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Restitution and compensation for survivors

  • Legislation should provide that a survivor of female genital mutilation has the right to receive restitution as part of the criminal case against the offender if the offender is convicted. 
  • Legislation should provide for mechanisms of collection that the victim may easily use to collect the order for restitution from the perpetrator. 
  • Legislation should require that the court, or a person or agency designated by the court, such as a survivor advocate, should obtain an affidavit from the survivor describing the items or elements of financial loss, including monetary amounts and the reasons justifying the amounts so specified. 
  • Legislation should provide that the request for restitution may include out-of-pocket expenses resulting from the crime, such as medical, therapy, or mental health treatment costs, replacement of wages, tuition costs, relocation costs, cost of services lost due to the crime, funeral expenses, and other expenses not itemized but incurred as a result of the crime, including funds expended for participation in the legal process. 
  • Legislation should provide that an actual or prospective civil action involving the crime shall not be used by the court to deny the survivor’s right to obtain restitution as part of the criminal case. 
  • Legislation should also provide that a court may amend or issue an order for restitution at a later time if the true extent of the survivor’s loss was not known at the time of the hearing on the restitution request or at the time of disposition of the case. 
  • Legislation should also provide for victim compensation or a reparation fund that operates separate from court ordered restitution that does not rely on a criminal conviction. 
  • Legislation may invest a Crime Reparations Board with the authority to request restitution on behalf of a survivor, and to collect the restitution ordered by the court and make payment directly to the survivor.
  • Legislation should provide for a third party to pursue a criminal complaint, restitution and/or reparations on behalf of a minor child with court permission or appointment of a guardian ad litem. Protocols should be in place to ensure any award the child receives is protected and used on her behalf. 
  • Legislation should allow a victim to pursue a criminal complaint, restitution and/or reparations after she reaches the age of majority. See: Office of the United Nations High Commissioner for Human Rights, Summary of the Human Rights Council panel discussion on the theme of remedies for women subjected to violence: Report of the Office of the United Nations High Commissioner for Human Rights (2012). This  report sets forth some general principles, challenges, and promising practices, in providing effective, prompt, just, transformative, and culturally sensitive reparations for women who have been subjected to violence in different contexts. The following summary of points made during the panel discussion may guide creation of reparations programs: 
    • It is the obligation of States to ensure that women victims of violence have full access to justice, including reparations.
    • Reparations encompass compensation, restitution, rehabilitation, measures of satisfaction, and guarantees of non-repetition.
    • Victims must be adequately informed of their rights to reparations.
    • The reparation process should ”allow for women and girls to come forward when they are ready and the registration process should take into account obstacles women may face if displacement is necessary or other costs are implicated.” 
    • The reparation process “must not expose women to further harm, stigmatization and ostracism and should take into account their safety and best interest at all times, including by ensuring confidentiality and avoiding public disclosure of violations suffered.”
    • The reparation process should ensure eligibility standards for reparations are inclusive, avoid re-victimization, and are aware of obstacles and challenges victims of certain crimes may face.
    • The reparation process should ensure meaningful participation by the victim in the design and delivery of reparations.
    • Generic compensation schemes that do not have a requirement of prosecution or conviction provide a positive avenue through which women who experience violence can claim compensation. This is especially significant given the low number of convictions in various areas.
    • Remedies and reparations programs should also be created in post-conflict settings.
    • In traditional and informal justice processes care should be taken to monitor customary dispute-resolution mechanisms as well as differences in outcomes that exist between decisions at the formal judicial level and the non-formal process that fail to protect women’s rights.
    • In developing reparation policies and programs, there is a call for “substantive participation of women who have been subjected to violence and civil society actors, such as women’s groups and community leaders, alongside men and boys, to ensure a holistic concept of remedies and reparations.”
    • Effort should be made to ensure remedies and reparations “are specific to individual circumstances and culture in order to prevent discrimination, stigmatization, and re-victimization of victims of violence.”

For general information about Remedies and Reparations also see Introduction and Guiding Principles Section of this Virtual Knowledge Asset. 

 

Promising Practice:  United States, Minnesota – Restitution and Reparations

 A victim of certain violent crimes in Minnesota is eligible to receive court ordered restitution or federal and state funded reparations. The Minnesota legislature created a Crime Victims Reparations Board in 1974 to help victims of violent crime cope with the financial losses and expenses directly resulting from the crime. Whereas restitution is awarded by the court as part of the sentence for a guilty criminal conviction, reparation is not related to or dependent on the criminal case. Under Minnesota law, victims of certain violent crimes are entitled to reparations from the state regardless of whether the perpetrator is prosecuted, as long as the crime is reported to police in a timely fashion, a claim is filed with the Board and other requirements are met.  Individuals are eligible if they are a victim of certain violent crimes and the expense is not covered by any other source. The fund does not cover property loss or damage. If there is a criminal conviction at a later time, the Reparations Board may, in turn, pursue restitution from the perpetrator to cover the amount of reparation the Board had previously paid the victim. 

More information about the Reparations Board is available at the Minnesota Office of Justice Programs website.

More information on Restitution can be found in the Minnesota Statutes:

Minn Stat. 611A.04Order of Restitution:

Subdivision 1. Request; decision.

(a) A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding against the offender if the offender is convicted or found delinquent. The court, or a person or agency designated by the court, shall request information from the victim to determine the amount of restitution owed. The court or its designee shall obtain the information from the victim in affidavit form or by other competent evidence. Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property. A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including medical and therapy costs, replacement of wages and services, expenses incurred to return a child who was a victim of a crime under section 609.26 to the child's parents or lawful custodian, and funeral expenses. An actual or prospective civil action involving the alleged crime shall not be used by the court as a basis to deny a victim's right to obtain court-ordered restitution under this section. In order to be considered at the sentencing or dispositional hearing, all information regarding restitution must be received by the court administrator of the appropriate court at least three business days before the sentencing or dispositional hearing. The court administrator shall provide copies of this request to the prosecutor and the offender or the offender's attorney at least 24 hours before the sentencing or dispositional hearing. The issue of restitution is reserved or the sentencing or dispositional hearing or hearing on the restitution request may be continued if the victim's affidavit or other competent evidence submitted by the victim is not received in time. At the sentencing or dispositional hearing, the court shall give the offender an opportunity to respond to specific items of restitution and their dollar amounts in accordance with the procedures established in section 611A.045, subdivision 3.

(b) The court may amend or issue an order of restitution after the sentencing or dispositional hearing if:

(1) the offender is on probation, committed to the commissioner of corrections, or on supervised release;

(2) sufficient evidence of a right to restitution has been submitted; and

(3) the true extent of the victim's loss or the loss of the Crime Victims Reparations Board was not known at the time of the sentencing or dispositional hearing, or hearing on the restitution request.

If the court holds a hearing on the restitution request, the court must notify the offender, the offender's attorney, the victim, the prosecutor, and the Crime Victims Reparations Board at least five business days before the hearing. The court's restitution decision is governed by this section and section 611A.045.

(c) The court shall grant or deny restitution or partial restitution and shall state on the record its reasons for its decision on restitution if information relating to restitution has been presented. If the court grants partial restitution it shall also specify the full amount of restitution that may be docketed as a civil judgment under subdivision 3. The court may not require that the victim waive or otherwise forfeit any rights or causes of action as a condition of granting restitution or partial restitution. In the case of a defendant who is on probation, the court may not refuse to enforce an order for restitution solely on the grounds that the order has been docketed as a civil judgment.

Subd. 1a. Crime board request.

The Crime Victims Reparations Board may request restitution on behalf of a victim by filing a copy of orders of the board, if any, which detail any amounts paid by the board to the victim. The board may file the payment order with the court administrator or with the person or agency the court has designated to obtain information relating to restitution. The board shall submit the payment order not less than three business days after it is issued by the board. The court administrator shall provide copies of the payment order to the prosecutor and the offender or the offender's attorney within 48 hours of receiving it from the board or at least 24 hours before the sentencing or dispositional hearing, whichever is earlier. By operation of law, the issue of restitution is reserved if the payment order is not received at least three days before the sentencing or dispositional hearing. The filing of a payment order for reparations with the court administrator shall also serve as a request for restitution by the victim. The restitution requested by the board may be considered to be both on its own behalf and on behalf of the victim. If the board has not paid reparations to the victim or on the victim's behalf, restitution may be made directly to the victim. If the board has paid reparations to the victim or on the victim's behalf, the court shall order restitution payments to be made directly to the board.

Subd. 1b. Affidavit of disclosure.

An offender who has been ordered by the court to make restitution in an amount of $500 or more shall file an affidavit of financial disclosure with the correctional agency responsible for investigating the financial resources of the offender on request of the agency. The commissioner of corrections shall prescribe what financial information the affidavit must contain.

Subd. 2. Procedures.

The offender shall make restitution payments to the court administrator of the county, municipal, or district court of the county in which the restitution is to be paid. The court administrator shall disburse restitution in incremental payments and may not keep a restitution payment for longer than 30 days; except that the court administrator is not required to disburse a restitution payment that is under $10 unless the payment would fulfill the offender's restitution obligation. The court administrator shall keep records of the amount of restitution ordered in each case, any change made to the restitution order, and the amount of restitution actually paid by the offender. The court administrator shall forward the data collected to the state court administrator who shall compile the data and make it available to the Supreme Court and the legislature upon request.

Subd. 3. Effect of order for restitution.

An order of restitution may be enforced by any person named in the order to receive the restitution, or by the Crime Victims Reparations Board in the same manner as a judgment in a civil action. Any order for restitution in favor of a victim shall also operate as an order for restitution in favor of the Crime Victims Reparations Board, if the board has paid reparations to the victim or on the victim's behalf. Filing fees for docketing an order of restitution as a civil judgment are waived for any victim named in the restitution order. An order of restitution shall be docketed as a civil judgment, in the name of any person named in the order and in the name of the crime victims reparations board, by the court administrator of the district court in the county in which the order of restitution was entered. The court administrator also shall notify the commissioner of revenue of the restitution debt in the manner provided in chapter 270A, the Revenue Recapture Act. A juvenile court is not required to appoint a guardian ad litem for a juvenile offender before docketing a restitution order. Interest shall accrue on the unpaid balance of the judgment as provided in section 549.09. Whether the order of restitution has been docketed or not, it is a debt that is not dischargeable in bankruptcy. A decision for or against restitution in any criminal or juvenile proceeding is not a bar to any civil action by the victim or by the state pursuant to section 611A.61 against the offender. The offender shall be given credit, in any order for judgment in favor of a victim in a civil action, for any restitution paid to the victim for the same injuries for which the judgment is awarded.

Subd. 4. Payment of restitution.

When the court orders both the payment of restitution and the payment of a fine and the defendant does not pay the entire amount of court-ordered restitution and the fine at the same time, the court may order that all restitution shall be paid before the fine is paid.

Subd. 5. Unclaimed restitution payments.

Restitution payments held by the court for a victim that remain unclaimed by the victim for more than three years shall be deposited in the crime victims account created in section 611A.612.

At the time the deposit is made, the court shall record the name and last known address of the victim and the amount being deposited, and shall forward the data to the Crime Victims Reparations Board.

 

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