SC’s constitution contains a victim’s bill of rights, intended to ensure crime victims are heard, they are informed, and they have a voice in the criminal justice system.
This is only one of many safeguards that are in place in SC to ensure that law enforcement and prosecutors do not lose sight of who they are protecting in victim cases, and every police department, court, and solicitor’s office should have a victim’s advocate available who can help you through the process.
Although prosecutors represent the state of SC and they do not represent the crime victim, alleged victims should be heard and should never feel like they are being ignored.
In this article, we will cover some basic information for victims of crime in SC, including:
- What the Victim’s Bill of Rights is and where to find it,
- Who is considered a victim for purposes of the Victim’s Bill of Rights,
- How to enforce your rights as a victim of a crime, and
- A very brief overview of the critical stages of a criminal case from the perspective of an alleged victim.
What is the SC Victim’s Bill of Rights?
The SC Victim’s Bill of Rights was added to SC’s constitution in the 1980s and is found in Article I, Section 24. The enumerated rights clarify that a crime victim has the right to:
(1) be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal and juvenile justice process, and informed of the victim’s constitutional rights, provided by statute;
(2) be reasonably informed when the accused or convicted person is arrested, released from custody, or has escaped;
(3) be informed of and present at any criminal proceedings which are dispositive of the charges where the defendant has the right to be present;
(4) be reasonably informed of and be allowed to submit either a written or oral statement at all hearings affecting bond or bail;
(5) be heard at any proceeding involving a post-arrest release decision, a plea, or sentencing;
(6) be reasonably protected from the accused or persons acting on his behalf throughout the criminal justice process;
(7) confer with the prosecution, after the crime against the victim has been charged, before the trial or before any disposition and informed of the disposition;
(8) have reasonable access after the conclusion of the criminal investigation to all documents relating to the crime against the victim before trial;
(9) receive prompt and full restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury, including both adult and juvenile offenders;
(10) be informed of any proceeding when any post-conviction action is being considered, and be present at any post-conviction hearing involving a post-conviction release decision;
(11) a reasonable disposition and prompt and final conclusion of the case; and
(12) have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims’ rights and have these rules subject to amendment or repeal by the legislature to ensure protection of these rights.
These are constitutional rights that can be enforced by a crime victim when necessary, and they are intended to guarantee that a crime victim will be heard, notified, protected, and treated with dignity and respect in every criminal case.
Who is Considered a Victim?
The SC Victim’s Bill of Rights defines the term “victim” as:
…a person who suffers direct or threatened physical, psychological, or financial harm as the result of the commission or attempted commission of a crime against him. The term “victim” also includes the person’s spouse, parent, child, or lawful representative of a crime victim who is deceased, who is a minor or who is incompetent or who was a homicide victim or who is physically or psychologically incapacitated.
Note that the definition includes more than the individual who was directly harmed, and could include:
- A victim’s spouse,
- A victim’s parent,
- A victim’s child, or
- A lawful representative of a deceased victim, minor, or person who is incapacitated.
How Can You Enforce Your Rights as a Victim?
Although the Victim’s Bill of Rights does not create a civil cause of action (you can’t sue the police or prosecutor for violating your rights as a victim), you can file a court action asking for a “writ of mandamus.”
If granted, it would result in a circuit court judge or SC Supreme Court justice issuing an order requiring the police or prosecutor (or any state official) to comply with the Victim’s Bill of Rights, and, if they do not comply, they could be held in contempt of court.
Critical Stages of a Criminal Case for Victims
For many crime victims who have never been involved in the criminal justice system before, it is a confusing and frustrating process. Despite the inclusion of a Victim’s Bill of Rights in our state constitution, crime victims often complain that they are ignored by police or prosecutors, that they are not heard, and that they don’t understand the criminal justice process.
There are some critical stages in every criminal case where crime victims have a constitutional right to be present, to be notified, or to be heard, including:
- Investigation: When law enforcement is investigating a crime that was committed against you, you have the right to be informed of the status of the investigation, and you should be notified when any property is recovered or when a suspect has been arrested.
- Arrest: When a suspect has been arrested, you should be notified.
- Bond hearings: You have the right to be notified of any bond hearings (which will usually happen within 24 hours of an arrest), you have the right to be heard at the bond hearing, and you have the right to “be reasonably protected” which means you can ask the court to 1) set a high bond if the defendant is dangerous and 2) issue a no-contact order as a condition of the defendant’s bond.
- Roll call and initial appearances: After their arrest, defendants in General Sessions Court will be given roll call or “appearance” dates. Although you may be notified by the solicitor’s office of the roll call dates, there is no need for you to appear on these days, and these appearances are usually not dispositive of the defendant’s case.
- Preliminary hearings: Defendants in General Sessions Court have the right to a preliminary hearing where a magistrate judge will hear testimony from the officer and decide whether there is probable cause for the case to go forward. You should be notified of the preliminary hearing date, and you have the right to attend this hearing, but the court will not ask you to speak before determining probable cause (unless the prosecutor calls you as a witness, which would be unusual in a preliminary hearing).
- Pretrial hearings: In some cases, the court will schedule hearings to decide pretrial motions like motions to exclude evidence or to compel discovery materials. You should be notified of these hearings, and you have the right to attend them, but you will ordinarily not be asked to speak at a pretrial hearing unless the prosecutor needs your testimony.
- Guilty pleas: In many cases, the defendant will accept a plea offer from the prosecutor or plead guilty without an offer or recommendation from the prosecutor. The prosecutor should consult with you before making a plea offer, and, although they are not required to follow your instructions, they should consider your position before deciding on a plea offer. You have the right to be notified of plea hearing dates, to be present at the guilty plea hearing, and to address the court before sentence is imposed.
- Trial: In some cases, a defendant will exercise their constitutional rights and ask for a trial by jury. You have the right to be notified of trial dates, to attend the trial, and to address the court at sentencing if the defendant is convicted. In many cases, the prosecutor will require you to testify at the defendant’s trial to help them prove their case.
- Restitution: If there is restitution that must be paid, you should ensure that the prosecutor is aware and has documentation of the restitution amount before sentencing, and then ask the court for restitution – restitution must be part of the court’s sentencing order when the defendant pleads guilty or is found guilty at trial.
- Restraining orders: If the defendant is convicted, whether it is a guilty plea or a conviction at trial, you have the right to ask the court for a restraining order to prevent the defendant from contacting you or your family in the future.
- Probation, parole, appeals, and release from prison: After a defendant is sentenced, you have the right to be notified when the defendant is released from custody, if their probation is revoked, if they are granted parole, or if they escape from custody.
Victim’s Rights Lawyers in Myrtle Beach, SC
All too often, South Carolina courts fail crime victims. If you feel that you need help navigating the criminal justice system and ensuring that your voice is heard, call a victim’s rights attorney at Coastal Law now at (843) 488-5000 or message us online for a free consultation about your case.
