SENATE DOCKET, NO. 2711 FILED ON: 7/22/2010
SENATE . . . . . . . . . . . . . . No. 2566
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The Commonwealth of Massachusetts
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In the Year Two Thousand Ten
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An Act to protect and enhance the rights of child and adult victims and witnesses of crime.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Section 1 of chapter 258B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word “delinquency”, in line 10, the following words:- or conviction as a youthful offender.
SECTION 2. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by striking out, in lines 12 to 14, inclusive, the words “or found delinquent or against whom a finding of sufficient facts for conviction or finding of delinquency” and inserting in place thereof the following words:- , adjudicated as a delinquent or convicted as a youthful offender or against whom a finding of sufficient facts.
SECTION 3. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by inserting after the word “stepparent”, in lines 15 and 16, the following word:- , grandparent.
SECTION 4. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by inserting after the definition of “Family member” the following definition:-
“Orientation”, a familiarization with the courtroom setting, court personnel and rules of court to the extent practicable under the circumstances as required in this chapter; provided, however, that this requirement may be satisfied through the use of diagrams, photographs or other reasonable methods.
SECTION 5. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by striking out , in line 25, the word “which”, and inserting, in place thereof the following word:- that.
SECTION 6. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by striking out the definition of “Victim” and inserting in place thereof the following definition:-
“Victim”, a natural person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime or delinquency offense as demonstrated by the issuance of a complaint or indictment, the family members of such person if the person is a minor or incompetent, the family members of such person if the person is deceased even if no arrest, indictment or complaint has been issued and, for relevant provisions of this chapter, a person who is the subject of a case reported to a prosecutor under section 18 of chapter 19A, sections 5 and 9 of chapter 19C and section 51B of chapter 119 and the family members of any such person if the person is a minor, incompetent or deceased.
SECTION 7. Said section 1 of said chapter 258B, as so appearing, is hereby further amended by striking out, in lines 40 and 41, the words “is expected to be summoned to testify for the prosecution” and inserting in place thereof the following words:- may be summoned to testify for the prosecution or that person’s family member or guardian if the person is a minor, incompetent or deceased.
SECTION 8. Section 3 of said chapter 258B is hereby amended by inserting after the word “all”, in line 16, as so appearing, the following words:- adult and juvenile.
SECTION 9. Said section 3 of said chapter 258Bis hereby further amended by striking out, in lines 31 and 32,as so appearing, the words “protection from the local law enforcement agencies from harm and threats of harm” and inserting in place thereof the following words:- assistance in developing safety plans and appropriate referrals to address harm, threats of harm or fears.
SECTION 10. Said section 3 of said chapter 258Bis hereby further amended by striking out, in line 86 and 87, as so appearing, the words “fourteen A of chapter two hundred and sixty-eight” and inserting in place thereof the following words:- 14B of chapter 268.
SECTION 11. Said section 3 of said chapter 258B is hereby further amended by inserting after the word “interview”, in line 92, as so appearing, the following words:- ; provided, however, that defense counsel may not seek to interview a victim or witness under the age of majority, incompetent or cognitively impaired until the victim or witness has been informed, in the presence of a parent, guardian or accompanying adult who is not the defendant, of the right to submit to or decline the interview.
SECTION 12. Said section 3 of said chapter 258B is hereby further amended by striking out, in line 111, as so appearing, the word “at” and inserting in place thereof the following word:- before.
SECTION 13. Said section 3 of said chapter 258B is hereby further amended by inserting after the word “defendant”, in lines 111 and 112, as so appearing, the following words:- , even if there is an admission to sufficient facts, the sentence is mandatory or there is an agreed upon plea.
SECTION 14. Said section 3 of said chapter 258B is hereby further amended by inserting after the word “crime”, in line 117, as so appearing, the following words:- ; provided, however, that upon a showing by the prosecutor that a personal appearance by the victim shall cause an unreasonable hardship on the victim, the court shall permit the victim to exercise the right to be heard by submitting a statement through audio tape or videotape to be heard or viewed before the sentence or disposition is imposed.
SECTION 15. Said section 3 of said chapter 258Bis hereby further amended by striking out clause (t), as so appearing, and inserting in place thereof the following clause:-
(t) for victims and witnesses to be informed by the prosecutor about their notification rights and the certification process required to access the criminal offender record information files under sections 172C and 178A of chapter 6; provided, however, that individuals certified by the criminal history systems board or, in the case of a juvenile defendant by the department of youth services, shall be informed by the appropriate custodial authority if the offender escapes from custody and shall receive advance notification when the offender receives a temporary, provisional or final release from custody or is transferred from a secure facility to a less-secure facility; and provided further, that certified individuals shall provide the criminal history systems board or the department of youth services in the case of a juvenile defendant, with current contact information;
SECTION 16. The first paragraph of said section 3 of said chapter 258B, as so appearing, is hereby further amended by adding the following 5 clauses:-
(w) for victims and witnesses who are minor children or adults with disabilities to have parents, a counselor, friend or other person having a supportive relationship with the victim or witness, in addition to the victim witness advocate, remain in the courtroom during the child’s or adult’s testimony unless, in written findings made and entered, the court finds that the defendant’s constitutional right to a fair trial shall be prejudiced;
(x) for victims and witnesses who are minor children or adults with disabilities to be provided by prosecutors with an orientation to the courtroom setting, court personnel and rules of the court, to the extent practicable under the circumstances;
(y) for victims to be notified by the prosecutor that they have the right, under clause (k) of subsection 1 of section 178K of chapter 6 to provide the sex offender registry board with a written impact statement for the board’s consideration in determining a sex offender’s classification; provided, however, that upon the specific request of the victim to the sex offender registry board, the sex offender registry board shall inform the victim of the sex offender’s: (i) registration and classification status; and (ii) the home, work and institution of higher education addresses of the sex offender regardless of the classification level and registration status of the offender;
(z) for victims and witnesses to be informed by the court, at the daily commencement of the regular criminal docket at which accused persons are arraigned, that a summary of their rights is posted and the location of the posting within the courthouse;
(aa) for the victims to be notified by the responding officer who has determined that a crime has been committed of the commission or attempted commission of violent acts and others as deemed appropriate by the responding officer of their rights under this chapter; provided, however, that unless the officer reasonably concludes that it is not practicable or safe to do so under the circumstances, the officer shall present a card prepared by the Massachusetts office for victim assistance in consultation with the victim and witness assistance board which shall include, but not be limited to, a summary of their rights under this chapter, relevant referrals to victim services and, under chapter 258C, referrals for victim compensation.
SECTION 17. Said section 3 of said chapter 258B, as so appearing, is hereby further amended by adding the following paragraph:-
The prosecution shall confer with the victim before the acceptance of a plea of guilty or admission to sufficient facts; provided, however, that before the judge accepts a plea of guilty, an admission to sufficient facts, a disposition or an agreed-upon sentence recommendation, the judge shall ask the prosecutor if the victim has been consulted regarding plea discussions, whether or not the victim agrees or disagrees with the plea discussions and agreement, if the victim was notified of the court date and is present and if the victim would like to assert their right to offer a victim impact statement;
SECTION 18. Section 6 of said chapter 258B is hereby repealed.
SECTION 19. Said chapter 258B is hereby further amended by striking out section 7, as appearing in the 2008 Official Edition, and inserting in place thereof the following section:-
Section 7. The district attorney, law enforcement agencies, social service agencies and court shall cooperate to afford victims and witnesses of crimes the rights and services described in this chapter.
SECTION 20. The first paragraph of section 8 of said chapter 258B, as so appearing, is hereby amended by striking out the fifth, sixth and seventh sentences and inserting in place thereof the following sentence:- An assessment made under this section shall not be waived.
SECTION 21. Section 9 of said chapter 258B is hereby repealed.