H.B. 148

1

VICTIM RIGHTS AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: R. Curt Webb
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill empowers the trial court judge hearing a criminal case to give the victim an
10 appropriate remedy for a violation of a victim's rights.
11 Highlighted Provisions:
12 This bill:
13 . empowers the trial court judge hearing a criminal case to give the victim an
14 appropriate remedy for a violation of a victim's rights; and
15 . expands the definition of "important juvenile justice hearings" or "important
16 criminal justice hearings" to include class A and B misdemeanors.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 77-37-5, as last amended by Laws of Utah 2008, Chapter 382
24 77-38-2, as last amended by Laws of Utah 1997, Chapter 103
25 77-38-11, as last amended by Laws of Utah 1996, Chapter 79
26 77-38-12, as last amended by Laws of Utah 1995, Chapter 352
27

28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 77-37-5 is amended to read:
30 77-37-5. Remedies -- Victims' Rights Committee.
31 (1) In each judicial district, the presiding district court judge shall appoint a person
32 who shall establish and chair a victims' rights committee consisting of:
33 (a) a county attorney or district attorney;
34 (b) a sheriff;
35 (c) a corrections field services administrator;
36 (d) an appointed victim advocate;
37 (e) a municipal attorney;
38 (f) a municipal chief of police; and
39 (g) other representatives as appropriate.
40 (2) The committee shall meet at least semiannually to review progress and problems
41 related to this chapter, Title 77, Chapter 38, Rights of Crime Victims Act, and Utah
42 Constitution Article I, Section 28. Victims and other interested parties may submit matters of
43 concern to the victims' rights committee. The committee may hold a hearing open to the public
44 on any appropriate matter of concern and may publish its findings. These matters shall also be
45 considered at the meetings of the victims' rights committee. The committee shall forward
46 minutes of all meetings to the Commission on Criminal and Juvenile Justice and the Office of
47 Crime Victim Reparations for review and other appropriate action.
48 (3) If a victims' rights committee is unable to resolve a complaint, it may refer the
49 complaint to the Utah Council on Victims of Crime, established in Section 63M-7-601 , for
50 further consideration.
51 (4) The Office of Crime Victim Reparations shall provide materials to local law
52 enforcement to inform every victim of a sexual offense of the right to request testing of the
53 convicted sexual offender and of the victim as provided in Section 76-5-502 .
54 (5) (a) If a person acting under color of state law willfully or wantonly fails to perform
55 duties so that the rights in this chapter are not provided, an action for injunctive relief may be
56 brought against the individual and the government entity that employs the individual.
57 (b) For all other violations, if the committee finds a violation of a victim's right, it shall
58 refer the matter to the appropriate court for further proceedings consistent with Subsection

59 77-38-11 (2).
60 (c) The failure to provide the rights in this chapter or Title 77, Chapter 38, Rights of
61 Crime Victims Act, does not constitute cause for a judgment against the state or any
62 government entity, or any individual employed by the state or any government entity, for
63 monetary damages, [attorney's] attorney fees, or the costs of exercising any rights under this
64 chapter.
65 (6) The person accused of and subject to prosecution for the crime or the act which
66 would be a crime if committed by a competent adult, has no standing to make a claim
67 concerning any violation of the provisions of this chapter.
68 Section 2. Section 77-38-2 is amended to read:
69 77-38-2. Definitions.
70 For the purposes of this chapter and the Utah Constitution:
71 (1) "Abuse" means treating the crime victim in a manner so as to injure, damage, or
72 disparage.
73 (2) "Dignity" means treating the crime victim with worthiness, honor, and esteem.
74 (3) "Fairness" means treating the crime victim reasonably, even-handedly, and
75 impartially.
76 (4) "Harassment" means treating the crime victim in a persistently annoying manner.
77 (5) "Important criminal justice hearings" or "important juvenile justice hearings" means
78 the following proceedings in [felony] criminal cases involving a felony or class A or B
79 misdemeanor, or cases involving a minor's conduct which would be a felony or class A or B
80 misdemeanor if committed by an adult:
81 (a) any preliminary hearing to determine probable cause;
82 (b) any court arraignment where practical;
83 (c) any court proceeding involving the disposition of charges against a defendant or
84 minor or the delay of a previously scheduled trial date but not including any unanticipated
85 proceeding to take an admission or a plea of guilty as charged to all charges previously filed or
86 any plea taken at an initial appearance;
87 (d) any court proceeding to determine whether to release a defendant or minor and, if
88 so, under what conditions release may occur, excluding any such release determination made at
89 an initial appearance;

90 (e) any criminal or delinquency trial, excluding any actions at the trial that a court
91 might take in camera, in chambers, or at a sidebar conference;
92 (f) any court proceeding to determine the disposition of a minor or sentence, fine, or
93 restitution of a defendant or to modify any disposition of a minor or sentence, fine, or
94 restitution of a defendant; and
95 (g) any public hearing concerning whether to grant a defendant or minor parole or other
96 form of discretionary release from confinement.
97 (6) "Reliable information" means information worthy of confidence, including any
98 information whose use at sentencing is permitted by the United States Constitution.
99 (7) "Representative of a victim" means a person who is designated by the victim or
100 designated by the court and who represents the victim in the best interests of the victim.
101 (8) "Respect" means treating the crime victim with regard and value.
102 (9) (a) "Victim of a crime" means any natural person against whom the charged crime
103 or conduct is alleged to have been perpetrated or attempted by the defendant or minor
104 personally or as a party to the offense or conduct or, in the discretion of the court, against
105 whom a related crime or act is alleged to have been perpetrated or attempted, unless the natural
106 person is the accused or appears to be accountable or otherwise criminally responsible for or
107 criminally involved in the crime or conduct or a crime or act arising from the same conduct,
108 criminal episode, or plan as the crime is defined under the laws of this state.
109 (b) For purposes of the right to be present, "victim of a crime" does not mean any
110 person who is in custody as a pretrial detainee, as a prisoner following conviction for an
111 offense, or as a juvenile who has committed an act that would be an offense if committed by an
112 adult, or who is in custody for mental or psychological treatment.
113 (c) For purposes of the right to be present and heard at a public hearing as provided in
114 Subsection 77-38-2 (5)(g) and the right to notice as provided in Subsection 77-38-3 (7)(a),
115 "victim of a crime" includes any victim originally named in the allegation of criminal conduct
116 who is not a victim of the offense to which the defendant entered a negotiated plea of guilty.
117 Section 3. Section 77-38-11 is amended to read:
118 77-38-11. Enforcement -- Appellate Review -- No right to money damages.
119 (1) If a person acting under color of state law willfully or wantonly fails to perform
120 duties so that the rights in this chapter are not provided, an action for injunctive relief,

121 including prospective injunctive relief, may be brought against the individual and the
122 governmental entity that employs the individual.
123 (2) (a) The victim of a crime or representative of a victim of a crime, including any
124 Victims' Rights Committee as defined in Section 77-37-5 may:
125 (i) bring an action for declaratory relief or for a writ of mandamus defining or
126 enforcing the rights of victims and the obligations of government entities under this chapter;
127 [and]
128 (ii) petition to file an amicus brief in any court in any case affecting crime victims[.];
129 and
130 (iii) seek appropriate relief from a judge assigned to the case involving the issue.
131 (A) Upon a showing that the victim has been diligent in seeking to protect the victim's
132 right, and after hearing from the prosecution and the defense, the judge handling the case shall
133 award a victim the appropriate remedy for any violation of the victim's right.
134 (B) A judge may not award a new trial, damages, attorney fees, or costs for the
135 violation of a victim's right. The appropriate remedy shall include only such actions as are
136 necessary to provide to the victim the right to which the victim was entitled.
137 (C) The judge may reopen sentencing or a previously entered plea only if the victim
138 can demonstrate that, had the victim's right been provided during the original proceeding, a
139 materially different outcome would have occurred.
140 (D) Any judicial remedy shall be tailored so as not to violate any constitutional right of
141 the defendant.
142 (b) Adverse rulings on these actions or on a motion or request brought by a victim of a
143 crime or a representative of a victim of a crime may be appealed under the rules governing
144 appellate actions or writs, provided that no appeal shall constitute grounds for delaying any
145 criminal or juvenile proceeding for longer than ten days.
146 (c) An appellate court shall review all such properly presented issues, including issues
147 that are capable of repetition but would otherwise evade review. If necessary to protect the
148 victim's rights, an appellate court shall decide any victim's appeal or writ within seven days
149 after it is filed.
150 (3) The failure to provide the rights in this chapter or Title 77, Chapter 37, [Victims]
151 Victims' Rights, shall not constitute cause for a judgment against the state or any government

152 entity, or any individual employed by the state or any government entity, for monetary
153 damages, [attorneys'] attorney fees, or the costs of exercising any rights under this chapter.
154 Section 4. Section 77-38-12 is amended to read:
155 77-38-12. Construction of this chapter -- No right to set aside conviction,
156 adjudication, admission, or plea -- Severability clause.
157 (1) All of the provisions contained in this chapter shall be construed to assist the
158 victims of crime.
159 (2) This chapter may not be construed as creating a basis for a defendant dismissing
160 any criminal charge or delinquency petition, vacating any adjudication or conviction, admission
161 or plea of guilty or no contest, or for a defendant obtaining appellate, habeas corpus, [except in
162 juvenile cases,] or other relief from a judgment in any criminal or delinquency case.
163 (3) This chapter may not be construed as creating any right of a victim to appointed
164 counsel at state expense.
165 (4) All of the rights contained in this chapter shall be construed to conform to the
166 Constitution of the United States.
167 (5) (a) In the event that any portion of this chapter is found to violate the Constitution
168 of the United States, the remaining provisions of this chapter shall continue to operate in full
169 force and effect.
170 (b) In the event that a particular application of any portion of this chapter is found to
171 violate the Constitution of the United States, all other applications shall continue to operate in
172 full force and effect.
173 (6) The enumeration of certain rights for crime victims in this chapter shall not be
174 construed to deny or disparage other rights granted by the Utah Constitution or the Legislature
175 or retained by victims of crimes.




Legislative Review Note
as of 1-16-09 1:42 PM

Office of Legislative Research and General Counsel