Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses to key objections raised by opponents.

by Steve Twist

ACLU
Statement in Opposition, June 9, 2003

1. “This amendment would fundamentally alter the nation’s founding charter and would apply to every federal, state, and local criminal case, profoundly compromising the Bill of Rights protections for accused persons.”

Nothing in the proposed amendment “compromises” the Bill of Rights. The Amendment would, as is the nature of amendments, “alter the nation’s founding charter” by providing new civil liberties to all citizens. Further, the Amendment would “apply to every... criminal case” because the extension of civil liberties must exist in every criminal case. As an organization that promotes civil liberties, the ACLU should hail the extension of new “civil liberties” to criminal cases.

2. “Many of these provisions reflect laudable goals, but it is unnecessary to pass a constitutional amendment to achieve them. Every state has either a state constitutional amendment or statute protecting victims’ rights and the proponents have not made the case that those measures do not protect victims’ interests. More importantly, providing these ‘rights’ to defendants will compromise the rights of the accused. It would be the first time in our nation’s history that the Constitution was amended in a manner that restricted individual rights.”

The ACLU acknowledges that the goals of the amendment are “laudable,” but asserts that the goals may be achieved without a constitutional amendment and that state laws are sufficient. In the very next sentence the ACLU says these very same “laudable goals” will compromise the rights of the accused and “restrict individual rights.” The ACLU cannot have it both ways. If the goals (participatory rights for crime victims) are “laudable,” they should be worthy of inclusion in the U. S. Constitution because, as Prof. Tribe says, “are the very kinds of rights with which our Constitution is typically and properly concerned -rights of individuals to participate in all those government process that strongly affect their lives.” The case to include the rights in the constitution has been made with sufficient force to convince most of the country, including every Administration since Ronald Reagan’s, the Department of Justice, a bi-partisan majority of the Senate Judiciary Committee, the National Governor’s Association, 42 State Attorneys General, and the mainstream of the victims’ rights movement.

The rights proposed do not “compromise” the rights of the accused, they add to the civil liberties that we all enjoy as Americans and it is strange to characterize this as “restricting individual rights.” The amendment’s Section 2 begins: “A victim of violent crime shall have the right... .” By its plain terms the amendment extends rights, it does not “restrict” them.

3. “If passed, the Amendment would erode the presumption of innocence; jeopardize the right to a fair trial; hamper the ability of law enforcement to effectively prosecute cases; discriminate between victims and impose legal liability on the states.”

“...erode the presumption of innocence...”

The ACLU contends that the amendment “undermines the presumption of innocence by conferring rights to the accuser at the time a criminal case is filed when the accused is still presumed to be innocent. ... But giving the accuser the constitutional status of victim will impact the judge and jury, making it extraordinarily difficult for fact finders to remain unbiased when the ‘victim’ is present at every court proceeding giving his or her opinion as to what should happen. The VRA makes the accuser a third party in the criminal case, even before a judge or jury has determined that the accuser is actually a 'victim.’”

The ACLU displays a lack of understanding both about the nature of the presumption of innocence as well as about human nature. First, the Supreme Court has said, the presumption of innocence “lies at the foundation of the administration or our criminal law.” The court has held that while use of the particular phrase “presumption of innocence” may not be constitutionally mandated, it is clear that the Due Process Clause of the Fourteenth Amendment must safeguard against dissolution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. See Estelle v. Williams. The presumption of innocence is a principle that demands that guilt be established by the government “beyond a reasonable doubt.” Nothing in the proposed amendment lessens the government’s burden of proof.

In the ACLU’s view of justice, a battered woman does not deserve to be “named” a victim before a verdict convicting her batterer is returned. This view is far outside the mainstream of advocacy for women who are victims of violent crime. The presumption of innocence is not “undermined” when

• a battered woman is given the right to notice of proceedings, the right to attend those proceedings, or the right to be heard at release, plea, sentencing, and clemency proceedings; The presumption of innocence is not “undermined”
• a woman’s safety is considered when release decisions are made, or when her claims to restitution or avoiding unreasonable delay are considered;

There is no evidence that giving victims participatory rights undermines the process to fairly determine guilt or innocence. In the small number of jurisdictions where victims have had these rights for years, they have never been found to undermine the right to a fair trial. Victims are not “third parties,” merely because in selected proceedings they have the right to be heard on limited matters affecting their constitutional interests.

Merely because victims would have the right to be present during court proceedings, they would not, have the right to give their opinion about what should happen at “every court proceeding.” The amendment does not give a victim the right to “input into each stage ... from bail through parole.” The amendment reserves the right to be heard to release, plea, sentencing proceedings primarily, as well as those that might implicate the victim’s interest in avoiding unreasonable delay.

The ACLU writes “...battered women are often charged with crimes when they use force to defend themselves against their batterer. Under the VRA, the battering spouse is considered a ‘victim’ and will have the constitutional right to have input into each stage of the proceeding from bail through parole. Why should batterers who have spent years abusing their partners be given special constitutional rights?” (emphasis added.) Here the hypocrisy of the ACLU is astonishing, for it is the very same ACLU that defends the very same batterer’s “special constitutional rights” when that “batterer” is a criminal defendant. The truth is that a batterer who has “spent years abusing their partner” should be in prison. Under the ACLU’s odd calculus of who qualifies for constitutional rights, it is only the accused or convicted batterer, never the crime victim. The “VRA” by its terms allows for “restrictions” when necessary to protect the safety of any battered woman, a fact the ACLU conveniently ignores in its analysis.

“ ...jeopardizes the right to a fair trial...”

The right to attend a trial, even for victims who will also be witnesses, does not “jeopardize the right to a fair trial.” The bald assertion to the contrary does not make it so. No court has held that a victim’s general right to attend is a denial of the rights of an accused. Such rights have been in the laws of several states for many years without diminishing the fair trial rights of the accused.

The “interest in avoiding unreasonable delay” in no way threatens defendant’s rights to effective assistance of counsel. Time needed for preparation of a defense is not “unreasonable delay.” Moreover, the amendment merely requires that the victim’s interest be “considered.” The ACLU regularly champions the ability of the courts to decide cases fairly; yet in the case of victims’ rights they say the right to “consideration” of “avoiding unreasonable delay” could “compromise the prosecution’s case if it is not ready to proceed to trial but must do so at the victim’s insistence.” “Consideration” is not “insistence.”

“ ...hamper law enforcement...”

Perhaps the best judge of what will “hamper law enforcement” is law enforcement itself. 42 of the state Attorneys General, the International Association of Chiefs of Police, The National Association of Police Organizations, the American Probation and Parole Association, the American Correctional Association, the National Troopers Coalition, the California Correctional Peace Officers Association, the International Union of Police Associations (AFL/CIO), the California District Attorneys Association, the National Criminal Justice Association, Concerns of Police Survivors, and have all endorsed the amendment. They would not have done so had the dire consequences which are the subject of our opponents speculation been credible. They are not. There is simply no evidence anywhere in America that participatory rights for victims hurt either defendants’ rights or law enforcement. Assertions to the contrary are hollow. Giving victims the right to speak at plea proceedings has not led to more trials, nor have the rights “backfired”on victims.

“ ... impose inflexible mandates on the states...”

“Inflexible mandates” are lauded when they enforce the rights of accused and convicted offenders, but condemned when it comes to victims. The Amendment simply asks for rigorous protection of civil rights for all Americans, defendant or victim.

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