BILL NUMBER: SB 1867 CHAPTERED 09/17/02 CHAPTER 630 FILED WITH SECRETARY OF STATE SEPTEMBER 17, 2002 APPROVED BY GOVERNOR SEPTEMBER 17, 2002 PASSED THE SENATE AUGUST 20, 2002 PASSED THE ASSEMBLY AUGUST 15, 2002 AMENDED IN ASSEMBLY JULY 25, 2002 AMENDED IN SENATE MAY 8, 2002 AMENDED IN SENATE APRIL 1, 2002 INTRODUCED BY Senator Figueroa (Coauthors: Senators Kuehl, Romero, Scott, and Speier) (Coauthors: Assembly Members Alquist, Aroner, Chavez, Cohn, Keeley, Steinberg, and Strom-Martin) FEBRUARY 22, 2002 An act to amend Section 13964 of the Government Code, relating to victims of crime, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 1867, Figueroa. Victims of crime: indemnification. (1) Existing law provides for the indemnification of victims of specified types of crimes, for certain expenses for which the victim has not been and will not be reimbursed from any other source. 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. No victim is eligible for assistance under these provisions if the board determines that the victim knowingly and willfully participated in the commission of the crime, except that until January 1, 2004, this restriction does not apply if the injury occurred as a direct result of a specified crime. This bill would provide for a permanent exception to this restriction for an injury received as a direct result of other specified crimes. (2) Existing law prohibits a victim from being eligible for assistance under these provisions if 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. This bill would, in the case of a victim of domestic violence or sexual assault, require the board to consider specified factors in determining whether the victim is eligible for assistance pursuant to these provisions. (3) By expanding the pool of persons eligible for payments from a continuously appropriated fund, this bill would make an appropriation. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. 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 be inapplicable if the injury occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 of, or 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 victim of domestic violence or sexual assault, the board shall consider factors such as the victim's age, physical condition, and psychological or emotional condition, compelling health or personal safety factors, reasonable fears of retaliation, and cultural or linguistic barriers, in determining whether the victim is eligible for assistance pursuant to this section. 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) Notwithstanding paragraph (2) of subdivision (c) and paragraph (2) of subdivision (d), for claims based on domestic violence the California Victim Compensation and Government Claims Board 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. 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). (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. 2. 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. This paragraph shall be inapplicable if the injury occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 of the Penal Code. (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. In the case of a victim of domestic violence or sexual assault, the board shall consider factors such as the victim's age, physical condition, and psychological or emotional condition, compelling health or personal safety factors, reasonable fears of retaliation, and cultural or linguistic barriers, in determining whether the victim is eligible for assistance pursuant to this section. (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) This section shall become operative on January 1, 2004.