Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses
to key objections raised by opponents.
by Steve Twist
1. “We, like the proponents of the amendment, are extremely disturbed by the way in which crime victims are treated by our criminal justice system. ... we see firsthand the tragic consequences that result from society’s and the criminal justice system’s devaluing and misunderstanding of the experiences of victimization.”
The way to change the way crime victims are “treated” by the system; the way to stop the “devaluing” of victims is to give victims “value” in the U.S. Constitution, where they now have none.
2. “[The amendment] would permit a husband who has repeatedly beaten his wife to stand before a judge and object to her release on bail, even when she is the only parent who has cared for their minor children.”
A husband who has repeatedly beaten his wife should be in prison. The fact that he isn’t is reason to fight for reforms that will put him there. It is not reason to oppose rights for all victims of violent crime.
3. “... the Amendment would require her to pay restitution to her abuser because he is considered a ‘victim.’”
The Amendment does not “require” the payment of restitution, merely that just claims for restitution be duly considered where they are created by state or federal law.
4. “...statutory alternatives and state remedies are more suitable.”
The Clearinghouse is apparently content that the rights of battered women remain
second-class rights in our justice system. Their faith that these second-class
rights, which clearly have not worked, can “truly assist victims of crime,” bespeaks
a confidence in statutes that real-world experience has not confirmed.
5. “Unfortunately, the grave injustices of being victimized probably cannot be fully addressed or remedied in the criminal justice system.”
Among the “grave injustices” of being victimized are those injustices inflicted by the government during the criminal justice process, but the criminal justice system itself can remedy these through a constitutional amendment.
6. “We urge, instead, ... additional time, money and energy... .”
These things, especially money are no substitute for justice.
7. “It is entirely unclear how the proposed amendment would increase basic courtesies and respect for victims (particularly in light of the amendment’s explicit provision for governmental immunity from civil actions).”
Just as the participatory rights of defendants are more than “courtesies,” the rights established by the amendment are enforceable and are more than “basic courtesies.” The amendment does not create “governmental immunity for civil actions,” it simply says that as a matter of the text of the Constitution, not right for money damages is created. Congress, or the states for that matter, would remain free to authorize enforcement actions in statute. But lawsuits for money damages are not an effective means of enforcing constitutional rights. The best means is provided in the amendment itself; it is the express grant of standing in Section 3.
8. “...there are particular problems with the mandatory restitution clause.”
There is no “mandatory restitution clause” in the amendment.
9. “... it provides virtually no remedies for victims whose rights
are violated.”
The Bill of Rights provides “no remedies” for defendants whose rights have been violated, except the inherent right to standing to assert those constitutional rights. Here the grant of standing is explicit. Moreover, Congress has the power to “enforce” the amendment through appropriate legislation, just as the 14th Amendment is enforced.
10. “ ... the constitutional financial mandate this amendment imposes upon the states would require their already overburdened governments to divert funds from agencies that provide meaningful assistance to battered women...”
The Clearinghouse does not identify the “financial mandate” imposed upon the states.
11. “Defendants are facing a loss of liberty and life at the hands of the state, and their rights must not be eroded. ... the harsh reality is that the victim has very little to lose as a result of the trial.”
This view bespeaks a shallow and callous understanding about victimization and the consequences of injustice. A defendant’s potential loss of liberty is no justification for unnecessary injustice toward the victim. The Clearinghouse asserts, “the role of the criminal justice system is to determine whether or not the defendant committed the offense he or she is charged with, not to restore the victim.” The goal of the system is to do justice, which includes discovering the truth and restoring the victim.
12. “[The amendment will mean] jurors will be far less likely to receive independent, truthful testimony and the possibility of a fair, reliable, and just verdict will be diminished.”
This assertion is demonstrably false. In no state where victims are given the right to be present during trial is there any evidence of the results the Clearinghouse fears.
13. “... the Amendment would make it much more difficult for judges to limit testimony of ‘victims’ at all stages of the proceeding, even if their testimony is not relevant or is so inflammatory that justice would be undermined.”
This assertion is simply wrong as a matter of law. First, nothing in the amendment gives victims the right to “testify.” The right to be heard is not the right to call yourself, or be called as a witness. It is the right of allocution, not testimony. Nothing in the amendment changes the rules of testimonial relevancy. Moreover, inflammatory statements that are unduly prejudicial would remain prohibited by the due process clause. Payne v. Tennessee, 501 U.S. 808 (1991).
14. “The proposed Amendment says victims have the right to ‘a final disposition of the proceedings...free from unreasonable delay.’
This is false. The amendment has no such language. An earlier version of the proposed amendment had this provision but is has been altered. None of the consequences the Clearinghouse fears could result from the current version, or from the earlier version for that matter. The present right is to have the victim’s interest in avoiding unreasonable delay “duly considered.” This provision cannot be objected to if one is still to speak for battered women.
15. “As victim advocates, we need to be in the forefront of advocating for justice – which includes supporting the right of defendants to get far trials and this Amendment will erode this right.”
As “victim advocates” we need ... to be “advocating for justice” and support the “right of defendants... .” As victim advocates we need to say, “Justice for all – even the victim.”
16. “The structural integrity of our entire justice system depends on this equation – between the accused and the government, not the accused and the individual victim of crime.”
This assertion misses the forest for the trees. The structural integrity of the judicial system is only strengthened when the court has before it all information about an alleged crime and its consequences. A system that allows for victim participation at certain moments helps the court understand the full scope of the case before it and then to proceed as justice requires. Nothing about this inclusion lessens the structural integrity, but in fact strengthens it.