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The Rights of Crime Victims
Medopine
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So I'm in a clinic class this semester working for NCVLI, the National Crime Victim's Litigation Institute. I was wondering how much people here knew about the victim's rights movement and what you all felt about victim rights in general in America. I worked misdemeanor arraignments for the county DA last summer and had some contact with victims. Now I'm going to be writing an amicus brief for a case in Maryland on behalf of a victim trying to keep some video evidence under seal.
In 1982, the President's Task Force on Victims of Crime issued its final report (you can find PDFs here). This was part of the beginning of the general rights movement for crime victims that has been growing since, and made many gains in legislation and adjudication of victim's rights. The section "Victims of Crime in America" is a good read, not too long, and describes the way many victims were feeling about their interaction with the criminal justice system at that time.
In short, victims were (and to some extent still are today) pushed to the side of the criminal process, where the prosecutor represents the interests of the State and the defense counsel will do everything possible to discredit, intimidate, or exclude the witness from the case together. Victims are often left feeling like they have too little information and input into the prosecution of their attacker, and that their voice and opinions are belittled by the court.
These are the general victims rights that are codified in some form in many states, though application and interpretation of these rights is still at issue.
The Right to Protection
- A victim has a right to feel safe and be adequately protected from the defendant. This means a prosecutor and court willing to listen to the victim's input on whether or not the defendant should be released from jail. It also means reasonable efforts to help the victim feel safe in other ways that might help (counseling, support groups, police checkups, notification if defendant does get out, etc.)
The Right to Information and Notice
- A victim has a right to information and notification of their own rights, as well as information about the criminal justice process. They should be informed about court dates, release of defendant, trial dates, sentencing, etc. They should be informed about what rights they have and how to assert them.
The Right to Privacy
- A victim has a right to personal privacy. This means restrictions on personal information (often times psychological records are sought by the defense in sexual assault cases, for example) and restrictions on who has access to sensitive court documents. This can also include restriction of publication of a victim's name.
The Right to Confer
- A victim has a right to confer with the prosecution about their case and the strategy of their case. This is a fine line, because the prosecution exercises a lot of discretion about which cases to charge and how to go about charging them. However the victim has a right to be notified about plea bargains, for example, and give input into how those pleas are approached.
The Right to Restitution
- A victim has a right to restitution. Obviously if the defendant has caused monetary loss for the victim, the victim has a right to recover for that loss.
The Right to be Present
- A victim has a right to be present. Even as a witness to the crime, a victim has a right to be present in the courtroom during a trial, and at other hearings, including a sentencing hearing. This right is constantly in contention as defense will often do anything they can to exclude a victim from proceedings. Also it conflicts with the traditional request by counsel that all witnesses be excluded from the court room during testimony.
The Right to Speedy Disposition
- A victim has a right to a speedy disposition, just like a defendant. Set over after set over is not appropriate for a victim that wants to get the case over with so they can move on with their life.
The Right to be Heard
- A victim has a right to be heard. This can apply in many of the situations described above, but is especially applicable during sentencing.
The Right to Dignity, Respect, and Fairness
- A victim has a right to be treated by counsel and by the court with dignity, respect, and fairness. This right sort of encompasses all the others and dictates that they be honored in a fair manner.
I'd be very interested in what people think about these asserted rights and also if anyone here has ever been a victim of crime (large or small) and is willing to share their experience.
In 1982, the President's Task Force on Victims of Crime issued its final report (you can find PDFs here). This was part of the beginning of the general rights movement for crime victims that has been growing since, and made many gains in legislation and adjudication of victim's rights. The section "Victims of Crime in America" is a good read, not too long, and describes the way many victims were feeling about their interaction with the criminal justice system at that time.
In short, victims were (and to some extent still are today) pushed to the side of the criminal process, where the prosecutor represents the interests of the State and the defense counsel will do everything possible to discredit, intimidate, or exclude the witness from the case together. Victims are often left feeling like they have too little information and input into the prosecution of their attacker, and that their voice and opinions are belittled by the court.
These are the general victims rights that are codified in some form in many states, though application and interpretation of these rights is still at issue.
The Right to Protection
- A victim has a right to feel safe and be adequately protected from the defendant. This means a prosecutor and court willing to listen to the victim's input on whether or not the defendant should be released from jail. It also means reasonable efforts to help the victim feel safe in other ways that might help (counseling, support groups, police checkups, notification if defendant does get out, etc.)
The Right to Information and Notice
- A victim has a right to information and notification of their own rights, as well as information about the criminal justice process. They should be informed about court dates, release of defendant, trial dates, sentencing, etc. They should be informed about what rights they have and how to assert them.
The Right to Privacy
- A victim has a right to personal privacy. This means restrictions on personal information (often times psychological records are sought by the defense in sexual assault cases, for example) and restrictions on who has access to sensitive court documents. This can also include restriction of publication of a victim's name.
The Right to Confer
- A victim has a right to confer with the prosecution about their case and the strategy of their case. This is a fine line, because the prosecution exercises a lot of discretion about which cases to charge and how to go about charging them. However the victim has a right to be notified about plea bargains, for example, and give input into how those pleas are approached.
The Right to Restitution
- A victim has a right to restitution. Obviously if the defendant has caused monetary loss for the victim, the victim has a right to recover for that loss.
The Right to be Present
- A victim has a right to be present. Even as a witness to the crime, a victim has a right to be present in the courtroom during a trial, and at other hearings, including a sentencing hearing. This right is constantly in contention as defense will often do anything they can to exclude a victim from proceedings. Also it conflicts with the traditional request by counsel that all witnesses be excluded from the court room during testimony.
The Right to Speedy Disposition
- A victim has a right to a speedy disposition, just like a defendant. Set over after set over is not appropriate for a victim that wants to get the case over with so they can move on with their life.
The Right to be Heard
- A victim has a right to be heard. This can apply in many of the situations described above, but is especially applicable during sentencing.
The Right to Dignity, Respect, and Fairness
- A victim has a right to be treated by counsel and by the court with dignity, respect, and fairness. This right sort of encompasses all the others and dictates that they be honored in a fair manner.
I'd be very interested in what people think about these asserted rights and also if anyone here has ever been a victim of crime (large or small) and is willing to share their experience.
Medopine on
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The point here is to ask yourself why we consider the plaintiff the State to the exclusion of the very real interests of the victim, the person most directly harmed by the crime in the first place. The victim's rights movement is working to make victims a part of the system again.
And obviously the victim doesn't decide sentencing, because the judge or jury does that. The victim has a right to be present and heard, that is, to tell the court or the jury how the crime impacted their life and what they think the defendant deserves as a sentence. (Keep in mind, in some cases, the victim may actually think the defendant deserves a lesser sentence than what the prosecutor has decided to pursue).
I don't think we have to lose the importance of the State as prosecutor of crimes just because we recognize victim's rights.
Putting lots of focus on the victim also seems like it could create a bias towards the prosecution.
The defendant gets a ton of rights (as they rightly should) that often put the focus on them. I don't think this creates a bias toward the defense, necessarily.
Also remember that these rights are available to victims, and that they should be informed of them, but they are not forced to assert them. The choices are available and that's what's important.
In criminal trials, the one who has been harmed is the state. Thats why in many states, the charging document states that X is accused of committing crime Y against the peace and dignity of State A (or contrary to the dignity of State A, etc). Could there be a victim? Sure, but that doesn't make the criminal trial any more about them. That's the realm of civil law.
I have to say that all of the "rights" listed seem more like grand platitudes than anything that should be realistically implemented. The right to notice? Criminal trials are public record, so anyone who wants to know court dates can. Right to confer on trial strategy? How to charge? Pleas? Did the victim all of a sudden become a lawyer due to them being victimized?
Again, I think it's a lot of lofty ideas that sound good on paper, but that's about it.
So, when a woman gets raped in Florida, the one who has been harmed is the Governor of Florida ? When a man is beaten up and robbed in a Bronx alley, the one who has been harmed is the State of New York ?
The "victim's rights" you are asserting, particularly the right to restitution and the right to protection, are properly exercised in civil court, not in criminal court. The right to protection is guaranteed by the police and by restraining orders (not by incarceration). The right to restitution is what civil court is all about.
There are a couple of those rights I take issue with, though. The first is the right to privacy. In a criminal case, the defendant is entitled to any non-prejudicial evidence that would indicate his innocence, including medical records of the victim. The second is the right to a speedy disposition. Criminal defendants are entitled to make unlimited objections, present unlimited evidence, and make unlimited appeals, except where such actions would be in contempt of court. Victims do not have the right to truncate this process.
I'm all for treating victims with decency and respect, but if you make it personal you essentially undermine what our justice system is supposed to represent.
QFT. I don't think our justice system can mature until we take the vengeance out. Vengeance is an empty wasteful emotion. That's why we have impartial (in theory) Judges and Juries.
Normally I would support many of those rights, except that too many of them happen before or during trial when they are more often just "Alleged Victims".
These days you can't go a month without hearing about someone being freed due to DNA evidence. These rights would be a violation of the accused if they are incorrectly applied to the innocent (and they would be). Due process is damned important. I will always stand against taking away the rights of people who haven't been proven guilty.
But after they are sentenced, I would be all for those rights.
Exactly. Our criminal system is representative to give some level of equality to the accused. If you put too much power into eh hands of victims you could very well end up with a a system where crimes committed against the powerful are worse than crimes committed against the helpless. It's bad enough as it is but it could be much worse.
I have a problem with pretty much every right that involves the victim having "input with the court." This is especially true in jury trials. You want the victim to talk to the prosecutor about how he's going to try the case? Fine. Whatever. I don't really give a shit. But "victim impact statements" to juries are about the most ridiculously prejudicial thing ever, with basically zero probative value. "Oh, Bob had loving parents, so his murderer deserves the death penalty, whereas Roberta was an orphan, so really, killing her wasn't so bad." It basically says that some people's lives are worth more than others, and we have too much of that sort of thing in the justice system as it is, without that kind of bullshit aggravating it even more.
This is to say nothing of the fact that the victim rights' movement is largely to blame for sex offenders becoming the new bogeymen of our generation, and the fucking ridiculous laws put in place to deal with them.
I also have a problem with the victim being present in the courtroom during the testimony of witnesses. I mean, if the victim isn't testifying, then fine, whatever. But if they are, there's a reason witnesses are sequestered: it's so they don't change their testimony to match the testimony of other witnesses.
As for the right to a "speedy disposition," fuck that. The victim has a right to get fucking over it. They aren't required to be at the trial every fucking day, obsessing over their vengeance. I mean, they have every right to be there, if they want, but the justice system fucks up enough with all the safeguards we have in place right now; I don't think we need to try to skip over some of the "less important parts" of the justice system just because the victim doesn't have the patience to wait to have their bloodthirst sated.
I don't think these rights are really about victim vengeance on a defendant. They're about giving the victim due process as well as the defendant - they're about giving the victim a chance to be involved in the case in ways that are helpful to the justice system because they provide information for the court to take into account. And they're about making a victim's involvement with the criminal system a less hellish experience so that victims will be more willing to cooperate and participate in ways that will help the State make its case.
Than, this is really fucked up, I'm sorry. Speedy disposition isn't about "obessessing over vengeance." It's about getting the case over with for purposes of moving on, mentally and physically. What if the victim wants to move away, but doesn't know for how long they'll be needed by the prosecution in court? And yes, they CAN be required to show up if they are a witness or the prosecution needs them to be there.
Holy christ, are you going to tell a rape victim that wants to attend the trial that she has no right to protect the confidential psychological records of the past five years between her and her therapist? Or no right to privacy in her own diary? Are you going to tell her to "get fucking over it" and wait outside while people talk about her and maybe even make things up that she could truthfully dispute?
The same probative value as the statement by the defense about the defendant's personality and family history, often times including pictures of the defendant with happy family members and friends.
Also it is especially probative when aggravated sentences are involved.
Regardless of what the victim's mindset is, the state has a compelling interest in taking the time to do a case right. It's much more of an injustice to hurry through a case, fuck it up, and send an innocent person to prison than it is ot make a victim deal with the case for a little longer.
What if the victim wants to move away? They can wait. Are there really that many cases where a victim suddenly wants to flee the state and can't wait a few months?
Bullshit. Statements about the personality of the defendant are valuable in that they can potentially show a disparity between the sort of person the defendant is and the sort of person who could commit such a crime. Statements about the victim have literally no value other than sentimental, and are specifically designed to do nothing but muck up what should be an cold and objective process with sappy emotional bullshit.
And yeah, they can be required to show up to testify, but there you're talking about, at most a week.
Oh, the trial is getting in the way of the victim moving? Oh, well, that's just awful. Why don't we just skip it, and shoot the accused? Because that would just make things so much more convenient.
And guess what, all sorts of things can be said about any of the witnesses in a trial when they're not there. Any prosecutor worth his salt will have already asked the victim about the accusations of other witnesses, and if they're not true, he can clear them up on direct or redirect. How fair is it that the victim gets to hear the testimony of the other witnesses, then craft his/her testimony so that it fits perfectly with theirs? Oh, but that's okay, since it's not justice we're looking for, it's vengeance. Oh, wait...
Cite an example.
Than - the defendant is most certainly a witness, but they get to be present during the whole trial. Why is that?
And also if you think a criminal case is over in a week, you're crazy.
No, I think the victim's testimony is over in a week, at the very outside. More likely, it's over in a few hours.
The victim's involvement in the case is certainly not over in two weeks.
You guys are making me late for an interview, I'll be back later.
Well, I can see an argument for allowing probative statements from the victim during sentencing, in order to judge the severity of the crime and so on. Does that give me ruthless-points?
Yeah, and writs of replevin basically streamlined matters of recovering property. Yet they were struck down by the SCOTUS as violating due process. Yes, Than, due process is indeed that important.
Are you going to tell a defendant who's on trial for his life or his freedom (often permanently) that he can't be allowed to view the medical records of his accuser in order to directly rebut the accuser's testimony or present an alternate theory of the case? This is just pure meaningless rhetoric.
The fact of the matter is, defendants should and must have access to any information that could tend to indicate their innocence. Whether or not it has any probative value is a matter for judges to decide on a case-by-case basis.
This is true, but notice that there are two separate harms being done: one to society, and one to the individual. Accordingly, there are two remedies: one in criminal court (which settles the harm to society) and one in civil court (which settles the harm to an individual).
And this, here, is why there's such a big problem with this movement. The 'right' of the victim to 'feel whole' should never, EVER trump the Constitutionally established right of the defendant to, well...defend themselves! If the victim's diary does, indeed, contain truly exculpatory evidence, then no, the victim doesn't get to say "no, it can't be put up as Evidence D because it's personal." (Now, I don't have a problem with forcing the defense to PROVE there's exculpatory evidence before the matierial can be admitted - but if they can do so, then it goes in.)
The problem is that the victim's participation in the criminal process is often crucial to the case against the defendant.
To take a different tack, in the capacity that these rights or ideals make the process of participating in the criminal justice system easier and less traumatic for a victim, they make victims more willing to come forward, participate, and help the prosecution.
I don't disagree that a harm against society happens when a crime is committed and that the State should prosecute crimes. I do disagree that the harm to the victim is not important to criminal proceedings, or is not on the same level as the amorphous harm to society. In fact I think the harm to the victim IS the harm to society first and foremost.
But anyway I'm apparently the only person thinking this way here so I'm going to try not to post too much more.