1999.
Vol. 10, No. 6, Pg. 26.
Balancing the Scales: Victims' Rights in South Carolina's Justice System
26BALANCING THE SCALES: Victims' Rights in South Carolina's Justice SystemBy the Hon. Marc H. Westbrook and Thad H. WestbrookIn 1996 the South Carolina legislature cast a new actor in the drama known as the judicial system. This previously excluded actor is the victim of the crime-a participant whose presence is now acknowledged as essential to the process, a participant whose presence has revolutionized the criminal justice system and forever changed the process.
Through a series of constitutional amendments and statutory implementations, the General Assembly guaranteed that the voices of victims will always be prominent in the procedures of South Carolina courts. The purpose of this article is to review the impact of that legislation on the judicial system and to examine what it means for those who work in the system.
SOUTH CAROLINA VICTIMS' RIGHTS AMENDMENT
First, it is important to understand that the new law is not South Carolina's first effort to create rights for victims of crime. In 1984 the legislature adopted a series of statutes known as the Victim's and Witness's Bill of Rights, but these statutes were often overlooked or unenforced by state officials. Yet, many legislators and citizens still felt victims' rights deserved greater protection within the legal system and initiated a process that elevated those rights to constitutional status. This recent effort seeks "[t]o preserve and protect victims' rights to justice and due process." S.C. Const. Art. I, § 24.
The result was a constitutional amendment known as the South Carolina Victims' Rights Amendment (SCVRA). The SCVRA contains three main features: enumeration of guaranteed constitutional rights, a proviso barring civil causes of action against any public employee or entity and parameters for applying the provisions of the amendment.
Rights of South Carolina's Victims. The SCVRA contains an all-inclusive definition of a victim. S.C. Const. Art. I, § 24(C)(2). Victims are people who suffer "direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a crime against [them]." Id. A victim's spouse, parent, child or legal representative are also constitutionally protected victims. Id.
The SCVRA requires that victims "be treated with fairness, respect, and dignity." S.C. Const. Art. I, § 24(A)(1). State officials must give victims adequate information about victims' rights, protect victims from abuse and ensure a reasonable disposition and conclusion of victims' cases. Furthermore, they must inform victims fully about proceedings in the judicial process and allow the victim to appear or speak at these proceedings.
While the SCVRA creates a right to prompt and full restitution from the offender, it does not create a civil cause of action against state employees or agencies. A victim may enforce compliance only by petitioning the Supreme Court or a circuit court judge for a writ of mandamus.
IMPLEMENTATION STATUTES
To fully and practically implement the adoption of the SCVRA, the General Assembly enacted a number of accompanying statutes. S.C. Code Ann. §§ 14-1-206 to -208, 14-1-211, 16-3-1210, 16-3-1350, 16-3-1505 to -1565 (Law. Co-op. Supp. 1998). These statutes trigger the funding mechanisms for the SCVRA and detail a vast array of
28specific services that a victim should receive. The SCVRA and implementation statutes must be read together to understand South Carolina's victims' rights laws.
Overview. Lawyers working with victims in the justice system should understand that this new law pervades and alters every step of the criminal process. The foundation of the law is participation, and the four cornerstones of that foundation are notification, information, consultation, and indemnification and protection. But victims' advocates should also view it in a vertical sense, i.e., each phase builds on the one before. They must fulfill the requirements of each stage to prepare the victims for the next level.
Lawyers working with victims must be aware of one important fact. Before victims receive the services or protections guaranteed in these statutes, they must provide state officials with their contact information and desire to participate in the process. S.C. Code Ann. § 16-3-1515 (Law. Co-op. Supp. 1998). Otherwise, a victim's rights may be overlooked and not protected by state officials.
*Notification. Notification is an essential element of constitutional due process and is inevitably a vital part of a crime victim's rights. Various agencies are required to "make a reasonable attempt" to notify the victim of "each hearing, trial or other proceeding" at every level of the process. S.C. Code Ann. §§ 16-31535(D), -1540(I) (Law. Co-op. Supp. 1998). In addition to this generalized requirement, the statutes take another step. They also require victim notification prior to the following specific events:
1. Arrest or detention [of the defendant] § 16-31525(A);
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Bond or pretrial release hearing or procedure §16-31525(A), (H)(1), (I)(1);
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Release of a juvenile offender to his parent or guardian §16-3-1525(B);
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Juvenile detention hearing §16-3-1525(J)(1);
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Preliminary hearing §163-1525(K);
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Referral of a juvenile case to circuit court § 16-3-1545(A);
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Canceled or rescheduled hearings § 16-3-1545(I);
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Release, escape, or transfer of the accused to a less secure facility § 16-3-1530(A), (B), (C), (D);
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Post-conviction proceedings affecting the probation, parole, or release of the offender and of the victim's right to attend and comment at these...
