[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 694 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 694

   To prevent and punish crimes of sexual and domestic violence, to 
    strengthen the rights of crime victims, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                April 6 (legislative day, April 5), 1995

    Mr. Kyl introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To prevent and punish crimes of sexual and domestic violence, to 
    strengthen the rights of crime victims, 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 ``Sexual Violence 
Prevention and Victim's Rights 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 restitution.
Sec. 102. Right of the victim to an impartial jury.
Sec. 103. Right of the victim to fair treatment in legal proceedings.
Sec. 104. Rebuttal of attacks on the victim's character.
Sec. 105 Use of notice concerning release of offender.
Sec. 106. Balance in the composition of rules committees.
Sec. 107. Victim's right of allocution in sentencing.
TITLE II--SEXUAL VIOLENCE, DOMESTIC VIOLENCE, AND OFFENSES AGAINST THE 
                                 FAMILY

Sec. 201. Implementation of evidence rules for sexual assault and child 
                            molestation cases.
Sec. 202. HIV testing of defendants in sexual assault cases.
Sec. 203. Clarifying amendment to extraterritorial child pornography 
                            offense.
Sec. 204. Evidence of defendant's disposition towards victim in 
                            domestic violence cases and other cases.
Sec. 205. Battered women's syndrome evidence.
Sec. 206. Death penalty for fatal domestic violence offenses.

                 TITLE I--EQUAL PROTECTION FOR VICTIMS

SEC. 101. RIGHT OF THE VICTIM TO RESTITUTION.

    (a) Order of Restitution.--Section 3663 of title 18, United States 
Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1)--
                            (i) by striking ``may order, in addition to 
                        or, in the case of a misdemeanor, in lieu of 
                        any other penalty authorized by law,'' and 
                        inserting ``shall order''; and
                            (ii) by adding at the end the following: 
                        ``This paragraph does not affect the power of 
                        the court to impose any other penalty 
                        authorized by law. In the case of a 
                        misdemeanor, the court may impose restitution 
                        in lieu of any other penalty authorized by 
                        law.'';
                    (B) by adding at the end the following new 
                paragraph:
    ``(4) In addition to ordering restitution to the victim of the 
offense for which a defendant is convicted, a court may order 
restitution to any person who, as shown by a preponderance of evidence, 
was harmed physically, emotionally, or pecuniarily, by unlawful conduct 
of the defendant during--
            ``(A) the criminal episode during which the offense 
        occurred;
            ``(B) the course of a scheme, conspiracy, or pattern of 
        unlawful activity related to the offense.'';
            (2) in subsection (b)(1)(B) by striking ``impractical'' and 
        inserting ``impracticable'';
            (3) in subsection (b)(2) by inserting ``emotional or'' 
        after ``resulting in'';
            (4) in subsection (c) by striking ``If the court decides to 
        order restitution under this section, the'' and inserting 
        ``The'';
            (5) by striking subsections (d), (e), (f), (g), and (h);
            (6) by redesignating subsection (i) as subsection (m); and
            (7) by inserting after subsection (c) the following:
    ``(d)(1) The court shall order restitution to a victim in the full 
amount of the victim's losses as determined by the court and without 
consideration of--
            ``(A) the economic circumstances of the offender; or
            ``(B) the fact that a victim has received or is entitled to 
        receive compensation with respect to a loss from insurance or 
        any other source.
    ``(2) Upon determination of the amount of restitution owed to each 
victim, the court shall specify in the restitution order the manner in 
which and the schedule according to which the restitution is to be 
paid, in consideration of--
            ``(A) the financial resources and other assets of the 
        offender;
            ``(B) projected earnings and other income of the offender; 
        and
            ``(C) any financial obligations of the offender, including 
        obligations to dependents.
    ``(3) A restitution order may direct the offender to make a single, 
lump-sum payment, partial payment at specified intervals, or such in-
kind payments as may be agreeable to the victim and the offender. A 
restitution order shall direct the offender to give appropriate notice 
to victims and other persons in cases where there are multiple victims 
or other persons who may receive restitution, and where the identity of 
such victims and other persons can be reasonably determined.
    ``(4) An in-kind payment described in paragraph (3) may be in the 
form of--
            ``(A) return of property;
            ``(B) replacement of property; or
            ``(C) services rendered to the victim or to a person or 
        organization other than the victim.
    ``(e) When the court finds that more than 1 offender has 
contributed to the loss of a victim, the court may make each offender 
liable for payment of the full amount of restitution or may apportion 
liability among the offenders to reflect the level of contribution and 
economic circumstances of each offender.
    ``(f) When the court finds that more than 1 victim has sustained a 
loss requiring restitution by an offender, the court shall order full 
restitution to each victim but may provide for different payment 
schedules to reflect the economic circumstances of each victim.
    ``(g)(1) If the victim has received or is entitled to receive 
compensation with respect to a loss from insurance or any other source, 
the court shall order that restitution be paid to the person who 
provided or is obligated to provide the compensation, but the 
restitution order shall provide that all restitution to victims 
required by the order be paid to the victims before any restitution is 
paid to such a provider of compensation.
    ``(2) The issuance of a restitution order shall not affect the 
entitlement of a victim to receive compensation with respect to a loss 
from insurance or any other source until the payments actually received 
by the victim under the restitution order fully compensate the victim 
for the loss, at which time a person that has provided compensation to 
the victim shall be entitled to receive any payments remaining to be 
paid under the restitution order.
    ``(3) Any amount paid to a victim under an order of restitution 
shall be set off against any amount later recovered as compensatory 
damages by the victim in--
            ``(A) any Federal civil proceeding; and
            ``(B) any State civil proceeding, to the extent provided by 
        the law of the State.
    ``(h) A restitution order shall provide that--
            ``(1) all fines, penalties, costs, restitution payments and 
        other forms of transfers of money or property made pursuant to 
        the sentence of the court shall be made by the offender to an 
        entity designated by the Director of the Administrative Office 
        of the United States Courts for accounting and payment by the 
        entity in accordance with this subsection;
            ``(2) the entity designated by the Director of the 
        Administrative Office of the United States Courts shall--
                    ``(A) log all transfers in a manner that tracks the 
                offender's obligations and the current status in 
                meeting those obligations, unless, after efforts have 
                been made to enforce the restitution order and it 
                appears that compliance cannot be obtained, the court 
                determines that continued recordkeeping under this 
                subparagraph would not be useful; and
                    ``(B) notify the court and the interested parties 
                when an offender is 30 days in arrears in meeting those 
                obligations; and
            ``(3) the offender shall advise the entity designated by 
        the Director of the Administrative Office of the United States 
        Courts of any change in the offender's address during the term 
        of the restitution order.
    ``(i) A restitution order shall constitute a lien against all 
property of the offender and may be recorded in any Federal or State 
office for the recording of liens against real or personal property.
    ``(j) Compliance with the schedule of payment and other terms of a 
restitution order shall be a condition of any probation, parole, or 
other form of release of an offender. If a defendant fails to comply 
with a restitution order, the court may revoke probation or a term of 
supervised release, modify the term or conditions of probation or a 
term of supervised release, hold the defendant in contempt of court, 
enter a restraining order or injunction, order the sale of property of 
the defendant, accept a performance bond, or take any other action 
necessary to obtain compliance with the restitution order. In 
determining what action to take, the court shall consider the 
defendant's employment status, earning ability, financial resources, 
the willfulness in failing to comply with the restitution order, and 
any other circumstances that may have a bearing on the defendant's 
ability to comply with the restitution order.
    ``(k) An order of restitution may be enforced--
            ``(1) by the United States--
                    ``(A) in the manner provided for the collection and 
                payment of fines in subchapter B of chapter 229 of this 
                title; or
                    ``(B) in the same manner as a judgment in a civil 
                action; and
            ``(2) by a victim named in the order to receive the 
        restitution, in the same manner as a judgment in a civil 
        action.
    ``(l) A victim or the offender may petition the court at any time 
to modify a restitution order as appropriate in view of a change in the 
economic circumstances of the offender.''.
    (b) Procedure for Issuing Order of Restitution.--Section 3664 of 
title 18, United States Code, is amended--
            (1) by striking subsection (a);
            (2) by redesignating subsections (b), (c), (d), and (e) as 
        subsections (a), (b), (c), and (d), respectively;
            (3) by amending subsection (a), as redesignated by 
        paragraph (2), to read as follows:
    ``(a) The court may order the probation service of the court to 
obtain information pertaining to the amount of loss sustained by any 
victim as a result of the offense, the financial resources of the 
defendant, the financial needs and earning ability of the defendant and 
the defendant's dependents, and such other factors as the court deems 
appropriate. The probation service of the court shall include the 
information collected in the report of presentence investigation or in 
a separate report, as the court directs.''; and
            (4) by adding at the end the following new subsection:
    ``(e) The court may refer any issue arising in connection with a 
proposed order of restitution to a magistrate or special master for 
proposed findings of fact and recommendations as to disposition, 
subject to a de novo determination of the issue by the court.''.

SEC. 102. 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. 103. 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 
        activity or 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 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 where disclosure is required by law. A 
lawyer shall also disclose such information to the extent necessary to 
prevent--
            ``(1) the commission of a crime involving the use or 
        threatened use of force against another, or a substantial risk 
        of death or serious bodily injury to another; or
            ``(2) the commission of a crime of sexual assault or child 
        molestation.
    ``(c) 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. 104. 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. 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.''.

SEC. 107. 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.''.

TITLE II--SEXUAL VIOLENCE, DOMESTIC VIOLENCE, AND OFFENSES AGAINST THE 
                                 FAMILY

SEC. 201. IMPLEMENTATION OF EVIDENCE RULES FOR SEXUAL ASSAULT AND CHILD 
              MOLESTATION CASES.

    (a) Repeal of Superseded Effective Date Provisions.--Subsections 
(b) through (e) of section 320935 of the Violent Crime Control and Law 
Enforcement Act of 1994 are repealed.
    (b) Effective Date of New Rules.--Section 320935 of the Violent 
Crime Control and Law Enforcement Act of 1994 is amended by adding at 
the end the following new subsection (b):
    ``(b) Effective Date.--The amendments made by subsection (a) shall 
take effect on the date of enactment of the Sexual Violence Prevention 
and Victim's Rights Act of 1995.''.

SEC. 202. 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, a 
judicial officer issuing an order pursuant to section 3142(a) of this 
title 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.
    ``(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 he 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) Clerical Amendment.--The table of sections 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 Existing Testing Provisions.--Subsection (b) of 
section 40503 of the Violent Crime Control and Law Enforcement Act of 
1994 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'';
            (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).

SEC. 203. CLARIFYING AMENDMENT TO EXTRATERRITORIAL CHILD PORNOGRAPHY 
              OFFENSE.

    Subsections (a) and (b) of section 2258 of title 18, United States 
Code, are each amended by inserting ``by any means including by 
computer or mails'' after ``imported''.

SEC. 204. EVIDENCE OF DEFENDANT'S DISPOSITION TOWARDS 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 towards a particular 
individual''.

SEC. 205. 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 psychology 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. 206. 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,''.
                                 <all>
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