Posted May 15th, 2006 by KatherineA in Watch Jefferson County
A Guide to the West Virginia Crime Victim Witness Assistance Program
Or,
Don’t Be Invisible or Allow Yourself or Someone You Know to be Just a Piece of Evidence.
Background
In response to a Presidential Task Force on Victims of Crime, in
1984 Congress enacted the Victims of Crime Act (VOCA) legislation to
provide federal funding to federal, state, local, and private nonprofit
victim advocate and victim/witness agencies that serve crime victims.
This legislation recognized that crime victims are integral to the
criminal justice process and should play an active role in seeking
justice.
The Office for Victims of Crime (OVC) in the Department of Justice
is the lead federal agency that promotes the rights and needs of crime
victims and offers support through grants to states and territories for
state crime victim compensation and victim assistance programs. Grants
are also provided to states and local governments from the OVC to
provide services and to provide information to crime victims and to
provide training to police and prosecutor’s offices.
What does all this mean to you if you are a victim of a crime?
Sentencing: Under West Virginia law, Article 11A § 61-11A-2, a
victim of a felony (or his/her family if the victim is deceased) must
be permitted to appear before the court to make an oral statement or
written statement for the record. WV Art. 11A § 61-11A-2(b).
The victim making the statement has the obligation to notify the
court that he/she wants to make such a statement after the prosecuting
attorney advises the victim of the date and time of the sentencing
hearing. When a victim is notified of a sentencing hearing, the
prosecuting attorney is required to advise the victim of this right to
testify or to submit a written statement to the court for the judge’s
consideration in imposing an appropriate sentence. WV Art. 11A §
61-11A-2(c).
In the statement, a victim of a crime may talk about injuries
received because of the crime (physical or emotional) and financial
losses including loss of earnings because of court appearances,
meetings with police or the prosecuting attorney.
In addition to making a statement at sentencing or providing the
court with a written statement, the victim also may submit a victim
impact statement. WV. Art. 11 § 61-11A-3. A victim impact statement
must be prepared in any case in which a presentence report is ordered
by the court, including misdemeanor cases.
The victim impact statement is prepared by the probation officer
with the victim’s assistance and is attached to the probation officer’s
report that is provided to the judge prior to sentencing. This report
also includes a description of losses suffered by the crime victim, a
description of physical or psychological injuries suffered, and
describes any changes in the victim’s personal welfare, lifestyle or
family relationships that resulted from the crime.
Even if the court does not order a presentence investigation and
report, the prosecuting attorney may request that a victim impact
statement be prepared and that the court consider the statement as a
factor in determining an appropriate sentence. WV Art. 11A §
61-11A-3(c).
Consequently, any victim of a crime whether it be a misdemeanor or a
felony has a right to make the court aware of the impact this crime has
had. If you are not being offered this option, you are not being
provided with the rights by the prosecuting attorney’s office that you,
as a crime victim, have been given under West Virginia law.
Although the defendant and his attorney have the right to review the
victim impact statement and rebut any facts made in the statement,
unless, you the victim make the statement, the court will not be made
aware of the impact a crime has had on you, your family, and your
finances.
You are entitled to restitution unless the court finds restitution be wholly or partially impractical. WV Art. 11A § 61-11A-4
A court may find that restitution is impractical, but if it does
make this finding it must state its reason for making this finding on
the record (in open court).
A restitution order must require a defendant to return property to
the victim, or pay the victim an amount that is the greater of the
value of the property on the date of sentencing or the value of the
property on the date of the damage, loss, or destruction of the
property.
Even if a defendant cannot pay the entire amount of restitution at
once, the court can order the defendant to make restitution in
installments and can make fulfilling this obligation a requirement of
probation or parole. If a defendant fails to make restitution a
defendant’s parole or probation can be revoked and the defendant
incarcerated.
There are state guidelines for the fair treatment of a crime victim
under WV Art. 11A § 61-11A-6 that provide that the following objectives
are consistent with the purpose of the West Virginia VOC Act and
therefore, these objectives should be met by the prosecuting attorney
and law enforcement. Under these objectives, a victim should be
provided with information about:
1. the availability of any crime victim compensation fund
2. community-based victim treatment programs
3. the victim’s role in the criminal process
4. the stages of the criminal justice process
5. information from the prosecuting attorney about protection from
intimidation, court scheduling changes, arrests made in the case, the
initial appearance of the accused in court, the release on bail of the
accused, the status of the proceedings (such as the entry of a guilty
plea, trial dates, sentencing dates, if a term of imprisonment was
imposed and an expected release date for the defendant).
If you are the victim of a serious crime or the victim in a case is
a child, or the case involves a homicide, the victim or his/her family
must be consulted by the prosecuting attorney about the disposition of
the case including the views of the victim or family about:
1. dismissal of the case
2. release of the accused on bail
3. plea negotiations
4. pretrial programs
5. be provided with a waiting area in court that is separate from all other witnesses,
6. prompt return of your property after disposition of the case.
Although the West Virginia Code does not define “serious crime” in
this section it would likely include any type of aggravated robbery,
sexual assault, a crime against a spouse, arson, kidnapping, etc. If
you have been a victim of one of these crimes you are also entitled to
be notified before the defendant is released from a correctional
facility, probation, parole, work release program, home confinement
program, or has escaped from custody. WV Art. 11A § 61-11A-8.
Finally, although Jefferson County does not have information for
crime victim’s on its website, Berkley County has an excellent recap of
the laws that are in place to assist crime victims at http://www.berkeley
countycomm.org/pa_victims.htm. That website advises victims to call the
Victim Advocate Office if you have any questions about the status of
the case, information about the process, restitution, personal safety
concerns because a defendant has posted bail or has been released. This
is good advice for any victim of a crime, contact your County Victim
Advocacy Office. It was set up by the West Virginia legislature to
assist YOU!