REPORT TITLE:
Victim Rights


DESCRIPTION:
Provides right of victims, surviving immediate family members,
and witnesses of crime to receive notice of custodial status of a
defendant found unfit to proceed or acquitted on the ground of
physical or mental disease, disorder, or defect and is committed
to a psychiatric facility under the jurisdiction of the
department of health.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO RIGHTS OF VICTIMS AND WITNESSES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 334-60.4, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "§334-60.4  Notice; waiver of notice; hearing on petition;
 
 4 waiver of hearing on petition for involuntary hospitalization.
 
 5 (a)  The court shall set a hearing on the petition and notice of
 
 6 the time and place of such hearing shall be served in accordance
 
 7 with, and to those persons specified in, a current order of
 
 8 commitment.  If there is no current order of commitment, notice
 
 9 of the hearing shall be served personally on the subject of the
 
10 petition and served personally or by certified or registered
 
11 mail, return receipt requested, deliverable to the addressee
 
12 only, on the subject's spouse or reciprocal beneficiary, legal
 
13 parents, adult children, and legal guardian, if one has been
 
14 appointed.  If the subject of the petition has no living spouse
 
15 or reciprocal beneficiary, legal parent and adult children, or if
 
16 none can be found, notice of the hearing shall be served on at
 
17 least one of the subject's closest adult relatives if any can be 
 

 
 
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 1 found.  Notice of the hearing shall also be served on the public
 
 2 defender, attorney for the subject of the petition, or other
 
 3 court-appointed attorney as the case may be.  If the subject of
 
 4 the petition was committed pursuant to sections 704-406, 704-411,
 
 5 or 706-607 notice also shall be served on the county department,
 
 6 agency, or office responsible for the enforcement of rights under
 
 7 section 801D-4, on behalf of any victim, surviving immediate
 
 8 family member, or witness. If the subject of the petition is a
 
 9 minor, notice of the hearing shall also be served upon the person
 
10 who has had the principal care and custody of the minor during
 
11 the sixty days preceding the date of the petition if such person
 
12 can be found within the State.  Notice shall also be given to
 
13 such other persons as the court may designate."
 
14      SECTION 2.  Section 334-60.5(i), Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "§334-60.5  Hearing on petition. 
 
17      (i)  If after hearing all relevant evidence, including the
 
18 result of any diagnostic examination ordered by the court, the
 
19 court finds that an individual is not a person requiring medical,
 
20 psychiatric, psychological, or other rehabilitative treatment or
 
21 supervision, the court shall order that the individual be
 
22 discharged if the individual has been hospitalized prior to the
 
23 hearing.  If the court finds that the criteria for involuntary
 

 
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 1 hospitalization under section 334-60.2(1) has been met beyond a
 
 2 reasonable doubt and that the criteria under sections 334-60.2(2)
 
 3 and 334-60.2(3) have been met by clear and convincing evidence,
 
 4 the court may issue an order to any police officer to deliver the
 
 5 subject to a facility that has agreed to admit the subject as an
 
 6 involuntary patient, or if the subject is already a patient in a
 
 7 psychiatric facility, authorize the facility to retain the
 
 8 patient for treatment for a period of ninety days unless sooner
 
 9 discharged.  An order of commitment shall specify which of those
 
10 persons served with notice pursuant to section 334-60.4, together
 
11 with such other persons as the court may designate, shall be
 
12 entitled to receive any subsequent notice of intent to discharge,
 
13 transfer, or recommit. The order of commitment also shall specify
 
14 that notice shall be provided to the county department, agency,
 
15 or office responsible for the enforcement of rights under section
 
16 801D-4, on behalf of any victim, surviving immediate family
 
17 member, or witness where the subject of the petition was
 
18 committed pursuant to sections 704-406, 704-411, or 706-607.  The
 
19 director of health shall be responsible for proper service of
 
20 notice."
 
21      SECTION 3. Section 334-60.6, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 
23      "§334-60.6  Period of detention. (a) Except with regard to
 

 
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 1 subsection (b),[T]the psychiatric facility may detain a subject
 
 2 for a period of time ordered by the court not to exceed ninety
 
 3 days from date of admission unless sooner discharged by the
 
 4 facility pursuant to section 334-76 or section 334-74.  At the
 
 5 end of the ninety-day period the subject shall be discharged
 
 6 automatically except as provided in [sections 704-406, 704-411,
 
 7 and 706-607] subsection (b), unless before expiration of the
 
 8 period and by a proceeding initiated pursuant to section 334-60.3
 
 9 the facility obtains a court order for the subject's
 
10 recommitment.  Recommitment for a period not to exceed ninety
 
11 days may not be ordered unless the court determines that the
 
12 criteria for involuntary hospitalization set forth in section
 
13 334-60.2 continue to exist.  If at the end of a recommitment
 
14 period the court finds that the criteria for involuntary
 
15 hospitalization set forth in section 334-60.2 continue to exist
 
16 and are likely to continue beyond ninety days, the court may
 
17 order recommitment for a period not to exceed one hundred eighty
 
18 days.
 
19      Nothing in this section shall preclude a facility from
 
20 accepting for voluntary inpatient treatment, in accordance with
 
21 the procedures in section 334-60.1, a patient, for whom the
 
22 facility contemplates discharge pursuant to section 334-60.7 and
 
23 who voluntarily agrees to further hospitalization after the
 

 
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 1 period of commitment has expired, or where the patient is no
 
 2 longer a proper subject for commitment.
 
 3      (b) A subject committed to a psychiatric facility pursuant
 
 4 to sections 704-406, 704-411, and 706-607 shall not be eligible
 
 5 for release under this section until one hundred and eighty days
 
 6 have elasped from the date of admission.  No subject committed
 
 7 pursuant to sections 704-406, 704-411, and 706-607 shall be
 
 8 automatically released at the end of the one hundred and eighty
 
 9 day period.  At the end of the one hundred and eighty day period,
 
10 the subject may petition for release pursuant to section 334-
 
11 60.5.  If the court determines that the subject shall not be
 
12 released, the subject shall not again petition for release until
 
13 ninety days have elasped.  No subject committed pursuant to
 
14 sections 704-406, 704-411,and 706-607 shall be automatically
 
15 released at the end of the ninety-day period.  At the end of the
 
16 ninety-day period, the subject may petition for release pursuant
 
17 to section 334-60.5.  If the court determines that the subject
 
18 shall not be released, the court may order recommitment for a
 
19 period not to exceed one hundred and ninety days."
 
20      SECTION 4.  Section 334-60.7 Hawaii Revised Statutes is
 
21 amended to read as follows:
 
22      "§334-60.7  Notice of intent to discharge[.]: hearing. (a)
 
23 When the administrator of a psychiatric facility contemplates
 

 
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 1 discharge of an involuntary patient because of expiration of the
 
 2 court order for commitment or because the patient is no longer a
 
 3 proper subject for commitment, as determined by the criteria for
 
 4 involuntary hospitalization in section 334-60.2 the administrator
 
 5 shall provide notice of intent to discharge, or if the patient
 
 6 voluntarily agrees to further hospitalization, the administrator
 
 7 shall provide notice of the patient's admission to voluntary
 
 8 inpatient treatment.  The notice shall be filed with the court
 
 9 and served personally or by certified mail on those persons whom
 
10 the order of commitment specifies as entitled to receive notice.
 
11 If the patient is committed pursuant to sections 704-406, 704-
 
12 411, or 706-607, the administrator shall serve notice by personal
 
13 service or by certified mail on the county department, agency, or
 
14 office responsible for the enforcement of rights under section
 
15 801D-4, on behalf of any victim, surviving immediate family
 
16 member, or witness in accordance with section 801D-4. 
 
17      (b) If no objection is filed within three days of service,
 
18 the administrator of the psychiatric facility shall discharge or
 
19 accept the patient for voluntary inpatient treatment.  If any
 
20 person specified as entitled to receive notice files a written
 
21 objection to discharge or to the patient's admission to voluntary
 
22 inpatient treatment on the grounds that the patient is a proper
 
23 subject for commitment, the court shall conduct a hearing to
 

 
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 1 determine if the patient still meets the criteria for involuntary
 
 2 hospitalization in section 334-60.2.  If the court finds that the
 
 3 patient does not meet the criteria for involuntary
 
 4 hospitalization in section 334-60.2, the court shall issue an
 
 5 order of discharge from the commitment.  If the court finds that
 
 6 the patient does meet the criteria for involuntary
 
 7 hospitalization in section 334-60.2, the court shall issue an
 
 8 order denying discharge from the commitment.
 
 9      SECTION 5.  Section 334-76, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "§334-76  Discharge from custody.  Subject to any special
 
12 requirements of law as provided in sections 704-406, 704-411, and
 
13 706-607 or elsewhere, with respect to patients committed on court
 
14 order, the administrator of a psychiatric facility, pursuant to
 
15 section 334-60.7, shall send a notice of intent to discharge or
 
16 notice of the patient's admission to voluntary inpatient
 
17 treatment to those persons specified in the order of commitment
 
18 as entitled to receive notice of intent to discharge [and the].
 
19 The administrator also shall serve notice by personal service or
 
20 by certified mail on the county department, agency, or office
 
21 responsible for the enforcement of rights under section 801D-4,
 
22 on behalf of any victim, surviving immediate family member, or
 
23 witness in accordance with section 801D-4.  The administrator or
 
24 the deputy or the physician assuming medical responsibility for
 

 
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 1 the patient shall discharge an involuntary patient when the
 
 2 patient is no longer a proper subject for commitment, as
 
 3 determined by the criteria for involuntary hospitalization in
 
 4 section 334-60.2.
 
 5      Nothing in this section shall preclude a facility from
 
 6 accepting for voluntary inpatient treatment, in accordance with
 
 7 the procedures in section 334-60.1, a patient for whom the
 
 8 facility contemplates discharge pursuant to section 334-60.7 and
 
 9 who voluntarily agrees to further hospitalization after the
 
10 period of commitment has expired or where the patient is no
 
11 longer a proper subject for commitment."
 
12      SECTION 6.  Section 334-82, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "§334-82  Order to show cause; guardian ad litem.
 
15 Immediately upon receipt of a request, the court shall issue an
 
16 order to show cause directed to the administrator of the facility
 
17 and commanding the administrator to show cause at a date and time
 
18 certain, not later than five days thereafter, why the patient
 
19 should not be discharged forthwith.  A copy of the request shall
 
20 be attached to the order to show cause.  The form of the order to
 
21 show cause shall be prescribed and supplied free of charge by the
 
22 court.  The order to show cause shall issue without cost and may
 
23 be served as any other civil process or by any responsible person
 

 
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 1 appointed by the court for that purpose.  At any stage of the
 
 2 proceedings, the court may appoint a guardian ad litem for the
 
 3 patient.  The guardian ad litem may be a member of the bar of the
 
 4 court or any other responsible person.  Service on the
 
 5 administrator may be effected by leaving certified copies of the
 
 6 order to show cause and request at the facility with any person
 
 7 exercising authority.  If the patient has been committed pursuant
 
 8 to sections 704-406, 704-411, or 706-607, the request and the
 
 9 order to show cause also shall be served personally or by
 
10 certified mail on the county department, agency, or office
 
11 responsible for the enforcement of rights under section 801D-4,
 
12 on behalf of any victim, surviving immediate family member, or
 
13 witness in accordance with section 801D-4."
 
14      SECTION 7.  Section 801D-4, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "§801D-4  Basic bill of rights for victims and witnesses.
 
17 (a)  Upon written request, victims and surviving immediate family
 
18 members of crime shall have the following rights:
 
19      (1)  To be informed by the police and the prosecuting
 
20           attorney of the final disposition of the case.  If the
 
21           crime charged is a felony, the victim or a surviving
 
22           immediate family member shall be notified of major
 
23           developments in the case and whenever the defendant or
 

 
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 1           perpetrator is released from custody.  The victim or a
 
 2           surviving immediate family member shall also be
 
 3           consulted and advised about plea bargaining by the
 
 4           prosecuting attorney;
 
 5      (2)  To be notified by the prosecuting attorney if a court
 
 6           proceeding to which they have been subpoenaed will not
 
 7           proceed as scheduled;
 
 8      (3)  To receive protection from threats or harm;
 
 9      (4)  To be informed by the police, victim/witness counselor,
 
10           or other criminal justice personnel, of financial
 
11           assistance and other social services available as a
 
12           result of being a witness to or a victim of crime,
 
13           including information on how to apply for the
 
14           assistance and services;
 
15      (5)  To be provided by the court, whenever possible, with a
 
16           secure waiting area during court proceedings that does
 
17           not require them to be in close proximity to defendants
 
18           and families and friends of defendants;
 
19      (6)  To have any stolen or other personal property
 
20           expeditiously returned by law enforcement agencies when
 
21           the property is no longer needed as evidence.  If
 
22           feasible, all the property, except weapons, currency,
 
23           contraband, property subject to evidentiary analysis,
 

 
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 1           and property, the ownership of which is disputed, shall
 
 2           be returned to the person within ten days of being
 
 3           taken; and
 
 4      (7)  To be informed by the department of public safety of
 
 5           changes planned by the department in the custodial
 
 6           status of the offender that allows or results in the
 
 7           release of the offender into the community, including
 
 8           escape, furlough, work release, placement on supervised
 
 9           release, release on parole, release on bail bond,
 
10           release on appeal bond, and final discharge at the end
 
11           of the prison term.
 
12      (b)  Upon written request, the victim or the parent or
 
13 guardian of a minor or incapacitated victim of an offense under
 
14 section 707-730, 707-731, or 707-732(1)(a) shall have the right
 
15 to be informed of the human immunodeficiency virus (HIV) status
 
16 of the person who has been convicted or a juvenile who has been
 
17 adjudicated under that section and to receive counseling
 
18 regarding HIV.  The testing shall be performed according to the
 
19 protocols set forth in section 325-17.  Upon request of the
 
20 victim, or the parent or guardian of a minor or incapacitated
 
21 victim, the department of health shall provide counseling.
 
22      (c)  Pursuant to sections 334-60.7, 334-76, and 334-82,
 
23 victims, surviving immediate family members, or witnesses of a
 

 
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 1 crime shall have the right to be notified of the custodial status
 
 2 of a patient who has been committed pursuant to sections 704-406,
 
 3 704-411, or 706-607."
 
 4      SECTION 8.  This Act shall apply to the release, after the
 
 5 effective date of this Act, of any patient placed under the
 
 6 jurisdiction of the department of health, whether before or after
 
 7 the effective date of this Act, pursuant to chapter 334, Hawaii
 
 8 Revised Statutes, as a result of having been found unfit to
 
 9 proceed under section 704-406, Hawaii Revised Statutes, or having
 
10 been acquitted under section 704-411, Hawaii Revised Statutes.
 
11      SECTION 9.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 10.  This Act shall take effect upon approval.
 
14 
 
15                           INTRODUCED BY:_________________________