[Congressional Record Volume 141, Number 200 (Friday, December 15, 1995)]
[Senate]
[Pages S18738-S18743]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mrs. Feinstein, and Mr. DeWine):
  S. 1483. A bill to control crime, and for other purposes; to the 
Committee on the Judiciary.


     the victim rights and domestic violence prevention act of 1995

 Mr. KYL. Mr. President, I introduce the Victim Rights and 
Domestic Violence Prevention Act of 1995. The O.J. Simpson trial 
reminded all of us of the terrible problem of domestic violence in 
America. Now is the time to do all we can to bring abusers to justice.
  Women are the victims of more than 4.5 million violent crimes a year, 
including half a million rapes or other sexual assaults, according to 
the Department of Justice. The National Victims Center calculates that 
a woman is battered every 15 seconds. Additionally, the FBI has 
reported that one violent crime occurs every 16 seconds, an aggravated 
assault every 28 seconds, a robbery every 48 seconds, and a murder 
every 21 minutes.
  Nicole Brown Simpson's story is an all-too-familiar one. Last year's 
crime bill, which is now law, did much to help victims of domestic 
violence--making it easier for evidence of intrafamilial sexual abuse 
to be introduced, for example. It will now be much easier for 
prosecutors in Federal cases to introduce evidence that the accused 
committed a similar crime in the past. The crime act also provides 
Federal funding for battered women's shelters and training for law-
enforcement officers and prosecutors.
  The Victim Rights and Domestic Violence Prevention Act will 
strengthen the rights of domestic violence victims in Federal court 
and, hopefully, set a standard for the individual States to emulate.
  A message must be sent to abusers that their behavior is not a family 
matter. Society should treat domestic violence as seriously as it does 
violence between strangers. My bill authorizes the death penalty for 
cases in which a woman is murdered by her husband or boyfriend.
  Courts will not, under this bill, be able to exclude evidence of a 
defendant's violent disposition toward the victim as impermissible 
character evidence. My bill also provides that if a defendant presents 
negative character evidence concerning the victim, the government's 
rebuttal can include negative character evidence concerning the 
defendant. It makes clear that testimony regarding battered women's 
syndrome is admissible to explain the behavior of victims of violence.
  We must establish a higher standard of professional conduct for 
lawyers. My legislation prohibits harassing or dilatory tactics, 
knowingly presenting false evidence or discrediting truthful evidence, 
willful ignorance of matters that could be learned from the client, and 
concealment of information necessary to prevent sexual abuse or other 
violent crimes.

  Violence in our society leaves law-abiding citizens feeling 
defenseless. It is time to level the playing field. Federal law 
currently gives the defense more chances than the prosecution to reject 
a potential juror. My bill protects the right of victims to an 
impartial jury by giving both sides the same number of peremptory 
challenges.
  Last year's Crime Act included a provision requiring notice to State 
and local authorities concerning the release of Federal violent 
offenders. Under the act, notice can only be used for law-enforcement 
purposes. The Justice Department opposes this limitation because it 
disallows other legitimate uses of the information, such as warning 
potential victims of the offender's return to the community. My bill 
would delete this restriction.
  Under the bill, if a victim requests an HIV test in a sexual abuse 
case, the court must order HIV testing of the defendant, unless the 
court determines that the defendant's conduct created no risk of 
transmission of the virus to the victim. The order must direct that the 
initial test be performed within 24 hours of the issuance of the 
testing order, or as soon thereafter as feasible. The defendant cannot 
be released from custody until the test is performed. 

[[Page S18741]]
Test results would be disclosed to the victim, and follow up testing 
would take place after 6 and 12 months. Additionally, the bill deletes 
a requirement that a victim must undergo counseling before she can seek 
a testing order. Second, it deletes a provision that the court cannot 
order testing of the defendant unless the victim demonstrates that such 
a test would provide information that is necessary for her health. 
Third, it makes clear that prosecutors may assist victims in obtaining 
testing orders under these provisions.
  It is our responsibility to continue to work to combat violent crime, 
wherever it occurs. The Victim Rights and Domestic Violence Prevention 
Act of 1995 is an important step toward protecting the rights of crime 
victims, curbing domestic violence, and removing violent offenders from 
our streets and communities.
  Finally, I would like to thank two of my colleagues on the Judiciary 
Committee. Throughout her career, Senator Feinstein has been a staunch 
defender of women against violence. She has worked hard on this bill. I 
greatly appreciate her work and her support. And I would also like to 
thank Senator DeWine for his help. Senator DeWine has worked hard to 
fight crime. His work on this bill is part of his ongoing effort to put 
an end to violence and bring criminals to justice.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1483

       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 

[[Page S18742]]
     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).

   Mrs. FEINSTEIN. Mr. President, I offer my strong support for 
the Victim Rights and Domestic Violence Prevention Act, which I am 
pleased to co-sponsor with Senators Kyl and Dewine. I also want to 
commend my colleague from Arizona the cooperative spirit he has shown 
in working with me on this and other efforts to help crime victims, and 
for addressing this important issue which is now so prominently, and 
tragically, in the news.
  Nearly every American knows the plight of Nicole Brown Simpson. Who 
among us hasn't read of, or heard of, or discussed the tragic 
circumstances of her case?
  But, Mr. President, what about the thousands of women who suffer the 
terrible physical and emotional effects of domestic violence in silent 
anonymity every day all across the Nation? And, what about the women 
who do stand up to domestic abusers and seek refuge from them from a 
justice system that seemingly doesn't care?
  It is for those women that I rise today to offer my strong support 
for this much needed bill.
  Last year, Congress acknowledged that action must be taken to stop 
domestic violence when it passed the Violence Against Women Act as part 
of the President's crime bill.
  The Violence Against Women Act is designed to, among other things, 
provide funding for: Local programs for victims' services; battered 
women's shelters; rape education and community prevention programs; a 
national family violence hotline; and increased security in public 
places.
  I strongly believe that this landmark legislation will go a long way 
toward reducing domestic abuse and helping its victims recover from 
their ordeals.
  Today, we continue the work begun by the Violence Against Women Act.
  Much more needs to be done to protect the rights of the victims of 
domestic and sexual violence and to stop these heinous crimes.
  Let us not underestimate the magnitude of this problem: According to 
the National Coalition of Physicians Against Family Violence, domestic 
violence strikes one in four families in the United States; the FBI has 
reported that a women is beaten every 18 seconds in the United States; 
and the Senate Judiciary Committee reported in 1992 that three to four 
million women are battered each year.
  In my own State, the attorney general has reported that there were 
251,233 domestic violence-related calls for assistance from law 
enforcement last year. Of those cases, 155,944 calls involved a 
perpetrator attacking his victim with a personal weapon--such as his 
hands or feet.
  According to the FBI, a women is raped every five minutes in this 
country; in 1994 alone, there were 102,296 rape or attempted rape cases 
reported to law enforcement; and in California, there were 10,960 cases 
of forcible rape that year.
  Domestic violence touches too many woman. It must be stopped by 
making the court system more user-friendly to the victims of this 
crime, and those who inflict it must be more severely punished. This 
bill accomplishes those two important goals.


                      equal protection for victims

  This bill will make the court system more user-friendly in several 
ways:
  First, it protects the right of victims to an impartial jury by 
equalizing the number of peremptory challenges afforded to the defense 
and the prosecution in jury selection.
  Second, this bill provides that if a defendant in a criminal case 
presents negative evidence about the victim's character, the victim's 
defense lawyer can present character evidence concerning the defendant. 
Mr. President, too many women who take their abusers to court must 
suffer the double indignity of having their own characters 

[[Page S18743]]
attacked. It's time to level the playing field.
  Third, it extends the right of victims to address the court 
concerning the sentence to all criminal cases.
  Fourth, the bill establishes higher standards of professional conduct 
for lawyers in Federal cases to protect victims and other witnesses 
from abuse, and to promote the effective search for the truth. It does 
this by requiring hat lawyers in Federal cases: not engage in conduct 
for the purpose of increasing litigation expenses; not engage in 
conduct designed just to harass another person; not offer false 
evidence, or discredit true evidence; elicit a full account of the 
events from the lawyer's client; not necessarily delay litigation; must 
disclose information that the client intends to commit a crime of 
violence; and may disclose information that the client intends to 
commit other crimes.
  Fifth, it removes the restriction that limits use of notices that 
violent Federal offenders will be released to law enforcement purposes. 
This will allow victims to be informed when their assailant is back in 
the community.
  Finally, the bill requires that prosecutors have the same level of 
representation on committees that make court rules as defense attorneys 
do. This will ensure that fair, balanced rules are enacted, which do 
not favor criminals over prosecutors.


                           domestic violence

  I also strongly believe that swift, sure action must be taken to stop 
domestic violence, and that penalties must be increased for those who 
commit this heinous crime.
  This bill includes a provision to authorize capital punishment, under 
Federal interstate domestic violence offenses, for cases in which the 
offender murders the victim.
  That's tough punishment for perpetrators who think domestic violence 
is something that goes on behind closed doors, where it's OK for them 
to beat their wives, or girlfriends, or mothers or sisters because it's 
their prerogative. Well, Mr. President, domestic violence is no one's 
prerogative and this bill provides tough punishment for criminals who 
deserve it.
  This bill also makes two changes in the rules of evidence, to help 
victims of domestic violence. First, it allows evidence of the 
defendant's past crimes or wrongful acts against the victim to be 
introduced, to establish a pattern of abuse.
  Second, it allows evidence of battered women's syndrome to be 
introduced, to show why some women are driven to retaliate against 
their abusers.
  Finally, the bill fights those who transmit HIV in sexual assaults, 
by requiring that: sentences be toughened if the offender knew he was 
infected; upon request of the victim, the offender must be tested for 
HIV before he is released; and follow-up testing be done on sexual 
assailants.


                               conclusion

  Mr. President, right now too many women fear for their safety and too 
many women suffer physically and emotionally from domestic violence. We 
can do something about it. I urge my colleagues to support the Victim 
Rights and Domestic Violence Prevention Act of 1995.

                          ____________________