Current Status Bill Number:View additional legislative information at the LPITS web site.
769Ratification Number: 487Act Number: 418Introducing Body: SenateSubject: Victim's and Witness's Bill of Rights
(A418, R487, S769)
AN ACT TO ESTABLISH POLICIES WITH REGARD TO THE TREATMENT OF VICTIMS AND WITNESSES OF CRIME WHICH SHALL BE KNOWN AS THE "VICTIM'S AND WITNESS'S BILL OF RIGHTS", TO PROVIDE THAT THESE RIGHTS ARE TO BE AFFORDED TO VICTIMS AND WITNESSES TO THE EXTENT REASONABLY POSSIBLE AND SUBJECT TO AVAILABLE RESOURCES, TO PROVIDE THAT THIS BILL OF RIGHTS DOES NOT CREATE A CAUSE OF ACTION AGAINST ANY PUBLIC EMPLOYEE OR AGENCY RESPONSIBLE FOR THE ENFORCEMENT OF OR PROVIDING OF THESE RIGHTS AND SERVICES, TO PROVIDE THAT VICTIMS OF CERTAIN CRIMES HAVE THE RIGHT TO SUBMIT A VICTIM IMPACT STATEMENT FOR THE COURT OR PAROLE BOARD TO CONSIDER WHEN IMPOSING SENTENCE OR DETERMINING PAROLE, TO PROVIDE FOR THE MANNER IN WHICH AND DATES BY WHICH THIS VICTIM IMPACT STATEMENT MUST BE DEVELOPED AND USED, TO PROVIDE THAT VICTIMS OF CRIMINAL SEXUAL CONDUCT IN ANY DEGREE AND CHILD SEXUAL ABUSE SHALL NOT BEAR THE COST OF THE MEDICOLEGAL EXAM FOLLOWING THE ASSAULT PROVIDED THE VICTIM HAS FILED AN INCIDENT REPORT WITH A LAW ENFORCEMENT AGENCY, TO PROVIDE FOR THE DEVELOPMENT OF A STANDARDIZED MEDICAL EXAM FOR THE ABOVE PURPOSES, TO PROVIDE THAT LICENSED HEALTH CARE FACILITIES MAY BE REIMBURSED FOR THE COST OF THESE EXAMS BY THE SOUTH CAROLINA CRIME VICTIM'S COMPENSATION FUND, AND TO MAKE AN APPROPRIATION TO THE CRIME VICTIM'S COMPENSATION FUND FOR THE PURPOSE OF PROVIDING FUNDS TO MAKE THESE REIMBURSEMENTS TO LICENSED HEALTH CARE FACILITIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. In recognition of the civic and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of this citizen cooperation to state and local law enforcement efforts and to the general effectiveness and the well-being of the criminal justice system of this State, the General Assembly declares its intent, in this act, to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity; that the rights extended in this act to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants; and that the State has a responsibility to provide support to a network of services to victims of crime, including victims of domestic violence and criminal sexual assault.
SECTION 2. For the purpose of this act:
(1) "Victim" means a person who suffers direct or threatened physical, emotional, or financial harm as the result of the commission or attempted commission of a crime against him. The term "victim" also includes the family members of a crime victim who is a minor or who is incompetent or who was a homicide victim or who is physically or emotionally incapacitated as a result of the crime.
(2) "Witness" means any person who has been or is expected to be summoned to testify for either the prosecution or the defense or who by reason of having relevant information is subject to call or likely to be called as a witness for the prosecution or defense, whether or not any action or proceeding has yet been commenced.
Section may be cited
SECTION 3. This section is known and may be cited as the "Victim's and Witness's Bill of Rights". To the extent reasonably possible and subject to available resources, victims and witnesses of crime are afforded the following rights where applicable:
(A) VICTIMS AND WITNESSES HAVE A RIGHT TO BE TREATED WITH DIGNITY AND COMPASSION.
(1) A victim has a right to basic human services to meet emergency and long term needs caused by financial, physical, or psychological injury.
(2) A victim or witness has a right to be treated with dignity by human service professionals who provide basic assistance.
(3) A victim or witness has a right to receive courteous assistance as they cooperate with criminal justice personnel.
(B) VICTIMS AND WITNESSES HAVE A RIGHT TO PROTECTION FROM INTIMIDATION AND HARM.
(1) A victim has the right to be free from intimidation when involved in the criminal justice system.
(2) When the threat of damaging intimidation cannot be avoided, law enforcement agencies shall take measures to protect the victim or witness, including, but not be limited to, transportation to and from court and physical protection in the courthouse.
(3) The court shall provide the victim or witness courthouse waiting areas that are separate from those that will be used by the defendant, his or her family or friends.
(4) If a witness is threatened, the solicitor shall, to the extent reasonably possible, attempt to prosecute the case.
(C) VICTIMS AND WITNESSES HAVE A RIGHT TO BE INFORMED CONCERNING THE CRIMINAL JUSTICE PROCESS. Victims and witnesses who wish to receive notification and information must provide the solicitor, the Department of Corrections, and the Department of Parole and Community Corrections their current address and telephone number. The solicitor's office which is prosecuting the case shall have the responsibility of the rights listed in this subsection, except (6) and (7) which are the responsibility of both the Department of Parole and Community Corrections and the Department of Corrections.
(1) A victim or witness has a right to be informed about the procedures and practices of the criminal justice system.
(2) A victim has a right to be informed of financial assistance and other social services available to victims and witnesses.
(3) A victim has a right to be informed of any compensation or fees to which they are entitled.
(4) A victim has a right to know the status and progress of his case from the police investigation to final disposition.
(5) A victim or prosecution witness has a right to be informed of a defendant's release on bail and to provide recommendations to the magistrate.
(6) A victim or prosecution witness has a right to be informed of post-sentence hearings affecting the probation or parole of the offender.
(7) A victim or prosecution witness has the right to be informed when the convicted offender receives a temporary, provisional, or final release from custody or the offender escapes from custody.
(8) Unless there is a judicial determination to restrict attendance, a victim or witness has the right to attend all hearings and procedures involving his case. A victim or prosecution witness has the right to be informed of all hearings and procedures in time to exercise his right to attend.
(9) A victim has the right to be informed of whatever rights to legal counsel are available to him in this State.
(10) A victim has the right to discuss their case with the prosecutor.
(11) A victim has a right to be informed of all available civil remedies respecting his case and to proceed in civil suits for recovery for damages if possible, including placing a lien on any profits received by the offender as a result of publication or media coverage resulting from the crime.
(12) A victim has the right to discuss his case with the solicitor or other prosecutor and be informed of any offers to plea bargain with the defendant.
(13) A victim or prosecution witness has the right to be notified in advance when a court proceeding has been rescheduled or cancelled.
(14) A witness has a right to be informed of financial assistance, compensation or fees to which they are entitled.
(D) VICTIMS AND WITNESSES HAVE A RIGHT TO REPARATIONS.
(1) A victim or witness has the right to receive a reasonable witness fee plus reimbursement for necessary out-of-pocket expenses associated with lawfully observing a subpoena. The Court shall determine the rate of reimbursement and reimburse all eligible persons in a timely manner.
(2) A victim or his surviving dependents have the right to receive financial compensation for physical or emotional injuries suffered as a result of being a victim of a violent, bodily crime. The eligibility and award will be determined by the South Carolina Crime Victim's Compensation Fund.
(3) A victim has the right to receive restitution for expenses or property loss incurred as the result of the crime. The judge shall order restitution at every sentencing for a crime against person or property or as a condition of probation or parole, unless the court finds a substantial and compelling reason not to order restitution. The court shall diligently, fairly, and in a timely manner enforce all orders of restitution.
(E) VICTIMS AND WITNESSES HAVE A RIGHT TO PRESERVATION OF PROPERTY AND EMPLOYMENT.
(1) A victim or witness has the right to respond to a subpoena without fear of retaliation or loss of wages from his employer. Victims and witnesses must be provided, where appropriate, employer and creditor intercession services by the solicitor who (a) shall seek employer cooperation in minimizing employees' loss of pay and other benefits resulting from their participation in the criminal justice process and (b) shall seek consideration from creditors if the victim is unable, temporarily, to continue payments.
(2) A victim has the right to have recovered, or taken personal property returned as expeditiously as possible unless the property is contraband, property subject to evidentiary analysis, property the ownership of which is disputed, or the property is needed for law enforcement or prosecution purposes. The property must be returned by the court, the solicitor, or law enforcement agencies using photographs of property as evidence whenever possible.
(F) VICTIMS AND WITNESSES HAVE A RIGHT TO DUE PROCESS IN CRIMINAL COURT PROCEEDINGS. The Court, the Solicitor, and the Defense shall recognize the rights due victims and witnesses and protect them as diligently as the defendant's rights.
(1) A victim has the right to participate in the criminal justice process directly or through representation.
(2) A victim or witness has the right to retain counsel with standing in court to represent him in cases involving the victim's reputation.
(3) A victim or witness has the right to a speedy disposition of the case so as to minimize the stress, cost, and inconvenience resulting from his involvement in a prosecution.
(G) VICTIMS AND WITNESSES WHO ARE VERY YOUNG, ELDERLY, WHO ARE HANDICAPPED OR WHO HAVE SPECIAL NEEDS, HAVE A RIGHT TO SPECIAL RECOGNITION AND ATTENTION BY ALL CRIMINAL JUSTICE, MEDICAL, AND SOCIAL SERVICE AGENCIES. The Court shall treat "special" witnesses sensitively, using closed or taped sessions when appropriate. The solicitor or defense shall notify the Court when a victim or witness deserves special consideration.
Cause of action
SECTION 4. Nothing in Section 3 of this act creates a cause of action on behalf of any person against any public employee, public agency, the State, or any agency responsible for the enforcement of rights and provision of services set forth in this act.
Provisions to govern
SECTION 5. (A) The provisions of this section govern the disposition of any offense within the jurisdiction of the General Sessions Court, excluding any crime for which a sentence of death is sought, in any case which involves an identified victim whose whereabouts are known.
(B) It is the responsibility of the solicitor's victim or witness assistance unit in each judicial circuit or a representative designated by the solicitor or law enforcement agency handling the case to advise all victims of their right to submit to the court, orally or in writing at the victim's option, a victim impact statement to be considered by the judge at the sentencing or disposition hearing in general sessions court and at a parole hearing. The solicitor's office or law enforcement agency shall provide a copy of the written form to any victim who wishes to make a written report. In those cases which the solicitor determines that there has been extensive or significant impact on the life of the victim, the Victim or Witness Assistance Unit shall assist the victim in completing the form. The victim must submit this statement to the solicitor's office within appropriate time limits set by the solicitor to be filed in the court records by the solicitor's office so it may be available to the defense for a reasonable period of time prior to sentencing. The court shall allow the defendant to have the opportunity to rebut the victim's written statement if the court decides to review any part of the statement before sentencing. If the defendant is incarcerated, the solicitor shall forward a copy of the impact statement to the Parole and Community Corrections Board. Solicitors shall begin using these victim impact statements no later than January 1, 1985.
(C) The Attorney General's Office shall develop a standard form for the victim impact statement. For this purpose, the Attorney General may seek the assistance of any other state agency or department in developing this form. The Attorney General's office shall distribute this form to all solicitor's offices no later than November 1, 1984.
(D) The victim impact statement shall:
(1) Identify the victim of the offense;
(2) Itemize any economic loss suffered by the victim as a result of the offense;
(3) Identify any physical and psychological injury suffered by the victim as a result of the offense, along with its seriousness and permanence;
(4) Describe any changes in the victim's personal welfare or familial relationships as a result of the offense;
(5) Identify any request for psychological services initiated by the victim or the victim's family as a result of offense;
(6) Contain any other information related to the impact of the offense upon the victim; and
(7) The original of the statement must be included in the court file with one copy for the solicitor, and one copy for the victim.
(E) The South Carolina Sentencing Guidelines Commission shall develop appropriate guidelines for general sessions court judges to follow for the purpose of utilizing and considering the victim impact statement, along with all other mitigating and aggravating circumstances, in determining the sentence to be imposed. These guidelines must be developed and distributed no later than December 1, 1984, for use by judges no later than January 1, 1985.
(F) No sentence may be invalidated because of failure to comply with the provisions of this section. This section must not be construed to create any cause of action for monetary damages.
Victims shall not bear cost
SECTION 6. (A) The State shall ensure that alleged victims of criminal sexual conduct in any degree or child sexual abuse shall not bear the cost of his or her routine medicolegal exam following the assault provided the victim has filed an incident report with a law enforcement agency.
(B) These exams must be standardized relevant to medical
treatment and to gathering evidence from the body of the victim and must be based on and must meet minimum standards for rape exam protocol as developed by the South Carolina Law Enforcement Division and the South Carolina Hospital Association. These exams shall include treatment for venereal disease, and shall include medication for pregnancy prevention if indicated and if desired. The South Carolina Law Enforcement Division shall distribute these exam kits to any licensed health care facility providing sexual assault exams. When dealing with a victim of criminal sexual assault, the law enforcement agency shall immediately transport the victim to the nearest licensed health care facility which performs sexual assault exams. Any health care facility providing sexual assault exams shall use the standardized protocol described above.
(C) A licensed health care facility, upon completion of a routine sexual assault exam as described in (B) above performed on an alleged victim of criminal sexual conduct in any degree or of child sexual abuse, provided the crime occurred in South Carolina, may file a claim for reimbursement directly to the South Carolina Crime Victim's Compensation Fund. The South Carolina Crime Victim's Compensation Fund must develop procedures for health care facilities to follow when filing a claim with respect to the privacy of the victim. Health care facility personnel shall obtain any information necessary for the claim at the time of the exam if possible. The South Carolina Crime Victim's Compensation Fund shall reimburse eligible health care facilities directly.
(D) There is hereby appropriated from the general fund of this State the sum of one hundred and ten thousand dollars to the South Carolina Victim's Compensation Fund for the purpose of compensating licensed health care facilities for the cost of routine medical exams for sexual assault victims as described above. For the purpose of this particular exam, the one hundred dollar deductible is waived for award eligibility under the fund. The South Carolina Victim's Compensation Fund shall develop appropriate guidelines and procedures and distribute them to law enforcement agencies and appropriate health care facilities.
SECTION 7. This act shall take effect upon approval by the Governor.