broad it cou mean simple misbehavior (nothing illegal) or it could mean criminal wrongdoing

\

II

My comments are in

bold italics,

usually following a word that I underlined in the original text w ich raises concerns. -- NH

CONTRIBUTORY CONDUCT

NRS 217.180( ) provides: "In determining whether to make an order for compensation, the compensation officer shall consider the provocation, consent or any other behavior of the victim whi h directly or indirectly contributed to his injury or death, the prior case or social history, if any, of the victim, the need of the victim or his dependents for financial

aid and other r levant matters."

The intent of t ie Victims of Crime fund is to provide assistance to innocent victims of violent crimes or their dependents. Is

this a requirement of Nevada andlor federal

law?

Establishing '

i

nnocence" can be quite complicated; what does the term mean here?

Even our criminal justice system focuses on whether someone is guilty, not whether

they are innoc nt.

A victim does not need to be innocent of all misconduct, but only that which reasona ly caused or contributed to his injury.

The term "misconduct" is too

broad — it cou mean simple misbehavior (nothing

illegal) or it could

mean criminal

wrongdoing

(

;,mething illegal). It does not seem appropriate for "contributory

conduct" to b based on simple social misbehavior like yelling or rudeness. A better

term than m conduct might be criminal, or illegal, wrongdoing, assuming that

"contributory conduct" applies.

The contributory conduct must be the "proximate cause" of the injury.

This is a legal term used in torts. What definition applies, who

decides wheth r something meets that definition, and what training does that person

have on the ii eaning

of

this term? Such

conduct may be determined by the victim's actions immed ately before or during the crime. Claims must be denied if the victim:

(should be per iissive rather than mandatory language here)

1. Provok d

(this needs to be defined)

the defendant in a way that bodily harm to the vict m appeared likely;

2. Was in ured because his conduct was not that of a prudent person;

(this is also a

legal t rm used in tort law; what definition applies, who decides, etc. ?, as

identif1 d above)

3. Provok d the defendant by intending to harm him or where harm to the defendant would ccur;

(very confusing language; unclear what this means; how would

anyone know what the victim intended and whether that intention was

provok ng?)

4. Reques ed or accepted a challenge to 'a fight;

(how determined?

5. Was co nmitting a crime connected with the incident; or

6. Used fithting words or racial pejoratives;

(these terms are broad and undefined;

is

one reference enough, or should their use be linked to other provoking

behavi r? who decides what constitutes these terms or whether they warrant

denial fa claim?)

7. Was in rolved in illegal drug transactions, such as buying, selling or using drugs and th t activity was connected to the incident;

(how does this go with the

provisi

ns below re. sexual assault and domestic violence?)

8. Was cr minally prosecuted and found guilty for his actions. (Does

this include

convict on for a totally unrelated crime at an entirely different time?)

Adviso Commission on Admin. of Justice Exhibit pg of ate:

If a victim's pplication is denied for contributory conduct, any claims for secondary victims will a so be ineligible for benefits. However, a minor secondary victim of a domestic viole ce victim still be eligible, even if the direct victim was involved in the events lead ng to the domestic violence crime. What factors would be considered for awarding ben its to a minor secondary victim of a DV victim? What would it depend on? Also, are there minor secondary victims in non-DV incidents? Since this provision appiqrs to only apply in DV cases and this is the general section regarding contributory onduct, it seems like the provision should be go under Domestic Violence. Mo importantly, who and what would determine if a victim was or was not "involved" in the events leading to the domestic violence crime? By its nature, domestic viole ce involves both the perpetrator and the victim, and most incidents arise from some interaction or event (perceived or actual) that has occurred between the parties. However, "involvement" cannot mean the same thing as provocation, and in any event, the erpetrator should be solely accountable for his choice to use violence.

The term "in vo ved" is way too broad.

CONTRIBUTORY CONDUCT — MITIGATING FACTORS

Contributory c nduct may be mitigated in some circumstances. In cases where contributory conduct has been raised, the following mitigating factors may be considered: 1. The vict m suffered an injury that was significantly more serious that reasonably could h ve been expected as a result of his or her involvement in the events leading b the qualifying crime;

2. Another person involved in the events leading to the qualifying crime escalated his or her conduct in a manner not reasonably foreseeable by the victim or secondaiy victim; (this is a legal term in torts with the same questions as above) 3. A third arty interfered in a manner not reasonably foreseeable by the victim or

secondar victim. (This is a legal term in torts with the same questions as above.)

4. Where t e victim acted in self-defense . (How is this determined? Is it based on

standari applied in a criminal case? How would one know if it applied?)

CONTRIBUTO Y CONDUCT - SEXUAL ASSAULT CLAIMS

These policies r cognize that a victim's conduct can not be deemed to constitute consent to sexual assault. Injuries to the victim of sexual assault are presumed as a matter of policy. When considering contributory conduct standards related to sexual assault claims, the following fa tors will not be considered a reason for denying the claim:

1. mani1er er in which the victim was dressed at the time of the assault; 2. Where th victim was prior to the sexual assault;

3. The time of the sexual assault;

4. Whether he victim was or may have been under the influence of alcohol or drugs; (this is a welcome provision; however, how does it mesh with the earlier provision under Contributory Conduct?)

5. Whether he victim had a previous sexual relationship with the offender; 6. Whether he victim was married to the offender;

7. Wheth r the victim was dating the offender;

8. Whetherthe victim consented to prior sexual activity with the offender;

9. The oc upation of the victim;

10.Whethe the victim has a

record

of prior sexual assaults;

(wrong word; sounds crimin l; should be "history')

11.Whethe the victim has a criminal record;

12.Whethe the victim consented to the sexual act if the victim is below the

age

of

consent mentally defective, mentally incapacitated

or

physically helpless;

13.Whethe the victim continued to live with the offender after the assault; and

14.Whethe the victim has a familial relationship to the offender.

This section 4'oks like guidelines for denying claims rather than guidelines for granting claim. Where are the factors that will be considered? The overall tone here is negative an4 punitive. The fact that some of these even have to be listed suggests that training s ould be required for anyone reviewing and deciding these claims.

CON'TRIBUTgRY CONDUCT —DOMESTIC VIOLENCE

NRS 217.400 ncludes domestic violence as a

compensable

offense. Injuries to the

victims of dom stic violence are presumed

as

a matter of policy.

For domestic violence

cases an awa

y

must meet all other eligibility standards, including

the

standards on

contributory co

duct.

Why is it necessary to say this here? Don't all claims have to

meet the eligibility standards? If the idea is to distinguish domestic violence from

sexual assault, is it suggesting that no contributory conductstandards apply in sexual assault cases? Correspondingly, this says that contributory conduct standards apply,

but then identi es certain factors that will not be considered Seems poorly written and unclear. Coop

ration by the victim with the police

is

required before benefits will be

considered. W y is this mentioned here but not under sexual assault? How is cooperation det rmined? A successful prosecution? Showing up as a witness? What if the victim is ar ested as a material witness and appears because she is forced to? Since she appeared, i ould that count as cooperation?

Compensation Officers will consider it

a mitigating fa tor if a victim fails to cooperate at the initial time of the crime due to

being in fear fo their life, but agrees to cooperate before applying for benefits.

Benefits mayb

e

denied or limited based on prior incidents involving the same offender. This

provision refle is a lack of knowledge about the realities of domestic violence and patterns of no nal behavior when facing decisions about personal safety, safety of

minor childre , economic security, etc. The statement reveals the unfortunate propensity to bl me domestic violence victims for the crimes committed against them by their batterers.

When considers g contributory conduct standards related to domestic violence claims,

the following ia tors will not be considered a reason for denying the claim:

1. Whether the victim was or may have been under the influence of alcohol or drugs;

(again, his is a welcome provision, but, how does it mesh with the earlier provisio s under Contributory Conduct?)

2. Whether the victim has a criminal record;

3. Whether the victim continued to live with the offender after the assault; and

4. Whether the victim has a familial relationship to the offender.

Counseling mjy be provided for domestic violence victims, regardless of the history of prior incidents Minor children who witness domestic violence m ay have their own claim for

counseling. (When

is

this provided, and under what circumstances? Is it

something a v ctim can request, or

is

it something they are required to do?)

By not listing the other excluded factors identified under Sexual Assault, this section

implies that factors like time and place, state of dress, occupation, etc., can be

considered in domestic violence claims in determining whether there is contributory

conduct. Why would DV victims be subject to factors that don't apply to sexual assault

victims? This is one of the limitations of identifying factors that will not be considered,

rather than

fa^tors

that will In particular, there is no parallel for #10 under Sexual

Assault regar ing whether the victim has a history of being a victim of domestic

violence. A c4umant might be a previous victim of DV by another perpetrator - would

she be denied ecause of that prior crime against her? If the claimant continues to live

with the perp trator (as allowed under #3 above), will she be deemed to have been

"involved"? If not, what would be the basis for denying or limiting benefits based on

prior incident involving the same offender

(as

provided at the end of the first

paragraph un er Domestic Violence).

CONTRIBUTORY CONDUCT —PRESUMED INJURY CLAIMS

Certain crimes resulting in emotional or mental injuries only may be eligible for benefits through the Vi tims of Crime Program. The Compensation officer does not need to find physical injury or threat of injury if any of the following grimes have occurred:

1 ., Sexual ssault, NRS 200.366

2„ Domestic Violence, NRS 217.160 (d), NRS 217.220 (3), NRS 200.485

3„ Spousal Rape, NRS 217.050 (3), NRS 200.366, NRS 200.377

4.. Child use, endangerment, molestation, NRS 217.070 (3), NRS 432B.100, NRS

200.508, NRS 201.230

5. Incest, I4RS 201.180

6. Elder Abuse, NRS 217.070 (6), NRS 200.5099 7. Pornogr phy involving a minor, NRS 217.050 (2) 8. Human frafficking, NRS 247.050 (3), NRS 200.467 9. Stalkin , NRS 200.575, NRS 217.462 - NRS 217.471

10.An act f terrorism against a Nevada resident, NRS 217.035 (2), NRS 217.070 (7) When considering contributory conduct standards related to presumed injury claims, the following facto s will not be considered a reason for denying the claim:

1. Whethei the victim was or may have been under the influence of alcohol or drugs;

(a welt me provision, but, how does it mesh with the earlier provisions under

Contril4itoiy Conduct?)

2. Whethe the victim has a criminal record;

3. Whethe the victim continued to live with the offender after the assault; and 4. Whethe the victim has a familial relationship to the offender.

CONTRIBUT RY CONDUCT — CASES INVOLVING DRUGS AND/OR ALCOHOL Intoxication al ne is not a basis for the denial of benefits. However, alcohol and drug use can result in i rudent behavior. (This term is

like "misconduct"- broad and vague;

what is the definition, and

who

decides f the

behavior

meets the definition?)

In cases

where the vict m has a history of imprudent behavior resulting from alcohol or drug use, as evidenced ly more that one application for benefits where drugs and/or alcohol use was document d by first responders or medical providers, acceptance into the program may be conditi nal - requiring the victim to attend substance abuse counseling. (How will

evidence

of

dr g and/or alcohol use be evaluated? What kind

of

proof will be required,

and what pro ess is there for the victim

to

rebut such evidence?)

Failure to attend