S4961

An Act concerning the “Sexual Violence Restorative Justice Pilot Program” and amending P.L.2021, c.60.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2021, c.60 is amended to read as follows:

1. a. The Attorney General shall establish a three-year “Sexual Violence Restorative Justice Pilot Program”, or of any other duration for which funding is available, to implement a restorative justice program for survivors of sexual violence. The Attorney General shall [implement] utilize the Division of Violence and Victim Assistance to design this program and shall effectuate its implementation by entering into an agreement to conduct the program with an organization [to design the program and provide technical assistance and an agreement with a separate organization to conduct the program. The Attorney General shall select the organizations, who are to have], selected through the request for proposal process, that has demonstrated expertise in trauma informed care and which is not [be] associated with any law enforcement agency[, through requests for proposals. Both organizations shall be compensated].

b. Through the direct participation of survivors of sexual violence, including survivors who have chosen not to report the act of sexual violence to law enforcement, the program shall implement restorative justice practices which include, but are not limited to, upholding the principles of survivor autonomy, restoring a sense of control and independence to survivors, and emphasizing outcomes that are essential to the survivor’s healing process.

A survivor of sexual assault and a person accused of sexual assault shall not be required to participate in the restorative justice program. If a survivor of sexual assault chooses to participate in the restorative justice program, the survivor may choose to no longer participate at any time.

The pilot program shall [be established in one northern, one central, and one southern county in this State, as determined by the Attorney General] provide program services to victims located throughout the State.

c. The Attorney General, in conjunction with the [organizations] organization selected pursuant to subsection a. of this section, shall submit a report evaluating the effectiveness of the pilot program to the Governor and, pursuant to the provisions of section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature within 90 days of completion of the program. The report shall evaluate the pilot program and recommend whether the pilot program should be continued, expanded, or made permanent.

d. For the purposes of this section, “restorative justice” means an approach to repairing the harm caused by a crime through direct involvement of those affected, including the victim, the victim’s family and friends, and the community, for the purpose of fulfilling the victim’s expectations for justice while also holding accountable the person who caused the harm, and which may be implemented through varying formats, such as sharing circles, victim impact panels, and facilitated conferences.

e. (1) Any written or oral communication, submission, or action undertaken during or in preparation for a sexual violence restorative justice program interaction or as a follow-up to that interaction, or the fact that the interaction has been planned or convened shall be confidential and privileged and shall not be accessible to the public pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.). The communication, submission, or action shall not be referred to, used, or admitted in any civil, criminal, family court, or administrative proceeding, unless the privilege is waived during the proceeding or in writing by the party protected by the privilege.

Privileged information shall not be subject to discovery or disclosure in any judicial or extrajudicial proceeding.

(2) Any waiver of the privilege pursuant to paragraph (1) of this subsection shall be limited to the participation and communication of the party who waived the privilege. The participation or communication of any other participant shall remain privileged, unless waived by the other participant.

(3) Evidence that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely because it was discussed or used in a restorative justice program interaction.

(4) If, in any civil, criminal, family court, or administrative proceeding, there is a challenge to a claim that a sexual violence restorative justice program interaction is privileged pursuant to paragraph (1) of this subsection, the judge shall conduct a hearing in camera to determine whether the interaction is privileged. During the hearing, the judge may consider information that would otherwise be privileged to the extent that the information is probative of the issue.

(5) The privilege set forth in paragraph (1) of this subsection shall not apply if:

(a) disclosure is necessary to prevent death, serious bodily injury, or the commission of a crime;

(b) disclosure is necessary to comply with another law; or

(c) a judicial, quasi-judicial, or administrative body requires a report on a restorative justice program interaction, however, the report shall be limited to the fact that an interaction has taken place, an opinion regarding the success of the interaction, and whether further restorative justice program interactions are expected.

(cf: P.L.2021, c.60, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill concerns the “Sexual Violence Restorative Justice Pilot Program.”

Under current law, the Attorney General is required to establish a three-year “Sexual Violence Restorative Justice Pilot Program” to implement a restorative justice program for survivors of sexual violence. This bill requires the Attorney General to establish a three-year pilot program or of any other duration for which funding is available.

In addition, current law requires the Attorney General to implement this pilot program by entering into an agreement with an organization to design the program and provide technical assistance and a separate organization to conduct the program. The organizations are required to be compensated.

Under the provisions of this bill, the Attorney General is to utilize the Division of Violence and Victim Assistance to design the program and is to enter into an agreement to conduct the program with an organization meeting certain criteria as set forth under current law. The organization is to be selected under the request for proposal process, in accordance with current law. The bill removes the requirement that the organizations be compensated.

Further, current law requires that the pilot program be established in one northern, one central, and one southern county in this State, as determined by the Attorney General. This bill requires the pilot program to provide program services to victims located throughout the State.

The bill also provides that any written or oral communication, submission, or action undertaken during or in preparation for a sexual violence restorative justice program interaction or as a follow-up to that interaction, or the fact that the interaction has been planned or convened is confidential and privileged and is not accessible to the public pursuant to the “Open Public Records Act.” The communication, submission, or action is not to be referred to, used, or admitted in any civil, criminal, family court, or administrative proceeding, unless the privilege is waived during the proceeding or in writing by the party protected by the privilege. The bill provides that privileged information is not subject to discovery or disclosure in any judicial or extrajudicial proceeding.

Further, under the bill, any waiver of the privilege, in accordance with the bill’s provisions, is limited to the participation and communication of the party who waived the privilege.

The bill also provides that if, in any civil, criminal, family court, or administrative proceeding, there is a challenge to a claim that a sexual violence restorative justice program interaction is privileged pursuant to the bill’s provisions, the judge is to conduct a hearing in camera to determine whether the interaction is privileged. During the hearing, the judge may consider information that would otherwise be privileged to the extent that the information is probative of the issue.

Finally, the bill provides that the privilege set forth under the bill’s provisions does not apply if: 1) disclosure is necessary to prevent death, serious bodily injury, or the commission of a crime; 2) disclosure is necessary to comply with another law; or 3) a judicial, quasi-judicial, or administrative body requires a report on a restorative justice program interaction. However, the report is to be limited to the fact that an interaction has taken place, an opinion regarding the success of the interaction, and whether further restorative justice program interactions are expected.