Legislative Update

FCASV Newsletter • Summer 2008 (Continued from page 1)

Current Trends and Issues with the Crimes Compensation Trust Fund In this article: Most Important State Trends: • $10 million sweep by the Florida Legislature • Increase in benefit payouts Impact: Benefit Reductions Most Important Federal Trend: • $35 million decrease in funding available for VOCA victim services grants Impact: VOCA Victim Services Grant reductions

No programs or services in the state of Florida will ultimately be spared the impact of federal and state budget cuts and revenue shortfalls that are accompanying the national and statewide economic downturn. And more cuts may well be on the horizon. In this climate, it is important to look carefully at the various trends impacting the overall health of the Crimes Compensation Trust Fund and the availability of benefits for victims of crime.

Trust Fund Sweep and Fund Shifts
While legislators have a variety of tools at their disposal to increase the state’s revenue, including closing corporate and sales tax loopholes, proposals that tend to be unpopular with larger business interests continue to lack momentum in the Florida legislature. Sweeps of state trust funds with cash reserves eventually proved to be one source of additional general revenue that legislators were willing to tap during this past session. While the Rape Crisis Program Trust Fund was held harmless, the legislature raided the Crimes Compensation Trust Fund.

In the state budget for fiscal year 2008/2009 that begins July 1st, the legislature swept $10 million from the Crimes Compensation Trust Fund which will go into the general revenue fund. It will be impossible to distinguish exactly how that $10 million is used once it is part of the state’s overall cash balance.

This sweep is by far the greatest hit on the Crimes Compensation Trust Fund this year though legislators also chose to include some other minor fund shifts from general revenue to the crimes compensation trust fund including $400,000 in funding for rape crisis centers and slightly upwards of $1 million in salaries and benefits in the Office of the Attorney General that were funded through now non-existent general revenue in previous years.

Increases in Benefit Payouts
In addition to the $10 million sweep and minor fund shifts, payouts for victim compensation benefits have increased 48% over the past five years, with a corresponding 29% increase in the number of claims received. This is due in large part to increased awareness of the availability of benefits. To a lesser extent, benefit increases during the last several years, including the reimbursement rate for sexual battery forensic examinations and provider payments, have impacted payouts.

Each year, the Office of the Attorney General Division of Victim Services is given the authority through the budget to pay out a certain amount in claims—typically around $26 million. As a result of increased benefit payouts, the Division lacked sufficient budget authority during the past fiscal year to pay all of the claims they received. Consequently, additional authority was requested from the legislature to continue to pay benefits. Because trust fund expenditures exceeded collections into the trust fund during the past fiscal year, benefit reductions were put into effect. The $10 million trust fund sweep makes it unlikely that benefit levels will be increased any time soon.

Overall Health of the Crimes Compensation Trust Fund
Like economics in general, assessing the overall health of the crimes compensation trust fund is as much about forecasts and educated guesses as it is about hard facts. What is known is that as of April 30, 2008, the Crimes Compensation Trust Fund carried a balance of about $25 million. This is a fairly typical balance for the trust fund though sometimes it is higher. The balance will be reduced by $10 million on July 1st when the sweep takes effect. Questions that remain include how the sweep will ultimately impact the health of the trust fund, whether benefit payouts will continue to increase and whether fine collections will keep pace with the need for benefits.

How does all of this affect VOCA grants and victims services?
The short answer is not at all. Although federal funding for VOCA grants flows through the Crimes Compensation Trust Fund, it is a direct reimbursement by the federal government. VOCA victim services grants are being cut significantly, but these cuts are a result of a $35 million reduction in the federal VOCA cap in the most recent budget passed by Congress.

Crimes Compensation Benefit Reductions
Benefit reductions took effect June 3, 2008 and include:
• A reduction in the percentage reimbursement for providers of mental health care and other medical services from 75% to 66%;
• A decrease in the overall mental health benefit for minors from $10,000 to $5,000; and
• A decrease in the overall mental health benefit for adults from $5000 to $2500.

Employee Leave Now Available for
Victims of Sexual Violence and their Family Members

Benefits:
• 3 days of leave in a 12-month period
• Includes victims of many types of sexual violence
• Includes non-reporting victims and those whose cases did not progress
• Includes family and household members
• Employer must keep information confidential.
• Information is exempt from public record.
• Victim can sue if leave is not given.

Limitations:
• Employee must have worked for employer for 3 months
• Employer must have 50 or more employees
• Other types of leave must be exhausted.

Governor Crist is expected to sign HB 489 into law any day now, giving victims of sexual violence the ability to take leave from their employment to deal with issues arising from the crime. This new statutory right, however, is hidden away in the domestic relations chapter of the Florida Statutes in the domestic violence section (FS 741.313). It will be imperative for advocates to proactively educate victims about their right to take leave under this statute since it is unlikely that victims will know about it or find it for themselves.

The definition of sexual violence in the new law is broad and covers both reporting and non-reporting victims and their families and household members. Crimes included in the definition of sexual violence include sexual battery, lewd and lascivious acts committed against a minor, luring or enticing a child, sexual performance by a child, any other forcible felony wherein a sexual act is committed regardless of whether criminal charges based on the incident were filed, and any crime the underlying factual basis of which has been found by a court to include an act of sexual violence.

The bill allows victims and/or their family members to take up to three (3) days of leave in a 12 month period. The employee must have been working for an employer for at least (3) months to be eligible for the leave. The leave can be paid or unpaid at the discretion of the employer and only applies to employers with 50 or more employees. Other paid leave available to the employee would have to be exhausted first before making use of this leave.

The employer has the right to ask for reasonable documentation to ascertain whether or not the employee is a victim of sexual violence. If any employer fails to grant a victim of sexual violence this leave, the victim would have a right to sue the employer for damages. Any identifying information provided by the victim to document the leave is confidential and exempt from public information.

Legislature Passes Stronger Confidentiality Protections
for Victims of Sexual Violence

Each public records exemption in Florida Statute must be reviewed five years after it is enacted and must be proactively re-enacted by the legislature or it is automatically repealed. During the 2008 legislative session, a statute making confidential and exempt any criminal intelligence information or criminal investigative information that is a photograph, videotape, or image of any part of the body of the victim of certain sexual offenses, regardless of whether it identifies the victim, was under review.

Rather than simply suggesting the reenactment of the statute, House and Senate staff recommended making all identifying information about victims of sexual offenses and child abuse both confidential and exempt and expanding the protections to victims of forced prostitution, sex trafficking and child pornography. They also suggested making information about victims in court records and court proceedings proactively confidential.

FCASV staff along with Senate and House staff (especially Jim Rhea, Mike Erickson and Heather Williamson), Michael Ramage, FDLE, Meg Baldwin, executive director of Refuge House and Jay Howell, victim rights attorney worked diligently during the early weeks of session to craft language that would provide the strongest protections for victims while ensuring that law enforcement had the tools it needs to find the missing and/or exploited and wholeheartedly pursue criminal investigations.

The bill amended s. 92.56, F.S., relating to court records, to provide that the confidential and exempt status of the criminal investigative information and the criminal intelligence information must be maintained in court records and in court proceedings. If a petition for access to such confidential and exempt information is filed with the trial court having jurisdiction over the alleged offense, the confidential and exempt status must be maintained by the court if the state or the victim demonstrates that the criteria currently provided in s. 92.56, F.S. are met.

Previously, it was necessary to proactively ask the Court to hold confidential certain information about a victim of a sex offense in court records (through a Victims’ Protection Act motion, for example), It will now be an assumption that this information is confidential unless a defendant specifically petitions for its disclosure to prepare a defense and meets certain criteria.

The legal differences between the concepts of “exempt” and “confidential” are quite complicated. Because this legislation raises the privacy status of information about victim of sexual offenses in most cases from “exempt” only to “confidential and exempt” it is important to look at how these concepts differ. If the Legislature makes certain records confidential, with no provision for its release such that its confidential status will be maintained, such information may not be released by an agency to anyone other than to the persons or entities designated in the statute. If a record is not made confidential but is simply exempt from mandatory disclosure requirements, an agency is not prohibited from disclosing the record in all circumstances.

While this legislation promises to hold the confidentiality of victim information even more securely, it will take several years to gauge the full impact of the changes. FCASV asks advocates to make note of any positive or negative effects on victims as the legislation is implemented.

2008 Awards Luncheon Honors Outstanding Advocates

The 2008 Awards Luncheon held during the joint conference of FCASV and the Florida Network of Victim Witness Services (FNVWS) honored many outstanding men and women.

Recipients of the FCASV Outstanding Legislator Award were Senator Paula Dockery, (R-Lakeland); Representative Evan Jenne (D-Davie); and Senator Arthenia Joyner (D-Tampa).

Senator Paula Dockery put victims’ issues at the forefront of her work as chair of the Senate Criminal Justice committee, including sponsoring legislation to protect victims of child pornography via the internet, ensuring that all victims are protected from contact by the offender during the entirety of the offender’s incarceration, and increasing confidentiality protections for victims of sexual violence. She also co-sponsored legislation to protect school children from bullying and to create a state task force on trafficking.

Rep. Evan Jenne sponsored FCASV’s priority legislation to ensure that victims of sexual violence can take leave from their employment to deal with issues arising from the crime. Rep. Jenne was a real fighter for us and when it looked like business interests were going to offer an unfriendly amendment, he made it clear that he would fight all the way to defeat any amendment that weakened the bill. He was steadfast in his determination to see that the best possible bill passed for victims of sexual violence and did an excellent job maneuvering the bill through the process.

Senator Arthenia Joyner was once again the most stalwart of champions for rape crisis center funding. As our sponsor, she refused to let the issue get pushed to the side—bringing it up again and again in behind-the-scenes negotiations. She is passionate about the need for our services. She also chaired the Legislative Women’s Caucus and brought a renewed focus to the issue of trafficking both as chair of the Caucus and through legislation proposing to create a statewide task force to look more deeply into the issue of trafficking and create harsher penalties for those engaged in sex trafficking both internationally and here in Florida. Though the trafficking bills did not pass this year, Joyner spoke eloquently of the need to prioritize this work in the Senate. She co-sponsored our employee leave bill, and when the bill entered a log jam in the Judiciary committee, she made sure, as co-chair, that the bill was heard and moved forward. More than anything, though, she is always available and ready to help with any issues to benefit victims of sexual violence.

Attorney General Bill McCollum and Jay Howell, Esq. of Jacksonville received the Elizabeth Knake Outstanding Advocate Award.

Attorney General McCollum was a champion for children exploited via the internet both through funding priorities and substantive legislation. He prioritized rape crisis center funding and directed his staff to push for our funding at every possible opportunity.

Jay Howell, Esq. has provided free legal advice and information for advocates and victims of sexual violence for years. He authored and worked to pass legislation giving victims standing in the court to require that their rights be enforced—Florida is one of the few states in the country to pass such a law. He was also the chief editor of constitutional issues in key 2008 legislation rewriting the statutory confidentiality protections for victims of sex offenses.

Margaret Baldwin, Esq., Executive Director of Refuge House in Tallahassee received the Anne Gannon Warrior for Women Award. Some do not know the special role the staff of the Tallahassee rape crisis center play in terms of influencing legislation. They are often called on to play a much larger role in policy because they are in the Capitol City! Meg has provided amazing legal and ethics guidance on a variety of legislative and policy issues including night and weekend drafting of victim confidentiality language and meetings with legislators to discuss ways to improve legislation addressing prostitution. As chair of the FCASV Public Policy Committee, Meg has consistently brought her legal expertise and high ethical standards to her work. She has been a champion for prostituted women both at Refuge House and previously as a law professor at the FSU Law School.

Award recipients of the FNVWS Carol Sheridan Award went to the Miami Police Department Victim Advocate Program; Sharon Komlos D’Eusanio Award to Rose Grier for the “It’s Not Your Fault” Boundary Establishment & Accountability Program for Teens; Victim Advocate Purple Heart to Kattia Castellanos, Coral Gables Police Department; James Fogarty Award to Katherine Fernandez-Rundle, State Attorney 11th Judicial Circuit; and the Lois Messer Scholarship to Barbara Tarpley, Pinellas County Sheriff’s Office.