Kansas Attorney General Opinion 2016-021

December 5, 2016
ATTORNEY GENERAL OPINION NO. 2016-21
Barry R. Wilkerson, County Attorney
Riley County Attorney's Office
Carnegie Building
105 Courthouse Plaza
Manhattan, Kansas 66502-0106
Re: 	Public 	Health—Hospitals 	and 	Other 	Facilities—Qualified 	Persons 	at
Medical Care Facilities to Examine Victims of Sexual Offenses, When;
Remedy for Refusal; Costs, Consent and Notice
Synopsis: 	Pursuant to K.S.A. 2016 Supp. 65-448, the victim or any law enforcement
officer with the written consent of the reported victim may request a sexual
assault examination and collection of a sexual assault kit for the purpose of
gathering evidence of the enumerated crimes. 	The county where the
alleged offense was committed is the responsible party to pay for such
examination and sexual assault collection kit but may seek reimbursement
as court costs from the convicted defendant for the costs paid by the county.
In order to verify the validity of an invoice from the hospital or medical care
facility, the county may request non-individually identifiable information
associated with the victim to establish a sexual assault examination was
conducted and a sexual assault kit was collected pursuant to K.S.A. 2016
Supp. 65-448. A minor, by statute, is competent to give or refuse consent
for a sexual assault examination and collection of a sexual assault kit for
the purpose of gathering evidence of the enumerated crimes. The hospital
or medical care facility shall give written notice to the parent or guardian of
a minor that such an examination has taken place even when the parent or
guardian is the alleged assailant. Cited herein: K.S.A. 2016 Supp. 21-5107;
21-5503; 21-5504; 21-5506; 21-5604; K.S.A. 38-101; 38-108; 38-122;
K.S.A. 38-123; 38-123b; 59-2949; K.S.A. 2016 Supp. 65-448; K.S.A. 65-
2892; 65-2892a; K.S.A. 2016 Supp. 65-6704; and 74-7333.

Barry R. Wilkerson
Page 2
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Dear Mr. Wilkerson:
As Riley County Attorney, you ask for an Attorney General opinion on six questions
relating to K.S.A. 2016 Supp. 65-448, the statute which provides for a forensic medical
examination of a victim of a specified sexual offense and the collection of a Kansas
Bureau of Investigation sexual assault evidence collection kit, or similar kit, by qualified
persons at medical care facilities.
Before answering your specific questions, we will first review the Kansas law regarding a
forensic medical examination of a victim of a sexual assault and the federal law known as
the Violence Against Women Act (VAWA) of 1994. 1 As early as 1977, the State of Kansas
provided for a forensic examination of victims of specified sexual offenses for the purpose
of gathering evidence of any such crime, upon the request of any law enforcement officer.
Further, since 1977, the “costs of conducting such examinations were charged to and
paid by the county where the alleged offense was committed.”2 In 1994, the Legislature
added the required use of Kansas Bureau of Investigation sexual assault evidence
collection kits, or similar kits, during the examination, and authorized the cost of the kit to
be charged to and paid by the county where the alleged offense was committed. 3 An
amendment in 1996 authorized the county to seek reimbursement against the convicted
defendant for the costs paid by the county as a court cost in the criminal prosecution.4
Congress enacted VAWA in 1994. Among its many provisions, VAWA created the Office
of Violence Against Women (OVW) within the Department of Justice 5 and authorized the
OVW to provide federal funds to states for the investigation and prosecution of violent
crimes against women. 6 	Under the STOP (Services–Training–Officers–Prosecutors)
Violence Against Women Formula Grant Program (STOP Program), grant funds are
provided to states and territories 7 based on population, to promote a coordinated,
multidisciplinary approach to improve the criminal justice system’s response to violence
against women and to provide services to victims of domestic violence, dating violence,
sexual assault, and stalking.8
1 VAWA was originally enacted as Title IV of the Violent Crime Control and Law Enforcement Act of 1994.
See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1902
(1994). 	VAWA was most recently reauthorized with the passage of the Violence Against Women
Reauthorization Act of 2013 (VAWA 2013), Pub. L. No 113-4, 127 Stat. 54 (2013).
2 L. 1977, Ch. 211, § 1, codified in K.S.A. 2016 Supp. 65-448(c).
3 L. 1994, Ch. 348, § 9, codified in K.S.A. 2016 Supp. 65-448(c).
4 L. 1996, Ch. 156, § 1, codified in K.S.A. 2016 Supp. 65-448(c).
5 42 U.S.C. § 3796gg-0(a).
6 42 U.S.C. § 3796gg(b).
7 42 U.S.C. § 3796gg-1(b).
8 42 U.S.C. § 3796gg(b).

Barry R. Wilkerson
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In order to be entitled to funds under the STOP Program, the state or unit of local
government must incur the full out-of-pocket costs of forensic medical examinations for
alleged victims of sexual assault and must notify victims of sexual assault of the
availability of forensic medical examinations at no cost to the victim.9 “The term forensic
medical examination means an examination provided to a sexual assault victim by
medical personnel trained to gather evidence of a sexual assault in a manner suitable for
use in a court of law.” 10 According to federal regulations, the examination, at a minimum,
should include “(i) Examination of physical trauma; (ii) Determination of penetration or
force; (iii) Patient interview; and (iv) Collection and evaluation of evidence.” 11
After VAWA’s adoption, three amendments were made to K.S.A. 65-448. First, in 2002,
the Kansas law was amended to add a licensed physician assistant and a registered
professional nurse who has been specially trained in performing sexual assault evidence
collection to the existing list of health care personnel required to conduct asexual assault
examination if on call or on duty. 12 Further, the law made refusal to conduct such
examination by listed health care personnel subject to injunction or reportable to the
appropriate licensing agency for disciplinary action. 13
Second, in 2008, the Kansas law was amended to add the victim as a person who may
request an examination and collection of a sexual assault evidence collection kit pursuant
to K.S.A. 65-448. 14 	If the victim requests the examination, the medical care facility is
prohibited from notifying any law enforcement agency without the written consent of the
victim, unless otherwise required by law. 15 	When the victim chooses not to release the
kit to law enforcement, the sexual assault evidence collection kit is required to be sealed
by either the sexual assault nurse examiner program or the facility and sent to the Kansas
Bureau of Investigation for storage. 16 After five years, such kits are required by statute to
be destroyed. 17
Also in 2008, the law was changed to require the Kansas Department of Health and
Environment to establish the fee chargeable by the hospital or medical care facility for
conducting an examination and the cost of the sexual assault evidence collection kit. 18
The amendment also provided that the refusal of the victim to report the alleged offense
to law enforcement shall not excuse or exempt the county from paying such fee;19 and
9 42 USC § 3796gg-4. See also, 28 C.F.R. § 90.14. VAWA 2013 clarified that victims cannot be required
to pay any out-of-pocket costs to obtain a forensic medical examination.
10 28 C.F.R. § 90.2(b).
11 28 C.F.R. § 90.2(b)(1).
12 L. 2002, Ch. 128, § 2.
13 Id.
14 L. 2008, Ch. 157, § 1, codified in K.S.A. 2016 Supp. 65-448(a).
15 Id.
16 L. 2008, Ch. 157, § 1, codified in K.S.A. 2016 Supp. 65-448(b).
17 Id.
18 L. 2008, Ch. 157, § 1, codified in K.S.A. 2016 Supp. 65-448(c).
19 Id.

Barry R. Wilkerson
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the fee for conducting an examination shall not be charged or billed to the victim or to the
victim’s insurance carrier.20
Finally, in 2011, the law was amended to update the statutory references to the sexual
offenses 	cognizable 	as 	violations 	authorizing 	examination 	and 	evidence 	collection
pursuant to K.S.A. 65-448.21
With that background, we now turn to your specific questions.
Requesting an Examination
First, you ask, pursuant to K.S.A. 2016 Supp. 65-448, “who may request a sexual assault
examination and collection of a sexual assault kit for the purpose of gathering evidence
of the crimes of 	[rape, 22 criminal sodomy,23 aggravated criminal sodomy, 24 indecent
liberties with a child 25 and aggravated indecent liberties with a child, 26 and incest 27 and
aggravated incest].”28
To answer your question, we consider the plain language of K.S.A. 2016 Supp. 65-448.
Our analysis is guided by the rules of statutory interpretation:
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. We first attempt to
ascertain legislative intent by reading the plain language of the statutes and
giving common words their ordinary meanings. When a statute is plain and
unambiguous, we do not speculate as to the legislative intent behind it and
will not read into the statute something not readily found in it.29
K.S.A. 2016 Supp. 65-448(a) provides, in pertinent part:
Upon the request of any law enforcement officer and with the written
consent of the reported victim, or upon the request of the victim, any
physician, a licensed physician assistant, who has been specially trained in
performing sexual assault evidence collection, or a registered professional
nurse, 	who 	has 	been 	specially 	trained 	in 	performing 	sexual 	assault
evidence collection, on call or on duty at a medical care facility of this state,
20 Id.
21 K.S.A. 2016 Supp. 65-448(a).
22 K.S.A. 2016 Supp. 21-5503.
23 K.S.A. 2016 Supp. 21-5504.
24 Id.
25 K.S.A. 2016 Supp. 21-5506.
26 Id.
27 K.S.A. 2016 Supp. 21-5604.
28 Id.
29 Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918 (2013), quoting Stewart Title
of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564–65 (2012) (internal citations omitted).

Barry R. Wilkerson
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as defined by subsection (h) of K.S.A. 65-425, and amendments thereto,
shall examine persons who may be victims of sexual offenses cognizable
as 	violations 	of 	K.S.A. 	21-5503, 	21-5504, 	21-5506 	or 	21-5604, 	and
amendments thereto, using Kansas bureau of investigation sexual assault
evidence collection kits or similar kits approved by the Kansas bureau of
investigation, for the purposes of gathering evidence of any such crime.
The plain language of K.S.A. 2016 Supp. 65-448 provides that the victim may request a
sexual assault examination and collection of a sexual assault kit for the purpose of
gathering evidence of the enumerated crimes. 30 	Also, any law enforcement officer with
the written consent of the reported victim may make the request.31 	We conclude that,
pursuant to K.S.A. 2016 Supp. 65-448, only the victim or a law enforcement officer with
written consent of the victim may request a sexual assault examination and collection of
a sexual assault kit.
Payments for an Examination
Second, you ask who is responsible for the payment of such examination and evidence
collection and whether the responsible party can refuse to pay for a sexual assault
examination.
To answer your question, we look to the language in K.S.A. 2016 Supp. 65-448(c) which
provides:
The fee chargeable for conducting an examination of a victim as herein
provided shall be established by the department of health and environment.
Such fee, including the cost of the sexual assault evidence collection kit
shall be charged to and paid by the county where the alleged offense was
committed, and refusal of the victim to report the alleged offense to law
enforcement shall not excuse or exempt the county from paying such fee.
The fee for conducting an examination of a victim as herein provided shall
not be charged or billed to the victim or to the victim's insurance carrier.
Such county shall be reimbursed such fee upon the costs being paid by the
defendant as court costs assessed pursuant to K.S.A. 28-172a, and
amendments thereto.
Again, the plain language of the statute unequivocally provides that the county where the
alleged offense was committed shall be responsible for the payment of such examination
and evidence collection. 32 	The county is the responsible party to pay the debt, and the
statute does not provide any justification for a county’s refusal to pay for the sexual assault
examination and collection of a sexual assault kit pursuant to K.S.A. 2016 Supp. 65-448. 33
30 K.S.A. 2016 Supp. 65-448(a).
31 Id.
32 K.S.A. 2016 Supp. 65-448(c).
33 Id.

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Even refusal of the victim to report the alleged offense to law enforcement does not
excuse or exempt the county from paying for such examination and evidence collection. 34
However, the statute does allow the county to seek reimbursement from the defendant
for the costs paid by the county as a court cost in the criminal prosecution. 35 The ultimate
responsible party, therefore, is the criminal defendant convicted of at least one of the
sexual offenses listed in K.S.A. 2016 Supp. 65-448.
Victim Confidentiality
Third, you ask what information may the county request to verify the validity of an invoice
for payment of a sexual assault examination and collection of a sexual assault kit pursuant
to K.S.A. 2016 Supp. 65-448. 	This question requires a balancing between the victim’s
privacy and the county’s need to ensure proper billing.
The victim has at least two privacy interests that require protection. 	First, the victim’s
name, address or other privacy information may need to be protected to provide for the
safety of the victim of a sexual offense and his or her family and to protect them from
potential intimidation and retaliation. This right to protection is listed in the Bill of Rights
for Victims of Crime.36
Second, the victim’s individually identifiable information is required to be protected by the
medical care facility, which has an obligation under the Health Insurance Portability and
Accountability Act 37 to ensure that individually identifiable information is not disclosed
without a written authorization from the individual or, alternatively, the opportunity for the
individual to agree or object.38
Because the fee chargeable for conducting an examination and the cost of the sexual
assault evidence collection kit is capped by statute to the fee established by the Kansas
Department of Health and Environment, the county cannot reasonably argue that it needs
the individually identifiable information to ensure proper billing. The established fee is the
fee no matter what other services the victim is provided by the hospital or medical care
facility. Because the county is not responsible for anything but the established fee for the
sexual assault examination and the sexual assault evidence collection kit under K.S.A.
2016 Supp. 65-448, it does not need the victim’s individually identifiable information.
Thus, we conclude that in order to verify the validity of an invoice, the county may request
non-individually identifiable information associated with the victim to establish that a
sexual assault examination was conducted and a sexual assault kit was collected
34 Id.
35 K.S.A. 2016 Supp. 65-448(c).
36 K.S.A. 2016 Supp. 74-7333(a)(7).
37 Pub. L. No. 104-191 (1996).
38 Health Insurance Portability and Accountability Act of 1996, § 101(a) et seq., 42 U.S.C.A. § 1181 et seq.;
45 C.F.R. §§ 164.508, 164.510.

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pursuant to K.S.A. 2016 Supp. 65-448. 	The county may also request information to
establish the alleged sexual offense was committed in such county.
Authorized Destruction
Fourth, you ask whether the provision in K.S.A. 2016 Supp. 65-448(b) that requires sexual
assault collection kits to be destroyed after five years is “in line” with changes in law
regarding the statute of limitations.
K.S.A. 2016 Supp. 65-448(b) provides:
All sexual assault kits collected that are not released to law enforcement
shall be sealed by either the sexual assault nurse examiner program or the
facility that provided the examination and kept for five years in the evidence
storage facilities of the Kansas bureau of investigation. After five years,
such kits shall be destroyed by the Kansas bureau of investigation.
The statute of limitations for crimes is found in K.S.A. 2016 Supp. 21-5107 and provides
the law on when a prosecution of the crime must commence or be barred from
prosecution. 	Currently, a prosecution for rape or aggravated criminal sodomy may be
commenced at any time.39 	For criminal sodomy, indecent liberties with a child,
aggravated indecent liberties with a child, incest, and aggravated incest, a prosecution
must commence as follows:
(1) When the victim is 18 years of age or older shall be commenced within
10 years or one year from the date on which the identity of the suspect
is conclusively established by DNA testing, whichever is later; or
(2) when the victim is under 18 years of age shall be commenced within 10
years of the date the victim turns 18 years of age or one year from the
date on which the identity of the suspect is conclusively established by
DNA testing, whichever is later.
Whether K.S.A. 2016 Supp. 65-448 is “in line” with the statute of limitations is not a
question of law but a question of policy which is not within our authority to opine. 40 	We
therefore decline to provide an opinion on this question.
39 K.S.A. 2016 Supp. 21-5107.
40 K.S.A. 75-704; See also, State v. Spencer Gifts, LLC, 304 Kan. 755, 765 (2016) (internal citations omitted)
(“questions of public policy are for legislative and not judicial determination, and where the legislature does
so declare, and there is no constitutional impediment, the question of the wisdom, justice, or expediency of
the legislation is for that body and not for the courts.”).

Barry R. Wilkerson
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Consent
Fifth, you ask if a parent can consent to a sexual assault examination of a minor. Further
you ask if a parent can consent to a sexual assault examination of a minor even if the
minor does not consent. Because your other questions have been limited to interpreting
K.S.A. 2016 Supp. 65-448, we presume this question is similarly limited. Also, because
your facts include a parent, we will presume the minor is an unemancipated minor under
the age of 18 years.
As a general rule, Kansas law requires a minor seeking nonemergency medical care to
obtain the consent of a parent or guardian because a minor is presumed not to have the
capacity to give informed consent necessary for medical assessment or treatment. 41 	A
minor is defined as any person under the age of eighteen, except persons sixteen years
or older who have been married42 or have been emancipated. 43
There are a number of condition-specific statutory exceptions to the general rule. 44
K.S.A. 2016 Supp. 65-448 is a statutory exception to the general rule. Subsection (a) of
the statute provides, in pertinent part:
A minor may consent to examination under this section. Such consent is not
subject to disaffirmance because of minority, and consent of parent or
guardian of the minor is not required for such examination. 45
In your first scenario, the minor consents and a parent affirms the consent to a sexual
assault examination and collection of evidence. 	We believe K.S.A. 2016 Supp. 65-448
does not prohibit this scenario.
Under the clear language of K.S.A. 2016 Supp. 65-448(a), the legislature has determined
that, in this instance, a minor is competent to give consent for a sexual assault
examination. 	The law authorizes a victim who happens to be a minor to consent to a
sexual assault examination.46 After all, a medical examination of the body of a person is
a technical invasion of privacy, battery, or trespass, regardless of its result, unless the
person or some authorized person consents to it.47 Parental consent under K.S.A. 2016
41 See Younts v. St. Francis Hosp. & Sch. of Nursing, Inc., 205 Kan. 292 (1970); and K.S.A. 38-122 which
provides, “A parent may give consent to the performance upon his or her child of a medical, surgical or post
mortem procedure by a physician licensed to practice medicine or surgery.”
42 K.S.A. 38-101.
43 K.S.A. 38-108.
44 E.g., K.S.A. 38-123 (unmarried pregnant minor), 38-123b (hospital, medical or surgical treatment or
procedures where parent or guardian is not immediately available), 59-2949 (inpatient mental health
services), 65-2892 (sexually transmitted disease care), 65-2892a (drug or alcohol treatment), K.S.A. 2016
Supp. 65-448 (sexual assault examination), and 65-6704 (abortion).
45 K.S.A. 2016 Supp. 65-448(a).
46 Id.
47 Younts v. St. Francis Hosp. & Sch. of Nursing, Inc., 205 Kan. 292, 298 (1970).

Barry R. Wilkerson
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Supp. 65-448(a) is not required but it also is not prohibited. 48 	Based on a plain reading
of the statutory language, a parent may affirm consent to a sexual assault examination
and collection of evidence if the minor consents.
In your second scenario, the minor does not consent and a parent attempts to consent to
a sexual assault examination and collection of evidence. 	Again, the Legislature has
determined a minor, without further qualification, to be competent to exercise control of
his or her body in this instance. The grant of authority for self-determination includes the
right to accept or refuse a sexual assault examination and collection of evidence. Based
on the plain language of the statute, we conclude a parent is without authority to give
consent over the objection of the minor.
In summary, we conclude that a minor, by statute, is competent to give or refuse consent
for a sexual assault examination and collection of a sexual assault kit for the purpose of
gathering evidence of the enumerated crimes.
Notice
Sixth, you ask whether, pursuant to K.S.A. 2016 Supp. 65-448(a), the hospital or medical
care facility is required to give notice that a minor victim has undergone an examination
when the alleged assailant is the victim’s parent or guardian.
The law provides that “[t]he hospital or medical [care] facility shall give written notice to
the parent or guardian of a minor that such an examination has taken place.” 49 Since the
language of the statute is clear and unequivocal and provides no exception, the answer
to your question is yes.50
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
48 We presume the purpose of the language, “and consent of parent or guardian of the minor is not required
for such examination,” is to bar a parent or guardian alleged to be the assailant from preventing collection
of evidence of the alleged sexual assault.
49 K.S.A. 2016 Supp. 65-448(a).
50 Id.