Victims Rights
South Dakota state law provides for specific rights for victims of sexual assault and victims of domestic violence or stalking. Specifically, South Dakota law provides that victims have the following rights:
Victim Constitutional Rights
Marsy’s Law FAQ
What rights do I have?
See #1-19. In order to receive these rights you must request them. The State’s Attorney’s office can help with this.
Do I have to give an interview?
No, see #6. However, you can be required to testify at trial, motion hearing, or Grand Jury if subpoenaed.
Will I receive notice of proceedings in my case?
Yes, see #7, 8, 9, 16, 17, 18. To ensure you receive notice, do the following:
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Contact your State’s Attorney Office
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Register on SAVIN at savin.sd.gov
Can I talk to the prosecutor?
Yes, see #10. Please call the State’s Attorney’s office or stop by anytime.
Will I have input on sentencing?
Yes, see #11. You can be present at sentencing and speak or provide a letter to the Judge. The Victim/Witness coordinator in the SA office will help you with this.
Can I review the Presentence Report?
No, see #12. Even though you were given this right, there is a law in place (SDCL 23A-27-47) making the record confidential. The State’s Attorney’s office, although we cannot provide you a copy, would be happy to discuss the presentence report with you prior to sentencing, just make an appointment with our office.
Can I object to a continuance?
Yes, see #15. If a party files a motion for continuance, the Judge should consider a victim’s position before entering a continuance. Talk to the SA office about this.
What information will I get?
See #19. Law Enforcement will provide you with a Marsy’s Card explaining your rights. If you have any questions about these right, please feel free to talk to the State’s Attorney or Victim Witness Specialist about this.
Can I waive my rights?
Yes, the State’s Attorney’s office will have a form you can sign waiving all or some of your rights.
If a person is arrested is there always a Bond Hearing?
No, in a lot of cases persons are released on a PR Bond without a hearing. If person is released you should receive notice of the release. If a Bond Hearing is set, you should receive notice of time and place for hearing.
Can I prevent disclosure of private information?
Yes, see #5. You are given the right to prevent disclosure. If you are concerned about information about you getting out, please talk to us about that. We will take steps to protect this information. If Defense make a request for private information you or the prosecuting attorney can object to disclosure.
How do I get my property back?
A form for return of property is available at the State’s Attorneys office. Keep in mind, if property is needed as evidence against the Defendant, return of property may be delayed.
Will I receive restitution for my loss?
Yes, you will be paid. However, restitution is dependent on the Defendant making restitution payments as ordered by the court.
MARSY’S RIGHTS (ABRIDGED)
1. The right to due process and to be treated with fairness and respect;
2. The right to be free from intimidation, harassment and abuse;
3. The right to be protected from the accused and any person acting on behalf of the accused;
4. The right to have the safety and welfare of the victim and the victim’s family considered when setting bail or making release decisions;
5. The right to prevent the disclosure of information or records that could be used to locate or harass the victim or would disclose confidential or privileged information;
6. The right to privacy, includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction;
7. The right to timely notice of, and to be present at, release, plea, sentencing, adjudication and disposition, and any proceeding during which a right of the victim is implicated;
8. The right to be promptly notified of any release or escape of the accused;
9. The right to be heard in any proceeding involving release, plea, sentencing, adjudication, disposition or parole, and any proceeding during which a right of the victim is implicated;
10. The right to confer with the attorney for the government;
11. The right to provide information regarding the impact of the offender’s conduct on the victim;
12. The right to receive a copy of any pre-sentence report except if made confidential by law;
13. The right to the prompt return of the victim’s property when no longer needed as evidence in the case;
14. The right to full and timely restitution;
15. The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related post-judgment proceedings;
16. The right to be informed of the conviction, adjudication, sentence, disposition, place and time of incarceration, detention or other disposition of the offender, any scheduled release date of the offender, and the release of or the escape by the offender from custody;
17. The right to be informed in a timely manner of all post-judgment processes and procedures;
18. The right to be informed in a timely manner of clemency and expungement procedures; and
19. The right to be informed of these rights, and to be informed that a victim can seek the advice of an attorney with respect to the victim’s rights. This information shall be made available to the general public and provided to each crime victim in what is referred to as a Marsy’s Card.
* The victim may assert and seek enforcement of these rights.
WHO IS THE VICTIM?
Amendment S Marsy’s Law expanded the definition of a victim to include:
1) Primary Victim - a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed.
2) Ancillary Victim - a victim also includes any spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, or a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mentally incapacitated. A victim is not the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor or incapacitated victim.”
The State’s Attorney’s office will make all efforts to directly contact primary victims and any ancillary victims identified. If you believe you are an ancillary victim of a crime, you should contact the State’s Attorney’s office immediately if you want to receive information and notice about the case. Upon request of ancillary victims, the State’s Attorney’s office will make all reasonable efforts to consider and fulfill said requests. However, the primary victim can prevent disclosure of certain private information under #5 above. If you believe you are a victim in any of these cases, feel free to contact your State’s Attorney.
Crime Victims’ Rights
SDCLA23A-28C-1
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To be notified of scheduled bail hearings and release from custody, to be notified by the prosecutor's office when the case is received and to whom the case is assigned, and to be notified in advance of the date of preliminary hearing and trial;
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To be informed of what the charges mean and the elements necessary for conviction;
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To testify at scheduled bail or bond hearings regarding any evidence indicating whether the offender represents a danger to the victim or the community if released;
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To be protected from intimidation by the defendant, including enforcement of orders of protection;
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To offer written input into whether plea bargaining or sentencing bargaining agreements should be entered into;
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To be present during all scheduled phases of the trial or hearings, except where otherwise ordered by the judge hearing the case or by contrary policy of the presiding circuit judge;
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To be prepared as a witness, including information about basic rules of evidence, cross-examination, objections, and hearsay;
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To provide to the court a written or oral victim impact statement prior to sentencing regarding the financial and emotional impact of the crime on the victim and his or her family as well as recommendations for restitution and sentencing and § 23A-28-8 notwithstanding, the right to appear at any hearing during which a change in the plan of restitution is to be considered;
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To receive restitution, whether the convicted criminal is probated or incarcerated, unless the court or parole board provides to the victim on the record specific reasons for choosing not to require it;
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To provide written input at parole and clemency hearings or with respect to clemency by the Governor, should those options be considered;
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In a case in which the death penalty may be authorized, to provide to the court or to the jury, as appropriate, testimony about the victim and the impact of the crime on the victim's family;
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To be notified of the defendant's release from custody, which notice includes:
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Notice of the defendant's escape from custody and return to custody following escape;
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Notice of any other release from custody, including placement in an intensive supervision program or other alternative disposition, and any associated conditions of release;
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Notice of parole; and
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Notice of pending release of an inmate due to expiration of sentence;
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To be notified of the victim's right to request testing for infection by blood-borne pathogens pursuant to § 23A-35B-2;
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To be provided a copy of any report of law enforcement that is related to the crime, at the discretion of the state's attorney, or upon motion and order of the court. However, no victim may be given the criminal history of any defendant or any witness; and
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To be notified of a petition by the sex offender for removal from the sex offender registry and to provide written input with respect to the removal request.
South Dakota SAVIN stands for Statewide Automated Victim Information & Notification. The South Dakota SAVIN program is a free, automated service that provides crime victims with vital information and notification 24 hours a day, 365 days a year. This service will allow you to obtain offender information and to register for notification of a change in offender status, such as offender release.
All registrations through South Dakota SAVIN are kept
completely confidential.
There are no costs for these services and citizens can register now.
