2018 House Bill 1174 - Printed

State of South Dakota  
NINETY-THIRD SESSION
LEGISLATIVE ASSEMBLY, 2018  

952Z0195   HOUSE BILL   NO.  1174  

Introduced by:    Representatives Mickelson, Anderson, Bartels, Barthel, Beal, DiSanto, Duvall, Goodwin, Gosch, Greenfield (Lana), Hawley, Heinemann, Howard, Jensen (Kevin), Johns, Johnson, Kaiser, Kettwig, Lake, Livermont, Lust, Marty, Otten (Herman), Peterson (Kent), Peterson (Sue), Pischke, Qualm, Rasmussen, Reed, Rhoden, Rounds, Schaefer, Schoenfish, Steinhauer, Stevens, Wiese, Willadsen, and Zikmund and Senators Bolin, Cammack, Cronin, Curd, Greenfield (Brock), Haverly, Kennedy, Klumb, Kolbeck, Langer, Maher, Monroe, Novstrup, Partridge, Peters, Rusch, Solano, Tidemann, and Youngberg
 

        FOR AN ACT ENTITLED, An Act to revise certain provisions regarding rights for crime victims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 23A-28C-4 be amended to read:
    23A-28C-4. For the purposes of this chapter, the term, victim, means any person being the direct subject of an alleged act, which that would constitute a crime of violence as defined by subdivision 22-1-2(9), burglary in the second degree, simple assault between persons in a relationship described in § 25-10-3.1 as defined in §§ 22-18-1 and 22-18-1.5, interference with emergency communication as defined in § 49-31-29.2, violation of a protection order or no contact order as defined in § 25-10-13, disorderly conduct between persons in a relationship described in § 25-10-3.1, stalking as defined in chapter 22-19A, a violation of chapter 22-22,

a violation of chapter 22-49, or a driving or boating under the influence vehicle accident, under the laws of South Dakota or the laws of the United States. If the victim does not survive such act, is a minor, or is unable to comment, the term, victim, means the members of the immediate family of the primary victim. The victim may also designate a representative to act on the victim's behalf.
    Section 2. That § 23A-28C-1 be amended to read:
    23A-28C-1. Consistent with § 23A-28C-4, victims of the crime, including victims of driving under the influence vehicle accidents, have A victim has the following rights upon request:

            (1)    To be notified of scheduled bail hearings and release from custody, to be notified by the prosecutor's office when the case is received and to whom the case is assigned, and to be notified in advance of the date of preliminary hearing and trial;
            (2)    To be informed of what the charges mean and the elements necessary for conviction;
            (3)    To be notified of and to testify at scheduled bail or bond hearings regarding any evidence indicating whether the offender represents a danger to the victim or the community, if released, poses a danger to any person, to the community, or to the safety and welfare of the victim and the victim's family;
            (4)    To be protected from intimidation by the defendant, including enforcement of orders of protection;
            (5)    To offer written input into whether plea bargaining or sentencing bargaining agreements should be entered into;
            (6)(5)    To be notified of and to be present during all scheduled phases of the trial or hearings, except where otherwise ordered by the judge hearing the case or by contrary policy of the presiding circuit judge;
            (7)(6)    To be prepared as a witness, including information about basic rules of evidence,

cross-examination, objections, and hearsay;

            (8)(7)    To provide to the person responsible for conducting any pre-sentence or disposition investigation and to the court a written or oral victim impact statement prior to sentencing regarding the financial and emotional impact of the crime on the victim and his or her family as well as recommendations for restitution and sentencing and § 23A-28-8 notwithstanding, the right to appear at any hearing during which a change in the plan of restitution is to be considered;
            (9)(8)    To receive restitution, whether the convicted criminal is probated or incarcerated, unless the court or parole board provides to the victim on the record specific reasons for choosing not to require it and to receive prompt return of personal property when that property is no longer required as evidence;
            (9)    To receive a copy of the judgement against the defendant;
            (10)    To testify or provide written input at parole and clemency hearings or provide written input with respect to clemency by the Governor, should those options be considered;
            (11)    In a case in which the death penalty may be authorized, to provide to the court or to the jury, as appropriate, testimony about the victim and the impact of the crime on the victim's family;
            (12)    To be notified of the defendant's release from custody, which notice includes:
            (a)    Notice of the defendant's escape from custody and return to custody following escape;
            (b)    Notice of any other release from custody, including placement in an intensive supervision program or other alternative disposition, and any associated conditions of release;
            (c)    Notice of parole; and
            (d)    Notice of pending release of an inmate due to expiration of sentence;
            (13)    To be notified of the victim's right to request testing for infection by blood-borne pathogens pursuant to § 23A-35B-2;
            (14)    To be provided a copy of any report of law enforcement that is related to the crime, at the discretion of the state's attorney, or upon motion and order of the court. However, no victim may be given the criminal history of any defendant or any witness; and
            (15)(13)    To be notified of a petition by the sex offender for removal from the sex offender registry and to provide written input with respect to the removal request.
To ensure each victim has a reasonable opportunity to know of and to exercise these rights and the rights in section 3 of this Act, a summary of this section and section 3 of this Act shall be made available to the general public on the attorney general's website and law enforcement shall provide each victim with a physical copy of the summary, referred to as a Marsy's Card.
    Section 3. That chapter 23A-28C be amended by adding a NEW SECTION to read:
    A victim shall have an automatic right to be:
            (1)    Protected from intimidation, harassment, or abuse by the defendant, including enforcement of orders of protection;
            (2)    Notified of the defendant's release from custody, pursuant to § 23A-28C-5, which notice includes:
            (a)    Notice of the defendant's escape from custody and return to custody following escape;
            (b)    Notice of any other release from custody, including placement in an intensive supervision program or other alternative disposition, and any associated

conditions of release;

            (c)    Notice of parole; and
            (d)    Notice of pending release of an inmate due to expiration of sentence; and
            (3)    Notified of the victim's right to request testing for infection by blood-borne pathogens pursuant to § 23A-35B-2.
    Section 4. That § 23A-28C-5 be amended to read:
    23A-28C-5. Any institution under the control of the Department of Corrections or the Department of Human Services or the Department of Social Services, or any jail or other facility where a person is incarcerated due to the commission of a crime, shall provide notice as required by section 3 of this Act, as soon as possible, if any of the following occur:
            (1)    Upon the person's escape from custody and return to custody following escape;
            (2)    Of any release from custody, including placement in an intensive supervision program or other alternative disposition, such notice to include associated conditions of release;
            (3)    Upon the granting of parole or revocation of parole;
            (4)    Prior to the defendant's release from custody due to expiration of sentence;
            (5)    Of any removal from an intensive supervision program or other alternative disposition;
            (6)    Of any furlough; and
            (7)    Of the offender's death.
    Section 5. That § 23A-28-3 be amended to read:
    23A-28-3. If the sentencing court orders the defendant to the county jail, suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant,

promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim, and a schedule of restitution payments. If the defendant is presently unable to make any restitution, but there is a reasonable possibility that the defendant may be able to do so at some time during the defendant's probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that no person suffered pecuniary damages as a result of the defendant's criminal activities, the defendant shall so state. If the defendant contests the amount of restitution recommended by the court services officer, the defendant is entitled to a hearing at which the court shall determine the amount. The court shall notify the victim of the hearing. The victim may present to the court any evidence concerning the amount of restitution. If the sentencing court orders the defendant to the state penitentiary and does not suspend the sentence, the court shall set forth in the judgment the names and specific amount of restitution owed each victim. The Department of Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the penitentiary and on parole. The Board of Pardons and Paroles shall require, as a condition of parole, that the defendant pay restitution ordered by the court.
    Section 6. That § 23A-28-4 be amended to read:
    23A-28-4. The defendant's plan of restitution and the comments of defendant's court services officer shall be submitted promptly to the court. The court shall promptly enter an order approving the plan or modifying it the plan and providing for restitution payments to the extent that the defendant is or may become reasonably able to make restitution, taking into account the factors enumerated in § 23A-28-5. The court thereafter may modify the plan at any time upon the defendant's request or upon the court's own motion. Any modification of restitution may only be entered after notice is given to any known victim of the defendant. The victim may

present to the court, in writing or orally, any objections to the modification of restitution.
    Section 7. That § 23A-28-5 be amended to read:
    23A-28-5. The court services officer when assisting the defendant in preparing the plan of restitution and the court before approving or modifying the plan of restitution shall consider the physical and mental health and condition of the defendant, the defendant's age, the defendant's education, the defendant's employment circumstances, the defendant's potential for employment and vocational training, the defendant's family circumstances, the defendant's financial condition, the number of victims, the pecuniary damages of each victim, what plan of restitution will most effectively aid the rehabilitation of the defendant, and each victim, and such other factors as may be appropriate. The plan of restitution shall provide that any moneys collected from any defendant ordered to make restitution shall first be applied to any victim of the defendant before any restitution payment is made to any government entity.
    Section 8. That § 23A-43-4 be amended to read:
    23A-43-4. In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the results of any mental health assessment, the length of the defendant's residence in the community, the defendant's record of convictions, the defendant's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that the defendant will flee, or if the defendant will pose a danger to the safety and welfare of the victim, the victim's family, any person, or to the community.
    Section 9. That chapter 23A-13 be amended by adding a NEW SECTION to read:

    A victim, as defined in § 23A-28C-4, may contest the disclosure of information or records

that could be used to locate or harass the victim or the victim's family or that would disclose confidential or privileged information about the victim. The court shall conduct an in camera review of the information. If the court determines the information could be used to locate or harass the victim or the victim's family or would disclose confidential or privileged information, the information is not discoverable.
    Section 10. That § 23A-28C-3 be amended to read:
    23A-28C-3. No cause of action exists against any person for a failure to comply with the terms of this chapter. If a victim as defined in § 23A-28C-4 alleges assert in writing to the court with jurisdiction over the case that a violation of this chapter has occurredand files the same with the court having jurisdiction over the criminal matter, the court, . The court shall act promptly to ensure the victim's rights and interests are protected in a manner no less vigorous than the protections afforded to the defendant. The court, in its discretion, may determine whether if additional hearings or orders are necessary to ensure compliance with the chapter. The court shall clearly enter on the record the reasons for any decision regarding the disposition of a victim's rights. A violation of any right set forth in § 23A-28C-1 does not constitute grounds for an appeal from conviction by a defendant or for any other relief from such conviction.
    Section 11. That the code be amended by adding a NEW SECTION to read:

    A multidisciplinary team may exchange and share information that one or more team members may be able to use in serving a victim, as defined in § 23A-28C-4, in the course of the member's speciality, interest, or occupation. Any information regarding a victim that a team member supplies to other team members is confidential and may not be disseminated beyond the team. A multidisciplinary team may include any licensed or certified medical professional, local law enforcement, the local states attorney, any victim witness service provider, or any victim advocate. The team may add additional members if, based on the discretion of the team,

the additional member would benefit victims. Each multidisciplinary team shall have written procedures and guidelines. The procedures and guidelines shall include a section on confidentiality and information sharing. Each member of the multidisciplinary team shall sign a memorandum of understanding acknowledging the procedure and guidelines. The multidisciplinary team shall file a list of team members and the memorandums of understanding with the Office of the Attorney General.
    Section 12. That chapter 23A-28C be amended by adding a NEW SECTION to read:

    Notwithstanding any confidentiality provisions in chapter 26-7A, this Act applies to a qualifying offense, under section 1 of this Act, committed by a juvenile.

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