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Legislation Expands The Definition Of A Child Victim

Legislation signed earlier this week by Gov. Andrew Cuomo could have been even tougher if Assemblyman Joe Giglio, R-Gowanda, had gotten his way during an April legislative debate.

A.7051/S.6353 amends state law to expand the definition of a child victim who suffers physical, mental or emotional injury, loss or damage as the result of any violation of Article 22 of the Executive Law committed against or witnessed by a child.

Before debate started on the legislation, Giglio attempted to add an amendment to the bill to create a new section in the state Penal Law to define what is to be considered a domestic violence crime when committed against a family member or a member of one’s household, and to provide that it should — should a person be found guilty of such crime in which the offense was committed in the presence of a child age 15 years or younger, such crime shall be considered a Class E felony, and any sentence imposed pursuant to that conviction shall be served consecutively with any other sentence imposed of the underlying offense.

Jeffrion Aubry, acting Assembly speaker, ruled on the amendment and found that it was not germaine to the legislation being discussed. Giglio appealed the decision and made his case on the floor.

“The amendment and the bill-in-chief are both aimed at protecting children who are victims and/or witnesses to the crimes,” Giglio said. ” The bill-in-chief clarifies existing provisions of Executive Law to ensure that child crime victims are eligible for crime victim awards in the same manner as any other crime victims, including when a child is a witness to a crime or violation, while the provisions added by the amendment seek to provide a further disincentive to criminal conduct not just against children, but committed in the presence of a child by increasing penalties associated therewith.”

Assemblyman Andrew Goodell, R-Jamestown, then rose to speak on behalf of Giglio’s proposed amendment. While the bill as proposed extended additional benefits from the Crime Victims’ Board to cover certain child victims, Goodell said Giglio’s amendment would add to the legislation by creating an enhanced crime to commit a crime in the presence of a child.

“The Crime Victims’ Board, all their awards are funded by fines and surcharges against criminals,” Goodell said. “The reason this bill is germane to the bill-in-chief is because this bill says, ‘If you commit a crime that’s witnessed by a child and you traumatize that child by doing the crime in front of that child, the fine you pay will go into the Crime Victims’ Compensation Fund and will be used to help the very child you traumatized. There’s nothing more germane than saying the criminal who commits a crime in front of a child and traumatizes that child should pay a higher penalty, and that penalty should be available to help the child. That’s why this bill is germane.”

The amendment was defeated, 93-53.

Goodell then went on to question Assemblyman Pat Burke, D-Buffalo, on the original legislation, which expands the definition of “child victim” to include victims less than 18 years old, who suffer physical, mental or emotional injury, loss or damage as a result of any violation committed against or witnessed by a child. Under previous law, a child must have been a victim of a crime in order to be eligible for crime-related expenses or assistance through the Office of Victim Services. This legislation ensures children who witness a violation committed against somebody else, but are not victims of the crime themselves, are eligible for compensation and assistance.

“So if they are under their parents’ insurance, they’re obviously covered under that,” Burke said. “But if they can’t get reimbursement from the perpetrator, they can’t get reimbursement for insurance, I don’t believe that, you know, the parent is then informally obligated to cover all those expenses out-of-pocket for their child if they’re the victim. That’s why we’re defining them as child victims. We don’t want to victimize the parents, too.”

Goodell and Giglio both ended up voting for the legislation on the Assembly floor. Goodell said he appreciated Burke’s intent to expand the definition of what is available for Crime Victims’ Compensation for children who are victims of crime or who witness crime, but was concerned that the legislation could begin awarding compensation for situations that aren’t actually crimes. According to its last filed annual report, the state Crime Victims’ Board denied 15 percent of claims made because the young people seeking compensation didn’t witness the crime, weren’t the victim of the crime and suffered no injury from the crime.

“It’s a violation, like harassment,” Goodell said. “And in addition to expanding it to include harassment, which is not a crime, we expand it to include to those who aren’t even a victim of the harassment, but merely observed the harassment. And that opens the door to potential claims when a student in school witnesses bullying — not the victim, but just witnesses it — or any other type of harassment. … I support the concept and appreciate my colleague’s concepts. At some point we need to be careful about how we’re expanding this to cover everything, because as you expand it to cover everything, the amount available for everyone else is simply not there. So I will be supporting it, but I do want to voice that cautionary word that we are expanding Crime Victims’ Compensation to include non-crimes to people who aren’t even the victim, and if we continue down this path, there won’t be funding available for the real victims of real crimes.”

OTHER LEGISLATION ALSO SIGNED

The governor also signed legislation establishing victim’s compensation against those who fail to obey or enforce an order of protection. The legislation passed the state Assembly, 129-12, with Goodell among the dozen who voted against the legislation.

The legislation re-enforces New York’s zero-tolerance policy for domestic violence by allowing victims of domestic violence to recover monetary and non-monetary damages from any defendant found liable by a court or jury, after a trial on the merits of the action, of failing to obey or enforce an order of protection. The legislation also gives victims the same access to any liable defendant for full compensation for serious psychological and social harm, not just for medical expenses and lost wages.

“This bill eliminates a loophole in the law which had domestic violence victims being responsible for some of their own damages, instead of the parties found responsible in court,” said Assemblywoman Helene Weinstein, D-Brooklyn. “I thank the governor for – again – standing up for domestic violence victims.”

Assemblyman Edward Ra, R-Franklin Square, made comments on the legislation explaning why some Assembly members were voting against the legislation.

“I think it is important, again, to point out that this doesn’t create liability where there is none and there is a pretty stringent standard for when there would be liability,” Ra said. “We’re not talking about particularly run-of-the-mill situations, but, I think there is a concern that has been raised on the municipal side of this equation with the fact that it’s likely going to be the abuser who is found most responsible and, you know, it could be 90%, 95% responsible and the municipality is maybe found 5% or 10% responsible, but then would be responsible for the full judgment. I think it makes sense that we’re trying to ensure that if the burden falls somewhere, that it doesn’t fall on the victim, but, you know, the municipality is going to be likely the deepest pocket to go after. And in a situation where there are no financial means to pay a judgment on the side of the abuser, when the abuser does not have the financial means to pay the judgment, the full weight of it is going to fall on the municipality. And I know that that is a concern that many organizations have raised and a reason why some of our colleagues will be voting in the negative.”

The final piece of domestic violence-related legislation signed earlier this week by Cuomo enacts victim compensation for unlawful surveillance crimes. The legislation passed the state Assembly 146-0 and expands the eligibility for victim compensation to crime victims who did not suffer a physical injury, but were victims of the crimes of first- or second-degree unlawful surveillance and first- or second-degree dissemination of an unlawful surveillance image. Under previous law, a victim must have been physically injured during a crime to be eligible for compensation, including loss of earnings; unreimbursed costs of security devices and mental health counseling; costs of residing at or utilizing services provided by shelters for battered spouses and children; and transportation expenses incurred for necessary court appearances in connection with the prosecution of the crime.

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