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!