AS Title 12, Chapter 61: Rights of Victims; Protection of Victims and Witnesses

Article 1. Rights and Duties. Chapter 61. Rights of Victims; Protection of Victims and Witnesses. Sec. 12.61.010. Rights of crime victims. (a) Victims of crimes have the following rights: (1) the right to be present during any proceeding in (A) the prosecution and sentencing of a defendant if the defendant has the right to be present, including being present during testimony even if the victim is likely to be called as a witness; (B) the adjudication of a minor as provided under AS 47.12.110 ; (2) the right to be notified by the appropriate law enforcement agency or the prosecuting attorney of any request for a continuance that may substantially delay the prosecution and of the date of trial, sentencing, including a proceeding before a three-judge panel under AS 12.55.175 , an appeal, and any hearing in which the defendant's release from custody is considered; (3) the right to be notified that a sentencing hearing or a court proceeding to which the victim has been subpoenaed will not occur as scheduled; (4) the right to receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts and to be provided with information as to the protection available; (5) the right to be notified of the procedure to be followed to apply for and receive any compensation under AS 18.67 ; (6) at the request of the prosecution or a law enforcement agency, the right to cooperate with the criminal justice process without loss of pay and other employee benefits except as authorized by AS 12.61.017 and without interference in any form by the employer of the victim of crime; (7) the right to obtain access to immediate medical assistance and not to be detained for an unreasonable length of time by a law enforcement agency before having medical assistance administered; however, an employee of the law enforcement agency may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the questioning does not hinder the administration of medical assistance; (8) the right to make a written or oral statement for use in preparation of the presentence report of a felony defendant; (9) the right to appear personally at the defendant's sentencing hearing to present a written statement and to give sworn testimony or an unsworn oral presentation; (10) the right to be informed by the prosecuting attorney, at any time after the defendant's conviction, about the complete record of the defendant's convictions; (11) the right to notice under AS 12.47.095 concerning the status of the defendant found not guilty by reason of insanity; (12) the right to notice under AS 33.16.087 of a hearing concerning special medical parole of the defendant; (13) the right to notice under AS 33.16.120 of a hearing to consider or review discretionary parole of the defendant; (14) the right to notice under AS 33.30.013 of the release or escape of the defendant; and (15) the right to be notified orally and in writing of and receive information about the office of victims' rights from the law enforcement officer initially investigating the crime and from the prosecuting attorney assigned to the offense; at a minimum, the information provided must include the address, telephone number, and Internet address of the office of victims' rights; this paragraph (A) applies only to victims of felonies and to victims of class A misdemeanors if the class A misdemeanor is a crime involving domestic violence or a crime against a person under AS 11.41 ; if the victim is an unemancipated minor, the law enforcement officer and the prosecuting attorney shall also provide the notice required by this paragraph to the parent or guardian of the minor; (B) is satisfied if, at the time of initial contact with the crime victim, the investigating officer and prosecuting attorney each give each crime victim a brochure or other written material prepared by the office of victims' rights and provided to law enforcement agencies for that purpose. (b) Law enforcement agencies, prosecutors, corrections agencies, social services agencies, and the courts shall make every reasonable effort to ensure that victims of crimes have the rights set out in (a) of this section. However, a failure to ensure these rights does not give rise to a separate cause of action against law enforcement agencies, other agencies of the state, or a political subdivision of the state. Sec. 12.61.015. Duties of prosecuting attorney. (a) If a victim of a felony, a sex offense as defined in AS 12.63.100 , or a crime involving domestic violence requests, the prosecuting attorney shall make a reasonable effort to (1) confer with the person against whom the offense has been perpetrated about that person's testimony before the defendant's trial; (2) in a manner reasonably calculated to give prompt actual notice, notify the victim (A) of the defendant's conviction and the crimes of which the defendant was convicted; (B) of the victim's right in a case that is a felony to make a written or oral statement for use in preparation of the defendant's presentence report, and of the victim's right to appear personally at the defendant's sentencing hearing to present a written statement and to give sworn testimony or an unsworn oral presentation; (C) of the address and telephone number of the office that will prepare the presentence report; and (D) of the time and place of the sentencing proceeding; (3) notify the victim in writing of the final disposition of the case within 30 days after final disposition of the case; (4) confer with the victim or the victim's legal guardian concerning a proposed plea agreement before entering into the plea agreement to ask the victim or the victim's legal guardian whether the victim is in agreement with the proposed plea agreement; the prosecuting attorney shall record whether the victim or the victim's legal guardian is in agreement with the proposed plea agreement; (5) inform the victim of a pending motion that may substantially delay the prosecution and inform the court of the victim's position on the motion; in this paragraph, a “substantial delay” is (A) for a misdemeanor, a delay of one month or longer; (B) for a felony, a delay of two months or longer; and (C) for an appeal, a delay of six months or longer. (b) The notice given under (a)(2) of this section must inform the victim that the statement, sworn testimony, or unsworn oral presentation of the victim may contain any relevant information including (1) an explanation of the nature and extent of physical, psychological, or emotional harm or trauma suffered by the victim; (2) an explanation of the extent of economic loss or property damage suffered by the victim; (3) an opinion of the need for and extent of restitution and whether the victim has applied for or received compensation for loss or damage; and (4) the recommendation of the victim for an appropriate sentence. (c) The state and the prosecuting attorney may not be held liable in damages for any failure to comply with the requirements of this section. (d) The court may reschedule a hearing to consider a plea agreement as needed to allow additional time to comply with the victim notification requirements under (a)(2) and (4) of this section. (e) Nothing in this section requires a victim or a victim's legal guardian to provide a response to a prosecuting attorney regarding a plea agreement or requires the prosecuting attorney to be bound by the victim's or legal guardian's response regarding the plea agreement. (f) The prosecuting attorney shall notify a victim of a sex offense as defined in AS 12.63.100 or crime involving domestic violence as defined in AS 18.66.990 if, before trial, the offender of the victim is discharged from a treatment program for noncompliance. Sec. 12.61.016. Duties of agency investigating a sexual offense. A law enforcement agency investigating an offense under AS 11.41.410 - 11.41.470 may not disclose information related to the investigation to an employer of the victim unless (1) the victim expressly permits the disclosure; or (2) the agency determines the disclosure is necessary to investigate or prevent a crime. Sec. 12.61.017. Interference by victim's employer. (a) An employer may not penalize or threaten to penalize a victim of an offense because the victim (1) is subpoenaed or requested by the prosecuting attorney to attend a court proceeding for the purpose of giving testimony; or (2) reports the offense to a law enforcement agency or participates in the investigation of the offense by a law enforcement agency. (b) A person who violates (a) of this section is guilty of a violation. (c) A victim who suffers a pecuniary loss as a result of an employer's act prohibited by this section may bring a civil action to recover actual damages and punitive damages of three times the actual damages sustained. (d) In this section, “penalize” means to take action affecting the employment status, wages, and benefits payable to the victim, including (1) demotion or suspension; (2) dismissal from employment; and (3) loss of pay or benefits, except pay and benefits that are directly attributable to the victim's absence from employment to (A) attend the court proceeding; (B) report the offense to a law enforcement agency; (C) participate in a law enforcement agency investigation of the offense. Sec. 12.61.020. Money received as the result of the commission of a crime. (a) Every person contracting with an offender with respect to the reenactment of the offender's crime by way of a movie, book, magazine article, radio or television presentation, or live entertainment of any kind, or to the expression of the offender's thoughts, feelings, opinions, or emotions regarding the crime, shall pay to the state any money that would otherwise be owing to the offender. (b) A claim by a victim arising out of an order of restitution under AS 12.55.045 , or a judgment in a civil action against an offender for damages resulting from a crime is a superior claim for money that would otherwise be paid to the state under (a) of this section. (c) Notwithstanding other statutory limitations, a civil action by a victim against an offender for damages resulting from the commission of the crime must be commenced within 10 years of the date of the crime or the date of the discovery of the perpetrator of the crime if the perpetrator is unknown on the date of the commission of the crime. (d) For the purposes of this section, if the offender has not been convicted, proof of the commission of a crime must be established by a preponderance of the evidence. (e) In this section (1) “offender” means a person who has committed a crime in this state, whether or not the person has been convicted of the crime, or that person's representative or assignee. (2) [Repealed, § 25 ch 59 SLA 1989.] Sec. 12.61.030. Designation of representative. If more than one person who qualifies as a victim under AS 12.55.185 makes a request under AS 12.61.010 — 12.61.030, the prosecuting attorney shall designate one person for purposes of receiving the notice required and exercising the rights granted under AS 12.61.010 — 12.61.030. Sec. 12.61.050. Automated victim notification system. (a) The Department of Corrections shall establish an automated victim notification system that automatically provides crime victims with notice by telephone when there is a change in the status of their offender. The system must also allow crime victims to initiate telephone calls to the system to receive the latest status report for their offender. An automated victim notification system established under this section satisfies the duty of a state agency to notify a crime victim of the change in status of an offender. The failure of a system to provide notice to a crime victim does not give rise to a separate cause of action by the crime victim against the state, an agency of the state, or a municipality, or the officers, employees, or contractors of the state, agency of the state, or municipality. (b) Each department and each municipality shall cooperate with the Department of Corrections in establishing and maintaining an automated victim notification system required under this section. (c) Through the automated victim notification system established in (a) of this section, the Department of Corrections shall notify a victim of a sex offense as defined in AS 12.63.100 or a crime involving domestic violence as defined in AS 18.66.990 of the option to request a protective order under AS 18.65.850 or AS 18.66.100 and provide contact information for state victim resources, including the Council on Domestic Violence and Sexual Assault, the Alaska Network on Domestic Violence and Sexual Assault, the office of victims' rights, and the Violent Crimes Compensation Board. This notification must occur when the offender of the victim is released from incarceration or when the order under AS 12.55.015 (k) expires, whichever is later. Article 2. Victim and Witness Information Confidentiality. Sec. 12.61.100. Declaration of purpose. The purpose of AS 12.61.100 — 12.61.150 is to protect victims of and witnesses to crime from risk of harassment, intimidation, and unwarranted invasion of privacy by prohibiting the unnecessary disclosure of their addresses and telephone numbers. Sec. 12.61.110. Confidentiality of victim and witness addresses and telephone numbers. The residence and business addresses and telephone numbers of a victim of a crime or witness to a crime are confidential. A report, paper, picture, photograph, court file, or other document that relates to a crime and contains the residence or business address or telephone number of a victim or witness, and that is in the custody or possession of a public officer or employee, may not be made available for public inspection unless the residence and business addresses and telephone numbers of all victims and witnesses have been deleted. Sec. 12.61.120. Disclosure to defense; contacts with victims and witnesses. (a) The prosecution in a criminal case may not be required to furnish to the defendant personally the address or telephone number of a victim or witness absent a showing of good cause as determined by the court. Except as provided in (b) of this section, good cause exists when the defendant is proceeding without counsel. When a defendant is represented by counsel, the address and telephone number of a victim or witness may be disclosed to the defendant's counsel, but the court shall order the defendant's counsel to not disclose the information to the defendant. (b) If the defendant is proceeding without counsel in a case involving a charged violation of AS 11.41 , AS 11.46.300 — 11.46.330, AS 11.56.740 , 11.56.807, 11.56.810, AS 11.61.190 — 11.61.210, or a crime involving domestic violence and the court finds that the defendant may pose a continuing threat to the victim of or witness to the offense charged, the court shall protect the address and telephone number of the victim or witness by providing the information only to a person specified by the court or by imposing other restrictions that the court considers necessary. When an address or telephone number is released to a person specified by the court under this subsection, that person, who shall be ordered not to disclose the information to the defendant, shall contact the victim or witness on behalf of the defendant, and the defendant shall meet or speak with the victim or witness only in the presence of that person. (c) If a defendant or a person acting on behalf of a defendant contacts the victim of an offense with which the defendant is or could be charged, the person shall clearly inform the victim (1) of the person's identity and specific association with the defendant; (2) that the victim does not have to talk to the person unless the victim wishes; and (3) that the victim may have a prosecuting attorney or other person present during an interview. (d) If a defendant or a person acting on behalf of a defendant wishes to make a recording of statements of the victim of an offense with which the defendant is or could be charged in this or another jurisdiction, or of a witness, the person shall, before recording begins, obtain the consent of the victim or witness to record the statement by clearly informing the victim or witness (1) of the information set out in (c) of this section, (2) that the statement will be recorded if the victim or witness consents, and (3) that the victim or witness may obtain a transcript or other copy of the recorded statement upon request. When recording begins, the person making the recording shall indicate in the recording that the victim or witness has been informed as required by this subsection, and the victim or witness shall state in the recording that consent of the victim or witness to the recording has been given. (e) If a victim or witness requests a transcript or other copy of a recorded statement taken under (d) of this section, the defense shall prepare the transcript or other copy and provide it to the person whose statement was recorded. (f) In this section, “recording” means capturing a statement of a person, whether by magnetic tape or other electronic or electromagnetic means. Sec. 12.61.125. Victims and witnesses of sexual offenses. (a) The defendant accused of a sexual offense, the defendant's counsel, or an investigator or other person acting on behalf of the defendant, may not (1) notwithstanding AS 12.61.120 , contact the victim of the offense or a witness to the offense if the victim or witness, or the parent or guardian of the victim or witness if the victim or witness is a minor, has informed the defendant or the defendant's counsel in writing or in person that the victim or witness does not wish to be contacted by the defense; a victim or witness who has not informed the defendant or the defendant's counsel in writing or in person that the victim does not wish to be contacted by the defense is entitled to rights as provided in AS 12.61.120 ; (2) obtain a statement from the victim of the offense or a witness to the offense, unless, (A) if the statement is taken as a recording, the recording is taken in compliance with AS 12.61.120 , and written authorization is first obtained from the victim or witness, or from the parent or guardian of the victim or witness if the victim or witness is a minor; the written authorization must state that the victim or witness is aware that there is no legal requirement that the victim or witness talk to the defense; or (B) if the statement is not taken as a recording, written authorization is first obtained from the victim or witness, or from the parent or guardian of the victim or witness if the victim or witness is a minor; the written authorization must state that the victim or witness is aware that there is no legal requirement that the victim or witness talk to the defense; a victim or witness making a statement under this subparagraph remains entitled to rights as provided in AS 12.61.120 . (b) A defendant who is the parent or guardian of a minor victim or witness may not provide the authorization required under (a) of the section. (c) If an attorney, or a person acting on behalf of the defendant for an attorney, violates this section, the court shall refer the violation to the Disciplinary Board of the Alaska Bar Association as a grievance. (d) In this section, (1) “recording” has the meaning given in AS 12.61.120 ; (2) “sexual offense” means a violation of AS 11.41.410 — 11.41.470. Sec. 12.61.127. Inadmissibility of statements taken in violation of AS 12.61.120 or 12.61.125. A statement obtained from a victim or witness in violation of AS 12.61.120 or 12.61.125 is presumed inadmissible in a prosecution of the defendant. To overcome the presumption of inadmissibility, the defendant must prove by clear and convincing evidence that (1) the statement is reliable; (2) similar evidence is unavailable from any other source; and (3) failure to introduce the statement would substantially undermine the reliability of the fact-finding process and result in manifest injustice. Sec. 12.61.130. Disclosure during court proceedings. (a) During a trial or hearing related to a criminal prosecution, the residence and business addresses and telephone numbers of a victim of or witness to the charged offense may not be disclosed in open court, and a victim or witness may not be required to provide the addresses or telephone numbers in response to questioning, unless the court determines that the information is necessary and relevant to the facts of the case. The burden to establish the need and relevance for disclosure is on the party seeking disclosure. Before ordering disclosure, the court shall take appropriate measures to minimize the risk of personal harm to the victim or witness that would result from the disclosure. (b) The address or telephone number of a victim of or witness to a charged offense may not be placed in the court file or court documents relating to that offense except when (1) the address is used to identify the place of the crime; or (2) the address or telephone number is contained in a transcript of a court proceeding and disclosure of the address or telephone number was ordered under (a) of this section. Sec. 12.61.140. Disclosure of victim's name. (a) The portion of the records of a court or law enforcement agency that contains the name of the victim of an offense under AS 11.41.300 (a)(1)(C) or 11.41.410 — 11.41.460 (1) shall be withheld from public inspection, except with the consent of the court in which the case is or would be prosecuted; and (2) is not a public record under AS 40.25.110 — 40.25.125. (b) In all written court records open to public inspection, the name of the victim of an offense under AS 11.41.300 (a)(1)(C) or 11.41.410 — 11.41.460 may not appear. Instead, the victim's initials shall be used. However, a sealed record containing the victim's name shall be kept by the court in order to ensure that a defendant is not charged twice for the same offense. Sec. 12.61.150. Public and media access. AS 12.61.100 — 12.61.150 may not be construed to require the court to exclude the public from any stage of the criminal proceeding or to interfere with the right of news media to report information lawfully obtained. Article 3. General Provisions. Sec. 12.61.900. Definitions. In this chapter, (1) “crime involving domestic violence” has the meaning given in AS 18.66.990 ; (2) “person acting on behalf of a defendant” includes the defendant's attorney, an agent of the defendant or the defendant's attorney, or a person specified by the court under AS 12.61.120 (b) or an agent of that person, but does not include the defendant; (3) “victim” has the meaning given in AS 12.55.185 ; (4) “witness” means a person contacted in connection with a criminal case because the person may have knowledge or information about the criminal case.