Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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v. The Right to HIV/STI Testing Survivors of some sexually violent crimes have the right to have the defendant tested for HIV and other sexually transmitted infections and diseases. The right applies where the defendant is charged with sexual assault (Tex. Penal Code § 22.011), aggravated sexual assault (Tex. Penal Code § 22.021), continuous sexual abuse of a child (Tex. Penal Code § 21.02), or indecency with a child by contact (Tex. Penal Code § 21.11(a)(1)). (p. 14, Offenses) Article 21.31 of the Code of Criminal Procedure provides that after a person is indicted for one of the offenses listed above, the victim may request that the defendant undergo testing. If the victim makes that request, the court must order the defendant to do so within 48 hours of the request. The judge can also choose to require the test without a request from the victim. In any event, the law requires the test results to go to the local health authority, which then must notify the victim of the results (Tex. Code Crim. Proc. Art. 21.31(a)). In addition, if the crime charged is “harassment by persons in certain secured correctional facilities” or “harassment of a public servant” (Tex. Penal Code § 22.11), the court will order testing for HIV and other diseases automatically. In the event the court cannot locate the defendant for testing, the 48-hour clock does not begin running until the defendant can be located. If the survivor fears the attacker may have a communicable disease, or if the survivor does not know, be sure to inform her or him of this right. It is not a very well-known law, and it is possible that no one else within the system will provide that information. 52
vi. Victim Impact Statement Functions After indictment, (p. 46, Charging Process) all victims of sexual assault, or their close relatives if they are deceased, have the right to provide a detailed account of the emotional, physical, psychological, and financial impacts that the sexual assault had on them. The right is guaranteed by Tex. Code Crim. Proc. Arts. 56.02(a)(13) and 56.03. The Victim Impact Statement (“VIS”) is one of the ways survivors can participate most directly in the justice system. The purpose of the VIS is to allow victims to lend a perspective on the crime that no one else can. The jury cannot consider the impact on the victim when determining whether the defendant is guilty, because they are limited to the evidence admitted during trial. However, officials will consider the VIS at three different times after a conviction: • Sentencing: The prosecutor will consider it when negotiating a plea bargain with the defendant, and the judge will consider the VIS when deciding on an appropriate sentence. (p. 55, Plea Bargaining) • Parole: If the attacker becomes eligible for parole, the VIS is one of the items the Board of Pardons and Paroles will consider when making its decision. (p. 65, Parole) • Criminal Record: The VIS also becomes part of the attacker’s record in prison or, if he or she is put under community supervision (probation), part of the record maintained by the community supervision officer. (p. 63, Community Supervision) In addition, one portion of the VIS form is also the survivor’s ticket to stay informed about parole and release proceedings during the attacker’s incarceration. If survivors would like to stay informed about those proceedings, they must complete the portion of the VIS form called the Confidential Information Sheet. Survivors may complete the Confidential Information Sheet without completing the rest of the VIS, but in that case officials will not learn about how the assault affected the survivor personally, which could benefit the perpetrator in later proceedings on his or her release from prison. Process Although the VIS usually does not come into play until after the prosecution—during sentencing and parole proceedings—the victim must submit it to the prosecutor’s office at the very beginning of the prosecution. Within 10 days after the defendant’s indictment, the Victim Assistance Coordinator from the prosecutor’s office should provide the victim with a VIS form to complete. Once the survivor completes the VIS form, she or he returns it to the Victim Assistance Coordinator, who then forwards it to the court (although the judge can only read the VIS if the defendant is convicted). It is very important to be completely truthful in the VIS, because if the defendant is convicted, he or she is allowed to present evidence during the sentencing phase to challenge its accuracy. 53
Page 1:
Sexual Assault Legal Advocacy Manua
Page 5: Table of Contents: 05 Manual Prefac
Page 8 and 9: 6 PART ONE: THE CRIMINAL JUSTICE PR
Page 10 and 11: i. Basic Procedure: Jurisdiction an
Page 12 and 13: ii. Substantive Law: The Texas Pena
Page 14 and 15: Defenses Defenses to Prosecution So
Page 16 and 17: iii. Sexual Assault and Related Off
Page 18 and 19: Indecency with a child, Tex. Penal
Page 20 and 21: Indecent exposure, Tex. Penal Code
Page 22 and 23: Possession or promotion of child po
Page 24 and 25: Prostitution, Tex. Penal Code § 43
Page 27 and 28: Crime Victims’ Rights Introductio
Page 29 and 30: Attorney Representation Enforcing c
Page 31: • The right to a private waiting
Page 35 and 36: The Criminal Investigation Introduc
Page 37 and 38: In addition, survivors can complete
Page 39 and 40: Legal Advocacy for Child Survivors
Page 41 and 42: iv. Medical Forensic Examinations W
Page 43 and 44: Not only are survivors entitled to
Page 45: The Role of the Legal Advocate in t
Page 48 and 49: i. The Charging Process and Prosecu
Page 50 and 51: The victim (or the victim’s guard
Page 52 and 53: ACP is available to victims of sexu
Page 56 and 57: If a survivor fails to include some
Page 58 and 59: ADVOCACY ACTION: The survivor has t
Page 60 and 61: ix. The Trial Preparation Thorough
Page 62 and 63: Preparing for Pretrial Litigation B
Page 64 and 65: x. Verdicts and Sentencing Criminal
Page 66 and 67: Under community supervision, the de
Page 68 and 69: xi. Appeals If the prosecutor succe
Page 71 and 72: Sex Offender Monitoring and Treatme
Page 73 and 74: What Does Registration Entail? Regi
Page 75 and 76: Restrictions on Internet Usage for
Page 77 and 78: In addition, regardless of level of
Page 79 and 80: ii. Civil Commitment The idea behin
Page 81 and 82: What Does Civil Commitment Entail?
Page 83: Bottom Line: The Role of the Legal
Page 86 and 87: i. Rights of Crime Victims’ in Ju
Page 88 and 89: ii. Pre-Adjudication Detention As n
Page 90 and 91: Informal Proceedings The consequenc
Page 92 and 93: The biggest difference between a ju
Page 94 and 95: The Process If the prosecutor wants
Page 96 and 97: 94 PART TWO: CIVIL LEGAL REMEDIES F
Page 98 and 99: General Civil Issues Almost every s
Page 100 and 101: Safety Sexual Assault Protective Or
Page 102 and 103: No-Contact Orders as Conditions of
Page 104 and 105:
If the survivor incurs any of the a
Page 106 and 107:
There are separate and slightly dif
Page 108 and 109:
Protections for Sexual Assault Surv
Page 110 and 111:
• Eviction of Perpetrator: Public
Page 112 and 113:
Initial Strategies The first two so
Page 114 and 115:
Title VII of the Civil Rights Act o
Page 116 and 117:
Americans with Disabilities Act The
Page 118 and 119:
Ripple Effects of Sexual Assault: E
Page 120 and 121:
Formal Disciplinary Action A formal
Page 122 and 123:
• Required Continuing Assistance
Page 124 and 125:
Texas Law: Protective Orders and St
Page 126 and 127:
Legal Remedies for Survivors of Sex
Page 128 and 129:
VAWA Self-Petitions For certain sur
Page 130 and 131:
Crime Reporting Mandatory Reporting
Page 132 and 133:
130
Page 134:
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Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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