II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Victim Rights and Domestic Violence Prevention Act of

6 1995’’.

7 (b) TABLE OF CONTENTS.—The table of contents for

8 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.
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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.

1 TITLE I—EQUAL PROTECTION

2 FOR VICTIMS

3 SEC. 101. RIGHT OF THE VICTIM TO AN IMPARTIAL JURY.

4 Rule 24(b) of the Federal Rules of Criminal Proce5 dure is amended by striking ‘‘the government is entitled

6 to 6 peremptory challenges and the defendant or defend7 ants jointly to 10 peremptory challenges’’ and inserting

8 ‘‘each side is entitled to 6 peremptory challenges’’.

9 SEC. 102. REBUTTAL OF ATTACKS ON THE VICTIM’S CHAR10 ACTER.

11 Rule 404(a)(1) of the Federal Rules of Evidence is

12 amended by inserting before the semicolon the following:

13 ‘‘, or, if an accused offers evidence of a pertinent trait

14 of character of the victim of the crime, evidence of a perti15 nent trait of character of the accused offered by the pros16 ecution’’.

17 SEC. 103. VICTIM’S RIGHT OF ALLOCUTION IN SENTENCING.

18 Rule 32 of the Federal Rules of Criminal Procedure

19 is amended—
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1 (1) in subdivision (c)(3)(E), by striking ‘‘if sen2 tence is to be imposed for a crime of violence or sex3 ual abuse,’’; and

4 (2) by amending subdivision (f) to read as fol5 lows:

6 ‘‘(f) DEFINITION.—For purposes of this rule, ‘victim’

7 means any individual against whom an offense has been

8 committed for which a sentence is to be imposed, but the

9 right of allocution under subdivision (c)(3)(E) may be ex10 ercised instead by—

11 ‘‘(1) a parent or legal guardian if the victim is

12 below the age of 18 years or is incompetent; or

13 ‘‘(2) one or more family members or relatives

14 designated by the court if the victim is deceased or

15 incapacitated,

16 if such person or persons are present at the sentencing

17 hearing, regardless of whether the victim is present.’’.

18 SEC. 104. RIGHT OF THE VICTIM TO FAIR TREATMENT IN

19 LEGAL PROCEEDINGS.

20 The following rules, to be known as the Rules of Pro21 fessional Conduct for Lawyers in Federal Practice, are en22 acted as an appendix to title 28, United States Code:

23 ‘‘RULES OF PROFESSIONAL CONDUCT FOR

24 LAWYERS IN FEDERAL PRACTICE

‘‘Rule 1. Scope.

‘‘Rule 2. Abuse of Victims and Others Prohibited.
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‘‘Rule 3. Duty of Enquiry in Relation to Client.

‘‘Rule 4. Duty To Expedite Litigation.

‘‘Rule 5. Duty To Prevent Commission of Crime.

1 ‘‘Rule 1. Scope

2 ‘‘(a) These rules apply to the conduct of lawyers in

3 their representation of clients in relation to proceedings

4 and potential proceedings before Federal tribunals.

5 ‘‘(b) For purposes of these rules, ‘Federal tribunal’

6 and ‘tribunal’ mean a court of the United States or an

7 agency of the Federal Government that carries out adju8 dicatory or quasi-adjudicatory functions.

9 ‘‘Rule 2. Abuse of Victims and Others Prohibited

10 ‘‘(a) A lawyer shall not engage in any action or course

11 of conduct for the purpose of increasing the expense of

12 litigation for any person, other than a liability under an

13 order or judgment of a tribunal.

14 ‘‘(b) A lawyer shall not engage in any action or course

15 of conduct that has no substantial purpose other than to

16 distress, harass, embarrass, burden, or inconvenience an17 other person.

18 ‘‘(c) A lawyer shall not offer evidence that the lawyer

19 knows to be false or attempt to discredit evidence that the

20 lawyer knows to be true.

21 ‘‘Rule 3. Duty of Enquiry in Relation to Client

22 ‘‘A lawyer shall attempt to elicit from the client a

23 truthful account of the material facts concerning the mat24 ters in issue. In representing a client charged with a crime
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1 or civil wrong, the duty of enquiry under this rule in2 cludes—

3 ‘‘(1) attempting to elicit from the client a mate4 rially complete account of the alleged criminal activ5 ity or civil wrong if the client acknowledges involve6 ment in the alleged criminal activity or civil wrong;

7 and

8 ‘‘(2) attempting to elicit from the client the ma9 terial facts relevant to a defense of alibi if the client

10 denies such involvement.

11 ‘‘Rule 4. Duty To Expedite Litigation

12 ‘‘(a) A lawyer shall seek to bring about the expedi13 tious conduct and conclusion of litigation.

14 ‘‘(b) A lawyer shall not seek a continuance or other15 wise attempt to delay or prolong proceedings in the hope

16 or expectation that—

17 ‘‘(1) evidence will become unavailable;

18 ‘‘(2) evidence will become more subject to im19 peachment or otherwise less useful to another party

20 because of the passage of time; or

21 ‘‘(3) an advantage will be obtained in relation

22 to another party because of the expense, frustration,

23 distress, or other hardship resulting from prolonged

24 or delayed proceedings.
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1 ‘‘Rule 5. Duty To Prevent Commission of Crime

2 ‘‘(a) A lawyer may disclose information relating to

3 the representation of a client, including information ob4 tained from the client, to the extent necessary to prevent

5 the commission of a crime or other unlawful act.

6 ‘‘(b) A lawyer shall disclose information relating to

7 the representation of a client, including information ob8 tained from the client, when disclosure is required by law.

9 ‘‘(c) A lawyer shall disclose information relating to

10 the representation of a client, including information ob11 tained from the client, to the extent necessary to pre12 vent—

13 ‘‘(1) the commission of a crime involving the

14 use or threatened use of force against a person, or

15 a substantial risk of death or serious bodily injury

16 to a person; or

17 ‘‘(2) the commission of a crime of sexual as18 sault or child molestation.

19 ‘‘(d) For purposes of this rule, ‘crime’ means a crime

20 under the law of the United States or the law of a State,

21 and ‘unlawful act’ means an act in violation of the law

22 of the United States or the law of a State.’’.

23 SEC. 105. USE OF NOTICE CONCERNING RELEASE OF OF24 FENDER.

25 Section 4042(b) of title 18, United States Code, is

26 amended by striking paragraph (4).
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1 SEC. 106. BALANCE IN THE COMPOSITION OF RULES COM2 MITTEES.

3 Section 2073 of title 28, United States Code, is

4 amended—

5 (1) in subsection (a)(2), by adding at the end

6 the following: ‘‘On each such committee that makes

7 recommendations concerning rules that affect crimi8 nal cases, including the Federal Rules of Criminal

9 Procedure, the Federal Rules of Evidence, the Fed10 eral Rules of Appellate Procedure, the Rules Govern11 ing Section 2254 Cases, and the Rules Governing

12 Section 2255 Cases, the number of members who

13 represent or supervise the representation of defend14 ants in the trial, direct review, or collateral review

15 of criminal cases shall not exceed the number of

16 members who represent or supervise the representa17 tion of the Government or a State in the trial, direct

18 review, or collateral review of criminal cases.’’; and

19 (2) in subsection (b), by adding at the end the

20 following: ‘‘The number of members of the standing

21 committee who represent or supervise the represen22 tation of defendants in the trial, direct review, or

23 collateral review of criminal cases shall not exceed

24 the number of members who represent or supervise

25 the representation of the Government or a State in
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1 the trial, direct review, or collateral review of crimi2 nal cases.’’.

3 TITLE II—DOMESTIC VIOLENCE

4 SEC. 201. DEATH PENALTY FOR FATAL DOMESTIC VIO5 LENCE OFFENSES.

6 Sections 2261(b)(1) and 2262(b)(1) of title 18, Unit7 ed States Code, are each amended by inserting ‘‘or may

8 be sentenced to death’’ after ‘‘years,’’.

9 SEC. 202. EVIDENCE OF DEFENDANT’S DISPOSITION TO10 WARD VICTIM IN DOMESTIC VIOLENCE CASES

11 AND OTHER CASES.

12 Rule 404(b) of the Federal Rules of Evidence is

13 amended by striking ‘‘or absence of mistake or accident’’

14 and inserting ‘‘absence of mistake or accident, or a dis15 position toward a particular individual’’.

16 SEC. 203. BATTERED WOMEN’S SYNDROME EVIDENCE.

17 Rule 702 of the Federal Rules of Evidence is amend18 ed by adding at the end the following: ‘‘Testimony that

19 may be admitted pursuant to this rule includes testimony

20 concerning the behavior, and mental or emotional condi21 tions of victims to explain a victim’s failure to report or

22 delay in reporting an offense, recantation of an accusation,

23 or failure to cooperate in the investigation or prosecu24 tion.’’.
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1 SEC. 204. HIV TESTING OF DEFENDANTS IN SEXUAL AS2 SAULT CASES.

3 (a) IN GENERAL.—Chapter 109A of title 18, United

4 States Code, is amended by adding at the end the follow5 ing new section:

6 ‘‘§ 2249. Testing for human immunodeficiency virus;

7 disclosure of test results to victim; effect

8 on penalty

9 ‘‘(a) TESTING AT TIME OF PRETRIAL RELEASE DE10 TERMINATION.—In a case in which a person is charged

11 with an offense under this chapter, upon request of the

12 victim, a judicial officer issuing an order pursuant to sec13 tion 3142(a) shall include in the order a requirement that

14 a test for the human immunodeficiency virus be performed

15 upon the person, and that followup tests for the virus be

16 performed 6 months and 12 months following the date of

17 the initial test, unless the judicial officer determines that

18 the conduct of the person created no risk of transmission

19 of the virus to the victim, and so states in the order. The

20 order shall direct that the initial test be performed within

21 24 hours, or as soon thereafter as feasible. The person

22 shall not be released from custody until the test is per23 formed.

24 ‘‘(b) TESTING AT LATER TIME.—If a person charged

25 with an offense under this chapter was not tested for the

26 human immunodeficiency virus pursuant to subsection (a),
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1 the court may at a later time direct that such a test be

2 performed upon the person, and that followup tests be per3 formed 6 months and 12 months following the date of the

4 initial test, if it appears to the court that the conduct of

5 the person may have risked transmission of the virus to

6 the victim. A testing requirement under this subsection

7 may be imposed at any time while the charge is pending,

8 or following conviction at any time prior to the person’s

9 completion of service of the sentence.

10 ‘‘(c) TERMINATION OF TESTING REQUIREMENT.—A

11 requirement of followup testing imposed under this section

12 shall be canceled if any test is positive for the virus or

13 the person obtains an acquittal on, or dismissal of, all

14 charges under this chapter.

15 ‘‘(d) DISCLOSURE OF TEST RESULTS.—The results

16 of any test for the human immunodeficiency virus per17 formed pursuant to an order under this section shall be

18 provided to the judicial officer or court. The judicial offi19 cer or court shall ensure that the results are disclosed to

20 the victim (or to the victim’s parent or legal guardian, as

21 appropriate), the attorney for the Government, and the

22 person tested. Test results disclosed pursuant to this sub23 section shall be subject to section 40503(b) (5) through

24 (7) of the Violent Crime Control Act of 1994 (42 U.S.C.

25 14011(b)). Any test result of the defendant given to the
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1 victim or the defendant must be accompanied by appro2 priate counseling, unless the recipient does not wish to re3 ceive such counseling.

4 ‘‘(e) EFFECT ON PENALTY.—The United States Sen5 tencing Commission shall amend existing guidelines for

6 sentences for offenses under this chapter to enhance the

7 sentence if the offender knew or had reason to know that

8 the offender was infected with the human

9 immunodeficiency virus, except where the offender did not

10 engage or attempt to engage in conduct creating a risk

11 of transmission of the virus to the victim.’’.

12 (b) TECHNICAL AMENDMENT.—The analysis for

13 chapter 109A of title 18, United States Code, is amended

14 by inserting at the end the following new item:

‘‘2249. Testing for human immunodeficiency virus; disclosure of test results

to victim; effect on penalty.’’.

15 (c) AMENDMENTS TO TESTING PROVISIONS.—Sec16 tion 40503(b) of the Violent Crime Control and Law En17 forcement Act of 1994 (42 U.S.C. 14011(b)) is amend18 ed—

19 (1) by amending the heading to read as follows:

20 ‘‘(b) TESTING OF DEFENDANTS.—’’;

21 (2) in paragraph (1)—

22 (A) by inserting ‘‘, or the Government in

23 such a case,’’ after ‘‘subsection (a)’’;
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1 (B) by inserting ‘‘(or to the victim’s parent

2 or legal guardian, as appropriate)’’ after ‘‘com3 municated to the victim’’; and

4 (C) by inserting ‘‘, unless the recipient

5 does not wish to receive such counseling’’ after

6 ‘‘counseling’’; and

7 (3) in paragraph (2)—

8 (A) by striking ‘‘To obtain an order under

9 paragraph (1), the victim must demonstrate

10 that’’ and inserting ‘‘The victim or the Govern11 ment may obtain an order under paragraph (1)

12 by showing that’’;

13 (B) in subparagraph (A)—

14 (i) by striking ‘‘the offense’’ and in15 serting ‘‘a sexual assault involving alleged

16 conduct that poses a risk of transmission

17 of the etiologic agent for acquired immune

18 deficiency syndrome’’; and

19 (ii) by inserting ‘‘and’’ after the semi20 colon;

21 (C) in subparagraph (B), by striking

22 ‘‘after appropriate counseling; and’’ and insert23 ing a period; and

24 (D) by striking subparagraph (C).

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