CHAPTER 519

FORMERLY

HOUSE BILL NO. 127

AS AMENDED BY HOUSE AMENDMENTS NO. 2, 3, 4, 6 AND 7

AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE AUTHORIZING AND PROVIDING FOR THE COMPENSATION OF PERSONS INJURED BY CERTAIN CRIMINAL ACTS, AND MAKING AN APPROPRIATION THEREFOR.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 11 of the Delaware Code, by adding thereto a new Part VI, which shall read as follows:

"PART VI. VICTIMS OF CRIMES

CHAPTER 90. COMPENSATION FOR

INNOCENT VICTIMS OF CRIME

§9001. Declaration of purpose

The General Assembly hereby declares that it serves a public purpose, and is of benefit to the State of Delaware, to indemnify those needy domiciliaries of this State who are victims of crimes committed within the State of Delaware, and it is therefore the declared purpose of this Act to promote the public welfare by establishing a means of meeting the additional hardships imposed upon the innocent victims of certain crimes, and the families and dependents of those victims.

§9002. Definitions

The following words, terms and phrases, when used in this Act, shall have the meanings ascribed to them except where the context clearly indicates a different meaning:

(a) 'Board' shall mean the Violent Crimes Compensation Board as established by this Act;

(b) 'Child' shall mean an unmarried person who is under eighteen years of age, and shall include the step-child or adopted child of the victim, or child conceived prior to, but born after, the personal injury or death of the victim;

() 'Crime' for purposes of this Chapter shall mean:

(1) any specific offense set forth in Chapter 5 of the Delaware Criminal Code as the same appears in Chapter 497, Volume 58, Laws of Delaware, if the offense was committed after the effective date of said Criminal Code and contains the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, riot, robbery, unlawful use of explosives, or unlawful use of firearms.

(2) any specific offense set forth in Chapter 3, Title 11 of the Delaware Code if such offense was committed prior to the effective date of the Delaware Criminal Code, as set forth in Chapter 497, Volume 58, Laws of Delaware, and contains the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, robbery, riot, unlawful use of explosives, or unlawful use of firearms.

() 'Dependent' shall mean a person wholly or partially dependent upon the income of the victim at the time of victim's death, or would have been so dependent but for the incompetency of the victim due to the injury from which the death resulted, and shall include a child born after the death of such victim;

(a) 'Guardian' shall mean a person who is entitled by law or legal appointment to care for and manage the person or property, or both, of a child or incompetent;

(b) 'Incompetent' shall mean a person who is incapable of managing his own affairs, as determined by the Board or by a court of competent jurisdiction;

(c) 'Personal injury' shall mean bodily harm, or extreme mental suffering, and shall include pregnancy of the victim;

(d) 'Pecuniary loss' in instances of personal injury shall include medical expenses, including psychiatric care; non-medical remedial care and treatment rendered in accordance with a religious method of healing; hospital expenses; loss of past earnings; and loss of future earnings because of a disability resulting from such personal injury. 'Pecuniary loss' in instances of death of the victim shall include funeral and burial expenses and loss of support to the dependents of the victim. Pecuniary loss includes any other expenses actually and necessarily incurred as a result of the personal injury or death, but it does not include property damage.

(j) 'Victim' shall mean a person who is injured or killed by the act of any other person during the commission' of a crime as defined in this Chapter.

§9003. Compensation Board

There is hereby established a Board, to be known as the Violent Crimes Compensation Board, which Board shall have the sole jurisdiction over the awarding of compensation for victims of crimes. The Board shall be composed of five members to be appointed by the Governor. No more than three members shall be of one major political party. Each appointment shall be effective only upon receiving the consent of the Senate. The initial Chairman of the Board shall be appointed by the Governor to serve as such for one (1) year, and each year thereafter the Board shall choose its Chairman. The Chairman and two other members of the Board shall constitute a quorum. The term of office of each member of the Board shall be three years; provided, however, that one of the members first appointed shall be appointed for a term of one year, two others for a term of two years each, and the remainder of the members for a full term of three years.

§9004. Functions of the Board

The Board shall have the following functions, powers and duties:

(a) to meet and function at any place within the State;

(b) to appoint an Executive Secretary and such other employees as are necessary, the total number of which shall not exceed five (5) at any given time. The Board shall prescribe the duties of the Executive Secretary and other employees;

(c) to obtain the services of other governmental agencies upon request, and to utilize those services when necessary;

(d) to adopt, promulgate, amend, and rescind such rules and regulations as are required to carry out the provisions of this Chapter;

(e) to receive, investigate and act upon applications for indemnification filed pursuant to this Chapter;

(f) to publish reports, information, and other data collected by the Board as results of its investigations and research;

(g) to annually render to the Governor and the General Assembly a written report of its activities and of its recommendations;

(h) to provide indemnification claim forms for purposes of this Chapter, and to specify the information to be included in such forms.

§9005. Administrative, provisions compensation

In any instance in which a person is injured or killed by any crime as the same is defined in this Chapter, then he or his estate may file a claim with the Violent Crimes Compensation Board for indemnification of all pecuniary loss which is a direct result of such crime:

(a) If a claim is approved as filed, the award shall be the amount of pecuniary loss actually and reasonably sustained by reason of the personal injury in question minus the amount the claimant has or will receive as indemnification from any other source, including Blue Cross and Blue Shield insurance.

(b) In the event of a death caused by a crime of violence, any person who legally or voluntarily assumes the obligation to pay the medical or burial expenses incurred as a direct result of such injury and death shall be eligible to file a claim with the Board. This provision for payment in case of death shall not apply to any insurer or public entity.

(c) The Board is not compelled to provide compensation in any case, nor is it compelled to award the full amount claimed. The Board may make its award of compensation dependent upon such condition or conditions as it deems desirable. Any claimant who is aggrieved by the Board's decision concerning compensation or any conditions attached to the award of such compensation may appeal to the superior court which has or had jurisdiction over the trial of the person or persons accused of the crime.

(d) Payment may be made in accordance with this Chapter whether or not the alleged perpetrator of the criminal act is prosecuted or convicted, in the discretion of the Board. Payment may be made even though the person committing the crime is legally deemed to not have intended his act by reason of age, insanity, drunkenness, or it otherwise deemed legally incapable of mens rea.

(e) Upon determination by the Board of the Amount of compensation due, the Board shall issue to the Treasurer of the State of Delaware a statement signed by the Chairman under oath certifying such amount. Upon receipt of such certification by the Board, the Treasurer shall pay to the person named therein such amounts as are specified and under the conditions specified therein. The Treasurer shall make no payments until the time for appeal of the certification has passed. If an appeal is made, there shall be no payment until there has been a binding legal adjudication of the matter.

§9006. Denial of claim; reduction

The Board shall deny payment of a claim for the following reasons:

(a) Where the claimant was the perpetrator of the crime on which the claim is based, or was a principal involved in the commission of a crime at the time when the personal injury upon which the claim is based was incurred.

(b) Where the claimant incurred the personal injury on which the claim is based through collusion with the perpetrator of the crime.

(c) Where the claimant refused to give reasonable cooperation to state or local law enforcement agencies in their efforts to apprehend or convict the perpetrator of the crime in question.

(d) Where the claim has not been filed within one year after the personal injury on which the claim is based, unless an extension is granted by the Board.

In determining whether or not to make an award under the provisions of this Chapter, or in determining the amount of any award, the Board may consider any circumstances it deems to be relevant, including the behavior of the victim which directly or indirectly contributed to his injury or death; unless such injury or death resulted from the victim's lawful attempt to prevent the commission of a crime or to apprehend an offender.

If the victim bears any share of responsibility that caused his injury or death, the Board shall reduce the amount of compensation in accordance with its assessment of the degree of such responsibility attributable to the victim. A claim may be denied or reduced, if the victim of the personal injury in question, either through negligence of through willful and unlawful conduct, substantially provoked or aggravated the incident giving rise to the injury.

§9007. Payment of compensation

Any person, regardless of age or mental condition, is entitled to make application for compensation under the provisions of this Chapter if he is a victim as defined herein. In any instance in which the person entitled to make application is deemed by law to be incompetent he may nevertheless appear in person or the application may be made on his behalf by any person acting as his relative, guardian or attorney. Every victim making application shall be entitled to appear and be heard by the Board.

Except in cases of dire hardship, as determined by the Board, there shall be no payment of compensation where the claim is for less than Twenty-Five Dollars ($25.00). Awards may be paid in a lump sum, or periodic payments as determined by the Board. Each and every payment shall be exempt from attachment, garnishment, or any other remedy available to creditors for the collection of a debt.

The Board may require any injured person filing a claim pursuant to this Chapter to submit to a physical examination by a physician or physicians selected by the Board.

No compensation shall be awarded under this Act to any individual victim (or in case of the death of the victim to dependent relatives or to the victim's legal representative) in a total amount in excess of Ten Thousand Dollars ($10,000.00). The Board shall deduct any payments received by the victim or by any of his dependents from the offender or from any person on behalf of the offender, from any insurer, or from the United States, the State of Delaware, or any state or any of its subdivisions from its award of compensation if such payments were in any manner made to compensate such person for personal injury or death arising from the same incident.

Although a person otherwise incompetent may appear and press his claim before the Board, payment of compensation shall not be made directly to any person legally incompetent to receive same but shall be made to a third person for the benefit of such incompetent. In the case of any payment for the benefit of a child or incompetent, the Board shall order the payee to file an accounting with the Board no later than January 31 of each year for the previous calendar year, and to take such other action as the Board shall determine to be necessary and appropriate for the benefit of the child or incompetent.

§9008. Form of claim; investigation

All claims filed with the Board shall be verified and shall accurately describe the crime and circumstances which brought about the injury, damage or death, shall state the time and place the injury occurred, state the names of all persons involved if known, and shall contain the amount claimed by the applicant. If the Board in its discretion decides that a claim should be investigated such investigation must be initiated within thirty (30) days of the filing of the claim. A claim may be summarily denied if it does not contain a full statement of the information required. If no investigation is initiated, the Board shall, within the thirty-day period, notify the applicant to appear and meet with the members of the Board.

If there is doubt concerning the existence or non-existence of any material fact, the Board shall conduct its own investigation and, when the investigation is concluded, shall fix the time and place for a hearing on the claim. The Board shall mail notices of the time and place of such hearing to all interested persons and agencies. Within ninety (90) days of the conclusion of any and all hearings on the matter, the Board shall mail a statement of its decision to award or deny the claim and a statement of any conditions under which the claim shall be awarded.

Except in the event of the denial of a claim, the decision of the Board is not subject to appeal. In the event a claim is denied the Board shall notify the claimant or his attorney if he has one and shall ensure such person of a reasonable opportunity to present his appeal to the Board. The claimant shall, within thirty (30) days of receiving notice of such decision, file a notice of his intent to appeal. Such Notice shall state the basis in law or in fact for the appeal. Upon receipt of the Notice, the Board may request such further information as it may deem necessary.

The full Board shall meet to hear each appeal. After hearing the appeal, the Board may approve the claim either wholly or in part, conduct further public hearings, or deny the claim. If the claim is denied upon appeal, the claimant may apply in the appropriate superior court for judicial review of the appeal to the Board by a judge sitting without a jury; provided, however, that no trial de novo of the facts determined by the Board shall be allowed.

§9009. Attorneys' fees

A claimant need not be represented by an attorney before the Board, but if such person is represented the Board may award an amount for services rendered. Such fee shall not exceed One Thousand Dollars ($1,000) or fifteen percent (15%) of the amount awarded, whichever sum is less; and shall be in addition to the amount of compensation awarded to the claimant. An attorney shall not charge, demand, receive or collect for services rendered in connection with any proceedings under this Chapter any amount other than awarded as attorney's fees under this section.

§9010. Recovery from the criminal

Whenever any person is convicted of an offense and a payment of compensation is, or has been, made under this Act for a personal injury or death resulting from the act constituting such offense, the State of Delaware may institute an action against such person for the recovery of the whole or any specified part of the compensation in any Superior Court within the State of Delaware, or in any other court, either state or federal, if such court has custody or control of funds of the criminal or which may be awarded to the criminal. Any amounts recovered under this section shall be deposited to the fund which finances the administration of the provisions of this Chapter.

Any payment of compensation under the terms of this Chapter shall not affect any right of any person to recover damages in a civil action from the person or persons convicted of the offense giving rise to the claim for compensation.

§9011. Assignment and subrogation

Awards and recoveries granted under the provisions of this Chapter shall not be transferrable or assignable, at law or in equity, and none of the money paid or payable under the provisions of this Chapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

There shall be no substitution or subrogation, whether conventional or legal, of any indebtedness or right of action by virtue of any claim of guarantee or surety, agency, lien, payments or advances made, or any claim made by the person convicted of the act giving rise to any compensation awarded under this Chapter.

§9012. Penalty assessment

In addition to, and at the same time as, any fine is assessed to any criminal defendant, there shall be levied an additional penalty of ten percent (10%) of every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses, other than fines imposed by a municipality as a penalty for a violation of a local ordinance. Where multiple offenses are involved, the penalty assessment shall be based upon the total fine for all offenses. When a fine, penalty or forfeiture is suspended, in whole or in part, the penalty assessment shall not be suspended.

Upon collection of the penalty assessment, the same shall be paid over to the prothonotary or clerk of court as the case may be, who shall collect the same and transmit it to the State Treasury to be deposited in a separate account for the administration of this Chapter, which account shall be designated the "Victim Compensation Fund," which is hereby created.

§9013. Annual reports

The Board shall transmit to the Governor, State Auditor, and the General Assembly an annual report of its activities under this Act, including the name of each applicant for compensation, a brief description of the facts in each case and the amount claimed, and the amount of compensation awarded.

§9014. Compensating fine

In any court of this State upon the conviction of any person for a crime resulting in the personal injury or death of another person, the court may, in addition to any other penalty, order such person to pay a compensating fine, in lieu of but greater than, the penalty set forth in §9012 of this Chapter. The amount of such fine shall be in the discretion of the court and shall be commensurate with the malice shown and the injury done to the victim. All fines paid in accordance with this section shall be deposited into the Victim Compensation Fund."

Section 3. There is hereby appropriated the. sum of one hundred thirty-seven thousand dollars ($137,000.00), of which twenty-five thousand dollars ($25,000.00) shall be set aside for the salaries of all personnel under this Act. The remaining funds shall be set aside and paid into the Victim Compensation Fund, and shall be used for the necessary operations and expenses of the administration of this Act, including the payment of compensation to victims of crime. All funds set aside for salaries under this Act which remain unexpended on June 30, 1975, shall thereupon revert to the General Fund of the State. For budget purposes only, the Violent Crimes Compensation Board shall be deemed to be included within the Administrative Office of the Courts.

Section 4. This Act shall be strictly construed so as not to create new rights on behalf of claimants other than those which are specifically set forth, nor shall it create new duties or obligations of the State other than those which are specifically set forth within this Act. No rights under this Act shall accrue for crimes committed prior to the effective date of this Act.

Section 5. Notwithstanding any enactment date appended to this Act nor signature by the Governor, this Act shall not become effective until it is fully funded in accordance with Section 3 herein. Furthermore, if at any time the Victim Compensation Fund is abolished, exhausted or has insufficient funds to pay compensation which has been duly awarded under the provisions of this Chapter, then the provisions of this Chapter shall cease and determine and no further awards shall be made nor hearings held.

Section 6. If any of the provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provisions or application, and to that end the provisions of this Act are declared to be severable.

Section 7. The Penalty Assessment set forth in this Act (page 11) shall take effect immediately upon signature by the Governor. The effective date of this Act, except for the Penalty Assessment, shall take effect on January 1, 1975. Funds collected in accordance with the Penalty Assessment shall be retained in the Victim Compensation Fund until January 15, 1975, at which time the Violent Crimes Compensation Board shall take full control of the Fund.

Approved July 18, 1974.