Senate Bill No. 694
(By Senator McKenzie)
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[Introduced February 18, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto six new sections, designated §61-11A-9,
§61-11A-10, §61-11A-11, §61-11A-12, §61-11A-13 and §61-11A-14,
all relating to crime victim's rights.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto six new sections, designated §61-11A-9,
§61-11A-10, §61-11A-11, §61-11A-12, §61-11A-13 and §61-11A-14, all
to read as follows:
ARTICLE 11A. CRIME VICTIM PROTECTION ACT OF 1984.
§61-11A-9. Crime victim's rights.
A crime victim has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of
any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that
proceeding.
(4) The right to be reasonably heard at any public proceeding
regarding release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the
prosecution in the case.
(6) The right to full and timely restitution as provided by
this code.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for
the victim's dignity and privacy.
§61-11A-10. Rights afforded.
In any court proceeding involving an offense against a crime
victim, the court shall ensure that the crime victim is afforded
the rights described in section nine of this article. Before
making a determination described in subsection (3), section nine of
this article, the court shall make every effort to permit the
fullest attendance possible by the victim and shall consider
reasonable alternatives to the exclusion of the victim from the
criminal proceeding. The reasons for any decision denying relief under this article shall be clearly stated on the record.
§61-11A-11. Best efforts to accord rights.
(a)
Government. -- Officers and employees of the Department of
Military Affairs and Public Safety and other departments and
agencies of state and units of local government engaged in the
detection, investigation, or prosecution of crime shall make their
best efforts to see that crime victims are notified of, and
accorded, the rights described in section nine.
(b)
Advice of attorney. -- The prosecutor shall advise the
crime victim that the crime victim can seek the advice of an
attorney with respect to the rights described in section nine.
(c)
Notice. -- Notice of release otherwise required pursuant
to this article shall not be given if such notice may endanger the
safety of any person.
§61-11A-12. Enforcement and limitations.
(a)
Rights. -- The crime victim or the crime victim's lawful
representative, and the attorney for the state may assert the
rights described in section nine. A person accused of the crime
may not obtain any form of relief under this article.
(b)
Multiple crime victims. -- In a case where the court finds
that the number of crime victims makes it impracticable to accord
all of the crime victims the rights described in section nine, the
court shall fashion a reasonable procedure to give effect to this
article that does not unduly complicate or prolong the proceedings.
(c)
Motion for relief and writ of mandamus. -- The rights
described in section nine shall be asserted in the circuit court in
which a defendant is being prosecuted for the crime or, if no
prosecution is underway, in the circuit court in which the crime
occurred. The circuit court shall take up and decide any motion
asserting a victim's right forthwith. If the circuit court denies
the relief sought, the movant may petition the Supreme Court of
Appeals for a writ of mandamus. The Supreme Court of Appeals of
West Virginia may issue the writ pursuant to court rules. The
Supreme Court of Appeals shall take up and decide such application
forthwith within seventy-two hours after the petition has been
filed. In no event shall proceedings be stayed or subject to a
continuance of more than five days for purposes of enforcing this
article. If the Supreme Court of Appeals denies the relief sought,
the reasons for the denial shall be clearly stated on the record in
a written opinion.
(d)
Error. -- In any appeal in a criminal case, the state may
assert as error the circuit court's denial of any crime victim's
right in the proceeding to which the appeal relates.
(e)
Limitation on relief. -- In no case shall a failure to
afford a right under this article provide grounds for a new trial.
A victim may make a motion to reopen a plea or sentence only if:
(1) The victim has asserted the right to be heard before or
during the proceeding at issue and such right was denied; and
(2) The victim petitions the Supreme Court of Appeals for a
writ of mandamus within ten days;
(f)
No cause of action. -- Nothing in this article authorizes
a cause of action for damages or creates, enlarges, or implies any
duty or obligation to any victim or other person for the breach of
which the state or any of its officers or employees could be held
liable in damages. Nothing in this article impairs the
prosecutorial discretion of the Attorney General, county prosecutor
or any officer under their direction.
§61-11A-13. Definitions.
For the purposes of this article, the term "crime victim"
means a person directly and proximately harmed as a result of the
commission of a crime. In the case of a crime victim who is under
eighteen years of age, incompetent, incapacitated, or deceased, the
legal guardians of the crime victim or the representatives of the
crime victim's estate, family members, or any other persons
appointed as suitable by the court, may assume the crime victim's
rights under this article, but in no event shall the defendant be
named as such guardian or representative.
§61-11A-14. Procedures to promote compliance.
(a)
Regulations. -- Not later than the first day of July, two
thousand nine, the Attorney General shall propose rules for
legislative approval pursuant to article three, chapter
twenty-nine-a to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described
in the law respecting crime victims.
(b)
Contents. -- The rules promulgated under subsection (a)
should at a minimum:
(1) Designate the Attorney General as the one who is to
receive and investigate complaints relating to the provision or
violation of the rights of a crime victim;
(2) Require a course of training for employees and officers of
the State of West Virginia that fail to comply with provisions of
state law pertaining to the treatment of crime victims, and
otherwise assist such employees and officers in responding more
effectively to the needs of crime victims;
(3) Contain disciplinary sanctions, including suspension or
termination from employment, for employees of the State of West
Virginia who willfully or wantonly fail to comply with provisions
of state law pertaining to the treatment of crime victims; and
(4) Provide that the Attorney General, or the designee of the
Attorney General, shall be the final arbiter of the complaint, and
that there shall be no judicial review of the final decision of the
Attorney General by a complainant.
NOTE: The purpose of this bill is to enact federal standards
of crime victims rights.
§61-11A-9, §61-11A-10, §61-11A-11, §61-11A-12, §61-11A-13 and
§61-11A-14
are new; therefore, strike-throughs and underscoring
have been omitted.
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