STATE OF DELAWARE

TITLE 11

CHAPTER 90

§ 9001-9020

VIOLENT CRIMES COMPENSATION BOARD

(Contains all revisions through July, 2000)

TABLE OF CONTENTS

SECTION 9001. Declaration of Purpose

SECTION 9002. Definitions

SECTION 9003. Compensation Board

SECTION 9004. Functions of the Board

SECTION 9005. Administrative Provisions; Compensation

SECTION 9006. Denial of Claim; Reduction

SECTION 9007. Payment of Compensation

SECTION 9008. Form of Claim; Investigation

SECTION 9009. Attorney's Fees

SECTION 9010. Recovery from the Criminal

SECTION 9011. Assignment and Subrogation

SECTION 9012. Penalty Assessment

SECTION 9013. Annual Reports

SECTION 9014. Compensation Fine

SECTION 9015. Oath, Production of Witnesses and Records

SECTION 9016. Filing False Claim

SECTION 9017. Persons to whom Chapter Applicable

SECTION 9018. Conflict of Interest

SECTION 9019. Payment for Forensic Medical Examinations for Victims of sexual offense

SECTION 9020. Payment for Child Psychological Assessments and Short-term counseling

LAST UPDATE: JULY 21, 2000

VICTIMS OF CRIME
CHAPTER 90. COMPENSATION FOR INNOCENT VICTIMS OF CRIME

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9001. Declaration of Purpose

     The General Assembly hereby declares that it serves a public purpose, and is of benefit to the State, to indemnify those persons who are victims of crimes committed within the State, and it is therefore the declared purpose of this chapter to promote the public welfare by establishing a means of meeting the additional hardships imposed upon the innocent victims of certain crimes, and the families and dependents of those victims. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 1.)

     CHAPTER RECOGNIZES STATUTORY COMPENSATION - This Chapter is subtle recognition that although there is no personal duty between the State and a private citizen which guarantees protection from criminals, the harshness of the situation is best ameliorated by some form of statutory compensation, an idea not founded on traditional tort liability but out of moral consideration for the victim's of society's and government's inherent limitations. Biloon's Elec. Serv., Inc. v. City of Wilmington, Del. Super., 401A.2d 636 (1979), aff'd. Del. Supr., 417 A.2d 371 (1980).

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9002. Definitions

     The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them except where the context clearly indicates a different meaning:

(1) "Board" shall mean the Violent Crimes Compensation Board as established by this chapter.

(2) "Child" shall mean an unmarried person who is under 18 years of age, and shall include the stepchild, foster child or adopted child of the victim, or child conceived prior to, but born after, the personal injury or death of the victim.

(3) "Crime" for purposes of this chapter shall mean:
a. Any specific offense set forth in Chapter 5 of this title, if the offense was committed after July 1, 1973, and contains the characteristics of murder, rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, manslaughter, assault, kidnapping, arson, burglary, riot, robbery, unlawful use of explosives or unlawful use of firearms, stalking or endangering the welfare of a child;
b. Any specific offense set forth in former Chapter 3 of this title, if such offense was committed prior to July 1, 1973, and contains the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, robbery, riot, unlawful use of explosives or unlawful use of firearms;
c. Any specific offense occurring in another sate, possession or territory of the United States in which a person whose domicile is in Delaware is a victim, if the offense contains the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, riot, robbery, unlawful use of explosives or unlawful use of firearms as set forth in Chapter 5 of this title;
d. Any specific act of delinquency by a child, which if committed by an adult would constitute a specific offense set forth in Chapter 5 of this title, and contains the characteristics of murder, rape, unlawful sexual intercourse, unlawful sexual penetration, or unlawful sexual contact, manslaughter, assault, kidnapping, arson, burglary, robbery, riot, unlawful use of explosives or unlawful use of firearms;
e. An act of terrorism, as defined in § 2331 of Title 18, United States Code, [18 U.S.C. § 2331], committed outside the United States against a resident of this State; or
f. Driving under the influence of any alcohol or drug or driving with a prohibited blood alcohol concentration, or hit-and-run.

(4) "Dependent" shall mean a person wholly or substantially dependent upon the income of the victim at the time of victim's death, or would have been so dependent but for the incompetency of the victim due to the injury from which the death resulted, and shall include a child born after the death of such victim.

(5) "Guardian" shall mean any person, governmental instrumentality or private organization who is entitled by law or legal appointment to care for and manage the person or property, or both, of a child or incompetent.

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(6) "Incompetent" shall mean a person who is incapable of managing the person's own affairs, as determined by the Board or by a court of competent jurisdiction.

(7) "Personal injury" shall mean bodily harm, or extreme mental suffering, and shall include pregnancy of the victim.

(8) "Pecuniary loss" in instances of personal injury shall include medical expenses, including psychiatric care and mental health counseling of the victim or secondary victims; nonmedical remedial care and treatment rendered in accordance with a religious method of healing; hospital expenses; loss of past or future earnings (including, but not limited to, reimbursement for vacation, sick and compensatory time) because of a disability resulting from such personal injury. "Pecuniary loss" in instances of death of the victim shall include funeral and burial expenses, loss of support to the dependents of the victim and mental health counseling to secondary victims. "Pecuniary loss" includes any other expenses actually and necessarily incurred as a result of the personal injury or death, but it does not include property damage. Pecuniary loss includes, but is not limited to, the following:

(a) Crime scene cleanup not to exceed $1,000;
(b) Temporary housing not to exceed $1,500;
(c) Moving expenses not to exceed $1,000;
(d) Essential personal safety property not to exceed $1,500;
(e) Lost wages of parents or others charged with the care, custody or guardianship of a child victim while providing care to a child victim;
(f) Reasonable expenses, other than counseling, of secondary victims where the victim has been killed by the act of a person during the commission of a crime, as defined in this chapter, not to exceed $1,000;
(g) The deductible under a policy of automobile insurance where a motor vehicle is stolen in connection with a crime, as defined in this chapter, not to exceed the amount of the deductible;
(h) Childcare, security deposit and first month's rent, and used furniture costs, not to exceed $1,200 for victims of domestic violence who are leaving transitional housing;
(i) Loss of support for victims of domestic violence, not to exceed $3,000, when it is established that:

1. The offender is incarcerated as a result of a crime as defined in this chapter committed against the victim;
2. The offender is gainfully employed at the time of such crime; and
3. The victim is fully or partially dependent on the income of the incarcerated offender;

(j) Compensation for towing and impoundment expenses incurred as a direct result of a crime as defined in this chapter, and
(k) The cost to change locks and replace items seized as evidence.

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(9) "Victim" shall mean a person who is injured or killed by the act of any other person during the commission of a crime as defined in this chapter.

(10) "Secondary victims" shall mean any parent, stepparent, grandparent, son, daughter, spouse, sibling, halfsibling, fiancee, caretaker of the victim, any child who resides on a regular or semi-regular basis with any adult who is the victim of, or convicted of, any crime involving an act of domestic violence, the parents of a victim's spouse or any other person who resided in the victim's household at the time of the crime or at the time of the discovery of the crime. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 2; 66 Del. Laws, c. 262, § 1; 66 Del. Laws, c. 269, § 11; 67 Del. Laws, c. 71, § 1; 69 Del. Laws, c. 156, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 11, §§ 1, 2; 71 Del. Laws, c. 424, §§ 4, 6; 72 Del. Laws, c. 460, §§1-5, 19.)

Effect of amendments. - 66 Del. Laws, c. 262, effective June 8, 1988, added subdivision (3)c.

Effect of amendments. - 66 Del. Laws, c. 269, effective June 15, 1989, inserted "unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact", following "rape," in subdivision (3)a.

Reviser's note. - Section 3 of 69 Del. Laws, c. 156, provides: "The provisions of this act shall be applicable to pecuniary losses which result from crimes occurring on or after Jan. 1, 1992."

Effect of amendments. - 69 Del. Laws, c. 156, effective July 14, 1993, in (8) , inserted "and mental health counseling of the victim or secondary victims" in the first sentence and, in the second sentence, deleted "and" preceding "loss of support" and added "and mental health counseling to secondary victims"; and added (10).

Effects of amendments. - Amends 9002(5) changing the definition of guardian from meaning "a person" to meaning "a person, governmental instrumentality or private organization." Effective July 13, 1998.

Effects of amendments. - Amends 9002(10) to provide coverage for child victims who reside regularly or semi-regularly with a victim of domestic violence, or who resides on a regular or semi-regular basis with an individual convicted of any crime involving the act of domestic violence. Effective July 13, 1998.

Effect of amendments. - 71 Del. Laws, c. 11, effective Apr. 7, 1997, in (3), added "or" to the end of d., and added e.

Effect of amendments. - 71 Del. Laws, c. 424, effective July 13, 1998, substituted "any person, governmental instrumentality or private organization" for "a person" in (5); and added "or any child…violence" in (10).

Effect of amendments. - 72 Del. Laws, c. 460, effective July 21, 2000, inserted "foster child" following "stepchild" in (2); added "stalking or endangering the welfare of a child" at the end of (3)a; added (3)f; in (8), substituted "loss of past or future earnings …and compensatory time)" for "loss of past earnings; and loss of future earnings," added "Pecuniary loss includes, but is not limited to, the following" and added (8)a through (8)k and rewrote (10).

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9003. Compensation Board

     There is hereby established a Board, to be known as the Violent Crimes Compensation Board, which Board shall have the sole jurisdiction over the awarding of compensation for victims of crimes. The Board shall be composed of 5 members to be appointed by the Governor. No more than 3 members shall be of 1 major political party. Each appointment shall be effective only upon receiving consent of the Senate. The initial Chairperson of the Board shall be appointed by the Governor to serve as such for 1 year, and each year thereafter the Board shall choose its Chairperson. Three members shall constitute a quorum for all hearings and business of the Board, except a hearing in which the claimant has requested no more than $5,000 compensation and in that instance a quorum of the Board shall be 1 member. The term of office of each member of the Board shall be 3 years; provided, however, that 1 of the members first appointed shall be appointed for a term of 1 year, 2 others for a term of 2 years each and the remainder of the members for a full term of 3 years. The compensation of the Chairperson shall be $12, 000 annually. The compensation of the vice-chairperson shall be $11,000 annually, and the compensation of the members shall be $10,000 annually. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 3; 61 Del. Laws, c. 409, § 68; 65 Del. Laws, c. 268, § 2; 66 Del. Laws, c. 85, § 49; 67 Del. Laws, c. 208, § 1; 70 Del. Laws, c. 186, § 1, 72 Del. Laws, c. 460, § 21.)

Reviser's note. - Section 2 of 66 Del. Laws, c. 85, provides: "Any previous act inconsistent with t his act is hereby repealed to the extent of such inconsistency.

Section 3 of 66 Del. Laws, c. 85, provides: "If any provision of this act, or of any rule, regulation or order thereunder or the application of such provision to any person or circumstances, shall be invalid, the remainder of this act and the application or order to persons or circumstances other than those to which it is held invalid shall not be affected thereby."

Effect of amendments. - 65 Del. Laws, c. 268, effective May 21, 1986, substituted "$1,000" for "$500" in the sixth sentence.

Effect of amendments. - 66 Del. Laws, c. 85, effective July 2, 1987, substituted "$6,000" for "$5,000" for "$4,000" in the eighth sentence.

Effect of amendments. - 67 Del. Laws. C. 208, effective May 10, 1990, substituted "$5,000" for "$1,000" in the sixth sentence.

Effect of amendments. - 72 Del. Laws, c. 460, effective July 21, 2000, rewrote the last sentence.

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9004. Functions of the Board.

The Board shall have the following functions, powers and duties:

(1) To meet and function at any place within the State;

(2) To appoint an Executive Secretary and such other employees as are necessary, the total number of which shall not exceed 8 at any given time. The Board shall prescribe the duties of the Executive Secretary and other employees;

(3) To obtain the services of other governmental agencies upon request, and to utilize those services when necessary;

(4) To adopt, promulgate, amend and rescind such rules and regulations as are required to carry out this chapter;

(5) To receive, investigate and act upon applications for indemnification filed pursuant to this chapter;

(6) To publish reports, information and other data collected by the Board as results of its investigations and research;

(7) To annually render to the Governor and the General Assembly a written report of its activities and of its recommendations;

(8) To provide indemnification claim forms for purposes of this chapter, and to specify the information to be included in such forms.. (59 Del. Laws, c. 519, § 1; 66 Del. Laws, c. 261, § 1; 67 Del. Laws, c. 208, § 2.)

Effect of amendments. - 66 Del. Laws, c. 261, effective June 8, 1988, substituted "6" for "5) in subdivision (2).

Effect of amendments. - 67 Del. Laws, c 208, effective May 10, 1990, substitute "8" for "6" in (2).

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     In any instance in which a person is injured or killed by any crime as the same is defined in this chapter, then the person or estate may file a claim with the Violent Crimes Compensation Board for indemnification of all pecuniary loss which is a direct result of such crime:

(1) If a crime is approved as filed, the award shall be the amount of pecuniary loss actually and reasonably sustained by reason of the personal injury in question minus the amount the claimant has or will receive as indemnification from any other source, including any applicable insurance.

(2) In the event of a death caused by a crime of violence, any person who legally or voluntarily assumes the obligation to pay the medical or burial expenses incurred as a direct result of such injury and death shall be eligible to file a claim with the Board. This provision for payment in case of death shall not apply to any insurer or public entity.

(3) The Board is not compelled to provide compensation in any case, nor is it compelled to award the full amount claimed. The Board may make its award of compensation dependent upon such condition or conditions as it deems desirable. Any claimant who is aggrieved by the Board's decision concerning compensation or any conditions attached to the award of such compensation may appeal to the Superior Court within 30 days following the date the decision of the Board is mailed to the claimant. Any appeal to Superior Court shall not be de novo.

(4) Payment may be made in accordance with this chapter, whether or not the alleged perpetrator of the criminal act is prosecuted or convicted, in the discretion of the Board. Payment may be made even though the person committing the crime is legally deemed to not have intended the act by reason of age, insanity, drunkenness or is otherwise deemed legally incapable of mens rea.

(5) Upon determination of the Board of the amount of compensation due, the Board shall issue to the Treasurer of the State a statement signed by the Chairperson under oath certifying such amount. Upon receipt of such certification by the Board, the Treasurer shall pay to the person named therein such amounts as are specified and under the conditions specified therein. The Treasurer shall make no payments until the time for appeal of the certification has passed unless the claimant has waived the right to appeal in writing. If an appeal is made, there shall be no payment until there has been a binding legal adjudication of the matter.

(6) A person whose domicile is in Delaware who is the victim or secondary victim of a violent crime which occurs in another state, possession or territory or the United States may make an application for compensation if:

a. The crimes would be compensable had they occurred in Delaware; and

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b. The placement(s) of the crime(s) occurred in states, possessions or territories of the United States not having eligible crime victim compensation programs that provide benefits equal to the benefits provided pursuant to this chapter.

(7) Under no circumstances shall the Board reopen or reinvestigate a case after the expiration of two years from the date of decision rendered by the Board. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 4, 5; 65 Del. Laws, c. 268, § 1; 66 Del. Laws, c. 262, § 2; 68 Del. Laws, c. 35, § 1; 68 Del. Laws, c. 213, § 1; 70 Del. Laws, c. 186, § 1.)

(8) Notwithstanding the provisions of subsection (7) of this section and paragraphs (3), (4), and (5) of section 9006(a) to the contrary, the Board may make an award for the payment of mental health counseling services pursuant to this chapter upon a claim made by the victim of any crime which occurred prior to the victim's eighteenth birthday so long as the occurrence of the crime is appropriately documented, and such claim is filed prior to the victim's twentieth birthday. The Board may also, upon good cause shown, permit a victim whose claim had previously been decided by the Board to request that such claim be reopened for the purpose of making an award for the payment for mental health counseling services, and the Board may reopen or reinvestigate the case and award such compensation, if such victims had not yet reached his or her 18th birthday by the date of the Board's original decision, and provided that the request for reopening is filed prior to the victim's 20th birthday. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, §§ 4, 5; 65 Del. Laws, c. 268, § 1; 66 Del. Laws, c. 262, §2; 68 Del. Laws, c. 35, § 1; 68 Del. Laws, c. 213, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 424, § 5; 72 Del. Laws, c. 460, §§ 6-8, 15.)

Reviser's note. - § 4 of 65 Del. Laws, c. 268 provides "Section 1 shall apply retroactively to all claims filed with or heard by the victims of Violent Crimes Compensation Board on or after October 14, 1985. Any claimant whose claim was heard and decided by the Board after October 15, 1985 may file with the Board in writing 60 days of the enactment of this act an amended claim under 1 of this act. Failure to the claimant to file with the Board within 60 days in writing an amended claim under Section 1 of this act shall operate as an absolute bar to asserting an amended claim under Section 1 hereafter." The act was signed by the Governor on May 21, 1986.

Effect of amendments. - 65 Del. Laws, c. 268, added the last sentence of subdivision (1).

Effect of amendments. - 66 Del. Laws, c. 262, effective June 8, 1988, added subdivision (6).

Effect of amendments. - Effective February 11, 1992, subdivision (1) last sentence addressing scarring, disfigurement or mental suffering, strike in its entirety.

Effect of amendments. - Effective May 23, 1991, added subdivision (7).

Effect of amendment. - The amendment adds a new section providing authorization for the Board to award compensation for mental health counseling services to victims who were under the age of 18 at the time the crime was committed, if the crime is appropriately documented, and if the victim files a claim for compensation prior to reaching age 20.

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Additionally, the Board may reopen and reinvestigate existing claims for payment of compensation for mental health counseling services if the victim was under the age of 18 when the case was initially decided by the Board, and who has requested the claim be reopened and reinvestigated prior the victim's 20th birthday. Effective date of amendment: July 13, 1998.

Effect of amendments. - 71 Del. Laws, c. 424, effective July 13, 1998, added (8).
72 Del. Laws, c. 460, substituted "any applicable" for "Blue Cross and Blue Shield" in (1); substituted "thirty days following the date the decision of the board is mailed to the claimant" for "30 days of the decision of the Board" in (3); and in the introductory language of (6), inserted "and" following "Delaware" and inserted "or secondary victim" following "victim"; substituted "Delaware" for "the State" in (6)a; and rewrote(6)b.

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9006. Denial of claim; reduction.

(a) The Board shall deny payment of a claim for the following reasons:

(1) Where the claimant was the perpetrator of the crime on which the claim is based, or was a principal involved in the commission of a crime at the time when the personal injury upon which the claim is based was incurred;

(2) Where the claimant incurred the personal injury on which the claim is based through collusion with the perpetrator of the crime;

(3) Where the claimant refused to give reasonable cooperation to state or local law-enforcement agencies in their efforts to apprehend or convict the perpetrator of the crime in question;

(4) Where the claim has not been filed within 1 year after the personal injury on which the claim is based, unless an extension is granted by the Board;

(5) Where the claimant has failed to report the crime to a law enforcement agency within 72 hours of its occurrence; provided, however, that the Board, in its discretion, may waive this requirement if the circumstances of the crime render this requirement unreasonable. This requirement shall be waived where (i) the crime has been reported to an appropriate governmental agency, such as child and/or adult protective services or the Family Court; (ii) the claimant can provide a protection from abuse order; or (iii) the claimant has cooperated with law enforcement or an appropriate government agency in cases of crimes involving sexual assault or abuse;

(6) Where the victim is injured as a result of their own suicide or attempted suicide, unless the suicide or attempted suicide is directly related to a prior criminal victimization for which compensation is eligible pursuant to this chapter;

(7) Where the victim has sustained injuries during a drug-related crime in which the victim was an illegal participant.

(8) Where the victim is delinquent in the payment of any penalty assessment levied pursuant to § 9012 of this title, or in the payment of an order of restitution payable to the Victim Compensation Fund; provided, however, that the Board may condition payment of a claim upon the satisfaction of such delinquencies. In addition, the Board may, for hardship or other good cause, waive the provisions of this paragraph in their entirety.
(71 Del. Laws, c. 18, §§ 1, 2; 72 Del. Laws, c. 460, §§ 9, 20.)

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(b) In determining whether or not to make an award under this chapter, or in determining the amount of any award, the Board may consider any circumstances it deems to be relevant, including the behavior of the victim which directly or indirectly contributed to injury or death, unless such injury or death resulted from the victim's lawful attempt to prevent the commission of a crime or to apprehend an offender.

(c) If the victim bears any share of responsibility that caused injury or death, the Board shall reduce the amount of compensation in accordance with its assessment of the degree of such responsibility attributable to the victim. A claim may be denied or reduced, if the victim of the personal injury in question, either through negligence or through willful and unlawful conduct, substantially provoked or aggravated the incident giving rise to the injury. (59 Del. Laws, c. 519, § 1; 65 Del. Laws, c. 268, § 3; 68 Del. Laws, c. 35, § 2, 70 Del. Laws, c. 186, § 1.)

Effect of amendments. - 65 Del. Laws, c. 268, effective May 21, 1986, added paragraphs (5) of subsection (a).

Effect of amendments. - Effective May 23, 1991, added paragraphs (6) and (7).

Effect of amendments. - Effective April 23, 1997, added paragraph (8).

Effect of amendments. - 71 Del. Laws, c. 18, effective Apr. 23, 1997, added (a)(8) and made a related stylistic change.

Effect of amendments. - 72 Del. Laws, c. 460, added the last sentence in (a)(5); and added "unless the suicide…is eligible pursuant to this chapter" at the end of (6).

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9007. Payment of compensation.

(a) Any person, regardless of age or mental condition, is entitled to make application for compensation under this chapter if the person is a victim as defined herein. In any instance in which the person entitled to make application is deemed by law to be incompetent, the person may nevertheless appear in person or the application may be made on the person's behalf by any person acting as a relative, guardian or attorney. Every victim making application shall be entitled to appear and be heard by the Board in accordance with § 9008(b) of this title.

(b) Except in cases of dire hardship, as determined by the Board, there shall be no payment of compensation where the claim is for less than $25. Awards may be paid in a lump sum or in periodic payments as determined by the Board. Each and every payment shall be except from attachment, garnishment or any other remedy available to creditors for the collection of a debt.

(c) The Board may require any injured person filing a claim pursuant to this chapter to submit to a physical or mental examination by a physician or physicians selected by the Board.

(d) No compensation shall be awarded under this chapter to any individual victim (or in case of the death of the victim to dependent relatives or to the victim's legal representative) in a total amount in excess of $25,000; provided, however, that the Board may award compensation to victims who are permanently and totally disabled in an amount not to exceed $50,000. The Board shall deduct any payments received by the victim or by any of the victim's dependents from the offender or from any person on behalf of the offender, from any insurer, except life insurance proceeds, or from the United States, the State or any state or any of its subdivisions from its award of compensation if such payments were in any manner made to compensate such person for personal injury or death arising from the same incident.
(72 Del. Laws, c. 460, §§ 10-12.)

(e) Although a person otherwise incompetent may appear and press his claim before the Board, payment of compensation shall not be made directly to any person legally incompetent to receive same but shall be made to a third person for the benefit of such incompetent. In the case of any payment for the benefit of a child or incompetent, the Board shall order the payee to file an accounting with the Board no later than January 31 of each year for the previous calendar year, and to make such other action as the Board shall determine to be necessary and appropriate for the benefit of the child or incompetent. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 6; 64 Del. Laws, c. 273, § 1; 67 Del. Laws, c. 84, § 1; 70 Del. Laws, c. 186, § 1.)

Effect of amendments. - The figure $20,000 which appeared in the first sentence of said subsection (d) was stricken and in lieu thereof the figure of $25,000 was substituted. This act became effective July 1, 1989 and shall apply only to those crimes occurring on or after the effective date of this Act.

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Effect of amendments. - 72 Del. Laws, c. 460, added "in accordance with § 9008(b) of this title" at the end of the last sentence in (a); and in (d), added "provided, however, that the Board may…not to exceed $50,000" at the end of the first sentence and inserted "except life insurance proceeds" following "from any insurer" in the second sentence.

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9008. Form of claim; investigation.

(a) All claims filed with the Board shall be written and verified and shall accurately describe the crime and circumstances which brought about the injury, damage or death, shall state the time and place the injury occurred, state the names of all persons involved if known and shall contain the amount claimed by the applicant. The Board shall initiate an investigation of the claim within 30 days of the filing of the claim. After this investigation, the Board shall render a decision on whether or not to award compensation to the claimant, and if an award is made, the amount of that award. The Board shall immediately mail a copy of its decision to the claimant, together with written notice that if claimant is dissatisfied with the Board's decision then claimant must, within 15 days after the date the Board's decision is mailed, request a hearing before the Board, and if such request is not timely made, then the Board's decision shall be final and not appealable to Superior Court, notwithstanding, § 9005(3) of this title.

(b) If the claimant is dissatisfied with the Board's decision, the claimant may, within 15 days after the date the decision is mailed, request a hearing before the Board. If no hearing is requested within 15 days after the date the Board's decision is mailed, the Board's decision shall be final and not appealable to Superior Court, notwithstanding § 9005(3) of this title. If a hearing is timely requested, the Board shall fix the time and place for a hearing. The Board shall, at least 20 days before the time set for the hearing, mail notices of the time and place of such hearing to all interested persons and agencies. At the hearing, the claimant may present evidence to the Board to show why the Board's decision should be reversed or modified. Within 90 days of the conclusion of any and all hearings on the matter, the Board shall mail to the claimant a statement of its final decision to award or deny the claim and a statement of any conditions under which the claim shall be awarded. The Board may affirm, reverse, or modify its initial decision.

(c) [Repealed].

(d) [Repealed]. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, §§ 7, 8; 68 Del. Laws, c. 239, §§ 1, 2; 72 Del. Laws, c. 460, §§ 13, 14, 16.)

Effect of amendments. - 72 Del. Laws, c. 460, substituted "after the date the Board's decision is mailed" for "of the date of the Board's decision" in the fourth sentence in (a) and in the second sentence in (b)' and substituted "after the date the decision is mailed" for "of the date of the decision" in the first sentence in (b).

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A claimant need not be represented by an attorney before the Board, but if such person is represented, the Board may award an amount for services rendered. Such fee shall not exceed $1,000 or 15% of the amount awarded, whichever sum is less, and shall be in addition to the amount of compensation awarded to the claimant. An attorney shall not charge, demand, receive or collect for services rendered in connection with any proceedings under this chapter any amount other than awarded as attorney's fees under this section.
(59 Del. Laws, c. 519, § 1.)

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9010. Recovery from the criminal.

(a) Whenever any person is convicted or an offense and a payment of compensation is, or has been, made under this chapter for a personal injury or death resulting from the act constituting such offense, the State may institute an action against such person for the recovery of the whole or any specified part of the compensation in any Superior Court within the State, or in any other court, either state or federal, if such court has custody or control of funds of the criminal or which may be awarded to the criminal. Any amounts recovered under this section shall be deposited to the fund, which finances the administration of the chapter.

(b) Any payment of compensation under this chapter shall not affect any right or any person to recover damages in a civil action from the person or persons convicted of the offense giving rise to the claim for compensation.
59 Del. Laws, c. 519, § 1.)

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9011. Assignment and subrogation.

(a) Awards and recoverables granted under this chapter shall not be transferable or assignable, at law or in equity, and none of the money paid or payable under this chapter shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.

(b) There shall be no substitution or subrogation, whether conventional or legal, of any indebtedness or right of action by virtue or any claim of guarantee or surety, agency, lien, payments or advances made, or any claim made by the person convicted of the act giving rise to any compensation awarded under this chapter. (59 Del. Laws, c. 519, § 1.)

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9012. Penalty assessment.

(a) In addition to, and at the same time as, any fine is assessed to any criminal, defendant or any child adjudicated delinquent, there shall be levied an additional penalty of 18 percent of every fine, penalty and forfeiture imposed and collected by the courts for crimes or offenses as defined in Section 233 of this title. Where multiple offenses are involved, the penalty assessment shall be based upon the total fine for all offenses. When a fine, penalty or forfeiture is suspended, in whole or in part, the penalty assessment shall not be suspended; provided, however, that if the penalty assessment herein imposed remains uncollected for a period in excess of 3 years, the courts may expunge the record of such assessment.

(b) Upon collection of the penalty assessment, the same shall be paid over to the Prothonotary or Clerk of Court as the case may be, who shall collect the same and transmit it to the State Treasury to be deposited in a separate account for the administration of this chapter, which account shall be designated the "Victim Compensation Fund", which is hereby created. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 9; 63 Del. Laws, c. 227, § 1; 67 Del. Laws, c. 71, § 2; 67 Del. Laws, c. 260, § 1; 68 Del. Laws, c. 213, § 2; 68 Del. Laws, c. 223, § 1.)

Effect of amendments. - Effective February 11, 1992, subsection (a) first sentence, words or offenses added.

"Penalty Assessment" provided by subsection (a) does not represent fine or increase in fine otherwise imposed for purposes of determining a constitutional right of criminal appeal to the Superior Court under Del. Cons. art. IV, Section 28, Brookens v. State, Del. Supr., 466 A.2d 1218 (1983).

Effect of amendments. - Effective July 1, 1989 the old subsection (a) was struck in its entirety and a new subsection (a) was added.

Effect of amendments. - Del. Laws, c. 260, effective July 2, 1990, substituted "18 percent" for "15 percent" in the first sentence in (a).

Retroactive application of assessments prohibited. - The imposition of a three percent increase in the amount to be paid by the defendant to the State's Victim Compensation Fund under this Section, and a 15% assessment to be paid to the Drug Rehabilitation Fund under 16 Del. C., Sections 4801A-4804A are penal in nature, and inextricably connected to a criminal conviction. Their application is thus restricted by the ex post facto clause of the United States Constitution, and these surcharges may not be applied retroactively. In re State, Del. Supr., 603 A.2d 814 (1992).

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9013. Annual reports.

The Board shall transmit to the Governor, State Auditor and General Assembly an annual report of its activities under this chapter, including the claim number of each applicant for compensation, the amount claimed and the amount of compensation awarded. (59 Del. Laws, c. 519, § 1; 60 Del. Laws, c. 436, § 10; 69 Del. Laws, c. 250, § 1.)

Effect of amendments. - 69 Del. Laws, c. 250, effective June 21, 1994, substituted "claim number" for "name."

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9014. Compensation fine.

In any court of this State upon the conviction of any person or the adjudication of delinquency of any child for a crime resulting in the personal injury or death of another person, the court may, in addition to any other penalty, order such person to pay a compensating fine, in lieu of, but greater than, the penalty set forth in Section 9012 of this title. The amount of such fine shall be in the discretion of the court and shall be commensurate with the malice shown and the injury done to the victim. All fines paid in accordance with this section shall be deposited into the Victim Compensation Fund. (59 Del. Laws, c. 519, § 1; 67 Del. Laws, c. 71, § 3; 67 Del. Laws, c. 260, § 1.)

Effect of amendments. - Effective July 1, 1989, the words "or the adjudication of delinquency of any child" inserted after the words "conviction of any person" as the same appears in the first sentence of said section.

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9015. Oaths, production of witnesses and records.

The Board, each member of the Board and the Executive Director shall have the power to administer oaths, subpoena witnesses and compel the production of books, papers and records relevant to any investigation or hearing authorized by this chapter. Any person who shall fail to appear in response to a subpoena or to answer any question, or produce any books, papers and records relevant to any such investigation or hearing may be compelled to do so by order of the Superior Court. (60 Del. Laws, c. 436, § 11.)

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9016. Filing false claim.

(a) Any claim under this chapter, which is false in part or in whole, shall constitute a false written statement in violation of Section 1233 of this title.

(b) Any person who files a false claim under this chapter shall forfeit any compensation and shall reimburse and repay the Board for any compensation received pursuant to this chapter. (60 Del. Laws, c. 436, § 12.)

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9017. Persons to whom chapter applicable.

This chapter shall apply to all persons, including nonresidents of Delaware, who are victims of crimes committed on January 1, 1975, or thereafter within this State. (60 Del. Laws, c. 436, §13; 72 Del. Laws, c. 460, § 17.)

Effect of amendments. - 72 Del. Laws, c. 460, inserted "including nonresidents of Delaware" following "persons."

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9018. Conflict of interest.

Any member of the Board with a direct or indirect interest in a matter in question shall disqualify himself or herself from any consideration of that matter. (65 Del. Laws, c. 64, § 1.)

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9019. Payment for forensic medical examinations for victims of sexual offense.

(a) The cost of a forensic medical examination done for the purpose of gathering evidence that can be used in the prosecution of a sexual offense may be paid from the Victim Compensation Fund.

(b) "Forensic medical examination" shall be defined as medical diagnostic procedures examining for physical trauma, and determining penetration, force, or lack of consent. The cost of the examination shall include collecting all evidence as called for in the sexual offense evidence collection kits and may include any of the following, if done as part of the forensic medical examination:

1. Physician's fee for the collection of the patient history, physical, collection of specimens, and treatment for the prevention of venereal disease, including 1 return follow-up visit;

2. Emergency department expenses, including emergency room fees and cost of pelvic tray, and

3. Laboratory expenses for wet mount for sperm, swabs for acid phosphates and ABH antigen; blood typing; serology for syphilis and Hepatitis B; cultures for gonorrhea, chlamydia, trichomonas, and other sexually transmitted diseases; pregnancy testing; urinalysis; and any other laboratory test needed to collect evidence that could be used in the prosecution of the offense.

(c) Hospitals and health care professionals shall provide forensic medical examinations free of charge to the victims of sexual offenses. Any hospital or health care professional performing a forensic medical examination shall seek reimbursement for the examination from the patient's insurance carrier, including Medicaid and Medicare, if available. If insurance is unavailable, or does not cover the full costs of the forensic medical examination, the service provider may seek reimbursement from the Compensation Fund. The Board shall authorize the repayment for reasonable expenses incurred during the forensic medical examination. Such reimbursement shall not exceed a maximum amount to be determined by the Board. If the hospital or health care professional has recovered from insurance, the Board shall only provide compensation sufficient to total the maximum amount provided for in the Board's rules and regulations.

(d) The victim of the sexual offense shall not pay any out-of-pocket costs associated with the forensic medical examination and shall not be required to file an application with the Board. Notwithstanding other language in this chapter, all forensic medical examinations of victims of a sexual offense not covered by insurance shall be paid for through the Victim Compensation Fund and such payment shall be considered full compensation to the hospital or health care professional providing such services.

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(e) In addition to, and at the same time as, any other fine or penalty assessed on any criminal defendant, all defendants convicted of a sexual offense as defined in Section 761 of this title shall be assessed an additional fine that shall be used to reimburse the Victim Compensation Fund for forensic medical examination payments. All defendants convicted of sexual offenses shall pay $50 for each misdemeanor level count for which they are convicted and $100 for each felony level count for which they are convicted. All fines paid in accordance with this section shall be deposited into the Victim Compensation Fund.

(f) Nothing in this section shall preclude victims from applying to the Board for other costs incurred. (70 Del. Laws, c. 40, § 1.)

SYNOPSIS - This Bill ensures that victims of sexual offenses will not be required to pay for forensic medical examinations that could be used in prosecuting the offense. Under the Bill, victims will have no out-of-pocket costs associated with forensic exams. Instead, the health care facility providing the examination will be reimbursed for any costs not covered by insurance through the Violent Crimes Compensation Fund. Defendants convicted of sexual offenses will be required to pay a special assessment to the Violent Crimes Compensation Fund.

Reviser's note. - This section became effective upon the signature of the Governor on May 26, 1995.

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9020. Payment for child psychological assessments and short-term counseling.

(a) The costs of psychological assessment done for the purposes of evaluating the mental health needs of a child victim may be paid from the Victim's Compensation Fund.

(b) The costs of short-term counseling, as defined by the Board, for the purposes of meeting the mental health needs of a child victim may be paid from the Victim's Compensation Fund.

(c) Any psychological assessment or counseling provided pursuant to this section shall be provided by a qualified mental health practitioner as determined by the Board. The Board shall authorize the repayment of reasonable expenses for a psychological assessment and/or short-term counseling. Such reimbursement shall not exceed a maximum amount to be determined by the Board. Any mental health practitioner performing a psychological assessment and/or short-term counseling pursuant to this section shall seek reimbursement for such services from the patient's insurance carrier, including Medicaid and Medicare, if available. If the mental health practitioner has recovered from insurance, the Board shall only provide compensation sufficient to total the maximum amount provided for in the Board's rules and regulations. Funding for psychological assessments and/or short-term counseling shall be available to the victim regardless of other health insurance resources which may exist.

(d) Any parent or guardian acting on behalf of a child victim shall not pay any out-of-pocket costs associated with a psychological assessment or short-term counseling, and shall not be required to file an application with the Board. Notwithstanding other language in this chapter, all psychological assessments and short-term counseling expenses of child victims shall be paid for through the Victim's Compensation Fund and such payment shall be considered full compensation to the mental health practitioner providing such services.

(e) Nothing in this section shall preclude a victim from applying to the Board for other costs incurred.

(f) For the purpose of this section, "child victim" or "child" means any victim who had not yet reached his or her 18th birthday on the date of the commission of the crime. (71 Del. Laws, c. 424, § 7.)

Effects of amendments. - The addition of section 9020 adds provisions for the payment of psychological assessments and short-term counseling to individuals who are victimized prior to the age of 18. The assessments and short-term counseling may be paid directly on behalf of child victims, notwithstanding other language in this chapter. Effective July 13, 1998.

Reviser's note. - This section became effective upon the signature of the Governor on July 13, 1998.

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