SB195: Bill Text

1997 - 1998 LEGISLATURE

1997 Senate BILL 195

May 7, 1997 - Introduced by Senators Moore, Huelsman, Adelman, Plache, Welch, C. Potter, Wirch, Rosenzweig, Moen, Grobschmidt, Drzewiecki and Roessler, cosponsored by Representatives Krug, Green, Rutkowski, Duff, R. Potter, Schneider, Brandemuehl, Baumgart, Dobyns, Black, Freese, Boyle, Hahn, Carpenter, Harsdorf, Coggs, Seratti, Hanson, Sykora, Hasenohrl, Underheim, Ryba, Walker, Springer, Travis, Huebsch, Turner, Vander Loop, Hutchison, Wasserman, Kelso, L. Young, Ladwig, Ziegelbauer, F. Lasee, Hebl, Lazich, Huber, J. Lehman, Kreuser, M. Lehman, La Fave, Lorge, Meyer, Musser, Morris-Tatum, Olsen, Notestein, Plale, Ourada, Plouff, Porter, Riley, Robson, Albers and Bock, by request of Attorney General Jim Doyle; Crime Victims Council; Wisconsin Coalition Against Sexual Assault; Parents of Murdered Children; Mothers Against Drunk Driving; Wisconsin Chiefs of Police Association; Wisconsin Victim/Witness Professionals Association; Coalition of Wisconsin Aging Groups; Wisconsin Merchants Federation; AFSCME, Locals 3021 and 3394 (Correctional Officers).

SB195,2,6 An Act to repeal 950.04 (6), 950.04 (10), 950.045, 950.05 (title), 950.05 (1), 950.05 (2), 950.06 (1), 950.06 (2m) and 972.14 (1) (a); to renumber 950.04 (2), 950.04 (2m), 950.04 (3), 950.04 (5), 950.04 (7) and 950.05 (1) (a) to (i); to renumber and amend 906.15, 950.02 (4), 950.04 (intro.), 950.04 (1), 950.04 (4), 950.04 (8) and 950.04 (9); to amend 938.02 (21), 938.24 (5), 938.27 (4m), 938.273 (2), 938.31 (2), 938.315 (2), 938.32 (1) (b) 1., 938.32 (1) (b) 2., 938.331, 938.335 (3m) (a), 938.335 (3m) (b), 938.346 (1) (d) 1., 938.346 (1m), 938.346 (3), 938.346 (4), 938.346 (5), 938.396 (1g), 938.396 (1t), 938.396 (2) (f), 938.396 (2) (fm), 938.51 (1) (c), 938.51 (1m), 938.51 (2), 938.51 (4) (a), 950.02 (1m), 950.055 (2) (intro.), 950.055 (3), 950.06 (title), 950.06 (2), 950.06 (4), 950.08 (title), 950.08 (3), 972.14 (3) (a) and 972.14 (3) (b); and to create 15.255 (2), 906.15 (2) (d), 938.02 (20m), 938.067 (6g), 938.24 (5m), 938.245 (1m), 938.25 (2m), 938.265, 938.296 (1) (e), 938.2965, 938.30 (4m), 938.312, 938.32 (1) (am), 938.32 (1) (b) 1m., 938.335 (3m) (am), 938.346 (1) (em), 938.346 (1) (fm), 938.346 (1) (h), 950.02 (1t), 950.02 (2m), 950.02 (3m), 950.02 (4) (a) 2., 3., 4. and 5., 950.02 (4) (b), 950.04 (1v), 950.04 (2w) (f), 950.06 (1m) (intro.), 950.08 (1) (title), 950.08 (2) (title), 950.08 (2g), (2r) and (2s), 950.09, 950.10, 950.11, 967.10, 971.08 (1) (d), 971.095, 971.10 (3) (b) 3., 971.315, 972.14 (1) (ag) and 972.14 (2m) of the statutes; relating to: rights of victims of crime, granting rule-making authority and providing a penalty.

Analysis by the Legislative Reference Bureau

Currently, both the statutes and the state constitution provide various rights to victims of a crime. Currently, "crime" generally includes an act by a juvenile that would be a crime if committed by an adult. In addition, in certain cases "crime victim" includes family members of a victim who died as a result of the crime and parents or guardians of a victim who is a child.

Among the rights provided to crime victims under current statutes are the following: the right to a speedy disposition of the case in which he or she is involved as a victim; the right to have stolen or other personal property returned expeditiously once it is no longer needed as evidence; the right to information concerning financial assistance and other social services available to crime victims; the right to provide statements to the court concerning sentencing, disposition or parole; the right to seek restitution from the offender and compensation from the state crime victim compensation program; and the right to be informed of the final disposition of the case. In addition, crime victims who have requested such notification have the right to be notified about certain court proceedings that are scheduled in the case in which he or she is involved as a victim and about release to the community of a person who committed a crime against the victim, whether that release is to community confinement, to parole or other conditional or supervised release or at the conclusion of the person's sentence or commitment to a mental health institution.

The state constitution provides that crime victims are entitled to the rights provided under current statutes as well as to the following rights: the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; and the opportunity to confer with the prosecution. The constitution also requires the legislature to provide remedies for the violation of the rights of crime victims guaranteed by the constitution.

Currently, prosecutors and, in juvenile delinquency cases, court intake workers are responsible for notifying victims of certain of their rights and providing information on how to exercise those rights. In addition, counties are encouraged but not required to enforce crime victims' rights and to provide various services to crime victims. If a county undertakes to enforce victims' rights and provide services to crime victims, the county must bear the costs of the enforcement and services, though it may be eligible to receive reimbursement from the state for providing services to crime victims. In addition, the department of justice (DOJ) must provide information about and referral to crime victim services, crisis counseling and emotional support for crime victims and assistance in securing resources and protection for crime victims. DOJ may also receive and mediate complaints regarding the treatment of crime victims by public officials, employes or agencies or crime victim assistance programs.

This bill does all of the following relating to the rights of victims of crime:

1. The bill provides that county boards do not have the primary responsibility for enforcing victims rights (though county boards will be responsible for providing some services necessary to provide victims their rights and, as under current law, counties will be eligible for reimbursement for the provision of certain services). Instead, the bill specifies that law enforcement agencies and prosecutors or their designees or, in juvenile delinquency cases, court intake workers are responsible for notifying victims of their rights and providing information on how to exercise those rights. In addition, the bill creates a crime victims rights board (board), which consists of a district attorney, a representative of local law enforcement agencies, a person employed or contracted by a county to provide services to victims and witnesses and 2 public members. At the request of one of the parties involved, the board may review a complaint made to DOJ regarding a violation of the rights of a crime victim since DOJ has completed its action on the complaint. Based on its review of the complaint, the board may do any of the following: a) issue private or public reprimands of public officials, employes or agencies that violate the rights of crime victims; b) refer violations of the rights of crime victims by judges to the judicial commission; c) seek appropriate equitable relief on behalf of a victim if such relief is necessary to protect the rights of the victim; or d) bring a civil action to assess a forfeiture of not more than $1,000. The board may also issue reports and recommendations concerning the securing and provision of crime victim rights and services.

2. The bill expands the statutory definition of "crime victim" that is used for purposes of providing most rights and services to crime victims. Under the bill, "crime victim" includes, in addition to the person against whom the crime is committed, all of the following persons: a) a parent, guardian or legal custodian of the victim, if the victim is a child; b) a family member of the victim or another person designated by the victim, if the victim is physically or emotionally unable to exercise his or her rights; c) a family member of the victim or a person who resided with the victim, if the victim is deceased; and d) the guardian of the victim, if the victim has been found incompetent and had a guardian appointed for him or her by a court.

3. The bill requires prosecutors and, in juvenile delinquency cases, court intake workers to confer with a crime victim concerning the case or certain actions being taken in the case, if the victim has requested the opportunity to confer. In juvenile cases a court intake worker must confer with victims concerning deferred prosecution agreements, while a prosecutor of a juvenile delinquency case must confer with victims concerning proposed consent decrees and the possible outcomes of the delinquency proceeding. In adult criminal cases, a prosecutor must confer with victims concerning the prosecution of the case and the possible outcomes of the prosecution.

4. The bill requires notices to victims concerning certain actions taken in a case. Specifically, the bill requires a prosecutor in an adult criminal case to provide, to victims who have requested it, notice of the date, time and place of scheduled court proceedings in the case (other than bail hearings scheduled before the initial appearance in court of the accused). The bill also requires prosecutors and, in juvenile delinquency cases, court intake workers to notify victims if a case is being closed without a person being charged or if a case in which a person was charged is dismissed.

5. The bill prohibits a court from excluding a victim from the courtroom during a trial or juvenile delinquency fact-finding hearing unless exclusion is necessary to provide a fair trial or fair fact-finding hearing.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB195, s. 1 Section 1. 15.255 (2) of the statutes is created to read:

SB195,4,3 15.255 (2) Crime victims rights board. (a) There is created a crime victims rights board which is attached to the department of justice under s. 15.03.

SB195,4,4 (b) The crime victims rights board shall be composed of 5 members as follows:

SB195,4,5 1. One district attorney holding office in this state.

SB195,4,6 2. One representative of local law enforcement in this state.

SB195,4,8 3. One person who is employed or contracted by a county board of supervisors under s. 950.06 to provide services for victims and witnesses of crimes.

SB195,4,10 4. Two public members, not employed in law enforcement, by a district attorney or as specified in subd. 3., who are citizens of this state.

SB195,4,14 (c) The members of the crime victims rights board specified in par. (b) 1., 2. and 3. and one of the members specified in par. (b) 4. shall be appointed by the attorney general. One of the members specified in par. (b) 4. shall be appointed by the crime victims council.

SB195,5,4 (d) The members of the crime victims rights board under par. (a) shall be appointed for 4-year terms, but no member shall serve beyond the time when the member ceases to hold the office or employment by reason of which the member was initially eligible for appointment.

SB195,5,8 (e) Notwithstanding the provisions of any statute, ordinance, local law or charter provision, membership on the crime victims rights board does not disqualify any member from holding any other public office or employment, or cause the forfeiture thereof.

SB195, s. 2 Section 2. 906.15 of the statutes is renumbered 906.15 (1) and amended to read:

SB195,5,14 906.15 (1) At the request of a party, the judge or court commissioner shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the. The judge or court commissioner may also make the order of his or her own motion. This section

SB195,5,15 (2) Subsection (1) does not authorize exclusion of (1) a any of the following:

SB195,5,16 (a) A party who is a natural person, or (2) an.

SB195,5,18 (b) An officer or employe of a party which is not a natural person designated as its representative by its attorney, or (3) a.

SB195,5,20 (c) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

SB195,5,24 (3) The judge or court commissioner may direct that all such excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended.

SB195, s. 3 Section 3. 906.15 (2) (d) of the statutes is created to read:

SB195,6,7 906.15 (2) (d) A victim, as defined in s. 950.02 (4), in a criminal case or a victim, as defined in s. 938.02 (20m), in a delinquency proceeding under ch. 938, unless the judge or court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile.

SB195, s. 4 Section 4. 938.02 (20m) of the statutes is created to read:

SB195,6,9 938.02 (20m) (a) "Victim" means any of the following:

SB195,6,10 1. A person against whom a delinquent act has been committed.

SB195,6,12 2. If the person specified in subd. 1. is a child, a parent, guardian or legal custodian of the child.

SB195,6,16 3. If a person specified in subd. 1. is physically or emotionally unable to exercise the rights granted under this chapter, s. 950.04 or article I, section 9m, of the Wisconsin constitution, a person designated by the person specified in subd. 1. or a family member, as defined in s. 950.02 (3), of the person specified in subd. 1.

SB195,6,17 4. If a person specified in subd. 1. is deceased, any of the following:

SB195,6,18 a. A family member, as defined in s. 950.02 (3), of the person who is deceased.

SB195,6,19 b. A person who resided with the person who is deceased.

SB195,6,21 5. If a person specified in subd. 1. has been determined to be incompetent under ch. 880, the guardian of the person appointed under ch. 880.

SB195,6,23 (b) "Victim" does not include a juvenile alleged to have committed the delinquent act.

SB195, s. 5 Section 5. 938.02 (21) of the statutes is amended to read:

SB195,7,5 938.02 (21) "Victim-witness coordinator" means a person employed or contracted by the county board of supervisors under s. 950.06 to enforce the rights of victims and witnesses of crimes and to provide services for those the victims and witnesses of crimes or a person employed or contracted by the department of justice to provide the services specified in s. 950.08.

SB195, s. 6 Section 6. 938.067 (6g) of the statutes is created to read:

SB195,7,8 938.067 (6g) Provide information and notices to and confer with victims as required under s. 938.346 (1m).

SB195, s. 7 Section 7. 938.24 (5) of the statutes is amended to read:

SB195,8,7 938.24 (5) The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. Before entering into a deferred prosecution agreement, the intake worker shall comply with s. 938.245 (1m), if applicable. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under s. 938.09 shall receive written notice of such action. If the case is closed, the known victims of the juvenile's alleged act shall receive notice as provided under sub. (5m), if applicable. In addition, if a deferred prosecution agreement is entered into placing a juvenile in a youth village program as described in s. 118.42, the judge or juvenile court commissioner shall receive written notice of such action and, on receipt of that notice, shall enter an order requiring compliance with that agreement. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in s. 938.315 (3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. Failure to object if a petition is not referred or filed within a time limit specified in this subsection waives that time limit.

SB195, s. 8 Section 8. 938.24 (5m) of the statutes is created to read:

SB195,8,12 938.24 (5m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) and the intake worker decides to close the case, the intake worker shall make a reasonable attempt to inform all of the known victims of the juvenile's act that the case is being closed at that time.

SB195, s. 9 Section 9. 938.245 (1m) of the statutes is created to read:

SB195,8,19 938.245 (1m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), an intake worker shall, as soon as practicable but in any event before entering into a deferred prosecution agreement under sub. (1), offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement.

SB195, s. 10 Section 10. 938.25 (2m) of the statutes is created to read:

SB195,8,25 938.25 (2m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) and the district attorney or corporation counsel decides not to file a petition, the district attorney or corporation counsel shall make a reasonable attempt to inform all of the known victims of the juvenile's act that a petition will not be filed against the juvenile at that time.

SB195, s. 11 Section 11. 938.265 of the statutes is created to read:

SB195,9,10 938.265 Consultation with victims. In a case in which the juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the district attorney or corporation counsel shall, as soon as practicable but in any event before the plea hearing under s. 938.30, offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the district attorney or corporation counsel concerning the possible outcomes of the proceeding against the juvenile, including potential plea agreements and recommendations that the district attorney or corporation counsel may make concerning dispositions under s. 938.34 or 938.345.

SB195, s. 12 Section 12. 938.27 (4m) of the statutes is amended to read:

SB195,9,22 938.27 (4m) The district attorney or corporation counsel shall attempt to contact any known victim or alleged victim of a juvenile's act or alleged act and any known family member of a homicide victim or alleged homicide victim to inform them of the right to receive notice of any hearing under this chapter involving the juvenile. If a victim, or alleged victim or family member of a homicide victim or of an alleged homicide victim indicates that he or she wishes to receive notice of any hearing under this chapter involving the juvenile, the district attorney or corporation counsel shall notify, under s. 938.273, that victim, or alleged victim or family member of any hearing under this chapter involving the juvenile. Any failure to comply with this subsection is not a ground for an appeal of a judgment or dispositional order or for any court to reverse or modify a judgment or dispositional order.

SB195, s. 13 Section 13. 938.273 (2) of the statutes is amended to read:

SB195,9,25 938.273 (2) Service of summons or notice required by this subchapter may be made by any suitable person under the direction of the court. Notification of the victim or alleged victim of a juvenile's act or of a family member of a homicide victim or of an alleged homicide victim under s. 938.27 (4m) shall be made by the district attorney or corporation counsel.

SB195, s. 14 Section 14. 938.296 (1) (e) of the statutes is created to read:

SB195,10,5 938.296 (1) (e) "Victim" has the meaning given in s. 938.02 (20m) (a) 1.

SB195, s. 15 Section 15. 938.2965 of the statutes is created to read:

SB195,10,8 938.2965 Waiting area for victims and witnesses. (1) In this section, "witness" has the meaning given in s. 950.02 (5).

SB195,10,15 (2) If an area is available and use of the area is practical, a county shall provide a waiting area for a victim or witness to use during hearings under this chapter that if separate from any area used by the juvenile, the juvenile's relatives and witnesses for the juvenile. If a separate waiting area is not available or its use is not practical, a county shall provide other means to minimize the contact between the victim or witness and the juvenile, the juvenile's relatives and witnesses for the juvenile during hearings under this chapter.

SB195, s. 16 Section 16. 938.30 (4m) of the statutes is created to read:

SB195,10,24 938.30 (4m) Before accepting a plea under sub. (4) in a proceeding in which a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the court shall inquire of the district attorney or corporation counsel whether he or she has complied with s. 938.265 and whether he or she has complied with s. 938.27 (4m), whether any of the known victims requested notice of the date, time and place of the plea hearing and, if so, whether the district attorney or corporation counsel provided to the victim notice of the date, time and place of the hearing.

SB195, s. 17 Section 17. 938.31 (2) of the statutes is amended to read:

SB195,11,8 938.31 (2) The hearing shall be to the court. If the hearing involves a child victim, as defined in s. 938.02 (20m) (a) 1., or a child witness, as defined in s. 950.02 (5), the court may order the taking and allow the use of a videotaped deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court shall make a determination of the facts. If the court finds that the juvenile is not within the jurisdiction of the court or the court finds that the facts alleged in the petition or citation have not been proved, the court shall dismiss the petition or citation with prejudice.

SB195, s. 18 Section 18. 938.312 of the statutes is created to read:

SB195,11,15 938.312 Notice of dismissal. If a petition alleges that a juvenile is delinquent under s. 938.12 or in need of protection or services under s. 938.13 (12) and the petition is dismissed or does not otherwise result in a consent decree or dispositional order, the district attorney or corporation counsel shall make a reasonable attempt to inform each known victim of the juvenile's alleged act that the petition has been dismissed or will not result in a consent decree or dispositional order.

SB195, s. 19 Section 19. 938.315 (2) of the statutes is amended to read:

SB195,11,21 938.315 (2) A continuance may be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the representative of the public under s. 938.09 or the parties , the interests of the victims and the interest of the public in the prompt disposition of cases.

SB195, s. 20 Section 20. 938.32 (1) (am) of the statutes is created to read:

SB195,12,4 938.32 (1) (am) Before entering into a consent decree in a case in which the juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the district attorney or corporation counsel shall, as soon as practicable but in any event before agreeing to the consent decree, offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the district attorney or corporation counsel concerning the proposed consent decree.

SB195, s. 21 Section 21. 938.32 (1) (b) 1. of the statutes is amended to read: