Vol. 10, No. 6, Pg. 26. Balancing the Scales: Victims' Rights in South Carolina's Justice System.

• Author: By the Hon. Marc H. Westbrook and Thad H. Westbrook

South Carolina Lawyer

1999.

Vol. 10, No. 6, Pg. 26.

Balancing the Scales: Victims' Rights in South Carolina's Justice System

26BALANCING THE SCALES: Victims' Rights in South Carolina's Justice SystemBy the Hon. Marc H. Westbrook and Thad H. WestbrookIn 1996 the South Carolina legislature cast a new actor in the drama known as the judicial system. This previously excluded actor is the victim of the crime-a participant whose presence is now acknowledged as essential to the process, a participant whose presence has revolutionized the criminal justice system and forever changed the process.

Through a series of constitutional amendments and statutory implementations, the General Assembly guaranteed that the voices of victims will always be prominent in the procedures of South Carolina courts. The purpose of this article is to review the impact of that legislation on the judicial system and to examine what it means for those who work in the system.

SOUTH CAROLINA VICTIMS' RIGHTS AMENDMENT

First, it is important to understand that the new law is not South Carolina's first effort to create rights for victims of crime. In 1984 the legislature adopted a series of statutes known as the Victim's and Witness's Bill of Rights, but these statutes were often overlooked or unenforced by state officials. Yet, many legislators and citizens still felt victims' rights deserved greater protection within the legal system and initiated a process that elevated those rights to constitutional status. This recent effort seeks "[t]o preserve and protect victims' rights to justice and due process." S.C. Const. Art. I, § 24.

The result was a constitutional amendment known as the South Carolina Victims' Rights Amendment (SCVRA). The SCVRA contains three main features: enumeration of guaranteed constitutional rights, a proviso barring civil causes of action against any public employee or entity and parameters for applying the provisions of the amendment.

Rights of South Carolina's Victims. The SCVRA contains an all-inclusive definition of a victim. S.C. Const. Art. I, § 24(C)(2). Victims are people who suffer "direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a crime against [them]." Id. A victim's spouse, parent, child or legal representative are also constitutionally protected victims. Id.

The SCVRA requires that victims "be treated with fairness, respect, and dignity." S.C. Const. Art. I, § 24(A)(1). State officials must give victims adequate information about victims' rights, protect victims from abuse and ensure a reasonable disposition and conclusion of victims' cases. Furthermore, they must inform victims fully about proceedings in the judicial process and allow the victim to appear or speak at these proceedings.

While the SCVRA creates a right to prompt and full restitution from the offender, it does not create a civil cause of action against state employees or agencies. A victim may enforce compliance only by petitioning the Supreme Court or a circuit court judge for a writ of mandamus.

IMPLEMENTATION STATUTES

To fully and practically implement the adoption of the SCVRA, the General Assembly enacted a number of accompanying statutes. S.C. Code Ann. §§ 14-1-206 to -208, 14-1-211, 16-3-1210, 16-3-1350, 16-3-1505 to -1565 (Law. Co-op. Supp. 1998). These statutes trigger the funding mechanisms for the SCVRA and detail a vast array of

28specific services that a victim should receive. The SCVRA and implementation statutes must be read together to understand South Carolina's victims' rights laws.

Overview. Lawyers working with victims in the justice system should understand that this new law pervades and alters every step of the criminal process. The foundation of the law is participation, and the four cornerstones of that foundation are notification, information, consultation, and indemnification and protection. But victims' advocates should also view it in a vertical sense, i.e., each phase builds on the one before. They must fulfill the...