Unofficial Opinion 2010-3

You have requested that I review 1996 Op. Att’y Gen. U96-1 to determine whether it should be modified or revised in light of subsequent changes to the statutes which it addressed. That opinion concluded that Georgia’s Crime Victims’ Bill of Rights, enacted the previous year at 1995 Ga. Laws 385, §2, was not applicable to juvenile proceedings.[1] In your request, you refer to amendments to O.C.G.A. §§ 17‑17‑1 through ‑16 (2008 and Supp. 2010) including those provisions enacted in the 2010 session of the General Assembly. 2010 Ga. Laws 214. For the reasons set forth herein, it is my opinion that, while the General Assembly has provided for certain “rights” for victims in juvenile proceedings, the subsequent enactments have not made the Crime Victims’ Bill of Rights applicable in toto to juvenile proceedings.

The Crime Victims’ Bill of Rights was enacted by the General Assembly to accord victims of crimes certain basic rights. See O.C.G.A. § 17‑17‑1. In the 1996 opinion, this office concluded that the 1996 version of the Crime Victims’ Bill of Rights, 1995 Ga. Laws 386, § 2, applied to juveniles only in cases where juveniles were convicted of felonies and sentenced as adults. 1996 Op. Att’y Gen. U96‑1. Such cases are not “juvenile proceedings” governed by Title 15; however, those juveniles may be detained within the custody of the Department of Juvenile Justice. For that reason, the opinion explained that the Department of Children and Youth Services (now the Department of Juvenile Justice) fell within the definition of a “custodial authority” in the Crime Victims’ Bill of Rights.

In 2010, the General Assembly passed HB 567, enacted into law at 2010 Ga. Laws 214 (Act No. 403). That enactment amended portions of the Crime Victims’ Bill of Rights, O.C.G.A. §§ 17‑17‑1 through ‑16; however, it also amended other Code sections not contained within the “Bill of Rights,” including, inter alia, portions of Title 15 “relating to juvenile proceedings . . . so as to expand provisions relative to victims’ participation in the court system in juvenile and state courts; to change provisions relating to victim impact statements in delinquency proceedings; [and] to provide that victims may be present in juvenile court hearings . . . .” 2010 Ga. Laws 214 (preamble).[2] In fact, the first Code section addressed in Section 1 of the Act is O.C.G.A. § 15‑11‑64.2 in the juvenile code. There are amendments to the provision permitting the victim to address the juvenile court which are expanded from prior law but which are not identical to those in the criminal procedure code. The juvenile code contains language identical to the amendments to O.C.G.A. § 17‑10‑1.2(d) allowing a victim to file a complaint with the Judicial Qualifications Commission. Certain provisions of the juvenile code, however, retain their distinct characteristics. For example, the provisions of O.C.G.A. § 15‑11‑155(b) allowing a judge to determine sequestration of witnesses “in order to protect the privileges and confidentiality rights of the child” remain the same with a simple substitution of “form” for “statement” allowing the use of the same form used in criminal cases. The Act also amends O.C.G.A. § 17‑10‑1.2 which clearly applies only to criminal cases and is not part of the Crime Victims’ Bill of Rights.

You refer in your letter to a right in juvenile proceedings that is similar to a right in criminal proceedings. O.C.G.A. § 15‑11‑64.2 (a) (former O.C.G.A. § 15‑11‑28 (f)).[3] That Code section previously read: “In any delinquency proceeding in which a petition has been filed, the juvenile court shall notify any victim of a delinquent child’s alleged offense that the victim may submit a victim impact statement . . . .” 1992 Ga. Laws 2419, 2419-20, §1 (former O.C.G.A. § 15‑11‑28(f)(1)) (emphasis added). This statement was attached to the case file and could be used during any stage of the proceedings against the child. However, O.C.G.A. § 15‑11‑64.2 (a) was amended in 2010, and now reads: “In any delinquency proceeding in which a petition has been filed, the juvenile court shall notify any victim of a delinquent child’s alleged delinquent act that the victim may submit a victim impact form as provided in Code Section 17‑10‑1.1 . . . .” 2010 Ga. Laws 214. 215 (emphasis added). This form is the same form that is used in adult criminal proceedings and the provisions of O.C.G.A. § 17‑10‑1.1(e) govern the use and disclosure of the victim impact form. See O.C.G.A. § 15‑11‑64.2(b). This change simply provides a consistent form for use in both types of proceedings; it does not expand the application of the Bill of Rights generally to juvenile proceedings.

The actual “Bill of Rights” begins with O.C.G.A. § 17‑17‑1, which specifically addresses “victims of crimes.” At no point does the section refer to juvenile proceedings. The term “crime” remains defined as an act committed in this state which constitutes a violation of certain enumerated provisions of Titles 16, 30, and 40, and has not been expanded to include juvenile adjudications; O.C.G.A. § 15‑11‑38(a) clearly provides that a juvenile adjudication is not a conviction of a crime. There are definition changes in O.C.G.A. § 17‑17‑3 adding a definition of “arrest” which includes “the taking of a child into custody.” That is consistent with the prior opinion and can be read to refer to those juveniles convicted of crimes but housed in a juvenile facility. This is particularly so since the definition of “victim” remains essentially unchanged and means “[a] person against whom a crime has been perpetrated.” O.C.G.A. § 17‑17‑3(11) (Supp. 2010) (emphasis added). As the 1996 opinion correctly noted, “[a] juvenile under the jurisdiction of the juvenile court is not charged with the commission of a crime, but rather with the commission of a delinquent act which is not a crime but instead ‘[a]n act designated a crime by the laws of this state.’” 1996 Op. Att’y Gen. U96-1, at 91. While the new definition of “criminal justice agency” refers to “custodial authority,” the definition of “custodial authority” has not changed. The inclusion of the Department of Juvenile Justice again can be read to refer to its role in housing juveniles treated as adult offenders.

Other changes to the Bill of Rights are also focused on criminal proceedings. For example, O.C.G.A. § 17‑17‑9 refers to the rights of the victim “to be present at all criminal proceedings” but does not refer to juvenile proceedings. The right to be present at juvenile proceedings is still addressed separately in the juvenile code. The provisions in O.C.G.A. § 17‑17‑12.1, however, concerning an accused communicating with a victim or his family, already specifically apply to those “adjudicated by the juvenile court of having committed a delinquent act or designed [sic] felony against such victim.” This inclusion of juvenile offenses indicates an intention for this particular Code section to apply to all juvenile offenders. In fact, the specific inclusion of juvenile adjudications in this Code section cautions against reading the remainder of the Bill of Rights to apply to juvenile proceedings generally.

Pursuant to the principle of statutory construction, “Expressum facit cessare tacitum” (if some things are expressly mentioned, the inference is stronger that those omitted were intended to be excluded) and its companion, the venerable principle, “Expressio unius est exclusio alterius” (“The express mention of one thing implies the exclusion of another”), the list of actions in [a statute] is presumed to exclude actions not specifically listed . . . , and the omission of [additional actions] from [the statute] is regarded by the courts as deliberate.”

Alexander Properties Group v. Doe, 280 Ga. 306, 309 (2006). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” O.C.G.A. § 1‑3‑1. Further, “a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject matter . . . are construed together,and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” Butterworth v. Butterworth, 227 Ga. 301, 303-04 (1971). In its 2010 amendment to O.C.G.A. § 15‑11‑64.2, the General Assembly intended to retain similar, but separate, rights for the victims of delinquent acts by juveniles while also retaining some of the distinct provisions of the juvenile code.

It is significant that the General Assembly did not include a provision that would afford unenumerated rights to victims of juvenile delinquent acts. O.C.G.A. § 17‑17‑15 (d) provides that “[t]he enumeration of these rights shall not be construed to deny or diminish other notification rights granted by state law.” Accordingly, the rights of victims of adult offenses are not limited to the Crime Victims’ Bill of Rights. However, no similar provision is included anywhere in the juvenile code.

Therefore, it is my opinion that the Crime Victims’ Bill of Rights, O.C.G.A. §§ 17‑17‑1 through ‑16, has limited application to juvenile court proceedings which are governed primarily by the provisions contained in Title 15, and the conclusion reached in 1996 Op. Att’y Gen. U96-1 remains the opinion of this office.

Prepared by:

Joseph J. Drolet

Senior Assistant Attorney General

[1]The opinion considered several factors in reaching that conclusion. It noted that the definitions of “crime” and “victim” were inconsistent with juvenile proceedings because a juvenile in juvenile court is charged with “the commission of a delinquent act which is not a crime . . . .” 1996 Op. Att’y Gen. U96-1 at 91. The opinion also found the reference to the former Department of Children and Youth Services (DCYS) as a “custodial authority . . . insufficient evidence of a legislative intent to include the juvenile courts within the ambit of the act” since the reference to DCYS in the act “relates to persons sentenced as adults and not juvenile offenders in general.” Id. at 92. The opinion also noted the desire of the General Assembly to exclude juvenile court proceedings by separately providing similar rights to victims of delinquent acts within the juvenile code.

[3] The juvenile victim impact statement provisions addressed in this section were originally enacted at 1992 Ga. Laws 2419, 2419-20 (former O.C.G.A. § 15-11-28). That Code section was redesignated O.C.G.A. § 15-11-41 at 2000 Ga. Laws 20, 54, and the victim impact statement provisions became subsection (e)(1). In 2002, the juvenile code was again reorganized and sections renumbered, and the victim impact statement provisions were recodified in a new O.C.G.A. § 15-11-64.2. 2002 Ga. Laws 1162, 1166.