BILL NUMBER: SB 1735 CHAPTERED 09/17/02 CHAPTER 629 FILED WITH SECRETARY OF STATE SEPTEMBER 17, 2002 APPROVED BY GOVERNOR SEPTEMBER 17, 2002 PASSED THE SENATE AUGUST 19, 2002 PASSED THE ASSEMBLY AUGUST 15, 2002 AMENDED IN ASSEMBLY JULY 25, 2002 AMENDED IN SENATE MAY 24, 2002 AMENDED IN SENATE APRIL 30, 2002 AMENDED IN SENATE APRIL 11, 2002 INTRODUCED BY Senator Karnette (Principal coauthor: Assembly Member Wesson) FEBRUARY 21, 2002 An act to add Section 1037.8 to the Evidence Code, and to amend Section 13964 of the Government Code, relating to victims of crime, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 1735, Karnette. Victims of crime: domestic violence. (1) Existing law provides for the indemnification of victims and derivative victims of specified types of crimes, for certain expenses for which the victim or derivative victim has not been and will not be reimbursed from any other source, subject to specified conditions. No victim or derivative victim may receive assistance under these provisions if the board finds that the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. Indemnification is made under these provisions from the Restitution Fund, which is continuously appropriated to the California Victim Compensation and Government Claims Board for these purposes. This bill would prohibit an application for a claim based on domestic violence from being denied solely because no police report was made by the victim. It would require the board to adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that domestic violence crime has occurred. By expanding the pool of potential recipients of funds from a continuously appropriated fund, this bill would make an appropriation. (2) Existing law generally sets forth the duties of domestic violence counselors, as defined, with respect to the disclosure of confidential communication between a victim and a domestic violence counselor. This bill would require a domestic violence counselor to inform a domestic violence victim of any applicable limitations on confidentiality of communications between the victim and the domestic violence counselor. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1037.8 is added to the Evidence Code, to read: 1037.8. A domestic violence counselor shall inform a domestic violence victim of any applicable limitations on confidentiality of communications between the victim and the domestic violence counselor. This information may be given orally. SEC. 2. Section 13964 of the Government Code, as amended by Section 7 of Chapter 712 of the Statutes of 2001, is amended to read: 13964. (a) After having heard the evidence relevant to the application for assistance, the board shall approve the application if a preponderance of the evidence shows that as a direct result of the crime the victim or derivative victim incurred an injury that resulted in a pecuniary loss. (b) An application for assistance may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim's or other applicant's involvement in the events leading to the crime or the involvement of the persons whose injury or death give rise to the application. In the case of a minor, the board shall consider the minor's age, physical condition, and psychological state as well as any compelling health and safety concerns in determining whether the minor's application should be denied pursuant to this section. (c) No victim shall be eligible for assistance under this article under either of the following circumstances: (1) The board finds that the victim knowingly and willingly participated in the commission of the crime. This paragraph shall not apply if the injury occurred as a direct result of a crime committed in violation of subdivision (d) of Section 261.5 of the Penal Code. (2) The board finds that the victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In the case of a minor, the board shall consider the minor's age, physical condition, and psychological state as well as any compelling health and safety concerns in determining whether the minor is eligible for assistance pursuant to this section. (d) No derivative victim shall be eligible for assistance under this article under either of the following circumstances: (1) The board finds that the victim or derivative victim knowingly and willingly participated in the commission of the crime. (2) The board finds that the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. (e) (1) Notwithstanding paragraph (2) of subdivision (c) and paragraph (2) of subdivision (d), for claims based on domestic violence the Board of Control shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence, taking into account the victim's age, physical condition, psychological state, and any compelling health or safety reasons, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the victim or the victim's family, in evaluating a victim's cooperation with law enforcement, and giving due consideration to the degree of cooperation of which the victim is capable in light of the presence of any of these factors. (2) For the purposes of this section, the application of a derivative victim of domestic violence under the age of 18 years shall not be deemed ineligible on the basis of ineligibility of the victim under subdivision (b). (3) An application for a claim based on domestic violence may not be denied solely because no police report was made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that a domestic violence crime has occurred. Factors evidencing that a domestic violence crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of domestic violence, mental health records, or the fact that the victim has obtained a temporary or permanent restraining order, or all of these. (f) No application shall be denied solely because no criminal complaint has been filed, unless the complaint has not been filed for one of the reasons stated in subdivision (c) or (d). Moreover, no application shall be denied because a criminal complaint is filed, but later dismissed, if the dismissal is not for the reasons stated in subdivision (c) or (d). (g) Once an application has been accepted by the board pursuant to subdivision (b) of Section 13962, as the application pertains to medical or medical-related expenses, the claim shall continue to be processed and either awarded or denied pursuant to this article in the event of the death of the applicant. (h) If a nonoffending parent in a child sexual abuse case cooperates with the prosecution or Child Protective Services by providing assistance to law enforcement in the disposition of the case, that parent shall not be considered uncooperative within the meaning of this section and shall be eligible, if otherwise qualified, for restitution as a derivative victim pursuant to subparagraph (C) of paragraph (1) of subdivision (a) of Section 13965. (i) This section shall remain in effect only until January 1, 2004, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2004, deletes or extends that date. SEC. 3. Section 13964 of the Government Code, as amended by Section 8 of Chapter 712 of the Statutes of 2001, is amended to read: 13964. (a) After having heard the evidence relevant to the application for assistance, the board shall approve the application if a preponderance of the evidence shows that as a direct result of the crime the victim or derivative victim incurred an injury which resulted in a pecuniary loss. (b) An application for assistance may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim's or other applicant's involvement in the events leading to the crime or the involvement of the persons whose injury or death give rise to the application. (c) No victim shall be eligible for assistance under this article under any of the following circumstances: (1) The board finds that the victim knowingly and willingly participated in the commission of the crime. (2) The board finds that the victim failed to cooperate with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. (d) No derivative victim shall be eligible for assistance under this article under any of the following circumstances: (1) The board finds that the victim or derivative victim knowingly and willingly participated in the commission of the crime. (2) The board finds that the victim or derivative victim failed to cooperate with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. (e) No application shall be denied solely because no criminal complaint has been filed, unless the complaint has not been filed for one of the reasons stated in subdivision (c) or (d). Moreover, no application shall be denied because a criminal complaint is filed, but later dismissed, if the dismissal is not for the reasons stated in subdivision (c) or (d). (f) Once an application has been accepted by the board pursuant to subdivision (b) of Section 13962, as the application pertains to medical or medical-related expenses, the claim shall continue to be processed and either awarded or denied pursuant to this article in the event of the death of the applicant. (g) If a nonoffending parent in a child sexual abuse case cooperates with the prosecution or Child Protective Services by providing assistance to law enforcement in the disposition of the case, that parent shall not be considered uncooperative within the meaning of this section and shall be eligible, if otherwise qualified, for restitution as a derivative victim pursuant to subparagraph (C) of paragraph (1) of subdivision (a) of Section 13965. (h) An application for a claim based on domestic violence may not be denied solely because no police report was made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that a domestic violence crime has occurred. Factors evidencing that a domestic violence crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of domestic violence, mental health records, or the fact that the victim has obtained a temporary or permanent restraining order, or all of these. (i) This section shall become operative on January 1, 2004.