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CHAPTER 23A-28C

CRIME VICTIMS' ACT

23A-28C-1      Rights of crime victim.
23A-28C-1.1      Notice defined.
23A-28C-1.2      Electronic notification and SAVIN system defined.
23A-28C-2      Notice of rights--Victim registration with SAVIN system--Confidentiality.
23A-28C-3      Enforcement of constitutional or statutory rights.
23A-28C-4      Victim defined.
23A-28C-5      Notice of incarcerated offender's change of status.
23A-28C-6      Notice to be provided by Department of Corrections or state's attorney.
23A-28C-7      Victim or witness assistant--Appointment and compensation.
23A-28C-8      Victim or witness assistant--Duties.
23A-28C-9      Notification of immediate family.
23A-28C-10      Statewide automated victim information and notification system.
23A-28C-11      Notice of clemency hearing--Contents.
23A-28C-12      Notice of discretionary parole hearing--Contents.
23A-28C-13      Victim request for notification .
23A-28C-14      Request for notification by parent or guardian.
23A-28C-15      Sharing of information by interagency multidisciplinary teams.


     23A-28C-1.   Rights of crime victim. Consistent with § 23A-28C-4, victims of the crime, including victims of driving under the influence vehicle accidents, have the following rights:
             (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 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;
             (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)      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)      To be prepared as a witness, including information about basic rules of evidence, cross-examination, objections, and hearsay;
             (8)      To provide 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)      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;
             (10)      To provide written input at parole and clemency hearings or 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)      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.

Source: SL 1991, ch 202, § 1; SL 1992, ch 173, § 1; SL 1995, ch 137, § 1; SL 1996, ch 156; SL 1997, ch 143, § 4; SL 2003, ch 136, § 1; SL 2005, ch 120, § 426; SL 2012, ch 138, § 2.


     23A-28C-1.1.   Notice defined. For the purposes of this chapter, the term, notice, means either written notification or electronic notification.

Source: SL 2014, ch 116, § 1.


     23A-28C-1.2.   Electronic notification and SAVIN system defined. For the purposes of this chapter, the term, electronic notification, means any telephonic, electronic mail, text messaging, and facsimile transmittal notification or any notification as produced by the statewide automated victim information notification system as established pursuant to § 23A-28C-10. For purposes of this chapter, the term, SAVIN system, means the statewide automated victim information and notification system.

Source: SL 2014, ch 116, § 2; SL 2017, ch 107, § 1.


     23A-28C-2.   Notice of rights--Victim registration with SAVIN system--Confidentiality. At the commencement of a criminal proceeding subject to the terms of this chapter, the prosecutor, by first class mail or electronic mail notification, shall advise the victim of the rights set forth in this chapter. In order to take advantage of the rights, the victim shall advise the prosecutor of a desire to participate. A victim may choose to participate only in certain enumerated phases of the proceedings. A victim wishing to participate shall register with the SAVIN system, as defined by this chapter, where notifications, including electronic notification, required under this chapter are to be made, and of any changes in the place of notification. A prosecutor receiving notification of a victim's wish to participate shall approve the victim's status and shall keep record of that notification through the time of the defendant's final discharge from the criminal justice system in the SAVIN system. If the defendant is sentenced to the state prison system, the Department of Corrections shall keep a record of the request for notification in the SAVIN system until the defendant's final discharge from prison and parole. A victim's request for notification and the place of notification is confidential and may not be disclosed to the defendant.

Source: SL 1991, ch 202, § 2; SL 1995, ch 137, § 2; SL 1999, ch 126, § 4; SL 2014, ch 116, § 7; SL 2017, ch 107, § 2.


     23A-28C-3.   Enforcement of constitutional or statutory rights. A victim may seek a cause of action for injunctive relief to enforce the victim's rights under S.D. Const., Art. VI, § 29 or this chapter. No other cause of action exists against any person for a failure to comply with the terms of this chapter. If a victim asserts in writing to the court with jurisdiction over the case that a violation of this chapter has occurred, 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 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.

Source: SL 1991, ch 202, § 3; SL 2018, ch 146, § 2.


     23A-28C-4.   Victim defined. For the purposes of this chapter, the term, victim, means any person being the direct subject of an alleged act that would constitute a crime of violence as defined by subdivision 22-1-2(9), burglary in the second degree, simple assault 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, 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.

Source: SL 1991, ch 202, § 4; SL 1994, ch 181; SL 1999, ch 127, § 1; SL 2014, ch 125, § 10; SL 2018, ch 146, § 1.


     23A-28C-5.   Notice of incarcerated offender's change of status. 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 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.

Source: SL 1995, ch 137, § 3; SL 1999, ch 126, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011; SL 2014, ch 116, § 8.


     23A-28C-6.   Notice to be provided by Department of Corrections or state's attorney. Notice as required in § 23A-28C-5 shall be provided directly to the victim by the Department of Corrections through the SAVIN system if the defendant is incarcerated in an institution under the control of the Department of Corrections. If the defendant is incarcerated in an institution under the control of the Department of Social Services, or in any jail or in other facility due to the commission of a crime, notice as required in § 23A-28C-5 shall be provided to the victim by the state's attorney in the county where the person was convicted of that crime.

Source: SL 1999, ch 126, § 6; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011; SL 2017, ch 107, § 3.


     23A-28C-7.   Victim or witness assistant--Appointment and compensation. The board of county commissioners may appoint, with the concurrence of the state's attorney or county sheriff, a victim or witness assistant to assist victims of crime if authorized by the board of county commissioners by resolution entered upon its minutes. The board of county commissioners shall set the compensation for the victim or witness assistant.

Source: SL 1986, ch 192, § 1; SDCL § 22-1-10; SL 2005, ch 120, § 366.


     23A-28C-8.   Victim or witness assistant--Duties. The victim or witness assistant shall:
             (1)      Advise the victim about the legal proceedings in which the victim will be involved;
             (2)      Advise the victim concerning any required appearance at any proceeding and if the proceeding is continued or postponed;
             (3)      Assist the state's attorney, court services officer, and the victim to determine the amount of monetary damages suffered by the victim and advise the victim about restitution;
             (4)      Advise, if the victim is less than sixteen years of age and the victim of certain crimes, the victim and one of the victim's immediate family that the preliminary hearing or deposition testimony of the victim may be videotaped pursuant to § 23A-12-9;
             (5)      Advise the victim or one of the victim's immediate family if the defendant is released from custody and the defendant's bail conditions.
     The victim or witness assistant may accompany the victim in any criminal proceeding.

Source: SL 1986, ch 192, § 3; SDCL § 22-1-11; SL 2005, ch 120, §§ 364, 366.


     23A-28C-9.   Notice to immediate family. No person, other than in the performance of official duties, may disclose the identity and biographical information concerning a victim of a crime of violence or of a violation of § 22-22-7 until reasonable efforts have been made to provide notice to one of the immediate family.

Source: SL 1986, ch 178; SDCL § 22-1-12; SL 2005, ch 120, §§ 365, 366; SL 2014, ch 116, § 9.


     23A-28C-10.   Statewide automated victim information and notification system. The Office of the Attorney General shall oversee the establishment of a statewide automated victim information and notification (SAVIN) system within the criminal justice system and shall serve as the coordinating agency for the development, implementation and maintenance of any such system. All agencies within the state shall cooperate with the Office of the Attorney General in order to establish the SAVIN system, undergo any required training, and report into the system as required. The Office of the Attorney General shall establish guidelines by rules promulgated pursuant to chapter 1-26 and in accordance with the provisions of § 23A-28C-2, to ensure any victim is properly notified of the SAVIN system and advised as to how the victim may gain access.

Source: SL 2013, ch 101, § 76, eff. July 1, 2014.


     23A-28C-11.   Notice of clemency hearing--Contents. Upon the scheduling of a clemency hearing pursuant to chapter 24-14, the Department of Corrections shall provide notice to the victim. Notice of a clemency hearing shall be made at least two weeks prior to the hearing. The notice shall provide the offender's clemency hearing date, time, and location and shall advise the victim that the victim may be present at the hearing and may state an opinion regarding clemency. The victim shall be notified if clemency is recommended.

Source: SL 2014, ch 116, § 3.


     23A-28C-12.   Notice of discretionary parole hearing--Contents. The Department of Corrections, through the SAVIN system, shall provide notice to the victim before the date of a discretionary parole hearing. The notice shall provide the inmate's parole eligibility date and the parole hearing date. The notice shall advise the victim that the victim may be present at the hearing and may state an opinion regarding the possible parole of the inmate.

Source: SL 2014, ch 116, § 4; SL 2017, ch 107, § 4.


     23A-28C-13.   Victim request for notification. The victim may request to be notified by the Department of Corrections through the SAVIN system if:
             (1)      The offender is considered for early final discharge or partial early final discharge from parole;
             (2)      The offender is placed on or removed from work release, a global positioning system, or a community transition program; or
             (3)      The offender on parole absconds supervision.

Source: SL 2014, ch 116, § 5; SL 2017, ch 107, § 5.


     23A-28C-14.   Request for notification by parent or guardian. If the victim is a minor, the victim's parent or guardian may request notification pursuant to this chapter.

Source: SL 2014, ch 116, § 6.


     23A-28C-15.   Sharing of information by interagency multidisciplinary teams. Nothing in §§ 23A-28C-3 and 23A-28C-4 may prevent interagency multidisciplinary teams from sharing information for the purposes of investigating a crime or providing services to victims, as defined in § 23A-28C-4, in the course of the team member's speciality or occupation. Any information regarding a victim that a team member shares with other team members shall remain confidential, pursuant to this title and if the victim is a child, pursuant to § 26-8A-13. A team shall consist of law enforcement personnel, a representative of the prosecuting attorney's office, licensed or certified medical professionals, and any victim advocate. Any interagency multidisciplinary team formed to investigate crimes involving child victims shall also include child advocacy center staff where such staff is available in the region, Department of Social Services child protection staff, and licensed or certified mental health professionals. The team may include additional members at the discretion of the team if the additional member would benefit the victim. Each multidisciplinary team shall have written procedures and guidelines. Multidisciplinary team members shall annually sign a memorandum of understanding acknowledging the procedure and guidelines. The memorandum of understanding shall also include an information sharing and confidentiality agreement, approved by the attorney general, assuring compliance with title 23A. The multidisciplinary team shall file a list of team members and the memorandums of understanding with the Office of the Attorney General and the Department of Social Services as required by § 26-8A-17.

Source: SL 2018, ch 146, § 3.


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