[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1483 Introduced in Senate (IS)]
104th CONGRESS
1st Session
S. 1483
To control crime, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 15, 1995
Mr. Kyl (for himself, Mrs. Feinstein, and Mr. DeWine) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To control crime, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Victim Rights and
Domestic Violence Prevention Act of 1995''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--EQUAL PROTECTION FOR VICTIMS
Sec. 101. Right of the victim to an impartial jury.
Sec. 102. Rebuttal of attacks on the victim's character.
Sec. 103. Victim's right of allocution in sentencing.
Sec. 104. Right of the victim to fair treatment in legal proceedings.
Sec. 105. Use of notice concerning release of offender.
Sec. 106. Balance in the composition of rules committees.
TITLE II--DOMESTIC VIOLENCE
Sec. 201. Death penalty for fatal domestic violence offenses.
Sec. 202. Evidence of defendant's disposition toward victim in domestic
violence cases and other cases.
Sec. 203. Battered women's syndrome evidence.
Sec. 204. HIV testing of defendants in sexual assault cases.
TITLE I--EQUAL PROTECTION FOR VICTIMS
SEC. 101. RIGHT OF THE VICTIM TO AN IMPARTIAL JURY.
Rule 24(b) of the Federal Rules of Criminal Procedure is amended by
striking ``the government is entitled to 6 peremptory challenges and
the defendant or defendants jointly to 10 peremptory challenges'' and
inserting ``each side is entitled to 6 peremptory challenges''.
SEC. 102. REBUTTAL OF ATTACKS ON THE VICTIM'S CHARACTER.
Rule 404(a)(1) of the Federal Rules of Evidence is amended by
inserting before the semicolon the following: ``, or, if an accused
offers evidence of a pertinent trait of character of the victim of the
crime, evidence of a pertinent trait of character of the accused
offered by the prosecution''.
SEC. 103. VICTIM'S RIGHT OF ALLOCUTION IN SENTENCING.
Rule 32 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (c)(3)(E), by striking ``if sentence is
to be imposed for a crime of violence or sexual abuse,''; and
(2) by amending subdivision (f) to read as follows:
``(f) Definition.--For purposes of this rule, `victim' means any
individual against whom an offense has been committed for which a
sentence is to be imposed, but the right of allocution under
subdivision (c)(3)(E) may be exercised instead by--
``(1) a parent or legal guardian if the victim is below the
age of 18 years or is incompetent; or
``(2) one or more family members or relatives designated by
the court if the victim is deceased or incapacitated,
if such person or persons are present at the sentencing hearing,
regardless of whether the victim is present.''.
SEC. 104. RIGHT OF THE VICTIM TO FAIR TREATMENT IN LEGAL PROCEEDINGS.
The following rules, to be known as the Rules of Professional
Conduct for Lawyers in Federal Practice, are enacted as an appendix to
title 28, United States Code:
``RULES OF PROFESSIONAL CONDUCT FOR LAWYERS IN FEDERAL PRACTICE
``Rule 1. Scope.
``Rule 2. Abuse of Victims and Others Prohibited.
``Rule 3. Duty of Enquiry in Relation to Client.
``Rule 4. Duty To Expedite Litigation.
``Rule 5. Duty To Prevent Commission of Crime.
``Rule 1. Scope
``(a) These rules apply to the conduct of lawyers in their
representation of clients in relation to proceedings and potential
proceedings before Federal tribunals.
``(b) For purposes of these rules, `Federal tribunal' and
`tribunal' mean a court of the United States or an agency of the
Federal Government that carries out adjudicatory or quasi-adjudicatory
functions.
``Rule 2. Abuse of Victims and Others Prohibited
``(a) A lawyer shall not engage in any action or course of conduct
for the purpose of increasing the expense of litigation for any person,
other than a liability under an order or judgment of a tribunal.
``(b) A lawyer shall not engage in any action or course of conduct
that has no substantial purpose other than to distress, harass,
embarrass, burden, or inconvenience another person.
``(c) A lawyer shall not offer evidence that the lawyer knows to be
false or attempt to discredit evidence that the lawyer knows to be
true.
``Rule 3. Duty of Enquiry in Relation to Client
``A lawyer shall attempt to elicit from the client a truthful
account of the material facts concerning the matters in issue. In
representing a client charged with a crime or civil wrong, the duty of
enquiry under this rule includes--
``(1) attempting to elicit from the client a materially
complete account of the alleged criminal activity or civil
wrong if the client acknowledges involvement in the alleged
criminal activity or civil wrong; and
``(2) attempting to elicit from the client the material
facts relevant to a defense of alibi if the client denies such
involvement.
``Rule 4. Duty To Expedite Litigation
``(a) A lawyer shall seek to bring about the expeditious conduct
and conclusion of litigation.
``(b) A lawyer shall not seek a continuance or otherwise attempt to
delay or prolong proceedings in the hope or expectation that--
``(1) evidence will become unavailable;
``(2) evidence will become more subject to impeachment or
otherwise less useful to another party because of the passage
of time; or
``(3) an advantage will be obtained in relation to another
party because of the expense, frustration, distress, or other
hardship resulting from prolonged or delayed proceedings.
``Rule 5. Duty To Prevent Commission of Crime
``(a) A lawyer may disclose information relating to the
representation of a client, including information obtained from the
client, to the extent necessary to prevent the commission of a crime or
other unlawful act.
``(b) A lawyer shall disclose information relating to the
representation of a client, including information obtained from the
client, when disclosure is required by law.
``(c) A lawyer shall disclose information relating to the
representation of a client, including information obtained from the
client, to the extent necessary to prevent--
``(1) the commission of a crime involving the use or
threatened use of force against a person, or a substantial risk
of death or serious bodily injury to a person; or
``(2) the commission of a crime of sexual assault or child
molestation.
``(d) For purposes of this rule, `crime' means a crime under the
law of the United States or the law of a State, and `unlawful act'
means an act in violation of the law of the United States or the law of
a State.''.
SEC. 105. USE OF NOTICE CONCERNING RELEASE OF OFFENDER.
Section 4042(b) of title 18, United States Code, is amended by
striking paragraph (4).
SEC. 106. BALANCE IN THE COMPOSITION OF RULES COMMITTEES.
Section 2073 of title 28, United States Code, is amended--
(1) in subsection (a)(2), by adding at the end the
following: ``On each such committee that makes recommendations
concerning rules that affect criminal cases, including the
Federal Rules of Criminal Procedure, the Federal Rules of
Evidence, the Federal Rules of Appellate Procedure, the Rules
Governing Section 2254 Cases, and the Rules Governing Section
2255 Cases, the number of members who represent or supervise
the representation of defendants in the trial, direct review,
or collateral review of criminal cases shall not exceed the
number of members who represent or supervise the representation
of the Government or a State in the trial, direct review, or
collateral review of criminal cases.''; and
(2) in subsection (b), by adding at the end the following:
``The number of members of the standing committee who represent
or supervise the representation of defendants in the trial,
direct review, or collateral review of criminal cases shall not
exceed the number of members who represent or supervise the
representation of the Government or a State in the trial,
direct review, or collateral review of criminal cases.''.
TITLE II--DOMESTIC VIOLENCE
SEC. 201. DEATH PENALTY FOR FATAL DOMESTIC VIOLENCE OFFENSES.
Sections 2261(b)(1) and 2262(b)(1) of title 18, United States Code,
are each amended by inserting ``or may be sentenced to death'' after
``years,''.
SEC. 202. EVIDENCE OF DEFENDANT'S DISPOSITION TOWARD VICTIM IN DOMESTIC
VIOLENCE CASES AND OTHER CASES.
Rule 404(b) of the Federal Rules of Evidence is amended by striking
``or absence of mistake or accident'' and inserting ``absence of
mistake or accident, or a disposition toward a particular individual''.
SEC. 203. BATTERED WOMEN'S SYNDROME EVIDENCE.
Rule 702 of the Federal Rules of Evidence is amended by adding at
the end the following: ``Testimony that may be admitted pursuant to
this rule includes testimony concerning the behavior, and mental or
emotional conditions of victims to explain a victim's failure to report
or delay in reporting an offense, recantation of an accusation, or
failure to cooperate in the investigation or prosecution.''.
SEC. 204. HIV TESTING OF DEFENDANTS IN SEXUAL ASSAULT CASES.
(a) In General.--Chapter 109A of title 18, United States Code, is
amended by adding at the end the following new section:
``Sec. 2249. Testing for human immunodeficiency virus; disclosure of
test results to victim; effect on penalty
``(a) Testing at Time of Pretrial Release Determination.--In a case
in which a person is charged with an offense under this chapter, upon
request of the victim, a judicial officer issuing an order pursuant to
section 3142(a) shall include in the order a requirement that a test
for the human immunodeficiency virus be performed upon the person, and
that followup tests for the virus be performed 6 months and 12 months
following the date of the initial test, unless the judicial officer
determines that the conduct of the person created no risk of
transmission of the virus to the victim, and so states in the order.
The order shall direct that the initial test be performed within 24
hours, or as soon thereafter as feasible. The person shall not be
released from custody until the test is performed.
``(b) Testing at Later Time.--If a person charged with an offense
under this chapter was not tested for the human immunodeficiency virus
pursuant to subsection (a), the court may at a later time direct that
such a test be performed upon the person, and that followup tests be
performed 6 months and 12 months following the date of the initial
test, if it appears to the court that the conduct of the person may
have risked transmission of the virus to the victim. A testing
requirement under this subsection may be imposed at any time while the
charge is pending, or following conviction at any time prior to the
person's completion of service of the sentence.
``(c) Termination of Testing Requirement.--A requirement of
followup testing imposed under this section shall be canceled if any
test is positive for the virus or the person obtains an acquittal on,
or dismissal of, all charges under this chapter.
``(d) Disclosure of Test Results.--The results of any test for the
human immunodeficiency virus performed pursuant to an order under this
section shall be provided to the judicial officer or court. The
judicial officer or court shall ensure that the results are disclosed
to the victim (or to the victim's parent or legal guardian, as
appropriate), the attorney for the Government, and the person tested.
Test results disclosed pursuant to this subsection shall be subject to
section 40503(b) (5) through (7) of the Violent Crime Control Act of
1994 (42 U.S.C. 14011(b)). Any test result of the defendant given to
the victim or the defendant must be accompanied by appropriate
counseling, unless the recipient does not wish to receive such
counseling.
``(e) Effect on Penalty.--The United States Sentencing Commission
shall amend existing guidelines for sentences for offenses under this
chapter to enhance the sentence if the offender knew or had reason to
know that the offender was infected with the human immunodeficiency
virus, except where the offender did not engage or attempt to engage in
conduct creating a risk of transmission of the virus to the victim.''.
(b) Technical Amendment.--The analysis for chapter 109A of title
18, United States Code, is amended by inserting at the end the
following new item:
``2249. Testing for human immunodeficiency virus; disclosure of
test results to victim; effect on
penalty.''.
(c) Amendments to Testing Provisions.--Section 40503(b) of the
Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C.
14011(b)) is amended--
(1) by amending the heading to read as follows: ``(b)
Testing of Defendants.--'';
(2) in paragraph (1)--
(A) by inserting ``, or the Government in such a
case,'' after ``subsection (a)'';
(B) by inserting ``(or to the victim's parent or
legal guardian, as appropriate)'' after ``communicated
to the victim''; and
(C) by inserting ``, unless the recipient does not
wish to receive such counseling'' after ``counseling'';
and
(3) in paragraph (2)--
(A) by striking ``To obtain an order under
paragraph (1), the victim must demonstrate that'' and
inserting ``The victim or the Government may obtain an
order under paragraph (1) by showing that'';
(B) in subparagraph (A)--
(i) by striking ``the offense'' and
inserting ``a sexual assault involving alleged
conduct that poses a risk of transmission of
the etiologic agent for acquired immune
deficiency syndrome''; and
(ii) by inserting ``and'' after the
semicolon;
(C) in subparagraph (B), by striking ``after
appropriate counseling; and'' and inserting a period;
and
(D) by striking subparagraph (C).
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