OHIO CRIME VICTIMS RIGHTS AND RESTITUTION ACT
Additions to Current Law
PROVISION: Reinforcing victim standing in criminal context and right to counsel
GOAL: To ensure that crime victims’ rights are uniformly and consistently enforced in all 88 Ohio counties; to clarify and articulate procedures for crime victims to enforce their rights at the trial and appellate levels. NOTE: The state is not required to pay for victim counsel.
PRECEDENT: Six states (Arizona, Indiana, Nevada, South Carolina, Utah, and Wisconsin) and the federal government have provided for standing for crime victims to enforce statutory and constitutional rights.
PROVISION: Anti-polygraph provision for sexual assault victims
GOAL: To protect victims’ constitutional right to be treated with fairness and dignity.
PROVISION: Defining criminal offense or delinquent act
GOAL: To define criminal offense or delinquent act.
PRECEDENT: Nearly all states limit the definition of victim or criminal offense to exclude minor misdemeanor fender benders.
PROVISION: Defining victim’s attorney
GOAL: To ensure that victims have the right to a retained attorney to exercise their rights. However, attorneys are not mandated to be appointed as in the case of criminal defense attorneys for indigent defendants. The state is not required to pay for victim counsel.
PRECEDENT: No other state mandates appointed counsel for victims.
PROVISION: Define petition
GOAL: To ensure that victims may exercise their constitutional rights to seek appellate review.
PRECEDENT: Petition has traditionally meant via complaint for writ or direct appeal in nationwide jurisprudence.
PROVISION: Law enforcement to provide victims with multi-copy form
GOAL: To ensure that victims are made aware of their rights at first contact with the criminal justice system and to ensure that all actors in the criminal justice process are aware of a victim’s intention to exercise those rights.
PRECEDENT: Both Arizona and Illinois have had great success with their multi-copy form. Arizona has used this form since the 1990s.
PROVISION: Right to an interpreter
GOAL: To ensure that non-English speaking and deaf victims are fully aware of their rights and able to exercise them effectively.
PRECEDENT: Federal law mandates that both deaf and non-English speaking individuals not be discriminated against in the provision of public accommodations, including access to law enforcement, prosecutors, and courts. Illinois also includes this right for crime victims.
PROVISION: Victims’ right to be present and heard; failure to notify and confer can result in plea or sentence being vacated or writ of mandamus filed. failure to afford a right DOES NOT provide grounds for a new trial.
GOAL: To ensure that victims can exercise their right to be present and heard at all stages of the criminal justice process, including bond, bond revocation, plea and sentencing hearings, and trial; to ensure that the prosecutor has provided notice of these hearings to victims and conferred with them; to allow victims to pursue bond revocations via counsel for violations of bond conditions if prosecutor chooses not to pursue.
PRECEDENT: Twelve states have an unqualified right of crime victims to be present; six states and the federal government require prosecutors to notify and confer with victims regarding plea deals to avoid myriad consequences.
PROVISION: Right to proceedings free from unreasonable delay and a prompt conclusion of the case.
GOAL: To ensure that victims of crime are not subjected to unreasonably long delays in prosecution that result in degradation of cases and financial and mental distress to the victims.
PRECEDENT: Seventeen states and the federal government provide speedy trial rights for crime victims.
PROVISION: Right to privacy for sexual assault, minor, domestic violence, stalking, and human trafficking victims.
GOAL: To protect victims from the public dissemination of identification information that will subject them to undue risk of harm and will discourage further crime reporting.
PRECEDENT: Eleven states and the federal government protect victims’ identification information from public dissemination.
PROVISION: Certain victims are eligible for testimony via CCTV or videotaped deposition
GOAL: To ensure that child victim’s safety, privacy, and dignity are protected and that they are not forced to undergo testimony that would cause them severe mental harm.
PRECEDENT: Ohio already had these laws and an extended age range for human trafficking victims.
PROVISION: Victim right to NOT receive inmate mail
GOAL: To protect victims from threats, harassment, and intimidation by incarcerated inmates.
PRECEDENT: Arizona has had this provision since 1999.
PROVISION: Notices to victims of their rights includes an order of restitution and for it to be paid first
GOAL: To ensure that restitution is uniformly and consistently ordered in all 88 counties.
PRECEDENT: The common practice of other states with mandatory restitution laws, Constitutional amendments.
PROVISION: Restitution orders include all victims and proximate victims, in misdemeanor, juvenile, and felony crimes.
GOAL: The expansion of victim to include proximate victims and the requirement for restitution in all cases except minor misdemeanor traffic violations.
PRECEDENT: California, Arizona (13-804), Oregon, Washington and Iowa all have similar laws
PROVISION: Award of restitution is determined by a “preponderance of the evidence” standard, regardless if a hearing was held.
GOAL: Clear definition of the standard of evidence required for consistent application in all 88 Ohio counties.
PRECEDENT: The common practice of other states with mandatory restitution laws, Constitutional amendments, including Ohio case law.
PROVISION: Restitution evidence may be presented by victim, victim’s attorney, prosecutor, probation, or a defendant.
a. GOAL: Clear definition of who can present evidence of restitution for consistent application in all 88 Ohio counties.
b. PRECEDENT: The common practice of other states with mandatory restitution laws, Constitutional amendments.
PROVISION: A court may only impose community service in lieu of an order of restitution with a victim’s consent.
a. GOAL: To eliminate the ability for a defendant to discharge a restitution obligation due to current inability to pay.
b. PRECEDENT: New to Ohio law. The common practice of other states with mandatory restitution laws/Constitutional amendments is that a defendant’s ability to pay or economic circumstances are not to be considered in the determination of restitution.
PROVISION: Definition of restitution shall be expanded to include past and future expenses and economic losses, such as:
• Value of stolen or damaged property at replacement cost or actual repair cost
• Medical expenses
• Mental health counseling expenses
• Wages, profits, and commissions (using 12 month commission look-back evidence) lost due to injury or due to assisting in prosecution of the case by victim or victim’s guardians / parents
• Noneconomic losses, such as psychological harm from violent felony and misdemeanor crimes
• Actual and reasonable attorney fees and other costs to collect restitution
• Relocation costs verified by law enforcement for personal safety, or by a counselor for emotional well-being, such as, utility and rent deposits, temporary lodging and food, clothing and personal items
• Installation or improved residential security, such as home security system and locks
• Making home or vehicle physically accessible due to disability caused by the crime
• Expenses to make the victim whole from repairing credit, identity theft, and exploitation
a. GOAL: Expansion of the definition of restitution to better serve the goal of making the victim whole.
b. PRECEDENT: Language taken from California 1202.4. Similar laws in Oregon, Arizona, Iowa, and Washington.
PROVISION: Court shall not consider ability to pay in determining the amount of the restitution order.
a. GOAL: To make restitution a real obligation of a defendant despite current ability of a defendant to pay.
b. PRECEDENT: The common practice of other states with mandatory restitution laws, Constitutional amendments.
PROVISION: Court order may be a single lump sum or partial restitution payments with the quickest payment schedule.
a. GOAL: To make a victim whole in the shortest amount of time possible.
PROVISION: A pending insurance or governmental claim shall not delay restitution payments to the victim.
a. GOAL: To prevent delay of payment to a victim due to a Victim’s Compensation Claim or Insurance claim, which can take years to accomplish.
b. PRECEDENT: Ohio law would still require a defendant’s payment to offset any collection from Victim Compensation or insurance.
PROVISION: Government payments, including tax refunds, owed offenders are paid first toward restitution. In line with other state laws.
a. GOAL: To ensure the goal of making the victim whole
PROVISION: When multiple victims are owed restitution, the sequence of payment priority is:
• Individuals of the current case
• Victims in prior cases in which restitution orders were issued
• Nonprofit organizations
• Business entities (reimbursement of insurance companies is excluded)
• Government entities
a. GOAL: To prioritize the payment to certain types of victims in keeping with the Constitutional mandate.
b. PRECEDENT: New for Ohio
PROVISION: Restitution shall not be suspended, even if other sentencing and disposition parts are, unless agree to by the victim.
a. GOAL: To ensure continuity of priority of payment to victim in the shortest amount of time possible.
PROVISION: Restitution is not dischargeable in bankruptcy or other proceedings for relief against creditors.
a. GOAL: To ensure that restitution is an ongoing obligation of a defendant to a victim, regardless of current ability to pay.
b. PRECEDENT: The common practice of other states with mandatory restitution laws, Constitutional amendments, including California
PROVISION: Courts retain jurisdiction over restitution orders until paid in full, or age 21 for juvenile offenders.
b. PRECEDENT: Arizona 13-805 as to adults. The “age 21” juvenile court jurisdiction is keeping in line with current Ohio law as to jurisdiction.
PROVISION: If restitution is not paid or payment is missed, upon a motion by the prosecutor or the court, the court shall have a “show cause” hearing, including summons or arrest warrant to assure defendant’s appearance. At such hearing the victim, victim’s attorney, court, or prosecutor may examine the defendant under oath concerning their financial condition, employment, and assets. If defendant willfully failed to pay or make a good faith effort to pay, and is found in contempt, the court shall find the default constitutes contempt and may:
• Incarcerate defendant until amount is paid
• Revoke probation, parole, or community supervision and sentence to prison pursuant to law
If the default is not willful and the defendant cannot pay despite a good faith effort, the court may:
• Modify payment schedule
• Enter a reasonable order that assures compliance with the restitution order
• Enter an order of garnishment
• Hold in contempt the person authorized to make payments, when it is a business or corporation.
a. GOAL: To ensure consistent application in all 88 Ohio counties.
b. PRECEDENT: Arizona 13-810 (since 1991); Oregon 2015 ORS 161.685. The common practice of other states with mandatory restitution laws, Constitutional amendments.
PROVISION: The Clerk of Courts shall make available defendant’s payment history to victim, victim’s attorney, prosecutor, and probation
a. GOAL: Allows a victim to be informed of restitution payment information.
b. PRECEDENT: Arizona 13-810. The common practice of other states with mandatory restitution laws, Constitutional amendments.
PROVISION: Collected restitution is paid to the victim, victim’s estate or surviving family within 60 days. If not found, 60 days’ notice is provided the crime victim services program to find the victim, and if still not found, the funds are paid to the Ohio Department of Unclaimed Funds. This is determined annually.
a. GOAL: Assure substantial effort to find a victim prior to funds going to the Ohio Department of Unclaimed Funds.
b. PRECEDENT: New for Ohio.
Clarifications / Amendments
Revise 2930.13 (A) (et. al.) so that victims may provide a written and oral statement. Some judges refuse victims the right to speak at sentencing if they gave a written VIS.
Revise and move definitions from 2305.236 to 2930.01. The term “Victim Advocate” would add the underlined, “A person from a crime victim service organization who provides support and assistance for victims of crime during criminal and administrative proceedings and recovery efforts related to the crime. No other changes.
Add notice requirement for expungement hearings to prosecutor at least 60 days prior to a hearing to seal or expunge an adult or juvenile offender record, prosecutor must provide timely notice to victims with current contact information, and victims must be permitted to be present and heard, and notified of results of the hearing.
Add requirement for courts to provide prompt notice to prosecutor prior to decision on judicial release of defendant from prison, jail, or juvenile from Ohio Dept. of Youth Services, and victims must be notified prior to release. Courts shall send the custodial agency a copy of the journal entry of decision the same day as release (not doing this is delaying VINE notices).
Clarify that for minor, incompetent, or deceased victims, victim can still choose representative under 2930.02.
Clarify that law enforcement should provide victims with updates about cases, including cold case under 2930.041.
Clarify that victims are entitled to a free copy of police reports and court files in their cases.
Expand court inquiry into prosecutor conferral with victims, especially as it pertains to plea to make certain that attempts to confer were made if the victim requested to confer.
Codify Crim. R. 17(c) which provides protections for victims when the state or defense seeks personal victim information, and make explicit that victims need not be interviewed by defendants, per the constitution.
Clarify that victims do not need a court order to receive their property back from law enforcement, per 2930.11.
Clarify that victims can exercise victims’ rights even if certain counts are dismissed as a part of negotiated plea (comes from Arizona since 2005).
Clarify that prosecutors must notify victims of decision not to proceed with prosecution. (Source: Arizona since 1992.)
Clarify time in which victim should receive notice of appeal pursuant to 2930.15.
Clarify time frames for notice of escape or release pursuant to 2930.16.
Clarify that victims have the right to receive notice of probation revocation.
Clarify that victims have the right to notice prior to pardon.
Clarify that victims should not be punished by employers for attending hearings to exercise their rights pursuant to 2930.18.