Bill Summary for S 682 (2019-2020)

Summary date: 

Jul 25 2019

Bill Information:

View NCGA Bill Details2019-2020 Session
Senate Bill 682 (Public) Filed Thursday, June 27, 2019
AN ACT TO IMPLEMENT THE CONSTITUTIONAL AMENDMENT TO PROVIDE BETTER PROTECTIONS AND SAFEGUARDS TO VICTIMS OF CRIME.
Intro. by Daniel, J. Davis, Britt.

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Bill summary

House committee substitute to the 3rd edition makes the following changes.

Part I.

Further amends the defined terms set forth in GS 15A-824, applicable to Article 45, Fair Treatment for Certain Victims and Witnesses, as follows. Now defines crime to mean a felony or serious misdemeanor as determined at the sole discretion of the district attorney, except those included in Article 46, Crime Victims' Rights Act, or an act by a juvenile as provided in Article 20A of GS Chapter 7B, as enacted (previously, included any act committed by a juvenile that, if committed by an adult, would constitute a felony or serious misdemeanor; excluded an offense against the person or a felony property crime covered by Article 46 of GS Chapter 15A or Article 20A of GS Chapter 7B). Additionally, modifies family member to more specifically include the sibling or grandparent of the victim (rather than the closest living relative of the victim), and explicitly exclude the accused from the term.

Further amends GS 15A-825, concerning the treatment of victims by law enforcement agencies, the prosecutorial system, the judicial system, and the correctional system. Maintains existing law regarding the provision of a secure waiting area during court proceedings (previously, amended to refer to proximity to any defendant or the family of any defendant; existing law refers to proximity to defendants and families or friends of defendants). Now requires that each victim be given the opportunity to prepare a victim impact statement for consideration by the court (under current law, required to have a victim impact statement prepared). Modifies terminology to require the victim be informed prior to trial, rather than told, that the district attorney (DA) may recommend a plea bargain. Maintains current law which requires family members of a homicide victim be offered all the guarantees of the statute, as appropriate (previously, eliminated).

Amends GS 8-53.12, concerning privileged communications with agents of rape crisis centers and domestic violence programs, establishing that any agent or center that receives a request for any necessary information which the agent acquired during the provision of services to a victim must make every effort to inform the victim of the request and provide the victim a copy of the written request, if applicable. Concerning a court's decision to compel production of the records, adds new provisions to require the judge in any proceeding subject to the statute to inquire as to whether the victim is present and wishes to be heard. Requires the court to grant the victim the opportunity to be reasonably heard if present and so desiring, including, at the victim's discretion, by oral statement, submission of a written statement, or submission of an audio or video statement.

Further amends the defined terms set forth in GS 15A-830, applicable to Article 46, Crime Victims' Rights Act, as follows. Amends the proposed definition of court proceeding to more specifically include a hearing involving a plea that disposes of the case, rather than any plea. Adds that if it is known to law enforcement and the DA's office that the defendant and the victim have a personal relationship, as defined by state law, and the hearing can result in the defendant's release, efforts will be made to contract the victim. Makes clarifying changes. Amends the proposed definition of family member to include a guardian or legal custodian of the victim. Also qualifies that the accused can be included in the term if the charges are dismissed or the person is found not guilty. Amends the proposed definition of offense against the person to include violations of GS Chapter 20 (motor vehicle laws) if an element of the offense involves impairment of the defendant, or injury or death to the victim (previously, if the offense involved that specified). Specifies that violations of a valid GS 50B-4.1 protective order includes domestic criminal trespass, GS 14-134.3, and purchase or possession of firearms by a person subject to a domestic violence protective order, GS 14-269.8. Specifies that the term includes violations of Article 35 of GS Chapter 14 (offenses against the public peace) if the elements of the offense involve communicating a threat or stalking (previously, id the offense involved that specified). Adds that the term includes an offense that triggers the enumerated victims' rights, as required by the NC Constitution. Concerning the assertion of the victim's rights, prohibits the accused from asserting the victim's right when the victim is a minor or is legally incapacitated. Additionally, prohibits an individual who would not act in the best interest of the victim, in the determination of the DA (was, the court), from asserting or exercising the victim's rights. Adds that an individual can petition the court to review the DA's determination. 

Amends proposed GS 15A-830.5, setting forth victim's rights, specifying that the victim's right to be reasonably heard at court proceedings involving a plea is limited to those involving a plea that disposes of the case. Also, modifies the terminology to establish the right to reasonably confer with the DA's office, rather than the prosecution. Makes further terminology changes to the Article to refer to the attorney prosecuting the case, or the prosecuting attorney, concerning the right to reasonably confer, as appropriate.

Further amends GS 15A-832 to require the DA's office's court date notifications be given to the victim in a reasonable manner in addition to an accurate and timely manner. Adds that the DA's can provide the required notification electronically or by telephone, unless the victim requests otherwise (previously, required the victim's consent). Requires that the required notifications be documented by the DA's office. Establishes a new duty for the DA's office to make every effort to ensure that a victim's personal information is not disclosed unless required by law. Requires the DA's office to inform the victim that personal information is not relevant in every case and that the victim can request the DA to object to that line of questioning when appropriate. Specifies that the DA's responsibilities extend to a victim of an act of delinquency if the juvenile's case is transferred to criminal court (was, if transferred to superior court).

Further amends GS 15A-832.1, concerning responsibilities of judicial officials. Modifies the scope of the statute to now extend to the issuance of criminal pleadings, rather than specified warrants for arrest, for any misdemeanor offense against the person based on testimony or evidence from a complaining witness. Makes changes to the proposed responsibilities set forth in new subsection (d) following notification that a victim has filed a motion alleging a violation of the rights provided by Article 46. Now requires the judge to review the motion and either dispose of the motion or set the motion for hearing as required by law. Adds provisions regarding recusal if justice so requires.

Modifies and adds to proposed GS 15A-834.5, concerning enforcement of victims' rights. Makes organizational and clarifying changes. More specifically provides that a victim can allege a violation of the rights provided by Article 46 by filing a motion with the superior court clerk's office, within the same criminal proceeding giving rise to the rights in question. Adds the following provisions. Establishes a new right for the victim to consult with an attorney regarding the alleged violation of the rights provided by Article 46, but not the right to counsel provided by the State. Directs the Administrative Office of the Courts (AOC) to create a form to serve as the motion to allege victims' rights violations, as specified. Requires the form to be provided to victims by the superior clerk at no cost. Requires the judge to review, as described, and either dispose of the motion or set a hearing for the motion in a timely manner. Prohibits the use of the failure or inability of any person to provide a right or service under Article 46 by a defendant in a criminal case, by an inmate, by any other accused, or by an victim as a ground for relief in any criminal or civil proceeding. 

Amends GS 15A-835, concerning posttrial responsibilities, to establish that the victim is permitted to be present at any appellate proceeding that is an open hearing, though the victim does not have a right to be heard.

Part II.

Modifies the defined terms set forth for new Article 20A, Rights of Victims of Delinquent Acts, of GS Chapter 7B, as follows. Adds to the term court proceeding, that if it is known by the juvenile court counselor and the DA's office that the juvenile and the victim have a personal relationship, as defined under state law, and the hearing can result in the juvenile's release from custody, efforts will be made to contact the victim (identical to the provision added to the defined term applicable to Article 46 of GS Chapter 15A, above). Amends the term family member to include the guardian or legal custodian of the victim. Also no longer excepts from the exclusion of the accused from the term in the event the charges are dismissed or the person is found not guilty. Makes identical changes to the term offense against the person as those made to the term as it is applicable to Article 46 of GS Chapter 15A, described above. Similarly, explicitly prohibits the accused from asserting the victim's right when the victim is a minor or is legally incapacitated. Changes the statutory cross-reference regarding who may exercise the right to restitution if the victim is deceased. Additionally, prohibits an individual who would not act in the best interest of the victim, in the determination of the DA (was, the court), from asserting or exercising the victim's rights. Adds that an individual can petition the court to review the DA's determination. Makes clarifying changes. 

Modifies the victims' rights enumerated in new Article 20A to no longer include the right to be reasonably heard at court proceedings involving a plea. Now entitles the victim to the right to reasonably confer with the DA's office, rather than the prosecution. Makes conforming changes to the Article to refer to the DA's office and prosecutor as appropriate. Adds that no family member of a victim can use the failure or inability of any person to provide a right or service under the Article as a ground for relief in any criminal, juvenile, or other civil proceeding (previously, prohibition was limited to use by a juvenile, by any accused, or by any victim).

Regarding the responsibilities set forth of the DA's office, makes changes identical to those made to GS 15A-832, adding that the DA's office must make every effort to ensure that a victim's personal information is not disclosed unless required by law. Requires the DA's office to inform the victim that personal information is not relevant in every case and that the victim can request the DA to object to that line of questioning when appropriate. Further, requires the DA's office's court date notifications be given to the victim in a reasonable manner in addition to an accurate and timely manner. Adds that the DA's can provide the required notification electronically or by telephone, unless the victim requests otherwise (previously, required the victim's consent, consistency with the Article, and electronically only as technology allows). Requires that the required notifications be documented by the DA's office. Now makes it the responsibility of the DA's office, rather than the prosecutor, to notify the victim that the victim can request notification of the juvenile's release or escape.

Concerning responsibilities set forth of judicial officials, makes changes to the proposed responsibilities prescribed following notification that a victim has filed a motion alleging a violation of the rights provided by Article 20A. Now requires the judge to review the motion and either dispose of the motion or set the motion for hearing as required by law. Adds provisions regarding recusal if justice so requires. Modifies the terminology used concerning the court's responsibility to make every effort to provide the victim a secure waiting area, now referring to the juvenile or the juvenile's family, rather than the defendant or the defendant's family.

Makes organizational and clarifying changes concerning enforcement of the rights provided by new Article 20A, identical to those made to proposed GS 15A-834.5, described above. More specifically provides that a victim can allege a violation of the rights provided by Article 20A by filing a motion with the superior court clerk's office, within the same criminal proceeding giving rise to the rights in question. Adds the following provisions. Establishes a new right for the victim to consult with an attorney regarding the alleged violation of the rights provided by Article 20A, but not the right to counsel provided by the State. Directs AOC to create a form to serve as the motion to allege victims' rights violations, as specified. Requires the form to be provided to victims by the superior clerk at no cost. Requires the judge to review, as described, and either dispose of the motion or set a hearing for the motion in a timely manner. Prohibits the use of the failure or inability of any person to provide a right or service under Article 20A by a defendant in a criminal case, by an inmate, by any other accused, or by an victim as a ground for relief in any criminal or civil proceeding. 

Amends the proposed changes to GS 7B-3000 to refer to the prosecuting attorney rather than the prosecutor concerning disclosure of information to the victim.

Part III.

Amends the directive for AOC to develop procedures for the automation of criminal court notifications to instead limit the directive to court date notifications. 

 

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