Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses
to key objections raised by opponents.
by Steve Twist
NOW Legal Defense and Education Fund Position
Statement Against Proposed Victims'
Rights Amendment, July 2003
1. Although NOW Legal Defense agrees with sponsors of victims' rights legislative initiatives that many survivors of violent crime suffer additional victimization by the criminal justice system, we do not believe a constitutional amendment is the appropriate way to address those problems. We appreciate the injustices and the physical and emotional devastation that drives the initiative for constitutional protection. ... After... particularly considering the circumstances of women who are criminal defendants, NOW Legal Defense cannot endorse a federal constitutional amendment elevating the rights of victims to those currently afforded the accused.
After admitting that victims "suffer" in the criminal justice system, NOW concludes that the suffering must continue because the rights of crime victims cannot be "elevated" to the rights "afforded the accused." This position, in clear and unequivocal terms, abandons NOW's self-appointed role to speak for all women, even women who are disproportionately victims of violent crime, and instead speaks only for women who are criminal defendants. The rights of these few women are seen to trump the "suffering" of the many women victims.
2. "It is true that survivors of violence often are pushed to the side by the criminal justice system. They may not be informed ... they are excluded. They often experience a loss of control that exacerbates the ... impact of the crime itself. ... [I]ncreased efforts to promote victims' rights potentially could have a strong and positive impact on women who are victims of crime. ... notice of and participation in court proceedings, including the ability to choose to be present and express their views at sentencing, could be ... healing for victims. More timely information about release or escape and reasonable measures to protect the victim from future ... violence could improve women's safety. Women could benefit economically from restitution. Nevertheless, because statutory protections and state constitutional provisions already may provide some or all of these improvements, because additional statutory and state level reform can be enacted, and because no reform will be effective absent strict enforcement, we do not support a federal constitutional amendment... ."
NOW concedes the benefits of securing rights for crime victims, but then relegates victims' rights to second-class status by allowing those rights to be sought only through statutes or state constitutions. NOW does not articulate why crime victims rights are less deserving than the rights of accused and convicted offenders, nor how it is that second-class statutory rights are more subject to "strict enforcement" than federal constitutional rights. This assertion ignores that efforts to secure rights for victims through statutory reforms and state constitutional amendments have proven inadequate. NOW's logically flawed position that victims "suffer" under the current system and that those same laws that create the current system are sufficient to stop the "suffering" must be rejected.
3. "Adding constitutional protections that could offset the fundamental constitutional protections afforded defendants marks a radical break with over two hundred years of law and tradition carefully balancing the rights of criminal defendants against the exercise of state and federal power against them."
NOW simply does not know the history of our country. At the founding, and well into the 19th century, victims were their own prosecutors. As Alexis de Tocqueville observed well into the 1830's, the "offices of the public prosecutor are few." Under the common law, victims had participatory rights. As the power to investigate and prosecute offenses became more and more concentrated in the state, victims were excluded and, in many jurisdictions victims have become mere pieces of evidence. The result of the status quo is the very injustice that NOW purports to want to fix by statute. Statutory fixes have failed and victims, whose interest in justice and fair treatment is every bit as deserving as that of the criminal defendant, deserve better than to be relegated to the second class status.
4. "The position of a survivor of violence can never be deemed legally equivalent to the position of an individual accused of crime. ... While the crime victim may have suffered grievous losses, she, unlike the defendant, is not subject to state control or authority."
It is undisputed that a criminal defendant may lose liberty or life as a result of the commission of a violent crime and his or her trial in the criminal justice process. This reality has nothing to do with the justness of providing victim's participatory rights. The criminal justice system is not a zero sum game. Importantly, victims too are subject to state control or authority. When a victim is given no notice of proceedings in her case, when she is excluded from the courtroom during those proceedings, when she is silenced at critical stages, when her safety is not considered, nor her claims to restitution or interest in avoiding unreasonable delay, it is the result of state action. It is the state that subverts the victim's basic human rights. This should not be ignored or attempted to be remedied by clearly ineffective means.
5. "A victims' rights constitutional amendment could undercut the constitutional presumption of innocence by naming and protecting the victim as such before the defendant is found guilty of committing the crime."
In this 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 "undercut" when a battered woman is identified as a victim, nor is it "undercut" when a woman's safety is considered when release decisions are made, or when her claims to restitution or avoiding unreasonable delay are considered. The presumption of innocence is a clear legal standard with clearly defined contours.
The presumption of innocence properly requires the government to prove, by probative evidence, the defendant's guilt beyond a reasonable doubt and does not require defendants to prove their innocence. When a 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 affected. The prosecution still has the burden. The only difference is that now the criminal justice system is also serving the victim.
6. "Amendment proposals leave undefined numerous questions ranging from the definition of a 'victim' to whether victims would be afforded a right to counsel, or how victims' proposed right (sic) to a speedy trial would be balanced against defendants' due process rights."
These objections are red herrings. First, "victim" is defined by the statute creating an offense, or by other relevant state or federal statute. Loved ones are included in the phrase "lawful representative." Second, the proposed amendment does not include a "right to counsel" as does the 6th Amendment for criminal defendants, where the right is explicit. Third, The amendment does not propose a "right to a speedy trial" for crime victims, rather it provides a right to have the victim's "interest in avoiding unreasonable delay" considered. There is no viable argument that such consideration is unfair or somehow compromises the rights of accused or convicted offenders.
7. The amendment would "inject an additional party (the victim and her attorney), to the proceedings against a defendant as a matter of right, increasing the power of the state and potentially diminishing the rights of the accused, particularly in the eyes of the jury."
Nothing in the amendment makes a crime victim "an additional party" in the criminal case. The fact that a victim is present and may be heard at critical stages does not "increase the power of the state," nor diminish the rights of the accused. The mere presence of the victim in the courtroom during trial does not infringe of the rights of the accused, as the case reported in NOW's own statement (fn. 1) clearly shows. The amendment simply does not give the victim an independent right to speak at trial, before the jury, and fears to the contrary are unfounded.
8. "The demonstrated existing inequalities of race and class in the modern American criminal justice system only increase the importance of defendants' guaranteed rights."
Those same inequalities are magnified for victims who have no federal constitutional rights to protect them. NOW's concern for equality should apply to all participants in the criminal justice system.