Author’s note: Senate Bill 682 was signed by the Governor on September 4, 2019, and was chaptered as S.L. 2019-216.

Last week, the General Assembly ratified Senate Bill 682, which implements the 2018 constitutional amendment that expanded the rights of crime victims. The bill, ratified one day before the constitutional amendment took effect, awaits the Governor’s signature. This post briefly reviews the history of state-law protections for crime victims and the provisions of the 2018 amendment before discussing some of the more significant aspects of SB 682.

Historical protections for victims of crime. The General Assembly appropriated funds in 1986 to provide for a victim and witness assistant in each of the then 35 district attorney offices in North Carolina. Stevens H. Clarke, Robert L. Farb, & Benjamin B. Sendor, Criminal Justice and Corrections, North Carolina Legislation 1986, 25 (Joseph S. Ferrell ed., 1986). Before that time, a smaller number of offices had such employees, who were then called witness assistant coordinators. Id. Along with the appropriation came the enactment of Article 45 of Chapter 15A, which required “to the extent reasonable possible and subject to available resources,” the district attorney and others share information with, return property to, and provide designated services to certain crime victims. Victim and witness assistants were charged with coordinating efforts within the law-enforcement and judicial systems to assure that these rights were afforded.

In 1996, voters approved a constitutional amendment setting forth “basic rights” for victims of crimes, including the right to be informed of and be present at court proceedings, to be heard at sentencing, to receive restitution, and to be notified of an accused’s escape, release, proposed parole or pardon. The constitutional provision referred to each right “as prescribed by law,” thus leaving it to the legislature to prescribe by statute the types of victims and crimes covered. See N.C. Const. Art. 1, Section 37 (2017). Two years later, the legislature enacted the Crime Victims’ Rights Act, codified in Article 46 of Chapter 15A, to so prescribe those rights. S.L. 1998-212, Section 19.4.

2018 amendment. In the 2018 general election, voters approved amendments to Article 1, Section 37 that became effective August 31, 2019. The amended provisions enumerate rights afforded to victims of a crime or act of delinquency that is against or involving the person of the victim or is equivalent to a felony property crime. Under the amendment, a victim has the following rights:

• The right upon request to reasonable, accurate, and timely notice of court proceedings of the accused;
• The right upon request to be present at court proceedings of the accused;
• The right to be reasonably heard at any court proceeding involving the plea, conviction, adjudication, sentencing, or release of the accused;
• The right to receive restitution in a reasonably timely manner when ordered by the court;
• The right to be given information about the crime or act of delinquency, how the criminal justice system works, the rights of victims, and the availability of services for victims;
• The right upon request to receive information about the conviction, adjudication, or final disposition and sentence of the accused;
• The right upon request to receive notification of escape, release, proposed parole or pardon of the accused, or notice of a reprieve or commutation of the accused’s sentence;
• The right to present the victim’s views and concerns to the Governor or agency considering any action that could result in the release of the accused, prior to such action becoming effective; and
• The right to reasonably confer with the prosecution.

The most significant changes resulting from the constitutional amendment were the expansion of the types of crimes covered and the extension of victims’ rights to delinquency proceedings.

Senate Bill 682. The recently ratified bill clarifies several important issues related to the 2018 amendment, including the covered offenses, the court proceedings at which victims’ rights apply, the process by which victims may assert those rights and complain of their violation, the interplay between the confidential status of juvenile records and a victim’s right to information about delinquency proceedings, and how a victim may complain about the deprivation of a guaranteed right.

The bill amends the existing Crime Victims’ Rights act to effectuate these changes for covered criminal prosecutions. It enacts a new Article 20A of Chapter 7B to codify the rights of victims of delinquent acts.

Which crimes and acts of delinquency? Victims of “a crime or act of delinquency that is against or involving the person of the victim or is equivalent to a felony property crime” have constitutionally protected rights.

Offense against the person. New G.S. 15A-830(a)(6a) defines “[o]ffense against the person” as:

An offense against or involving the person of the victim which constitutes a violation of one of the following:

1. Subchapter III of Chapter 14 of the General Statutes.
2. Subchapter VII of Chapter 14 of the General Statutes.
3. Article 39 of Chapter 14 of the General Statutes.
4. Chapter 20 of the General Statutes, if an element of the offense involves impairment of the defendant, or injury or death to the victim.
5. A valid protective order under G.S. 50B-4.1, including, but not limited to, G.S. 14-134.3 and G.S. 14-269.8.
6. Article 35 of Chapter 14 of the General Statutes, if the elements of the offense involve communicating a threat or stalking.
7. An offense that triggers the enumerated victims’ rights, as required by the North Carolina Constitution

Felony property crime. A felony property crime is defined as an act that is a felony violation of Subchapter IV or V of Chapter 14 of the General Statutes.

The same definitions apply to acts of juvenile delinquency under new G.S. 7B-2051.

Which court proceedings? Court proceedings for adults are defined in new G.S. 15A-830(2a) as “[a] critical stage of the post-arrest process heard by a judge in open court involving a plea that disposes of the case or the conviction, sentencing, or release of the accused, including the hearings described in G.S. 15A-837.” The term does not include initial appearances before a magistrate or first appearances before a district court judge.

In delinquency actions, a court proceeding includes both open and closed hearings, but does not include first appearances under G.S. 7B-1808 if the juvenile is in secure or nonsecure custody. ­­­

How may victims assert their rights to be heard at court proceedings? A judge presiding over a covered court proceeding must ask whether victim is present and wishes to be heard. If the victim so desires, the court must afford such an opportunity.  The victim may exercise that right by making an oral statement or by submitting a written, audio or video statement. SB 682, Sec. 6 (so providing in new G.S. 15A-832.1(c)), Sec. 10 (so providing in new G.S. 7B-2054).

How are juvenile records kept confidential while providing notice? New G.S. 7B-2052 provides that victims of juvenile offenses are entitled to, among other information, notice of court proceedings of the juvenile and information about the adjudication of the juvenile or disposition of the case. New G.S. 7B-2053(d) states that the district attorney must provide the victim (upon request) notification of the time, date and place of juvenile court proceedings notwithstanding statutory provisions rendering juvenile records confidential. New G.S. 7B-2053(h) requires the district attorney upon the victim’s request to provide information about the adjudication and disposition of the juvenile. The information must be limited to (1) whether the juvenile was adjudicated delinquent, and, if so, the offense classification and the dispositions available to the court, (2) no-contact orders involving the victim, and (3) any order for restitution. New G.S. 7B-2057 clarifies that the victims’ rights provisions do not provide grounds for a victim to examine or obtain confidential records and requires that written notice or information provided to a victim identify the juvenile by his or her first and last initials only.

How may victims complain of rights violations? A victim may allege a violation of his or her victims’ rights by filing a motion with the clerk of superior court in the proceeding giving rise to the rights. SB 682, Sec. 7 (so providing in new G.S. 15A-834.5), Sec. 10 (so providing in new G.S. 7B-2058). If the victim alleges a violation by the district attorney’s office, the victim must first file a written complaint with that office to give it an opportunity to resolve the issue.

SB 682 directs the Administrative Office of the Courts to create a form to serve as the motion enable a victim to allege a violation of his or her victims’ rights.

Effective date. The aforementioned provisions of SB 682 (other than the form requirement) are effective August 31, 2019 – at least in theory. Given that the bill has not yet been enacted and that date has passed, it will be effective when and if it is signed by the Governor or is enacted by operation of law. The form requirement has its own effective date (when the act becomes law) though that provision separately directs the form to be developed and disseminated by August 31, 2019.

Update: The Administrative Office of the Courts posted forms to implement the provisions of SB 682 (including provisions not addressed in this post) on August 30, 2019.  Links to the forms and explanatory language provided by the AOC are set forth below.

New Forms

AOC-CR-180A (Crime Victims’ Rights Act Victim Information Sheet (Law Enforcement) (For Offenses Committed Before Aug. 31, 2019)) – New 8/19

New CR- form, which replaces the AOC-CR-180 for offenses committed before August 31, 2019.

AOC-CR-180B (Crime Victims’ Rights Act Victim Information Sheet (Law Enforcement) (For Offenses Committed On Or After Aug. 31, 2019)) – New 8/19

New CR- form, which replaces the AOC-CR-180 for offenses committed on or after August 31, 2019.

AOC-CR-181A (Crime Victims’ Rights Act Misdemeanor Domestic Violence Victim Information Sheet (For Offenses Committed Before Aug. 31, 2019)) – New 8/19

New CR- form, which replaces the AOC-CR-181 for offenses committed before August 31, 2019.

AOC-CR-181B (Crime Victims’ Rights Act Misdemeanor Victim Information Sheet (For Offenses Committed On Or After Aug. 31, 2019)) – New 8/19

New CR- form, which replaces the AOC-CR-181 for offenses committed on or after August 31, 2019.

AOC-CR-182 (Motion And Order To Enforce Rights Of Crime Victim) – New 8/19

New CR- form, which may be used by a victim to allege a violation of the rights provided in Article 46 of G.S. Chapter 15A, and by a judge to review such a motion.

AOC-J-380 (Motion And Order To Enforce Rights Of Juvenile Delinquency Victim) – New 8/19

New J- form, which may be used by a victim to allege a violation of the rights provided in Article 20A of G.S. Chapter 7B, and by a judge to review such a motion.

Revised Form

AOC-CR-611 (Restitution Worksheet, Notice And Order (Initial Sentencing)) – Rev. 8/19

On Side One, in the VICTIMS’ RIGHTS ACT (VRA) VICTIMS section, the first sentence of the Note was changed (from “List each victim of an offense listed in G.S. 15A-830(a)(7) “directly and proximately harmed as a result” of the offense. G.S. 15A-1340.34(a).”) to “List each victim “directly and proximately harmed,” G.S. 15A-1340.34(a), as a result of an offense listed in G.S. 15A-830(a) as of the date of offense.” In the OTHER VICTIMS (NON-VRA) section, the first sentence of the Note was changed (from “List each victim of an offense other than one listed in G.S. 15A-830(a)(7) “directly and proximately harmed as a result” of the offense. G.S. 15A-1340.34(a).”) to “List each victim “directly and proximately harmed,” G.S. 15A-1340.34(a), as a result of an offense other than one listed in G.S. 15A-830(a) as of the date of offense.” On Side Two, in the item 4 parenthetical, “committed before Aug. 31, 2019” was added after “misdemeanor.”

The post Victims’ Rights Bill Sent to Governor appeared first on North Carolina Criminal Law.