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[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1483 Introduced in Senate (IS)]

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.

    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 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).
                                 <all>
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