Guide to Restitution/Compensation in Sexual Assault Cases
Contents:
I. Community resources for sexual assault victims
II. Crime Victims’ Services Division of the State of Oregon Department of Justice
III. The Sexual Assault Victims’ Emergency Medical Response Fund (SAVE) for adult and child victims
IV. Restitution in criminal cases prosecuted in state court
V. Restitution in criminal cases prosecuted in federal court
VI. Suing the assailant civilly
I. Community resources for sexual assault victims
A. Emergency contraception
Under Oregon law, a hospital that is providing care to a female sexual-assault victim must provide her with unbiased, medically and factually accurate written and oral information about emergency contraception and her option to receive such emergency contraception at the hospital. If the victim requests such emergency contraception and it is not medically contraindicated, the hospital must provide it to the victim immediately. The statute does not bar the hospital from charging for this required service.
B. Other community resources
Oregon law also requires other individuals or entities to assist the victim with sexual-assault related issues.
For example, an employer may be required to allow a victim to take leave from work to attend a criminal proceeding involving his or her case. ORS 659A.192. An employer also may be required to allow a victim of domestic violence, sexual assault or stalking, or the parent of such a victim, to take reasonable leave to get help from law enforcement and/or an attorney; medical treatment, counseling or victims’ services or to move or to make the victim’s home more safe. ORS 659A.285.
The state may not disqualify a victim of domestic violence, sexual assault or stalking from receiving unemployment benefits if the victim has no reasonably available alternative to leaving work to protect the victim or a minor child. ORS 657.176(12).
A victim of domestic violence, sexual assault or stalking may terminate a rental agreement with 14 days notice if he or she does so within 90 days of the crime, or may require his or her landlord to change the locks on the victim’s residence. ORS 90.453, ORS 90.459.
II. Crime Victims’ Services Division of the State of Oregon Department of Justice
A. The Crime Victims’ Compensation Program
i. Introduction
Since 1978, Oregon has had a Crime Victims’ Compensation Program to help victims of sexual assaults and other violent crimes, or the survivors of homicide victims, with their financial losses. It is administered by the Crime Victims’ Services Division of the Oregon Department of Justice. The program gets the money to compensate victims from a federal Victims of Crime Act (VOCA) grant; assessments and restitution in criminal cases; subrogation of crime-related money that victims receive from other sources and punitive-damage awards in civil cases. It is not funded through state general funds.
ii. Qualifying for the program
In order to qualify for compensation by this program, the victim must meet all of the following criteria:
A victim of a “compensable crime” is eligible for:
A survivor of a deceased victim of a “compensable crime” is eligible for:
NOTES: Compensation expires three years after the date the program has processed the application and entered an order allowing compensation. No payments will be made on claims for adult victims after that time unless the victim suffered catastrophic injuries, and no payments will be made on claims for adult survivors after that time.
Claims for child victims remain open until the age of 21 or for three years from the date of the order, whichever is longer, unless the victim suffered catastrophic injuries. Child survivors of deceased victims are eligible for counseling until they turn 21 and for loss-of-support benefits until they turn 18, or until they turn 21 if they can show that they still attend college or university.
A victim, the survivor of a victim and/or the victim’s dependents cannot receive compensation for all kinds of expenses in excess of $44,000 if the application was submitted prior to Jan. 1, 2010. The maximum, for applications submitted after that date, is $47,000.
iv. Expenses not covered by the program
Applications for Crime Victims' Compensation Program benefits are processed by the Crime Victims' Services Division of the Oregon Department of Justice.
A separate application must be filed for each victim. If the victim is a minor or is mentally incompetent, the person who files the application on his or her behalf must be an adult and be responsible for the victim’s welfare.
A copy of Oregon's crime victim compensation claim application can be downloaded from or obtained by calling or writing the program at:
Crime Victims' Compensation Program
Oregon Department of Justice
1162 Court St. NE
Salem, Oregon 97301-4096
Telephone (503) 378-5348
TDD (503) 378-5938
FAX (503) 378-5738
Applications also are available from victim-assistance programs based in district attorneys’ offices: however, all completed applications should be mailed to the Crime Victims’ Compensation Program.
After an application is received, the program processes it by obtaining police reports; medical reports; verification of the victim’s employment (when applicable) and any other necessary information.
If the victim, or the victim’s survivor, has other benefits that may cover his or her crime-related expenses (e.g., private insurance, the Oregon Health Plan, Medicaid or Medicare), those benefits must be billed before the Crime Victims’ Compensation Program will consider the same expenses for payment. If the victim, or the victim’s survivor, later gets payment from any other source for expenses that the program has paid, the victim or the victim’s survivor must repay the program those amounts.
The Crime Victims' Compensation Program advises the applicant of its decision in writing. This notification usually is made within 90 days of the date the application was received.
III. The Sexual Assault Victims’ Emergency Medical Response Fund (SAVE) for adult and child victims
In 2003, at the request of the Oregon Attorney General’s Sexual Assault Task Force, the Legislature[1]created the Sexual Assault Victims’ Emergency Medical Response Fund (SAVE). The fund is comprised of dollars from the Oregon Department of Justice’s Criminal Injuries Compensation Account; federal funds and private donations. It contains no general revenue funds.
This fund ensures that medical assessments are available to every sexual-assault victim in the state, regardless of ability to pay. Sexual-assault victims who go to hospitals or clinics receive medical care and, if requested, medications to prevent sexually transmitted diseases and/or pregnancy.
In 2007, this legislation was amended[2] to make the same services available to victims regardless of whether they choose to report their assaults to law enforcement at or near the time of the assaults. The new law was designed to aid in the preservation of valuable forensic evidence while providing victims with the option of having evidence collected now and coming forward later to report having been sexually assaulted.
Under the current law, the fund pays for a “complete medical assessment,” which includes a medical examination and the collection of forensic evidence. A complete medical assessment must be conducted within 84 hours of the assault. The forensic evidence is collected using the Oregon State Police Sexual Assault Forensic Evidence (SAFE) Kit. At the victim’s request, the kit may be labeled in a way that protects the victim’s identity if he or she is unsure whether he or she wants to report the assault to law enforcement. A law-enforcement officer then collects the SAFE Kit from the medical staff to preserve the evidentiary chain of custody in case a criminal case is brought against the assailant.
At the victim’s request, the fund pays the hospital or clinic for collecting this evidence, and no law-enforcement agency is billed for these costs.
The fund also pays for a “partial medical assessment,” which does not include the collection of forensic evidence and which must be conducted within seven days of the assault.
The fund does not cover the cost of treatment for any assault-related injuries. The creation of this fund also did not make changes to the child-abuse medical-assessment statutes, which remain the same.
A. Child-abuse assessments
A child-abuse assessment consists of a physical examination and interview of a child under 18 where sexual or physical abuse has been alleged.
A Crime Victims’ Compensation Program claim which has been denied will cover the medical-assessment examination even in cases of unsubstantiated child sexual or physical abuse.
IV. Restitution in criminal cases prosecuted in state court
Under Oregon state law, defendants generally must be ordered to pay restitution to victims of sexual assaults and/or all other crimes, or survivors of homicide victims, to help with their financial losses.
Information concerning restitution is collected by and presented to the court by the district attorney’s office. The court then orders the defendant to pay restitution as part of his or her sentence. In most cases, payment of the restitution becomes a condition of probation or post-prison supervision.
Unfortunately, actually collecting restitution has proven to be difficult, in many if not most cases, for various reasons.
A. Qualifying for restitution
In order to qualify for restitution in a criminal case prosecuted in state court, the victim must establish that he or she was the person against whom the crime was committed or who otherwise suffered economic damages as a result of the crime.
B. Economic damages for which restitution may be sought
A victim may receive restitution for “objectively verifiable monetary losses.” These include, but are not limited to:
C. Damages for which restitution may not be sought
D. Seeking restitution
i. What the district attorney should do
When a defendant is convicted of a crime or a “violation,” the district attorney is required, by statute, to investigate and present to the court, prior to sentencing, evidence of the nature and amount of the victim’s damages.
Unfortunately, this does not always happen.
In a recent sample study[3] of restitution in 210 cases in four Oregon counties[4], the Oregon Secretary of State concluded that in 99 of the cases, no restitution was ordered even though the victim had suffered an economic loss.[5] In one-third of these cases, the victim had failed to provide the documentation that the district attorney had requested. However, in the other two-thirds of the cases, the district attorney did not take the necessary steps to obtain the information or had the information but did not ask the court to order restitution.
ii. What the victim should do
iii. What the court must do
If the court finds, from the evidence presented by the district attorney, that the victim has suffered economic damages, the court must do one of the following:
E. Compensatory fines in criminal cases prosecuted in state court
A victim, or the survivor of a victim, whose case is prosecuted in state court and who has economic damages also is eligible to have the court order the defendant to pay him or her a compensatory fine.
The purpose of a compensatory fine is to punish the defendant for his or her criminal conduct.
One advantage, to the victim, of a compensatory fine is that every dollar the defendant pays to the court towards his financial obligations is applied to that fine until it is paid in full. Amounts received towards other court-ordered obligations, including restitution and fees, are divided evenly between those obligations until each has been paid in full. For this reason, some victims and some district attorneys seek compensatory fines in lieu of the full amount of restitution.
The maximum amounts of compensatory fines that can be ordered are:
The defendant’s ability to pay a compensatory fine is a factor that the court must take into consideration.
F. Collecting restitution and compensatory fines
Under current Oregon law, criminal judgments that include restitution and/or compensatory fines are good for 50 years, and cannot be discharged by the defendant in bankruptcy. However, victims cannot sue, on their own, to enforce these judgments.
Monitoring whether the defendant actually pays the restitution and/or compensatory fine that was ordered is up to:
Penalizing the defendant for failing to pay restitution is up to the judge.
V. Restitution in criminal cases prosecuted in federal court
Under some circumstances (e.g., human trafficking, interstate kidnapping), the victim of a sexual assault, or his or her survivor in the case of sexual-assault homicides, may find the case being prosecuted in a federal court. These courts also are known as U.S. District Courts.
Cases prosecuted in U.S. District Courts are handled by the U.S. Department of Justice. That department has three offices in Oregon: a main district office in Portland and branch offices in Eugene and Medford.
Victims, or the survivors of victims, of crimes that are prosecuted in federal court may be eligible for crime victims’ compensation. They also may be eligible for restitution: the federal Crime Victims’ Rights Act of 2004 includes the right to “full and timely restitution as provided in law.”
Information about federal compensation or restitution is available from the U.S. Attorney’s Office in Portland, telephone (503) 727-1000, e-mail and online.
VI. Suing the assailant civilly
Regardless of the outcome of the criminal prosecution in state or federal court, or even if there was no prosecution, a sexual-assault victim, or the survivors of a sexual-assault homicide, can file a civil lawsuit against the offender and/or other responsible parties. These other parties may include the offender’s employer (e.g., a church) or the owner of the property where the assault occurred (e.g., a university). The ability to sue a well-heeled third party increases the likelihood that a private attorney will be interested in taking the case and that the victim, or his or her survivor, will receive compensation.
Unlike the criminal-justice system, the civil-justice system does not attempt to determine whether an offender is guilty or not guilty. Instead, a lawsuit is filed in civil court for the purpose of determining whether an offender, and/or a third party, is liable for the victim’s injuries.
If the defendant in a civil lawsuit is found liable, the court may order him, her and/or it (in the case of a non-person defendant, like a church or university) to pay monetary damages to the victim. These damages may include economic damages; non-economic damages for pain and suffering and/or emotional distress and, in some cases, additional damages for the purpose of punishing the defendant (called “punitive” damages).
In a civil lawsuit, the victim, or victim’s survivor, has control over the case (versus the prosecutor in a criminal case). The standard of proof is lower than it is in a criminal case. And the victim can take action to enforce the judgment obtained in a civil suit (unlike a judgment for restitution and/or a compensatory fine in a criminal case, which only can be enforced by the State or its agents).
Sources of referrals to attorneys who handle such cases include the following:
National Crime Victim Bar Association [6]
(800) FYI-CALL 8:30 a.m.-5:30 p.m.(EST) Monday-Friday
[email protected]
www.victimsofcrime.org
National Alliance of Victims’ Rights Attorneys (NAVRA) [7]
310 SW 4th Ave., Suite 540
Portland, OR 97204
(503) 768-6819
[email protected]
www.navra.org
If you need additional legal counsel the Oregon State Bar Lawyer Referral Service may be able to help match you with an appropriate legal representative. For more information please call toll-free in Oregon at 1-800-452-7636.
[1] Senate Bill 752.
[2] House Bill 2154.
[3] “Ordering Restitution for Victims,” Oregon Secretary of State audit report, January 2010.
[4] Coos, Deschutes, Marion and Multnomah
[5] In over one-half of the cases, the study concluded that restitution was not needed, i.e., because stolen property had been recovered and returned to the victim.
[6] The National Crime Victim Bar Association provides victims with referrals to local attorneys who specialize in victim-related litigation. Some of the description of civil suits in this handout was adapted from its web site.
[7] NAVRA is a national bar association of attorneys representing crime victims in criminal proceedings. NAVRA is a project of National Crime Victim Law Institute.
Contents:
I. Community resources for sexual assault victims
II. Crime Victims’ Services Division of the State of Oregon Department of Justice
III. The Sexual Assault Victims’ Emergency Medical Response Fund (SAVE) for adult and child victims
IV. Restitution in criminal cases prosecuted in state court
V. Restitution in criminal cases prosecuted in federal court
VI. Suing the assailant civilly
I. Community resources for sexual assault victims
A. Emergency contraception
Under Oregon law, a hospital that is providing care to a female sexual-assault victim must provide her with unbiased, medically and factually accurate written and oral information about emergency contraception and her option to receive such emergency contraception at the hospital. If the victim requests such emergency contraception and it is not medically contraindicated, the hospital must provide it to the victim immediately. The statute does not bar the hospital from charging for this required service.
B. Other community resources
Oregon law also requires other individuals or entities to assist the victim with sexual-assault related issues.
For example, an employer may be required to allow a victim to take leave from work to attend a criminal proceeding involving his or her case. ORS 659A.192. An employer also may be required to allow a victim of domestic violence, sexual assault or stalking, or the parent of such a victim, to take reasonable leave to get help from law enforcement and/or an attorney; medical treatment, counseling or victims’ services or to move or to make the victim’s home more safe. ORS 659A.285.
The state may not disqualify a victim of domestic violence, sexual assault or stalking from receiving unemployment benefits if the victim has no reasonably available alternative to leaving work to protect the victim or a minor child. ORS 657.176(12).
A victim of domestic violence, sexual assault or stalking may terminate a rental agreement with 14 days notice if he or she does so within 90 days of the crime, or may require his or her landlord to change the locks on the victim’s residence. ORS 90.453, ORS 90.459.
II. Crime Victims’ Services Division of the State of Oregon Department of Justice
A. The Crime Victims’ Compensation Program
i. Introduction
Since 1978, Oregon has had a Crime Victims’ Compensation Program to help victims of sexual assaults and other violent crimes, or the survivors of homicide victims, with their financial losses. It is administered by the Crime Victims’ Services Division of the Oregon Department of Justice. The program gets the money to compensate victims from a federal Victims of Crime Act (VOCA) grant; assessments and restitution in criminal cases; subrogation of crime-related money that victims receive from other sources and punitive-damage awards in civil cases. It is not funded through state general funds.
ii. Qualifying for the program
In order to qualify for compensation by this program, the victim must meet all of the following criteria:
- He or she was injured (or is the survivor of someone who was killed) in Oregon. (If the crime occurred in another state, go to this website for a link to that state.)
- His or her physical and/or emotional injuries (or the person’s death) were the result of a "compensable crime." This means that they were not the result of an accident but were the fault of another person. The other person does not have to be actually charged with, or convicted of a crime, but his or her conduct has to have been something that could be charged as a crime.
- He or she was not involved in a wrongful act; did not provoke his or her assailant and/or otherwise did not contribute to his or her injury or death.
- He or she reported the crime to the appropriate law enforcement agency within 72 hours. The program may waive this time limit for “good cause.”
- He or she applied for compensation within 12 months of the crime being committed. The program may waive this time limit for “good cause.”
- He or she is willing to “cooperate fully” to apprehend and prosecute the assailant.
A victim of a “compensable crime” is eligible for:
- “Reasonable” medical and hospital expenses, including psychiatric, psychological or counseling expenses, up to $20,000. “Medical” expenses can include expenses for physicians, hospitals, eyeglasses, hearing aids, dentures and other medically necessary expenses and devices. In cases involving sex crimes against children, “counseling expenses” can include counseling expenses for the victim’s family. In cases involving domestic violence, “counseling expenses” can include counseling expenses for children who witnessed the violence.
- Documented loss of earnings/support, up to $400/week, with a maximum benefit of $20,000.
- Rehabilitation, up to $4,000.
- Transportation for crime-related medical care and mental-health counseling, but only under certain circumstances, up to $3,000.
A survivor of a deceased victim of a “compensable crime” is eligible for:
- Reasonable funeral expenses, up to $5,000.
- Reasonable medical and hospital expenses, up to $20,000. (Medical expenses are those expenses incurred by the deceased victim for which the claimant is responsible.)
- Documented loss of support to the victim’s dependents, up to $400/week, with a maximum benefit of $20,000. The family is required to apply for Social Security benefits.
- Reasonable grief counseling expenses, up to $20,000.
- Transportation for mental-health counseling, but only under certain circumstances, up to $3,000.
NOTES: Compensation expires three years after the date the program has processed the application and entered an order allowing compensation. No payments will be made on claims for adult victims after that time unless the victim suffered catastrophic injuries, and no payments will be made on claims for adult survivors after that time.
Claims for child victims remain open until the age of 21 or for three years from the date of the order, whichever is longer, unless the victim suffered catastrophic injuries. Child survivors of deceased victims are eligible for counseling until they turn 21 and for loss-of-support benefits until they turn 18, or until they turn 21 if they can show that they still attend college or university.
A victim, the survivor of a victim and/or the victim’s dependents cannot receive compensation for all kinds of expenses in excess of $44,000 if the application was submitted prior to Jan. 1, 2010. The maximum, for applications submitted after that date, is $47,000.
iv. Expenses not covered by the program
- Compensation for pain and suffering.
- Losses resulting from property crimes, such as thefts or burglaries.
- Losses resulting from accidents.
Applications for Crime Victims' Compensation Program benefits are processed by the Crime Victims' Services Division of the Oregon Department of Justice.
A separate application must be filed for each victim. If the victim is a minor or is mentally incompetent, the person who files the application on his or her behalf must be an adult and be responsible for the victim’s welfare.
A copy of Oregon's crime victim compensation claim application can be downloaded from or obtained by calling or writing the program at:
Crime Victims' Compensation Program
Oregon Department of Justice
1162 Court St. NE
Salem, Oregon 97301-4096
Telephone (503) 378-5348
TDD (503) 378-5938
FAX (503) 378-5738
Applications also are available from victim-assistance programs based in district attorneys’ offices: however, all completed applications should be mailed to the Crime Victims’ Compensation Program.
After an application is received, the program processes it by obtaining police reports; medical reports; verification of the victim’s employment (when applicable) and any other necessary information.
If the victim, or the victim’s survivor, has other benefits that may cover his or her crime-related expenses (e.g., private insurance, the Oregon Health Plan, Medicaid or Medicare), those benefits must be billed before the Crime Victims’ Compensation Program will consider the same expenses for payment. If the victim, or the victim’s survivor, later gets payment from any other source for expenses that the program has paid, the victim or the victim’s survivor must repay the program those amounts.
The Crime Victims' Compensation Program advises the applicant of its decision in writing. This notification usually is made within 90 days of the date the application was received.
III. The Sexual Assault Victims’ Emergency Medical Response Fund (SAVE) for adult and child victims
In 2003, at the request of the Oregon Attorney General’s Sexual Assault Task Force, the Legislature[1]created the Sexual Assault Victims’ Emergency Medical Response Fund (SAVE). The fund is comprised of dollars from the Oregon Department of Justice’s Criminal Injuries Compensation Account; federal funds and private donations. It contains no general revenue funds.
This fund ensures that medical assessments are available to every sexual-assault victim in the state, regardless of ability to pay. Sexual-assault victims who go to hospitals or clinics receive medical care and, if requested, medications to prevent sexually transmitted diseases and/or pregnancy.
In 2007, this legislation was amended[2] to make the same services available to victims regardless of whether they choose to report their assaults to law enforcement at or near the time of the assaults. The new law was designed to aid in the preservation of valuable forensic evidence while providing victims with the option of having evidence collected now and coming forward later to report having been sexually assaulted.
Under the current law, the fund pays for a “complete medical assessment,” which includes a medical examination and the collection of forensic evidence. A complete medical assessment must be conducted within 84 hours of the assault. The forensic evidence is collected using the Oregon State Police Sexual Assault Forensic Evidence (SAFE) Kit. At the victim’s request, the kit may be labeled in a way that protects the victim’s identity if he or she is unsure whether he or she wants to report the assault to law enforcement. A law-enforcement officer then collects the SAFE Kit from the medical staff to preserve the evidentiary chain of custody in case a criminal case is brought against the assailant.
At the victim’s request, the fund pays the hospital or clinic for collecting this evidence, and no law-enforcement agency is billed for these costs.
The fund also pays for a “partial medical assessment,” which does not include the collection of forensic evidence and which must be conducted within seven days of the assault.
The fund does not cover the cost of treatment for any assault-related injuries. The creation of this fund also did not make changes to the child-abuse medical-assessment statutes, which remain the same.
A. Child-abuse assessments
A child-abuse assessment consists of a physical examination and interview of a child under 18 where sexual or physical abuse has been alleged.
A Crime Victims’ Compensation Program claim which has been denied will cover the medical-assessment examination even in cases of unsubstantiated child sexual or physical abuse.
IV. Restitution in criminal cases prosecuted in state court
Under Oregon state law, defendants generally must be ordered to pay restitution to victims of sexual assaults and/or all other crimes, or survivors of homicide victims, to help with their financial losses.
Information concerning restitution is collected by and presented to the court by the district attorney’s office. The court then orders the defendant to pay restitution as part of his or her sentence. In most cases, payment of the restitution becomes a condition of probation or post-prison supervision.
Unfortunately, actually collecting restitution has proven to be difficult, in many if not most cases, for various reasons.
A. Qualifying for restitution
In order to qualify for restitution in a criminal case prosecuted in state court, the victim must establish that he or she was the person against whom the crime was committed or who otherwise suffered economic damages as a result of the crime.
B. Economic damages for which restitution may be sought
A victim may receive restitution for “objectively verifiable monetary losses.” These include, but are not limited to:
- Reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health-care services.
- Burial and memorial expenses.
- Loss of income and past impairment of earning capacity.
- Reasonable and necessary expenses incurred for substitute domestic services.
- Recurring loss to the victim’s estate.
- Damage to reputation that is economically verifiable.
- Reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or replacement of damaged property, whichever is less.
- In cases involving involuntary servitude or human trafficking, the value, to the defendant, of the victim’s services.
C. Damages for which restitution may not be sought
- Future impairment of earning capacity
D. Seeking restitution
i. What the district attorney should do
When a defendant is convicted of a crime or a “violation,” the district attorney is required, by statute, to investigate and present to the court, prior to sentencing, evidence of the nature and amount of the victim’s damages.
Unfortunately, this does not always happen.
In a recent sample study[3] of restitution in 210 cases in four Oregon counties[4], the Oregon Secretary of State concluded that in 99 of the cases, no restitution was ordered even though the victim had suffered an economic loss.[5] In one-third of these cases, the victim had failed to provide the documentation that the district attorney had requested. However, in the other two-thirds of the cases, the district attorney did not take the necessary steps to obtain the information or had the information but did not ask the court to order restitution.
ii. What the victim should do
- Request his or her rights as a crime victim. Although restitution is not a right which must be specifically requested, requesting all of a victim’s rights alerts the district attorney’s office that the victim is informed and interested in the outcome of his or her case. A form for requesting these rights should be provided to the victim by the district attorney’s office; if not, it can be downloaded from the Oregon Department of Justice. Most district attorneys’ offices have victims' advocates available to assist victims with requesting their rights and completing this form.
- Determine who at the district attorney’s office is responsible for helping to prepare the victim’s claim for restitution. (If the victim has not been contacted by the district attorney's office, he or she should call and ask who this appropriate person is.)
- Ask his or her contact at the district attorney’s office if the victim has any questions about whether restitution can be ordered for a specific expense.
- Provide the restitution information to the district attorney’s office with as much documentation to support the claimed expenses as possible (e.g., invoices for medical and other health-care services). Most district attorneys’ offices have a restitution form that victims can complete or use as a guide for collecting and documenting their losses. If the victim expects to have ongoing expenses (e.g., counseling), and/or doesn’t want the defendant to know from whom he or she is receiving services, the victim should ask his or her victim advocate how to address those issues. Include the defendant's name and, if known, the district attorney's file number and/or the court’s case number. Keep a copy of whatever information is provided to the district attorney's office.
- Victims may be represented by an attorney to help assert or enforce any of their rights, including the right to restitution. If the restitution amount is unusually large or there are unusual legal or factual issues involved, for example, a victim may consider obtaining a victims’ rights attorney to work on the issue. The Oregon Crime Victims Law Center provides victims with no-cost legal representation or can refer victims to other attorneys who represent victims.
- If possible, attend the sentencing hearing. The victim may need to testify if the judge has questions about the restitution that is being requested. If the victim plans to provide a victim impact statement, he or she should include the impact of the financial loss and the importance of restitution being ordered and paid promptly.
- If the defendant disputes the victim’s claimed restitution amount, the court may schedule a restitution hearing. The victim should attend this hearing and contact the district attorney's office for assistance with preparing for the hearing.
- If the victim is unable to provide the district attorney's office with the required information prior to the sentencing hearing, the district attorney may ask the court for up to 90 days for the victim to gather this information. The victim should notify the district attorney's office, prior to the sentencing hearing, if he or she requires more time to gather the information.
- If the victim chooses to waive his or her right to restitution because he or she does not want restitution, he or she must provide the district attorney's office with a written acknowledgement that he or she is aware of the right to restitution; has decided to not seek restitution and the reason for that decision.
iii. What the court must do
If the court finds, from the evidence presented by the district attorney, that the victim has suffered economic damages, the court must do one of the following:
- Order the defendant to pay restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court.
- Order the defendant to pay restitution in a specific amount to be determined by the court within 90 days of the entry of the sentencing judgment. (This time period may be extended for “good cause.”)
- Order the defendant to pay restitution in a specific amount that is less than the full amount of the victim’s economic damages if the crime was a “person felony” and if the victim consents in writing.
- The defendant’s ability to pay restitution is not a factor that the court is allowed to take into consideration in setting the amount of restitution. However, it is a factor in whether the defendant must pay the restitution in full immediately. The burden of proving that the defendant lacks the ability to pay restitution in full immediately is on the defendant. If the defendant establishes, to the satisfaction of the court, that he or she is unable to pay restitution in full immediately, the court may establish, or allow the court clerk’s office or the defendant’s probation or parole officer to establish, a payment schedule. This payment schedule must take into account both the defendant’s financial resources and other financial obligations.
E. Compensatory fines in criminal cases prosecuted in state court
A victim, or the survivor of a victim, whose case is prosecuted in state court and who has economic damages also is eligible to have the court order the defendant to pay him or her a compensatory fine.
The purpose of a compensatory fine is to punish the defendant for his or her criminal conduct.
One advantage, to the victim, of a compensatory fine is that every dollar the defendant pays to the court towards his financial obligations is applied to that fine until it is paid in full. Amounts received towards other court-ordered obligations, including restitution and fees, are divided evenly between those obligations until each has been paid in full. For this reason, some victims and some district attorneys seek compensatory fines in lieu of the full amount of restitution.
The maximum amounts of compensatory fines that can be ordered are:
- For murder or aggravated murder, $500,000
- For Class A felonies, $375,000
- For Class B felonies, $250,000
- For Class C felonies, $125,000
- For Class A misdemeanors, $6,250
- For Class B misdemeanors, $2,500
- For Class C misdemeanors, $1,250
The defendant’s ability to pay a compensatory fine is a factor that the court must take into consideration.
F. Collecting restitution and compensatory fines
Under current Oregon law, criminal judgments that include restitution and/or compensatory fines are good for 50 years, and cannot be discharged by the defendant in bankruptcy. However, victims cannot sue, on their own, to enforce these judgments.
Monitoring whether the defendant actually pays the restitution and/or compensatory fine that was ordered is up to:
- the defendant’s parole officer, if the defendant has been sentenced to prison and is now released;
- the defendant’s probation officer, if the defendant has been sentenced to jail and is now released;
- the defendant’s probation officer, if the defendant was not sentenced to either prison or jail time; or
- the sentencing judge, if the defendant is on probation to the judge (called “bench probation”) instead of to a probation officer (called “formal” or “supervised” probation).
Penalizing the defendant for failing to pay restitution is up to the judge.
V. Restitution in criminal cases prosecuted in federal court
Under some circumstances (e.g., human trafficking, interstate kidnapping), the victim of a sexual assault, or his or her survivor in the case of sexual-assault homicides, may find the case being prosecuted in a federal court. These courts also are known as U.S. District Courts.
Cases prosecuted in U.S. District Courts are handled by the U.S. Department of Justice. That department has three offices in Oregon: a main district office in Portland and branch offices in Eugene and Medford.
Victims, or the survivors of victims, of crimes that are prosecuted in federal court may be eligible for crime victims’ compensation. They also may be eligible for restitution: the federal Crime Victims’ Rights Act of 2004 includes the right to “full and timely restitution as provided in law.”
Information about federal compensation or restitution is available from the U.S. Attorney’s Office in Portland, telephone (503) 727-1000, e-mail and online.
VI. Suing the assailant civilly
Regardless of the outcome of the criminal prosecution in state or federal court, or even if there was no prosecution, a sexual-assault victim, or the survivors of a sexual-assault homicide, can file a civil lawsuit against the offender and/or other responsible parties. These other parties may include the offender’s employer (e.g., a church) or the owner of the property where the assault occurred (e.g., a university). The ability to sue a well-heeled third party increases the likelihood that a private attorney will be interested in taking the case and that the victim, or his or her survivor, will receive compensation.
Unlike the criminal-justice system, the civil-justice system does not attempt to determine whether an offender is guilty or not guilty. Instead, a lawsuit is filed in civil court for the purpose of determining whether an offender, and/or a third party, is liable for the victim’s injuries.
If the defendant in a civil lawsuit is found liable, the court may order him, her and/or it (in the case of a non-person defendant, like a church or university) to pay monetary damages to the victim. These damages may include economic damages; non-economic damages for pain and suffering and/or emotional distress and, in some cases, additional damages for the purpose of punishing the defendant (called “punitive” damages).
In a civil lawsuit, the victim, or victim’s survivor, has control over the case (versus the prosecutor in a criminal case). The standard of proof is lower than it is in a criminal case. And the victim can take action to enforce the judgment obtained in a civil suit (unlike a judgment for restitution and/or a compensatory fine in a criminal case, which only can be enforced by the State or its agents).
Sources of referrals to attorneys who handle such cases include the following:
National Crime Victim Bar Association [6]
(800) FYI-CALL 8:30 a.m.-5:30 p.m.(EST) Monday-Friday
[email protected]
www.victimsofcrime.org
National Alliance of Victims’ Rights Attorneys (NAVRA) [7]
310 SW 4th Ave., Suite 540
Portland, OR 97204
(503) 768-6819
[email protected]
www.navra.org
If you need additional legal counsel the Oregon State Bar Lawyer Referral Service may be able to help match you with an appropriate legal representative. For more information please call toll-free in Oregon at 1-800-452-7636.
[1] Senate Bill 752.
[2] House Bill 2154.
[3] “Ordering Restitution for Victims,” Oregon Secretary of State audit report, January 2010.
[4] Coos, Deschutes, Marion and Multnomah
[5] In over one-half of the cases, the study concluded that restitution was not needed, i.e., because stolen property had been recovered and returned to the victim.
[6] The National Crime Victim Bar Association provides victims with referrals to local attorneys who specialize in victim-related litigation. Some of the description of civil suits in this handout was adapted from its web site.
[7] NAVRA is a national bar association of attorneys representing crime victims in criminal proceedings. NAVRA is a project of National Crime Victim Law Institute.
All information on this page is educational and is intended for informational purposes only. This list is not all-inclusive and is not intended to be legal advice, nor does it substitute for legal advice. If you have questions please contact our office.