II

104TH CONGRESS

1ST SESSION S. 694

To prevent and punish crimes of sexual and domestic violence, to strengthen

the rights of crime victims, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 6 (legislative day, APRIL 5), 1995

Mr. KYL introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

A BILL

To prevent and punish crimes of sexual and domestic violence, to strengthen the rights of crime victims, 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 ‘‘Sexual Violence Prevention and Victim’s Rights 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
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Sec. 101. Right of the victim to restitution.

Sec. 102. Right of the victim to an impartial jury.

Sec. 103. Right of the victim to fair treatment in legal proceedings.

Sec. 104. Rebuttal of attacks on the victim’s character.

Sec. 105 Use of notice concerning release of offender.

Sec. 106. Balance in the composition of rules committees.

Sec. 107. Victim’s right of allocution in sentencing.

TITLE II—SEXUAL VIOLENCE, DOMESTIC VIOLENCE, AND

OFFENSES AGAINST THE FAMILY

Sec. 201. Implementation of evidence rules for sexual assault and child molestation cases.

Sec. 202. HIV testing of defendants in sexual assault cases.

Sec. 203. Clarifying amendment to extraterritorial child pornography offense.

Sec. 204. Evidence of defendant’s disposition towards victim in domestic violence cases and other cases.

Sec. 205. Battered women’s syndrome evidence.

Sec. 206. Death penalty for fatal domestic violence offenses.

1 TITLE I—EQUAL PROTECTION

2 FOR VICTIMS

3 SEC. 101. RIGHT OF THE VICTIM TO RESTITUTION.

4 (a) ORDER OF RESTITUTION.—Section 3663 of title

5 18, United States Code, is amended—

6 (1) in subsection (a)—

7 (A) in paragraph (1)—

8 (i) by striking ‘‘may order, in addition

9 to or, in the case of a misdemeanor, in lieu

10 of any other penalty authorized by law,’’

11 and inserting ‘‘shall order’’; and

12 (ii) by adding at the end the follow13 ing: ‘‘This paragraph does not affect the

14 power of the court to impose any other

15 penalty authorized by law. In the case of

16 a misdemeanor, the court may impose res-
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1 titution in lieu of any other penalty author2 ized by law.’’;

3 (B) by adding at the end the following new

4 paragraph:

5 ‘‘(4) In addition to ordering restitution to the victim

6 of the offense for which a defendant is convicted, a court

7 may order restitution to any person who, as shown by a

8 preponderance of evidence, was harmed physically, emo9 tionally, or pecuniarily, by unlawful conduct of the defend10 ant during—

11 ‘‘(A) the criminal episode during which the of12 fense occurred;

13 ‘‘(B) the course of a scheme, conspiracy, or pat14 tern of unlawful activity related to the offense.’’;

15 (2) in subsection (b)(1)(B) by striking ‘‘imprac16 tical’’ and inserting ‘‘impracticable’’;

17 (3) in subsection (b)(2) by inserting ‘‘emotional

18 or’’ after ‘‘resulting in’’;

19 (4) in subsection (c) by striking ‘‘If the court

20 decides to order restitution under this section, the’’

21 and inserting ‘‘The’’;

22 (5) by striking subsections (d), (e), (f), (g), and

23 (h);

24 (6) by redesignating subsection (i) as subsection

25 (m); and
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1 (7) by inserting after subsection (c) the follow2 ing:

3 ‘‘(d)(1) The court shall order restitution to a victim

4 in the full amount of the victim’s losses as determined by

5 the court and without consideration of—

6 ‘‘(A) the economic circumstances of the of7 fender; or

8 ‘‘(B) the fact that a victim has received or is

9 entitled to receive compensation with respect to a

10 loss from insurance or any other source.

11 ‘‘(2) Upon determination of the amount of restitution

12 owed to each victim, the court shall specify in the restitu13 tion order the manner in which and the schedule according

14 to which the restitution is to be paid, in consideration of—

15 ‘‘(A) the financial resources and other assets of

16 the offender;

17 ‘‘(B) projected earnings and other income of

18 the offender; and

19 ‘‘(C) any financial obligations of the offender,

20 including obligations to dependents.

21 ‘‘(3) A restitution order may direct the offender to

22 make a single, lump-sum payment, partial payment at

23 specified intervals, or such in-kind payments as may be

24 agreeable to the victim and the offender. A restitution

25 order shall direct the offender to give appropriate notice
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1 to victims and other persons in cases where there are mul2 tiple victims or other persons who may receive restitution,

3 and where the identity of such victims and other persons

4 can be reasonably determined.

5 ‘‘(4) An in-kind payment described in paragraph (3)

6 may be in the form of—

7 ‘‘(A) return of property;

8 ‘‘(B) replacement of property; or

9 ‘‘(C) services rendered to the victim or to a per10 son or organization other than the victim.

11 ‘‘(e) When the court finds that more than 1 offender

12 has contributed to the loss of a victim, the court may make

13 each offender liable for payment of the full amount of res14 titution or may apportion liability among the offenders to

15 reflect the level of contribution and economic cir16 cumstances of each offender.

17 ‘‘(f) When the court finds that more than 1 victim

18 has sustained a loss requiring restitution by an offender,

19 the court shall order full restitution to each victim but

20 may provide for different payment schedules to reflect the

21 economic circumstances of each victim.

22 ‘‘(g)(1) If the victim has received or is entitled to re23 ceive compensation with respect to a loss from insurance

24 or any other source, the court shall order that restitution

25 be paid to the person who provided or is obligated to pro-
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1 vide the compensation, but the restitution order shall pro2 vide that all restitution to victims required by the order

3 be paid to the victims before any restitution is paid to

4 such a provider of compensation.

5 ‘‘(2) The issuance of a restitution order shall not af6 fect the entitlement of a victim to receive compensation

7 with respect to a loss from insurance or any other source

8 until the payments actually received by the victim under

9 the restitution order fully compensate the victim for the

10 loss, at which time a person that has provided compensa11 tion to the victim shall be entitled to receive any payments

12 remaining to be paid under the restitution order.

13 ‘‘(3) Any amount paid to a victim under an order of

14 restitution shall be set off against any amount later recov15 ered as compensatory damages by the victim in—

16 ‘‘(A) any Federal civil proceeding; and

17 ‘‘(B) any State civil proceeding, to the extent

18 provided by the law of the State.

19 ‘‘(h) A restitution order shall provide that—

20 ‘‘(1) all fines, penalties, costs, restitution pay21 ments and other forms of transfers of money or

22 property made pursuant to the sentence of the court

23 shall be made by the offender to an entity des24 ignated by the Director of the Administrative Office

25 of the United States Courts for accounting and pay-
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1 ment by the entity in accordance with this sub2 section;

3 ‘‘(2) the entity designated by the Director of

4 the Administrative Office of the United States

5 Courts shall—

6 ‘‘(A) log all transfers in a manner that

7 tracks the offender’s obligations and the cur8 rent status in meeting those obligations, unless,

9 after efforts have been made to enforce the res10 titution order and it appears that compliance

11 cannot be obtained, the court determines that

12 continued recordkeeping under this subpara13 graph would not be useful; and

14 ‘‘(B) notify the court and the interested

15 parties when an offender is 30 days in arrears

16 in meeting those obligations; and

17 ‘‘(3) the offender shall advise the entity des18 ignated by the Director of the Administrative Office

19 of the United States Courts of any change in the of20 fender’s address during the term of the restitution

21 order.

22 ‘‘(i) A restitution order shall constitute a lien against

23 all property of the offender and may be recorded in any

24 Federal or State office for the recording of liens against

25 real or personal property.
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1 ‘‘(j) Compliance with the schedule of payment and

2 other terms of a restitution order shall be a condition of

3 any probation, parole, or other form of release of an of4 fender. If a defendant fails to comply with a restitution

5 order, the court may revoke probation or a term of super6 vised release, modify the term or conditions of probation

7 or a term of supervised release, hold the defendant in con8 tempt of court, enter a restraining order or injunction,

9 order the sale of property of the defendant, accept a per10 formance bond, or take any other action necessary to ob11 tain compliance with the restitution order. In determining

12 what action to take, the court shall consider the defend13 ant’s employment status, earning ability, financial re14 sources, the willfulness in failing to comply with the res15 titution order, and any other circumstances that may have

16 a bearing on the defendant’s ability to comply with the

17 restitution order.

18 ‘‘(k) An order of restitution may be enforced—

19 ‘‘(1) by the United States—

20 ‘‘(A) in the manner provided for the collec21 tion and payment of fines in subchapter B of

22 chapter 229 of this title; or

23 ‘‘(B) in the same manner as a judgment in

24 a civil action; and
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1 ‘‘(2) by a victim named in the order to receive

2 the restitution, in the same manner as a judgment

3 in a civil action.

4 ‘‘(l) A victim or the offender may petition the court

5 at any time to modify a restitution order as appropriate

6 in view of a change in the economic circumstances of the

7 offender.’’.

8 (b) PROCEDURE FOR ISSUING ORDER OF RESTITU9 TION.—Section 3664 of title 18, United States Code, is

10 amended—

11 (1) by striking subsection (a);

12 (2) by redesignating subsections (b), (c), (d),

13 and (e) as subsections (a), (b), (c), and (d), respec14 tively;

15 (3) by amending subsection (a), as redesignated

16 by paragraph (2), to read as follows:

17 ‘‘(a) The court may order the probation service of the

18 court to obtain information pertaining to the amount of

19 loss sustained by any victim as a result of the offense,

20 the financial resources of the defendant, the financial

21 needs and earning ability of the defendant and the defend22 ant’s dependents, and such other factors as the court

23 deems appropriate. The probation service of the court

24 shall include the information collected in the report of
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1 presentence investigation or in a separate report, as the

2 court directs.’’; and

3 (4) by adding at the end the following new sub4 section:

5 ‘‘(e) The court may refer any issue arising in connec6 tion with a proposed order of restitution to a magistrate

7 or special master for proposed findings of fact and rec8 ommendations as to disposition, subject to a de novo de9 termination of the issue by the court.’’.

10 SEC. 102. RIGHT OF THE VICTIM TO AN IMPARTIAL JURY.

11 Rule 24(b) of the Federal Rules of Criminal Proce12 dure is amended by striking ‘‘the Government is entitled

13 to 6 peremptory challenges and the defendant or defend14 ants jointly to 10 peremptory challenges’’ and inserting

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

16 SEC. 103. RIGHT OF THE VICTIM TO FAIR TREATMENT IN

17 LEGAL PROCEEDINGS.

18 The following rules, to be known as the Rules of Pro19 fessional Conduct for Lawyers in Federal Practice, are en20 acted as an appendix to title 28, United States Code:

21 ‘‘RULES OF PROFESSIONAL CONDUCT FOR

22 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.
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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

25 or civil wrong, the duty of enquiry under this rule in26 cludes—
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1 ‘‘(1) attempting to elicit from the client a mate2 rially complete account of the alleged criminal activ3 ity or civil wrong if the client acknowledges involve4 ment in the alleged activity or wrong; and

5 ‘‘(2) attempting to elicit from the client the ma6 terial facts relevant to a defense of alibi if the client

7 denies such involvement.

8 ‘‘Rule 4. Duty to Expedite Litigation

9 ‘‘(a) A lawyer shall seek to bring about the expedi10 tious conduct and conclusion of litigation.

11 ‘‘(b) A lawyer shall not seek a continuance or other12 wise attempt to delay or prolong proceedings in the hope

13 or expectation that—

14 ‘‘(1) evidence will become unavailable;

15 ‘‘(2) evidence will become more subject to im16 peachment or otherwise less useful to another party

17 because of the passage of time; or

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

19 to another party because of the expense, frustration,

20 distress, or other hardship resulting from prolonged

21 or delayed proceedings.

22 ‘‘Rule 5. Duty to Prevent Commission of Crime

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

24 the representation of a client to the extent necessary to

25 prevent the commission of a crime or other unlawful act.
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1 ‘‘(b) A lawyer shall disclose information relating to

2 the representation of a client where disclosure is required

3 by law. A lawyer shall also disclose such information to

4 the extent necessary to prevent—

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

6 use or threatened use of force against another, or a

7 substantial risk of death or serious bodily injury to

8 another; or

9 ‘‘(2) the commission of a crime of sexual as10 sault or child molestation.

11 ‘‘(c) For purposes of this rule, ‘crime’ means a crime

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

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

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

15 SEC. 104. REBUTTAL OF ATTACKS ON THE VICTIM’S CHAR16 ACTER.

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

18 amended by inserting before the semicolon the following:

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

20 of character of the victim of the crime, evidence of a perti21 nent trait of character of the accused offered by the pros22 ecution’’.
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1 SEC. 105. USE OF NOTICE CONCERNING RELEASE OF OF2 FENDER.

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

4 amended by striking paragraph (4).

5 SEC. 106. BALANCE IN THE COMPOSITION OF RULES COM6 MITTEES.

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

8 amended—

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

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

11 recommendations concerning rules that affect crimi12 nal cases, including the Federal Rules of Criminal

13 Procedure, the Federal Rules of Evidence, the Fed14 eral Rules of Appellate Procedure, the Rules Govern15 ing Section 2254 Cases, and the Rules Governing

16 Section 2255 Cases, the number of members who

17 represent or supervise the representation of defend18 ants in the trial, direct review, or collateral review

19 of criminal cases shall not exceed the number of

20 members who represent or supervise the representa21 tion of the Government or a State in the trial, direct

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

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

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

25 committee who represent or supervise the represen26 tation of defendants in the trial, direct review, or
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1 collateral review of criminal cases shall not exceed

2 the number of members who represent or supervise

3 the representation of the Government or a State in

4 the trial, direct review, or collateral review of crimi5 nal cases.’’.

6 SEC. 107. VICTIM’S RIGHT OF ALLOCUTION IN SENTENCING.

7 Rule 32 of the Federal Rules of Criminal Procedure

8 is amended—

9 (1) in subdivision (c)(3)(E), by striking ‘‘if sen10 tence is to be imposed for a crime of violence or sex11 ual abuse,’’; and

12 (2) by amending subdivision (f) to read as fol13 lows:

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

15 means any individual against whom an offense has been

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

17 right of allocution under subdivision (c)(3)(E) may be ex18 ercised instead by—

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

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

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

22 designated by the court if the victim is deceased or

23 incapacitated,

24 if such person or persons are present at the sentencing

25 hearing, regardless of whether the victim is present.’’.
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1 TITLE II—SEXUAL VIOLENCE,

2 DOMESTIC VIOLENCE, AND

3 OFFENSES AGAINST THE

4 FAMILY

5 SEC. 201. IMPLEMENTATION OF EVIDENCE RULES FOR SEX6 UAL ASSAULT AND CHILD MOLESTATION

7 CASES.

8 (a) REPEAL OF SUPERSEDED EFFECTIVE DATE

9 PROVISIONS.—Subsections (b) through (e) of section

10 320935 of the Violent Crime Control and Law Enforce11 ment Act of 1994 are repealed.

12 (b) EFFECTIVE DATE OF NEW RULES.—Section

13 320935 of the Violent Crime Control and Law Enforce14 ment Act of 1994 is amended by adding at the end the

15 following new subsection (b):

16 ‘‘(b) EFFECTIVE DATE.—The amendments made by

17 subsection (a) shall take effect on the date of enactment

18 of the Sexual Violence Prevention and Victim’s Rights Act

19 of 1995.’’.

20 SEC. 202. HIV TESTING OF DEFENDANTS IN SEXUAL AS21 SAULT CASES.

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

23 States Code, is amended by adding at the end the follow24 ing new section:
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1 ‘‘§ 2249. Testing for Human Immunodeficiency Virus;

2 Disclosure of Test Results to Victim; Ef3 fect on Penalty

4 ‘‘(a) TESTING AT TIME OF PRETRIAL RELEASE DE5 TERMINATION.—In a case in which a person is charged

6 with an offense under this chapter, a judicial officer issu7 ing an order pursuant to section 3142(a) of this title shall

8 include in the order a requirement that a test for the

9 human immunodeficiency virus be performed upon the

10 person, and that followup tests for the virus be performed

11 6 months and 12 months following the date of the initial

12 test, unless the judicial officer determines that the conduct

13 of the person created no risk of transmission of the virus

14 to the victim, and so states in the order. The order shall

15 direct that the initial test be performed within 24 hours,

16 or as soon thereafter as feasible. The person shall not be

17 released from custody until the test is performed.

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

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

20 human immunodeficiency virus pursuant to subsection (a),

21 the court may at a later time direct that such a test be

22 performed upon the person, and that followup tests be per23 formed 6 months and 12 months following the date of the

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

25 the person may have risked transmission of the virus to

26 the victim. A testing requirement under this subsection
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1 may be imposed at any time while the charge is pending,

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

3 completion of service of the sentence.

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

5 requirement of followup testing imposed under this section

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

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

8 charges under this chapter.

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

10 of any test for the human immunodeficiency virus per11 formed pursuant to an order under this section shall be

12 provided to the judicial officer or court. The judicial offi13 cer or court shall ensure that the results are disclosed to

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

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

16 person tested.

17 ‘‘(e) EFFECT ON PENALTY.—The United States Sen18 tencing Commission shall amend existing guidelines for

19 sentences for offenses under this chapter to enhance the

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

21 he was infected with the human immunodeficiency virus,

22 except where the offender did not engage or attempt to

23 engage in conduct creating a risk of transmission of the

24 virus to the victim.’’.
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1 (b) CLERICAL AMENDMENT.—The table of sections

2 for chapter 109A of title 18, United States Code, is

3 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.’’.

4 (c) AMENDMENTS TO EXISTING TESTING PROVI5 SIONS.—Subsection (b) of section 40503 of the Violent

6 Crime Control and Law Enforcement Act of 1994 is

7 amended—

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

9 ‘‘(b) TESTING OF DEFENDANTS.—’’;

10 (2) in paragraph (1)—

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

12 such a case,’’ after ‘‘subsection (a)’’;

13 (B) by inserting ‘‘(or to the victim’s parent

14 or legal guardian, as appropriate)’’ after ‘‘com15 municated to the victim’’; and

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

17 does not wish to receive such counseling’’ after

18 ‘‘counseling’’;

19 (3) in paragraph (2)—

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

21 paragraph (1), the victim must demonstrate

22 that’’ and inserting ‘‘The victim or the Govern23 ment may obtain an order under paragraph (1)

24 by showing that’’;
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1 (B) in subparagraph (A)—

2 (i) by striking ‘‘the offense’’ and in3 serting ‘‘a sexual assault involving alleged

4 conduct that poses a risk of transmission

5 of the etiologic agent for acquired immune

6 deficiency syndrome’’; and

7 (ii) by inserting ‘‘and’’ after the semi8 colon;

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

10 ‘‘after appropriate counseling; and’’ and insert11 ing a period; and

12 (D) by striking subparagraph (C).

13 SEC. 203. CLARIFYING AMENDMENT TO

14 EXTRATERRITORIAL CHILD PORNOGRAPHY

15 OFFENSE.

16 Subsections (a) and (b) of section 2258 of title 18,

17 United States Code, are each amended by inserting ‘‘by

18 any means including by computer or mails’’ after ‘‘im19 ported’’.

20 SEC. 204. EVIDENCE OF DEFENDANT’S DISPOSITION TO21 WARDS VICTIM IN DOMESTIC VIOLENCE

22 CASES AND OTHER CASES.

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

24 amended by striking ‘‘or absence of mistake or accident’’
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1 and inserting ‘‘absence of mistake or accident, or a dis2 position towards a particular individual’’.

3 SEC. 205. BATTERED WOMEN’S SYNDROME EVIDENCE.

4 Rule 702 of the Federal Rules of Evidence is amend5 ed by adding at the end the following: ‘‘Testimony that

6 may be admitted pursuant to this rule includes testimony

7 concerning the behavior and psychology of victims to ex8 plain a victim’s failure to report or delay in reporting an

9 offense, recantation of an accusation, or failure to cooper10 ate in the investigation or prosecution.’’.

11 SEC. 206. DEATH PENALTY FOR FATAL DOMESTIC VIO12 LENCE OFFENSES.

13 Sections 2261(b)(1) and 2262(b)(1) of title 18, Unit14 ed States Code, are each amended by inserting ‘‘or may

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

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