- Report Published -
|Crime Victims' Compensation|
|General Assembly. Joint Subcommittee|
|Chapter 619 (Regular Session, 1985)|
During the 1985 General Assembly Session, the Senate Finance Claims Subcommittee and the House Claims Committee had before them a bill for the relief of a female minor. Senator A. Joe Canada, Jr., introduced legislation to allow reimbursement by the Commonwealth to the child's family for psychiatric bills incurred after she was sexually molested. The molestation was committed by a person who, although not related to the child, was a boarder in the child's family home. The molestation occurred when the child was five years old, but went undiscovered for several years. The Joint Subcommittee, as well as the entire Senate Finance Committee, believes that relief should have been provided for this child and her family through the Criminal Injuries Compensation Fund. However, due to the inflexibility of the statutory language, the family was unable to receive compensation.
The Senate Finance Committee felt the Crime Victims' Compensation Act was drawn in such a way as to interfere with legislative intent, especially with regard to children who become the unfortunate victims of crime. Therefore, the Joint Subcommittee Studying Crime Victims' Compensation was formed to examine and propose changes to Virginia's laws governing compensation for victims of crime and their dependents. Specifically, the Joint Subcommittee was created to consider changes to Chapter 21.1 of Title 19.2 of the Code of Virginia which would provide statutory flexibility in the event of late discovery of crimes against minors.
In 1976, the General Assembly, responding to a perceived need for governmental financial assistance for citizens who suffer injury or death as the result of victimization or of their efforts to prevent criminal activity, enacted House Bill No. 1093. By adopting this legislation, Virginia joined twelve other states with centrally administered victim compensation programs. The Virginia Act is, in a sense, a form of collective restitution. The legislation provides for payment by the offender of the costs directly associated with his crime. This frees the victim from the often unsuccessful burden of pursuing his offender in the civil courts. In fact, compensation of a victim is in no way contingent upon apprehension or conviction of the criminal involved, so long as it can be proved that a crime was actually committed.
House Bill No. 1093 established a special fund supported by fines assessed against persons convicted of felonies and Class 1 and 2 misdemeanors. Persons convicted of driving under the influence of alcohol or other intoxicants and public drunkenness are excepted from paying the assessment. The Division of Crime Victims' Compensation was established within the structure of the Industrial Commission to handle all facets of program administration, including public information and education, distribution of applications, investigation and disposition of claims, decisions concerning level of compensation, and administrative record keeping. Claimants dissatisfied with the outcome of their case may appeal to the full Commission and finally to the Court of Appeals.
Collections to the Criminal Injuries Compensation Fund began in July, 1976. One year later the Division began to accept claims against the fund. To be eligible for compensation, a claimant must be the victim of a crime or a person who attempted to prevent a crime or apprehend a criminal. In order to be compensated, physical injury must have resulted. In a case where the victim or good Samaritan dies, legal dependents are eligible for compensation. Those deemed eligible are reimbursed for out-of-pocket expenses associated with their injury, including medical expenses and lost wages. A $100 deductible is applied to all claims made by persons under 65 years of age.
A major prohibition to eligibility in the original Act was statutory language which automatically excluded an offender's family from participation in the program. "Family" is defined to include "(1) any person related to the offender within the third degree of consanguinity or affinity, [or] (2) any person residing in the same household." See § 19.2-368.2 of the Code of Virginia. Although this provision was written into the law to exclude persons who were even indirectly criminally responsible from receiving compensation, and to prevent collusion or fraud, it proved to be a harsh rule. During the last two sessions of the General Assembly, significant action has been taken to ease the family exclusion. A 1985 change of major importance provided compensation for family members in all cases where the terms of the award could be structured in such a way as to prevent the criminally responsible person from benefitting from the crime.
A second prohibition to eligibility, and one of the primary motivations behind the joint subcommittee study, is the Act's stringent statute of limitations. Language in the Act provides that a claim must be filed within 180 days, with an extension of this limitations period for up to a maximum of two years, if good cause is shown. See § 19.2-368.5 of the Code of Virginia. No exception was provided for minors who in cases of sexual assault or molestation frequently fail to disclose the crime. It is sometimes years after an incident before the crime is discovered.
Since its inception, the Crime Victims' Compensation Act has undergone significant revision by the legislature. In fact, changes have been made in the original language in eight of the last nine sessions of the General Assembly. These changes, summarized in Appendix 1, have liberalized Virginia's victim compensation law and enhanced the Division's ability to address the needs of victims.
JOINT SUBCOMMITTEE RECOMMENDATIONS
The Joint Subcommittee began meeting in August 1985, and a public hearing was held in September of that year. Through testimony received at this hearing, a wide variety of concerns about the Act and about the Division of Crime Victims' Compensation were brought to the attention of the Joint Subcommittee. The Joint Subcommittee discussed these problems and possible program improvements at a work session held November 12, 1985. A summary of these issues is included as Appendix 2. Although the Joint Subcommittee believes many of the issues raised during the course of this study should be addressed internally by the Industrial Commission, a number of recommendations for statutory change are made in this report. See Appendix 3.
To provide for situations where there is late discovery of a crime against a minor, the Joint Subcommittee recommends the amendment of § 19.2-368.5. The Joint Subcommittee suggests that in cases involving minors or persons who are mentally incompetent, the provisions of paragraph A of § 8.01-229 of the Code of Virginia be applied to toll the 180 day statute of limitations during the period of minority or disability. This change will maximize the Division's ability to compensate minors and other persons under a disability when there is failure by a child or incompetent, or a person acting on his behalf, to report a victimization in a timely manner.
The Joint Subcommittee heard testimony that awards to victims of sexual assaults might be hindered or even prevented because of statutory language regarding "contribution" by the victim to infliction of the injury. See § 19.2-368.12 of the Code of Virginia. The Joint Subcommittee discussed this issue in great detail. It was advised by representatives of the Industrial Commission that the statutory language has been construed to bar or reduce an award only where the victim in some way actively initiated or precipitated the infliction of the injuries. The Joint Subcommittee therefore decided that no change need be made to § 19.2-368.12. (See Appendix 4, Commission considerations regarding contribution.)
The Joint Subcommittee also recommends that § 19.2-368.7 be amended to extend the time limit for appeal of a decision to the full Commission from 15 to 20 days. The longer time period corresponds to the time applicable to appeals of other cases to the Commission.
The Joint Subcommittee further recommends expansion of language contained in § 19.2-368.17 pertaining to the Division's public information program. It recommends that language be added to this section to require the inclusion of brochures, posters, and public service announcements in the Division's public information program. The Joint Subcommittee believes that efforts to inform and educate the public and local service agencies on award eligibility under the Crime Victims' Compensation Act should be expanded. The Joint Subcommittee recognizes the efforts of the Division and encourages the Industrial Commission to develop uniform guidelines on the Division's policies, procedures, and award criteria. These initiatives should include an examination of possible improvements in the filing process, including simplification of applications.
The Joint Subcommittee, aware that the Industrial Commission has been mandated to assess the financial, administrative, and legislative impact of participation by the Commonwealth in the federal Victims of Crime Act of 1984 (VOCA), requested an update on the study as part of its work. Although the Joint Subcommittee expected to have the Commission's final report before it, this did not prove to be possible. The Joint Subcommittee did, however, discuss with Commissioner O'Neill and the Director of the Division of Crime Victims' Compensation the possible implications of participation in the federal program. Based on the information received, the Joint Subcommittee does not recommend statutory changes which would bring Virginia into federal compliance.
As a matter of policy, a majority of the Joint Subcommittee does not believe that Virginia should permit access to the Crime Victims' Compensation Fund by non-residents unless the state in which the non-resident lives provides a similar remedy to a Virginia resident injured by a crime in that state. Furthermore, a majority believes that the amount of federal funds available under this short-term federal program is not sufficient to justify the long-term administrative costs which would be necessary to bring the program into federal compliance.
As proposed by the Industrial Commission, the Joint Subcommittee further recommends that the provisions governing the amount of certain awards under the Act be modified. See Appendix 3. The recommended changes are designed to be fairer to all victims and to provide greater stability to the Fund. Unemployed victims will no longer receive an award based upon a fictitious average weekly wage. However, payments for "scheduled losses" are liberalized for victims who were not employed at the time of the injury. Employed victims will receive awards based upon their actual wage losses, subject to a maximum payment of $250 per week. All awards remain subject to the $15,000 cap. The Joint Subcommittee believes that the recommended changes will facilitate administration of the award process and keep award payments within projected fund revenues.
The Joint Subcommittee was also troubled by the transfer of $1 million from the balance existing in the Criminal Injuries Compensation Fund (Chapter 622, 1983 Acts of Assembly, § 3-1.010) to the General Fund of the Commonwealth, since it believes this amount may soon be needed for the purposes of the Crime Victims Compensation Act. If this proves to be the case, the Subcommittee hopes that the amount transferred will be restored. Also, since claims by victims of crime against the Criminal Injuries Compensation Fund appear to be increasing, it hopes that this Fund will in the future be immune from further transfers to the General Fund.
Finally, during the 1985 General Assembly session, the Joint Legislative Audit and Review Commission (JLARC) was mandated to conduct a study of independent agencies. Although JLARC is scheduled to begin an in-depth examination of the Industrial Commission, there is some concern about the extent to which this study will examine the activities of the Division of Crime Victims' Compensation. To follow-up on the work of this Subcommittee, the Joint Subcommittee requests that JLARC incorporate a thorough review of the Division's activities into its study. JLARC is in an excellent position to assess and suggest improvements concerning the role of the Division within the structure of the Industrial Commission, the Division's staffing needs, the application of uniform policies and procedures, and the future health of the Criminal Injuries Compensation Fund.