CHAPTER 167

FORMERLY

SENATE BILL NO. 176

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 94, TITLE 11 OF THE DELAWARE CODE TO PROVIDE CONFORMITY WITH THE UNIFORM VICTIM OF CRIMES ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 94 of Title 11 of the Delaware Code by striking the Chapter in its entirety and enacting in lieu thereof the following:

CHAPTER 94. VICTIMS' BILL OF RIGHTS

§9401. Definitions.

As used in this Chapter, unless the context otherwise requires:

(1) "Crime" means an act or omission committed by a person, whether or not competent or an adult, which, if committed by a competent adult, is punishable by incarceration and which violates one or more of the following sections of Title 11:

OFFENSES AGAINST THE PERSON

601. Offensive touching; unclassified misdemeanor.

602. Menacing; unclassified misdemeanor.

603. Reckless endangering in the second degree; class A misdemeanor.

604. Reckless endangering in the first degree; class E felony.

611. Assault in the third degree; class A misdemeanor.

612. Assault in the second degree; class D felony.

613. Assault in the first degree; class C felony. 621. Terroristic threatening; Class A misdemeanor.

628. Vehicular assault in the second degree; class R misdemeanor.

629. Vehicular assault in the first degree; class A misdemeanor.

630. Vehicular homicide in the second degree; class F felony; minimum sentence; juvenile offenders.

631A. Vehicular homicide in the first degree; class E felony; minimum sentence; juvenile offenders.

631. Criminally negligent homicide; class E felony.

632. Manslaughter; class C felony.

635. Murder in the second degree; class B felony.

1. Murder in the first degree; class A. felony. 645. Promoting suicide; class F felony.

764. Indecent exposure in the second degree; unclassified misdemeanor.

765. Indecent exposure in the first degree; class A misdemeanor.

766. Incest; class A misdemeanor

767. Unlawful sexual contact in the third degree; class A misdemeanor.

768. Unlawful sexual contact in the second degree; class G felony.

769. Unlawful sexual contact in the first degree; class F felony.

770. Unlawful sexual penetration in the third degree; class E felony.

771. Unlawful sexual penetration in the second degree; class D felony.

772. Unlawful sexual penetration in the first degree; separate charges; class C felony.

773. Unlawful sexual intercourse in the third degree; class C felony.

774. Unlawful sexual intercourse in the second degree; class B felony.

775. Unlawful sexual intercourse in the first degree; class A felony.

781. Unlawful imprisonment in the second degree; class A misdemeanor.

782. Unlawful imprisonment in the first degree; class G felony.

783. Kidnapping in the second degree; class C felony. 783A. Kidnapping in the first degree; class B felony.

785. Interference with custody; class G felony; class A misdemeanor.

OFFENSES INVOLVING PROPERTY

801. Arson in the third degree; affirmative defense; class G felony.

802. Arson in the second degree; affirmative defense; class D felony.

803. Arson in the first degree; class C felony. 811. Criminal mischief; felony.

823. Criminal trespass in the first degree; class A misdemeanor.

824. Burglary in the third degree; class F felony.

825. Burglary in the second degree; class D felony.

826. Burglary in the first degree; class C felony.

831. Robbery in the second degree; class E felony.

832. Robbery in the first degree.

840. Shoplifting; class G felony; class A misdemeanor.

841. Theft; class G felony; class misdemeanor. 846. Extortion; class E felony.

848. Misapplication of property; class G felony; class A misdemeanor.

851. Receiving stolen property; class G felony; class A misdemeanor.

861. Forgery; class F felony; class G felony; class A misdemeanor; restitution required.

900. Issuing a bad check; class A misdemeanor; class G felony.

903. Unlawful use of credit card; class G felony; class A misdemeanor.

OFFENSES RELATING TO CHILDREN AND INCOMPETENTS

1101. Abandonment of child; class A misdemeanor.

1102. Endangering the welfare of a child; class A misdemeanor.

1105. Endangering the welfare of an incompetent person; class A misdemeanor.

1108. Sexual exploitation of a child; class 8 felony.

OFFENSES RELATING TO JUDICIAL AND SIMILAR PROCEEDING

1261. Bribing a witness; class E felony.

1263. Tampering with a witness; class E felony.

1263A. Interfering with child witness.

1264. Bribing a juror; class E felony.

1312. Aggravated harassment; class 8 misdemeanor.

1312A. Stalking; class F felony.

OFFENSES AGAINST PUBLIC HEALTH

1339. Adulteration; class G felony; class E felony; class A felony. RELEASE OF PERSONS ACCUSED OF CRIMES

2113. Penalties for noncompliance with conditions of recognizance; bond or conditions.

WITNESS AND EVIDENCE

3532. Act of intimidation; class E felony.

3533. Aggravated act of intimidation; class D felony.

(2) "Member of the victim's family" means the spouse, a child by birth or adoption, a stepchild, a parent, a stepparent, a sibling, or an individual designated by the victim or by a court in which the crime is being or could be prosecuted, but does not include an individual who is accountable for the crime or a crime arising from the same conduct, criminal episode, or plan.

(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(4) "Representative of the victim" means a member of the victim's family or an individual designated By the victim or by a court in which the crime is being or could be prosecuted.

(5) "Victim" means the person, organization, partnership, business, corporation, agency or governmental entity identified as the victim of a crime in a police report, a criminal complaint or warrant, an indictment or information, or other charging instrument. "Victim" includes a parent, guardian or custodian of a victim who is unable to meaningfully understand or participate in the legal process due to physical, psychological or mental impairment. "Victim" includes the following relations of a deceased victim if the relation is not the defendant, co-defendant or conspirator:

a. The spouse;

b. An adult child or stepchild;

c. A parent; or

d. A sibling.

(6) "Prosecutor" means a representative of the Office of the Attorney General.

(7) "Court" means the Superior Court, Family Court, Court of Common Pleas, Municipal Court for the City of Wilmington, and the Justice of the Peace Court.

§9402. Compliance with Chapter.

(a) This Chapter shall apply to the victims of the crimes defined in section 9401(1). Consistent with the duty to represent the interests of the public as a whole, the Attorney General shall enforce compliance with this Chapter on behalf of victims and members of victims' families.

(b) Failure to comply with this Chapter does not create a claim for damages against a government employee, official, or entity.

(c) Failure to provide a right, privilege or notice to a victim under this Chapter shall not be grounds for the defendant to seek to have a conviction or sentence set aside.

§9403. Nondisclosure of Information About Victim.

(a) Unless a victim waives confidentiality in writing, neither a law enforcement agency, the prosecutor, nor the corrections department may disclose, except among themselves or as authorized by law, the residential address, telephone number, or place of employment of the victim or a member of the victim's family, except to the extent that disclosure is of the site of the crime, is required by law or the Rules of Criminal Procedure, is necessary for law enforcement purposes, or is permitted by the court for good cause.

(b) A court may not compel a victim or a member of the victim's family testifying in a criminal justice proceeding to disclose a residential address or place of employment on the record unless the court finds that disclosure of the information is necessary.

(c) The victim's address, place of employment, and telephone number maintained by a court, prosecutor or law enforcement agency pursuant to this Chapter is exempt from disclosure under the Freedom of Information Act.

§9404. Victim's Interest in Speedy Prosecution; Child Victim; or Witness.

(a) The court shall consider the interest of the victim in a speedy prosecution.

(b) Proceedings shall be expedited in cases involving a child victim or witness particularly in child abuse and sexual abuse cases.

§9405. Prosecutor to Confer with Victim.

Consistent with the duty to represent the interests of the public as a whole, the prosecutor, to the extent practicable, shall confer with a victim before amending or dismissing a charge or agreeing to a negotiated plea or pretrial diversion. Failure of the Attorney General to confer with the victim does not affect the validity of an agreement between the State and the defendant or of an amendment, dismissal, plea, pretrial diversion, or other disposition of the case.

§9406. Safety of Victim.

(a) The court shall provide a waiting area for victims separate from the defendant, defendant's relatives and defense witnesses if such an area is available and the use of the area is practicable. If a separate waiting area is not available or practical, the court shall provide other available safeguards to minimize the victim's contact with the defendant, defendant's relatives and defense witnesses during court proceedings.

(a) At the initial contact, the victim shall be provided written information by the investigating law enforcement agency to whom the victim can contact to ascertain if the defendant is released from custody, and the procedures that the victim may follow if threatened, intimidated, or if conditions of bail or custody are not complied with.

§9407. Presence at Court Proceedings; Notice.

(a) A victim or an individual designated by the victim may be present whenever a defendant has a right to be present during a court proceeding concerning the crime charged other than a grand jury proceeding, unless good cause can be shown by the defendant to exclude the victim. If the victim is present, the court, at the victim's request, shall permit the presence of an individual to provide support to the victim, unless the court determines that exclusion of the individual is necessary to protect the defendant's right to a fair trial.

(b) If a victim requests notice of proceedings upon a form provided under this Chapter, the victim shall promptly be informed of the date, time, and place of each court proceeding relative to the disposition of the case at which the victim has a right to be present.

§9408. Prompt Return of Property.

The agency holding the property shall promptly return the property to the victim when it is no longer needed for evidentiary purposes unless it is contraband or subject to forfeiture.

§9409. Limitations on Employer.

An employer may not discharge or discipline a victim or a representative of the victim for:

(1) participation at the prosecutor's request in preparation for a criminal justice proceeding; or

(2) attendance at a criminal justice proceeding if the attendance is reasonably necessary to protect the interests of the victim.

(3) attendance at a criminal justice proceeding in response to a subpoena.

§9410. Information from Law Enforcement Agency.

At the initial contact between the victim of a reported crime and the law enforcement agency having responsibility for investigating that crime, that agency, to the extent practicable, shall promptly give in writing to the victim:

(1) An explanation of the victim's rights under this Chapter;

(2) Information concerning the availability of social service and other assistance to victims;

(3) A copy of the initial incident report which shall state whether the victim requests notice of future proceedings upon the arrest of a defendant;

(4) Notice of the availability of a victim service unit within the Department or, in the absence of a unit within that law enforcement agency, the availability of the Statewide Victim Center;

(5) Notice of the Violent Crimes Compensation Program;

(6) Notice of availability of information concerning pretrial release; and

(7) Source of information at the investigating law enforcement agency where the victim may check the status of any arrest.

§9411. Information Concerning Pretrial and Trial Matters.

(a) After a prosecution is commenced by the Attorney General in the Superior Court, the Attorney General, to the extent practicable, shall promptly inform a victim who has requested notification of:

(1) A statement of the procedural steps in the processing of a criminal case;

(2) Rights under this Chapter;

(3) Procedures if the victim is threatened or harassed;

(4) Victim compensation information when appropriate;

(5) The right of the victim to confer with the prosecutor prior to trial;

(6) The right of the victim to consult with the prosecutor about the disposition of the case, including the victim's views on dismissal, plea negotiations or diversion programs;

(7) The right of the victim to be present at trial and sentencing;

(8) Notice of the scheduling of court proceedings and changes including trial date, case review and sentencing hearings;

(9) Notice of the crime(s) of which the defendant is convicted;

(10) Notice of the specifics of any sentencing order;

(11) Notice of sentence reduction or modification order; and

(12) Notice of a reversal upon appeal of a conviction.

(b) In all other courts, the court shall, to the extent practicable, give the victim who has requested notification:

(1) Notice of the scheduling of court proceedings and changes including trial date, case review and sentencing hearings;

(2) Notice of the crime(s) of which the defendant is convicted;

(3) Notice of the specifics of any sentencing order; and

(4) Notice of sentence reduction or modification order.

(c) The court shall also inform victims that, should they have questions concerning their rights, they should contact the victim services office of the Attorney General's Office.

§9412. Information Concerning Appeal or Post-Conviction Remedies.

(a) If the defendant appeals or pursues a post-conviction remedy in a case prosecuted by the Attorney General, the prosecutor Shall promptly inform any victim who has requested notice of the date, time, and place of any hearing, and of the decision.

(b) In cases where there is no prosecutor, the court shall, to the extent practicable, notify those victims who have requested notification of the matters contained in section 9412(a).

§9413. Information Concerning Confinement.

(a) The Department of Correction and the Department of Services for Children, Youth and Their Families, to the extent practicable, shall notify in writing those victims who have requested such notice of the following regarding defendants in their custody:

(1) Projected release date;

(2) Release or release to a community-based program;

(3) Parole Board hearing date.

(b) In the event of an escape of the defendant, the Department of Correction and the Department of Services for Children, Youth and Their Families, shall notify immediately, by telephone or in person, any victim who has requested such notice of the escape of the defendant.

§9414. General Requirements for Information.

(a) Unless the form of notice is expressly set forth by this Chapter, information required to be furnished under this Chapter may be furbished orally or in written form.

(b) A person responsible for furnishing information may rely upon the most recent name, address, and telephone number furnished by the victim.

§9415. Presentence Report.

In preparing a presentence report, the presentence officer shall make a reasonable effort to confer with the victim. If the victim is not available or declines to confer, the presentence officer shall record that information in the report. The victim shall have the right to present a victim-impact statement pursuant to Title 11 section 4331.

§9416. Consideration of Victim-Impact Statement at Parole Hearing or Pardon Board Hearing

(a) The Board of Parole shall, to the extent practicable, inform the victim in writing of:

(1) The right of the victim to address the Parole Board in writing or in person; and

(2) The decision of the Parole Board.

(b) The Board of Pardons shall, to the extent practicable, inform the victim in writing of:

(1) The right of the victim to address the Board of Pardons in writing or in person;

(2) Any commutation of sentence that is recommended by the Board; and

(3) Any pardon or commutation that is granted.

§9417. Requirement of State Agencies to File Annual Reports.

All agencies given duties by this Chapter shall submit an annual report with related statistics outlining compliance with this Chapter. The annual report shall be submitted at the end of each calendar year to the Governor and to the Criminal Justice Council. If the requirements stated in this Chapter cannot be achieved by an agency for any reason, the agency shall so state in the annual report and shall explain in detail the nature of the obstacles to comply with this Chapter or other causes for the inability to achieve the objectives. The Governor shall advise state agencies of any statutory changes that require an amendment to this Chapter."

Section 2. It is the intent of the General Assembly that the agencies affected by this statute shall request adequate funding to meet the requirements under this Act; and that they shall as soon as practicable comply with its requirements.

Section 3. This Act shall become effective upon its enactment into law.

Approved July 16, 1993.