Key points
- A Michigan hospital must immediately tell a person who says he or she was the victim of criminal sexual conduct within the preceding 120 hours that a sexual assault medical forensic examination is available.[1]
- The examination and the evidence kit are performed only if the individual consents.[1]
- A health care provider may not bill the victim for any portion of the examination, including an insurance deductible, a co-pay or a denied claim.[2]
- A victim cannot be required to participate in the criminal justice system or cooperate with law enforcement as a condition of having the examination.[3]
- Kit evidence that is not released to police must be stored for a minimum of 1 year before it is destroyed.[4]
In Michigan, a person who has been sexually assaulted can have a medical forensic examination without filing a police report and without receiving a bill. A hospital must offer the exam when a person says the assault happened within the preceding 120 hours, the exam happens only with the person's consent, and it cannot be made conditional on cooperating with law enforcement.[1][3]
If you are in immediate danger, call 911. The national hotline of the Rape, Abuse & Incest National Network is 800-656-HOPE (800-656-4673).[5] Michigan's VOICES4 hotline has advocates available by call or text at 1-855-864-2374, and online chat is also offered.[6] The state describes the hotline as available 24/7, confidential and anonymous.[6]
Michigan statutes call this a "sexual assault medical forensic examination."[1] It is also called a SANE exam, from "sexual assault nurse examiner," or a "rape kit." This page covers what the law requires of hospitals, police and the state, and what it leaves to the patient.
What the exam is
The statute that governs payment describes the examination by its parts. To be paid by the state, the exam must include:[7]
- The collection of a medical history.[7]
- A general medical examination, including laboratory services and the dispensing of prescribed pharmaceutical items.[7]
- One or more of a detailed oral, anal or genital examination.[7]
- Administration of a sexual assault evidence kit, with related medical procedures and laboratory and pharmacological services.[7]
The "sexual assault evidence kit" is a standardized set of equipment and written procedures approved by the Department of State Police, designed to be administered to an individual principally for the purpose of gathering evidence of sexual conduct.[8]
In a case about a nurse's testimony, the Court of Appeals held that testimony about the lack of injury in most sexual assault cases was properly admitted.[9]
The 120-hour rule
The hospital's duty is triggered by time. If an individual alleges to a physician or other member of the attending or admitting staff that "within the preceding 120 hours" the individual has been the victim of criminal sexual conduct, the attending health care personnel "immediately shall inform the individual of the availability of a sexual assault medical forensic examination, including the administration of a sexual assault evidence kit."[1]
The hospital must also inform the individual of the provisions for payment.[8]
People commonly repeat shorter windows. The statute's figure is 120 hours, which is five days.[1] The statute speaks to the hospital's duty to offer the exam; it is not a deadline for reporting a crime, which is governed by the limitations periods described in Statute of limitations for sex crimes.
Consent belongs to the patient
The statute's operative words are "If consented to by the individual." Only then do health care personnel perform, or have performed, the examination and the procedures the kit calls for.[1]
Release of the kit to police is a second, separate consent. The Sexual Assault Kit Evidence Submission Act speaks of a facility that "has obtained written consent to release sexual assault kit evidence" and one that has not, and gives each a different duty.[10][4]
No police report is required
MCL 18.355a(10) states: "A victim of sexual assault shall not be required to participate in the criminal justice system or cooperate with law enforcement as a condition of being administered a sexual assault medical forensic examination."[3]
Police carry a matching duty to say so. Within 24 hours after the initial contact between a sexual assault victim and the investigating law enforcement agency, the agency must give the victim a written copy of, or access to, notice that he or she may choose to have a kit administered without being required to participate in the criminal justice system, and that he or she cannot be billed for the examination.[11]
The decision whether to report at all, and to whom, is covered in Your options for reporting.
Who pays
| Question | What the statute says |
|---|---|
| Can the patient be billed? | No. A provider shall not submit a bill for any portion of the costs to the victim, including any insurance deductible or co-pay, denial of claim by an insurer, or any other out-of-pocket expense.[2] |
| Is insurance billed? | Only with the victim's express written consent. The provider must explain this orally and in writing, and say that consent may be declined if a claim would substantially interfere with personal privacy or safety.[12] |
| Who pays if insurance does not? | If reimbursement cannot be obtained from the victim's insurance or insurance is unavailable, the provider may seek payment from the crime victim services commission, from another entity other than the victim, or both.[13] The commission pays the provider not more than $1,200, including not more than $700 for the use of the room and the examination and related procedures.[14] |
| Are the payment records private? | Except with the victim's consent or as the subsection otherwise provides, information the commission collects under this section that identifies a victim is exempt from the Freedom of Information Act, may not be obtained by subpoena or in discovery, and is inadmissible in any civil, criminal or administrative proceeding.[15] |
For the state's separate compensation program, having the examination satisfies the requirements for prompt law enforcement reporting and victim cooperation.[15] That program is explained in Crime victim compensation and exam costs.
What happens to the kit
If the patient consents to release it
A health care facility that has obtained written consent to release the kit must notify the investigating law enforcement agency, if known, or the agency with jurisdiction where the facility is located, within 24 hours after obtaining that consent.[10] The agency must take possession of the kit within 14 days after receiving that notice.[16] What follows, including the laboratory timetable, is in Sexual assault kits: testing deadlines and tracking.
If the patient does not
The facility must inform the individual of its storage policy. That information must include the period for which the evidence will be stored before it is destroyed and how the individual can have the evidence released to the investigating law enforcement agency at a later date.[4] Whatever the facility's own policy, kit evidence that is not released "shall be stored for a minimum of 1 year before it is destroyed."[4]
The statute does not use the phrases "anonymous kit" or "non-report kit." The provision for unreleased kits is the legal footing for what those phrases describe.[4]
Following the kit
The state's Track-Kit system is free for survivors and identifies each kit by a unique barcode number; according to the Michigan Department of Health and Human Services, a survivor can use the portal even if the kit was not released for forensic testing.[17][18]
How the exam is used as evidence
If a case is charged, three kinds of evidence can come from the exam.
- Laboratory results. DNA profiles from analyzed kit evidence are uploaded only into the state and national databases specified by the State Police.[19] See DNA evidence.
- The examiner's findings. A qualified examining physician may give an opinion on whether a complainant was sexually assaulted when the opinion is based on physical findings and the medical history.[20] Without physical evidence that corroborates the account, an examining physician cannot testify that a complainant was sexually assaulted.[21]
- What the patient said. Statements made for and reasonably necessary to medical treatment fall within a hearsay exception.[22] Whether statements to a nurse examiner are testimonial under the Confrontation Clause depends on the totality of the circumstances.[23]
Those evidence rules are covered in Statements to doctors and SANE nurses. The absence of physical findings does not bar a prosecution: the testimony of a victim need not be corroborated.[24]
Confidential support during and after the exam
A confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent.[25] Police must also give a victim contact information for a local community-based sexual assault services program, if one is available, within 24 hours of initial contact.[11] Programs in this region are listed in Where to get help.
What people get wrong
| Belief | What Michigan law says |
|---|---|
| "You have 72 hours." | The hospital's duty applies to an assault within the preceding 120 hours.[1] |
| "You have to talk to the police first." | Participation in the criminal justice system cannot be made a condition of the exam.[3] |
| "The hospital will send a bill." | The provider may not bill the victim for any portion of the exam.[2] |
| "If I don't release the kit, it is thrown away." | Unreleased kit evidence must be stored for a minimum of 1 year.[4] |
A fuller list of the rights that apply after an assault is in Rights of sexual assault survivors in Michigan.
Common questions
How long after an assault can a forensic exam be done in Michigan?
The hospital's statutory duty to offer the exam applies when a person says the assault happened within the preceding 120 hours, which is five days.[1] The statute sets when the hospital must offer the exam; it does not address what medical care is available later. Web pages that give 72 or 96 hours do not match the current text.[1]
Do I have to file a police report to get the exam?
No. Under MCL 18.355a(10) a victim of sexual assault shall not be required to participate in the criminal justice system or cooperate with law enforcement as a condition of being administered a sexual assault medical forensic examination.[3] Police must give a victim a written copy of, or access to, notice of that choice within 24 hours of their initial contact.[11]
Will I get a bill, or will my insurance be charged?
The provider may not bill the victim for any portion of the examination.[2] The provider must advise the victim, orally and in writing, that no claim will be submitted to his or her insurance carrier without express written consent, and that consent may be declined for privacy or safety reasons.[12] If reimbursement cannot be obtained from insurance or insurance is unavailable, the provider may seek payment from the state commission, which pays not more than $1,200, or from another entity other than the victim.[13][14]
What happens to the kit if I do not want it given to police?
The health care facility must tell you its storage policy, including how long the evidence will be kept before it is destroyed and how you can have it released to law enforcement later.[4] Kit evidence that is not released must be stored for a minimum of 1 year before it is destroyed.[4]
Can what a patient tells the nurse be used in court?
It can be. A statement made for, and reasonably necessary to, medical treatment is an exception to the hearsay rule, and the Court of Appeals has said that in sexual assault cases a complete history of the assault can qualify.[22] Whether statements to a sexual assault nurse examiner are "testimonial" for confrontation purposes depends on the totality of the circumstances.[23]
Sources
- MCL 333.21527(1) — Michigan Legislature
- MCL 18.355a(2) — Michigan Legislature
- MCL 18.355a(10) — Michigan Legislature
- MCL 752.933(2) — Michigan Legislature
- U.S. Department of Justice, Office on Violence Against Women, "Sexual Assault" — justice.gov
- State of Michigan, VOICES4 Hotline, "Sexual Assault" page; MDHHS, "Track-Kit for Survivors" — State of Michigan
- MCL 18.355a(1) — Michigan Legislature
- MCL 333.21527(1), (2) — Michigan Legislature
- People v Brown, 326 Mich App 185, 196-197 (2018) — Michigan Courts
- MCL 752.933(1) — Michigan Legislature
- MCL 752.953(1) — Michigan Legislature
- MCL 18.355a(3)(a) — Michigan Legislature
- MCL 18.355a(4) — Michigan Legislature
- MCL 18.355a(7) — Michigan Legislature
- MCL 18.355a(9), (10) — Michigan Legislature
- MCL 752.934(1) — Michigan Legislature
- MDHHS Division of Victim Services, "Track-Kit for Survivors" — Michigan Department of Health and Human Services
- MDHHS Division of Victim Services, "Track-Kit for Survivors" (Frequently Asked Questions) — Michigan Department of Health and Human Services
- MCL 752.934(7) — Michigan Legislature
- People v Thorpe, 504 Mich 230, 255 (2019); People v Smith, 425 Mich 98, 109, 112-113 (1986) — Michigan Courts
- People v Thorpe and People v Harbison, 504 Mich 230, 235, 262, 264 (2019) — Michigan Courts
- MRE 803(4); People v Mahone, 294 Mich App 208, 215 (2011) — Michigan Courts
- People v Spangler, 285 Mich App 136, 154-156 (2009) — Michigan Courts
- MCL 750.520h — Michigan Legislature
- MCL 600.2157a(2) — Michigan Legislature
This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts — check the sources linked above and talk to a licensed Michigan attorney about your situation. If you are in danger, call 911. The National Sexual Assault Hotline is 1-800-656-4673.