AN ACT ...; relating to: the budget.
Analysis by the Legislative Reference Bureau
Justice
Under current law, the Crime Victim Compensation program requires DOJ to compensate victims of certain crimes, their caretakers, and, in cases in which the victim dies, their family members, for medical expenses, lost wages, funeral and burial expenses, and other expenses that result from the victim's injury or death. DOJ may not compensate a victim who has not cooperated with appropriate law enforcement agencies. Any compensation that DOJ provides must be reduced by any insurance payments received, or to be received, as a result of the crime.
This bill creates the Sexual Assault Forensic Examination program to compensate, under limited circumstances, a health care provider who examines a victim of a sex offense for the costs of the examination, any procedure that tests for or prevents a sexually transmitted disease, and any medication to prevent or treat a sexually transmitted disease (examination costs). If the victim does not authorize the health care provider to seek payment from insurance or another program, DOJ must compensate the health care provider for the examination costs, regardless of whether the victim cooperates with a law enforcement agency. If the victim does authorize the health care provider to seek payment from insurance or another program, DOJ must compensate the health care provider for the examination costs, reduced by any payment from insurance or another program, only if the victim refuses to cooperate with a law enforcement agency.
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:
SECTION 1. 20.455 (2) (kh) of the statutes is repealed.
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 2. 20.455 (2) (Lm) of the statutes is amended to read:
20.455 (2) (Lm) Crime laboratories; deoxyribonucleic acid analysis. All moneys received from crime laboratories and drug law enforcement surcharges authorized under s. 165.755 and deoxyribonucleic acid analysis surcharges authorized under s. 973.046 to provide deoxyribonucleic acid analysis, to administer s. 165.77, to pay for the costs of mailing and materials under s. 165.76 for the submission of biological specimens by the departments of corrections and health and family services and by county sheriffs, and to transfer to the appropriation account under par. (kd) the amounts in the schedule under par. (kd), and to transfer to the appropriation account under par. (kh) the amounts in the schedule under par. (kh).
SECTION 3. 20.455 (5) (b) of the statutes is amended to read:
20.455 (5) (b) Awards for victims of crimes. The amounts in the schedule for the payment of compensation and funeral and burial expenses awards to the victims of crimes under subch. I of ch. 949.
SECTION 4. 20.455 (5) (d) of the statutes is created to read:
20.455 (5) (d) Reimbursement for forensic examinations. A sum sufficient for the payments of awards under s. 949.26.
****NOTE: This SECTION involves a change in an appropriation that must be reflected in the revised schedule in s. 20.005, stats.
SECTION 5. 20.455 (5) (i) of the statutes is amended to read:
20.455 (5) (i) Victim compensation, inmate payments. All moneys received under s. 303.06 (2) and (3) for the administration of subch. I of ch. 949 and for crime victim compensation payments or services.
SECTION 6. 20.455 (5) (kj) of the statutes is amended to read:
20.455 (5) (kj) Victim payments, victim surcharge. The amounts in the schedule for the payment of compensation and funeral and burial expenses awards to the victims of crimes under subch. I of ch. 949. All moneys transferred from the appropriation account under par. (g) shall be credited to this appropriation account. If the department of justice determines that the total of the amounts in this appropriation account and the amounts for compensation and awards to victims of crime under subch. I of ch. 949 in the appropriation accounts under pars. (b), (h), (i) and (m) exceeds the amount needed to fully fund compensation and awards to victims of crimes under subch. I of ch. 949, the department of justice may transfer moneys from this appropriation account to the appropriation account under par. (kk). The amount transferred to the appropriation account under par. (kk) may not exceed the amount by which the total amounts appropriated under this paragraph and pars. (b), (h), (i) and (m) for compensation and awards to victims of crimes under subch. I of ch. 949 exceed the amount needed to fully fund compensation and awards to victims of crimes under subch. I of ch. 949.
SECTION 7. 803.03 (2) (c) of the statutes is amended to read:
803.03 (2) (c) Scheduling and pretrial conferences. At the scheduling conference and pretrial conference, the judge to whom the case has been assigned shall inquire concerning the existence of and joinder of persons with subrogated, derivative or assigned rights and shall make such orders as are necessary to effectuate the purposes of this section. If the case is an action to recover damages based on alleged criminally injurious conduct, the court shall inquire to see if an award has been made under subch. I of ch. 949 and if the department of justice is subrogated to the cause of action under s. 949.15.
SECTION 8. 806.025 (2) (am) of the statutes is amended to read:
806.025 (2) (am) If money remains after the payment of all unpaid orders and judgments under par. (a), order reimbursement to the department of justice for an award made under subch. I of ch. 949 for which the department is subrogated under s. 949.15.
SECTION 9. 938.346 (1) (h) 3. of the statutes is amended to read:
938.346 (1) (h) 3. The right to compensation, as provided under subch. I of ch. 949.
SECTION 10. Subchapter I (title) of chapter 949 [precedes 949.001] of the statutes is created to read:
CHAPTER 949
SUBCHAPTER I
CRIME VICTIM COMPENSATION
SECTION 11. 949.01 (intro.) of the statutes is amended to read:
949.01 Definitions. (intro.) In this chapter subchapter:
SECTION 12. 949.02 of the statutes is amended to read:
949.02 Administration. The department shall administer this chapter subchapter. The department shall appoint a program director to assist in administering this chapter subchapter. The department shall promulgate rules for the implementation and operation of this chapter subchapter. The rules shall include procedures to ensure that any limitation of an award is calculated in a fair and equitable manner.
SECTION 13. 949.035 (1) of the statutes is amended to read:
949.035 (1) If a Wisconsin resident suffers injury or death in a situation described in s. 949.03 except that the act occurred outside this state, the resident has the same rights under this chapter subchapter as if the act had occurred in this state upon a showing that the state, territory, country or political subdivision of a country in which the act occurred does not have a compensation of victims of crimes law which covers the injury or death suffered by the person.
SECTION 14. 949.04 (1) (intro.) of the statutes is amended to read:
949.04 (1) ELIGIBILITY. (intro.) Any person may apply for an award under this chapter subchapter.
SECTION 15. 949.04 (2) of the statutes is amended to read:
949.04 (2) FORMS. The department shall prescribe application forms for awards under this chapter subchapter and shall furnish law enforcement agencies with the forms. The law enforcement agency investigating a crime shall provide forms to each person who may be eligible to file a claim under this subchapter.
SECTION 16. 949.06 (1) (intro.) of the statutes is amended to read:
949.06 (1) (intro.) In accordance with this chapter subchapter, the department shall make awards, as appropriate, for any of the following economic losses incurred as a direct result of an injury:
SECTION 17. 949.06 (1m) (b) of the statutes is amended to read:
949.06 (1m) (b) In accordance with this chapter subchapter, the department shall make awards, as appropriate, to persons who, immediately prior to the crime, lived in the same household with and to family members of a victim of s. 940.01, 940.02, 940.05, 940.06, 940.07, 940.08 or 940.09 for any of the economic losses specified in sub. (1) as a result of the person's or family member's reaction to the death. A dependent may recover both under sub. (1) and this subsection, subject to the limitation under sub. (2).
SECTION 18. 949.06 (3) (f) of the statutes is created to read:
949.06 (3) (f) From an award under s. 949.26.
SECTION 19. 949.06 (4) (b) of the statutes is amended to read:
949.06 (4) (b) The department may suspend proceedings under this chapter subchapter for a period it deems appropriate on the grounds that a prosecution for an offense arising out of the act or omission has been commenced or is imminent.
SECTION 20. 949.09 of the statutes is amended to read:
949.09 Effect of conviction. If any person has been convicted of any offense with respect to an act or omission on which a claim under this chapter subchapter is based, proof of that conviction shall be taken as conclusive evidence that the offense has been committed, unless an appeal or any proceeding with regard thereto is pending.
SECTION 21. 949.11 (1) of the statutes is amended to read:
949.11 (1) The procedure of ch. 227 for contested cases applies to hearings under this chapter subchapter except as otherwise provided in this section and ss. 949.12 and 949.14.
SECTION 22. 949.11 (2) of the statutes is amended to read:
949.11 (2) The division of hearings and appeals in the department of administration shall appoint hearing examiners to make findings and orders under s. 227.46 and this chapter subchapter.
SECTION 23. 949.115 of the statutes is amended to read:
949.115 Subpoenas. The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this chapter subchapter and may enforce compliance with such subpoenas as provided in s. 885.12.
SECTION 24. 949.12 of the statutes is amended to read:
949.12 Condition of claimant. There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under this chapter subchapter in which that condition is an element.
SECTION 25. 949.13 of the statutes is amended to read:
949.13 Agency cooperation. Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files and other appropriate information which the department requests in order to make a determination that a person is eligible for an award under this chapter subchapter.
SECTION 26. 949.15 (1) of the statutes is amended to read:
949.15 (1) Whenever the department orders the payment of an award under this chapter subchapter as a result of the occurrence of an event that creates a cause of action on the part of a claimant against any person, the department is subrogated to the rights of the claimant and may bring an action against the person for the amount of the damages sustained by the claimant. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under s. 973.20, any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.
SECTION 27. 949.16 of the statutes is amended to read:
949.16 Confidentiality of records. The record of a proceeding before an examiner or the department under this chapter subchapter is a public record. Any record or report obtained by an examiner or the department, the confidentiality of which is protected by any other law or rule, shall remain confidential.
SECTION 28. 949.165 (12) of the statutes is amended to read:
949.165 (12) PAYMENT IS NOT AN AWARD. Any payment from an escrow account under this section shall not be considered as an award by the department under this chapter subchapter.
SECTION 29. 949.18 (intro.) of the statutes is amended to read:
949.18 Report by the department. (intro.) The department's biennial report under s. 15.04 (1) (d) shall include a report of its activities under this chapter subchapter including:
SECTION 30. 949.18 (1) of the statutes is amended to read:
949.18 (1) An explanation of the procedures for filing and processing claims under this chapter subchapter.
SECTION 31. 949.18 (4) of the statutes is amended to read:
949.18 (4) A copy of the forms utilized under this chapter subchapter.
SECTION 32. 949.18 (5) (intro.) of the statutes is amended to read:
949.18 (5) (intro.) A complete statistical analysis of the cases handled under this chapter subchapter, including:
SECTION 33. 949.18 (5) (e) of the statutes is amended to read:
949.18 (5) (e) A summary of cases handled under this chapter subchapter.
SECTION 34. Subchapter II of chapter 949 [precedes 949.20] of the statutes is created to read:
CHAPTER 949
SUBCHAPTER II
SEXUAL ASSAULT FORENSIC
EXAMINATION COMPENSATION
949.20 Definitions. In this subchapter:
(1) "Cooperate with a law enforcement agency" means to report a sex offense to a law enforcement agency or to aid a law enforcement agency in the investigation of a sex offense.
(2) "Department" means the department of justice.
(3) "Examination costs" means the costs of an examination that is done to gather evidence regarding a sex offense, any procedure during that examination process that tests for or prevents a sexually transmitted disease, and any medication provided or prescribed, during that examination process, that prevents or treats a sexually transmitted disease that the person performing the examination or procedure believes could be a consequence of the sex offense. "Examination costs" does not include any processing or administrative costs, attorney fees, or other expenses.
(4) "Guardian of the victim" means one of the following:
1. If the victim is under 18 years of age, the parent, guardian, or legal custodian of the victim.
2. If the victim has been determined to be incompetent under ch. 54, the guardian of the victim.
(5) "Health care provider" means any person providing health care services.
(6) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
(7) "Sex offense" means an act committed in the state that, if committed by a competent adult, would be a violation, or an attempted violation, of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.08, or 948.09.
(8) "Sexually transmitted disease" has the meaning given in s. 252.11 (1).
(9) "Victim" means a person against whom a sex offense has been committed.
949.22 Administration. The department shall administer this subchapter. The department shall appoint a program director to assist in administering this subchapter. The department shall promulgate rules for the implementation and operation of this subchapter. The rules shall include procedures to ensure that any limitation of an award is calculated in a fair and equitable manner.
949.24 Application for award. (1) ELIGIBILITY. Any health care provider who conducts an examination to gather evidence regarding a sex offense may apply for an award under this subchapter.
(2) FORMS. The department shall prescribe application forms for awards under this subchapter and shall furnish health care providers with the forms.
(3) MEDICAL RECORDS. An applicant shall submit to the department reports from any physician, physician's assistant, or nurse who treated or examined the victim to gather evidence regarding a sex offense, performed any procedure during that treatment or examination that tests for or prevents a sexually transmitted disease, or provided or prescribed any medication to prevent or treat a sexually transmitted disease. The applicant may not submit to the department any other records than those pertaining to the examination, treatment, procedure, or medication for which the applicant is seeking an award.
949.26 Computation of awards. (1) Except as provided in sub. (1m), the department shall make an award under this section to a health care provider who conducts an examination to gather evidence regarding a sex offense to reimburse the health care provider only for the examination costs, as follows:
