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The Movement Towards Fair Access to Victim Compensation

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Jessica Persaud

Jessica Persaud is the Director of Policy at Common Justice.

In the aftermath of a crime, the government offers supportive funding to survivors and their families, commonly known as “victim compensation.” Victim compensation is state-administered, federal funding that provides financial reimbursement for costs associated with crimes, such as hospital bills, burial expenses, mental health counseling, temporary housing, and/or replacing locks. This funding helps survivors regain stability after experiencing traumatic events by providing basic support and helping reduce any accumulation of debt. Unfortunately, survivors from marginalized communities have been systematically excluded from receiving these funds since the inception of these programs. Today, advocates and legislators are looking to change that through equitable and forward-thinking legislation.

Victim compensation is based on the principle that the government has a moral responsibility to provide financial relief to those who have suffered the impact of violence. In 1984, Congress passed the Victims of Crime Act (VOCA) to provide federal oversight and support to state-administered victim compensation programs across the country. VOCA established the Office of Victims of Crime to administer the Crime Victims Fund, which consists of non-taxpayer dollars collected from fines and fees associated with federal crimes. In New York State, the Office of Victim Services (OVS) is responsible for distributing these funds, which consist of both federal and state-supplemented dollars.

Eligibility to receive compensation varies from state to state, but the general requirements include reporting the crime to law enforcement within a specified amount of time, filing an application for compensation within a required time period, and cooperation with law enforcement in the investigation of the crime. In New York, a claimant must report their crime within a week of its occurrence and file an application with OVS within a year of the crime. Such stringent time requirements and mandated interactions with law enforcement have disproportionately excluded many marginalized and vulnerable survivors from eligibility for compensation. Survivors may choose not to report the crime to law enforcement for a variety of reasons, including fear of retaliation, distrust in law enforcement, the dynamics of an intimate partner relationship or a fear that the process of reporting to the police may be re-traumatizing and/or make them less safe. In 2019, over 50% of violent victimizations in the United States were not reported to law enforcement.

The social inequity that characterizes victim compensation disbursement due to law enforcement reporting requirements is alarming. Studies show that less than 3% of survivors receive any victim compensation. Black men are more likely to be victimized than any other group, yet are the least likely to receive victim compensation. LGBTQIA+ survivors often fear reporting to the police, which disqualifies them from accessing victim compensation. According to a 2017 report, over 30% of LGBTQIA+ survivors of homophobic and transphobic violence who reported their victimization to law enforcement said police were verbally abusive and 16% said police were physically abusive. Meanwhile, immigrant survivors fear that calling the police may result in the person who harmed them being deported or that they themselves might be deported or lose their pathway to citizenship. In 2015, the National Domestic Violence Hotline reported that both respondents who had called the police after an incident of domestic violence and those who had not, shared a reluctance to turn to law enforcement for support. In all of these instances, marginalized survivors are excluded from collecting victim compensation due to fear of or reluctance to interact with law enforcement.

Law enforcement reporting requirements are not the only barrier to accessing victim compensation. Others include denial of compensation due to alleged contributory conduct, definition of harm restricted to physical injury and lack of public awareness about victim compensation funds. However, law enforcement reporting requirements are seemingly one of the most pervasive barriers. In addition to survivors’ reluctance to report, an equally troubling issue is the discretion officers have in substantiating a crime when a report is made. In the majority of filed claims, OVS investigators rely almost exclusively on the arresting officer’s account to determine whether a crime was committed and, in turn, whether an applicant is eligible for compensation Oftentimes, the arresting officer is asked two questions: (1) was the applicant involved in the crime; and (2) did the applicant cooperate with the police? If either of those questions are answered yes or no, respectively, the applicant’s claim is rejected without further investigation, regardless of their demonstrated needs. While this process works in favor of some survivors, it has discriminatory effects on the majority of survivors, in particular Black men, who are not recognized by society as “innocent” or “deserving.” As such, this process must be made more survivor-centered by removing law enforcement’s authority from the determination process.

Multiple states have recognized law enforcement reporting requirements as a barrier to access in recent years and taken strides to remedy the issue. In February 2021, California introduced SB 299 to expand the type of evidence, outside of a police report, that could be used to show a crime occurred. In Michigan, House Bills 4674-4675 were passed in the House in April of 2021 as part of the Safer Michigan Act Package. These bills would, among other things, eliminate reporting time limits, extend the application filing time limit and add coverages for additional types of expenses. And in 2019, New Mexico became the first state to successfully enact legislation that allows alternatives to police reporting when accessing victim compensation.

New York lawmakers have also begun to take strides to create easier access to victim compensation funds. In June 2020, Governor Cuomo issued Executive Order (EO) 202.43, which expanded filing options for survivors of domestic violence seeking access to these funds. The EO allowed survivors of domestic violence to report to agencies other than law enforcement and expanded what could be submitted as supporting documentation for an OVS claim. This EO, which was a temporary fix, has since expired. Now, survivors of domestic violence are back to being disproportionately excluded from receiving compensation due to reporting requirements, and other marginalized populations, including LGBTQIA+ survivors, survivors of color, immigrant survivors, gun violence survivors and survivors of police violence, still remain at risk for rejection, simply by way of process.

At this juncture, the only solution is a permanent change byway of statute. Mandated interactions with law enforcement should be removed from New York law by expanding the type of evidence victims may use to show that a qualified crime has occurred. Such statutory change is a crucial step to creating equity within the victim compensation process and providing all survivors with access to the healing they deserve.

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