private institution, school, entity that provides organized activities for children, facility or agency shall immediately notify the person in charge of such institution, school, facility or agency, or a designated agent thereof, who may supplement the report or cause an additional report to be made.
  3. (b) Any person over the age of eighteen who receives a disclosure from a credible witness or observes any sexual abuse or sexual assault of a child, shall immediately, and not more than forty-eight hours after receiving such a disclosure or observing the sexual abuse or sexual assault, report the circumstances or cause a report to be made to the Department of Health and Human Resources or the State Police or other law-enforcement agency having jurisdiction to investigate the report. In the event that the individual receiving the disclosure or observing the sexual abuse or sexual assault has a good faith belief that the reporting of the event to the police would expose either the reporter, the subject child, the reporter's children or other children in the subject child's household to an increased threat of serious bodily injury, the individual may delay making the report while he or she undertakes measures to remove themselves or the affected children from the perceived threat of additional harm: Provided, That the individual makes the report as soon as practicable after the threat of harm has been reduced. The law-enforcement agency that receives a report under this subsection shall report the allegations to the Department of Health and Human Resources and coordinate with any other law-enforcement agency, as necessary to investigate the report.
  5. (c) Nothing in this article is intended to prevent individuals from reporting suspected abuse or neglect on their own behalf. In addition to those personas and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if such person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

 

 

§49-6A-4. Photographs and X rays.

Any person required to report cases of children suspected of being abused and neglected may take or cause to be taken, at public expense, photographs of the areas of trauma visible on a child and, if medically indicated, cause to be performed radiological examinations of the child. Any photographs or X rays taken shall be sent to the appropriate child protective service as soon as possible.

 

 

§49-6A-5. Reporting procedures.

Reports of child abuse and neglect pursuant to this article shall be made immediately by telephone to the local state department child protective service agency and shall be followed by a written report within forty-eight hours if so requested by the receiving agency. The state department shall establish and maintain a twenty-four hour, seven-day-a-week telephone number to receive such calls reporting suspected or known child abuse or neglect.

 

A copy of any report of serious physical abuse, sexual abuse or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney or the coroner or medical examiner's office. All reports under this article shall be confidential and unless there are pending proceedings with regard thereto shall be destroyed thirty years following their preparation. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.

 

 

§49-6A-6. Immunity from liability.

Any person, official or institution participating in good faith in any act permitted or required by this article shall be immune from any civil or criminal liability that otherwise might result by reason of such actions.

 

 

§49-6A-7. Abrogation of privileged communications.

The privileged quality of communications between husband and wife and between any professional person and his patient or his client, except that between attorney and client, is hereby abrogated in situations involving suspected or known child abuse or neglect.

 

 

§49-6A-8. Failure to report; penalty.

Any person, official or institution required by this article to report a case involving a child known or suspected to be abused or neglected, or required by section five of this article to forward a copy of a report of serious injury, who knowingly fails to do so or knowingly prevents another person acting reasonably from doing so, is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than thirty days or fined not more than one thousand dollars, or both.

 

Note: The laws cited in this section were current as of July 2012. (West Virginia Legislature).

 

 

 

Polygraph Examination Of Victims Of Sexual Offenses

 

Chapter 62 Criminal Procedure

Article 6 Miscellaneous Provisions Concerning Criminal Procedures

 

§62-6-8. Alleged victim of sexual offense may not be required to submit to a polygraph examination or other truth telling device as a condition of investigating an alleged offense nor may prosecutors or law-enforcement officers decline to proceed if the victim refuses such examination.

 

No law-enforcement officer, prosecutor or any other government official may ask or require the adult, youth or child victim of an alleged sexual offense, as set forth in the provisions of section six, article eight, chapter sixty-one of this code; section six, article twelve of said chapter; section five, article eight-d, of said chapter; and article eight-b of said chapter, or any other sexual offense as defined under state or local law, to submit to a polygraph examination or other truth-testing examination as a condition for proceeding with the investigation of the alleged offense. No law-enforcement officer, prosecutor or any other government official may refuse to proceed with an investigation, warrant, indictment, information or prosecution of the alleged offense because the alleged victim refused to submit to such an examination.

 

Note: The laws cited in this section were current as of April, 2011 (West Virginia Legislature).