Sexual abuse is a truly “democratic” problem. It affects children and adults across ethnic, socioeconomic, educational, religious, and regional lines. One of the statistics that have come to light is that children are three times as likely to be victims of rape and other forms of sexual abuse. In the last year alone, over 58,000 children were victims of sexual abuse. Surprisingly, only about 30% of these sexual assault cases were reported to the authorities. When that happens, the victim is taken to a local hospital to undergo a sexual assault forensic exam (commonly referred to as “rape kits”). This forensic exam helps to preserve items including DNA samples, clothes worn when the attack occurred, hair, saliva, and other evidence that could help to support a prosecution case against the offender.
Under the Statewide Sexual Assault Nurse Examiner (“SANE”) program established in 2001, specially trained nurse examiners may collect forensic evidence from sexual assault victims for use in subsequent prosecutions, but only with the minor’s parents or guardians consent. Otherwise-the minor may only consent to “medical or surgical care or services” without parental or guardian consent if, in the judgment of the treating physician, the minor appears to have been sexually assaulted.
As a result, forensic examinations have been delayed for hours as the victim, the sexual assault examiner, and the authorities all wait for a treating physician’s authorization. The law also says that when a minor appears to have been sexually assaulted, the minor’s parents or guardian shall be notified immediately, unless the attending physician believes that it is in the best interest of the patient not to do so. The inability to locate or notify the parent or guardian does not prevent “necessary emergency medical or surgical care.”
On January 7, 2016, the New Jersey Assembly amended and subsequently adopted a bill in an effort to remove obstacles and create new options for sexual assault victims who may need and want immediate treatment and care. This bill now allows nurses, physician assistances, or other health care professionals, in addition to physicians, to authorize sexual assault examinations and “any emergency or medical or surgical care” if a minor appears to have been sexually assaulted, regardless of whether the minor’s parents or guardian has given consent.
The proposed new law seems to recognize that the fundamental right of minors to get medical treatment and care in sexual assault situations outweighs the parental right to make decision regarding the care, custody, and control of one’s children. It may be controversial, but the New Jersey Assembly has decided that parental consent is an “unnecessary barrier” to the rights sexual abused minors. Sandra Barsoum is an Associate Attorney with Kates Nussman Rapone Ellis & Farhi, LLP and is the author of this blog. One of her areas of practice is working with Mike Farhi in protecting children in bullying cases.