HD62 - Victims and Witnesses of Crime


Executive Summary:
A. Background

On January 16, 1990, the full Crime Commission adopted the report and recommendations of the subcommittee studying victims and witnesses of crime. This report is a continuation of the crime victim-witness studies created by House Joint Resolution 225 (1987), House Joint Resolution 48 (1988), and House Joint Resolution 184 (1988). It considers four issues: a testimonial privilege for sexual assault and domestic violence counselors; courtroom attendance for victims or their survivors; profits from crime laws; and crime victims' compensation.

B. Issues

The primary questions surrounding the first three issues were constitutional: Would enactment of such laws violate defendants' first, fifth, sixth, and fourteenth amendment rights? Literature and case law suggest that testimonial privileges and courtroom attendance laws can be structured and applied in such manners that neither the victims' nor the defendants' rights suffer. Other states now have testimonial privileges for sexual assault/domestic violence counselors. Seventeen states entitle a victim or his representative to be present in the courtroom during the trial. Although literature is replete with articles assailing the constitutionality of "Son of Sam" laws, case law upholds them; and forty-three states and Congress have enacted them.

Victims' compensation issues had been extensively studied by the Joint Legislative Audit and Review Commission and reported on in House Document 17 (1989). Consequently, this report only summarizes the findings of that investigation and, pursuant to House Joint Resolution 184, reviews the Division of Crime Victims' Compensation responses to the JLARC recommendations, which dealt with funding, program management, and administrative placement. Appendix B of this report is the Industrial Commission's detailed transmittal letter accompanying its final response to JLARC recommendations. Crime Commission legislative proposals focus on program management to expand eligibility coverage, raise the funeral reimbursement award, and ensure confidentiality of information CVC receives from law-enforcement agencies.

C. Recommendations

1. Testimonial Privilege for Sexual Assault and Domestic Violence Counselors

Postpone introducing legislation to enact a limited privilege for sexual assault and domestic violence counselors. The privilege would have extended to qualified crisis center workers who had undergone at least 30 hours of appropriate counseling training. It was limited by requirements that counselors report suspected child abuse and neglect pursuant to § 63.1-248.3 and the intent to commit a felony. Standards for qualified sexual assault crisis counselors submitted by Virginians Aligned Against Sexual Assault, VAASA, appears as Appendix E. The postponement was requested by VAASA.

2. Courtroom Attendance

Amend § 19.2-265.1 (exclusion of witnesses) to permit a victim, a parent or guardian of a minor victim, or the parent of a homicide victim to remain in court during the trial. The entitlement to remain in court rests with the judge, who makes the decision outside the jury's presence.

3. Profits from Crime

Enact a profits from crime law to delay, restrict, or prevent the criminal author's receipt of profits gained through the publication, in any form, of accounts of his crime. The proposed legislation requires notice to interested parties, an opportunity for the defendant to show cause why his profits should not be escrowed, escrow by the Division of Crime Victims' Compensation, filing of a civil suit by the victim, and disposition of funds after a five-year period or, if longer, after the final disposition of a civil suit against the defendant or the final disposition of the defendant's appeals. If the victim does not sue for the proceeds, and after the expiration of the previously mentioned periods, the defendant will receive twenty-five percent and the Criminal Injuries Compensation Fund will receive seventy-five percent of the profits.

4. Crime Victims' Compensation

a. Amend § 19.2-368.3 (powers and duties of the Industrial Commission) to restrict the use of information received by CVC to the purposes specified in the section and to permit latitude for the submitting agencies as to the extent and form of the information submitted. This recommendation ensures confidentiality of records.

b. Amend § 19.2-368.4 (persons eligible for awards) to enable any victim to collect from CVC so long as the award will not unjustly enrich the offender even if the victim resides with or is married to the offender. Eligibility is also extended to Virginians who are victimized in states having no CVC program eligible pursuant to VOCA guidelines. These changes bring Virginia's statute into compliance with the new VOCA eligibility requirements and are essential if Virginia is to retain substantial federal grants to the CVC program.

c. Amend § 19.2-368.11:1 (amount of award) to raise the victim funeral expense reimbursement from $1500 to $2000.

d. Amend § 19.2-368.2 (definitions) to include in the definition of "victim" robbery, abduction, and attempted robbery and abduction victims. This amendment allows these victims to collect counseling expenses from CVC when their injury is emotional and not necessarily physical.