Point/Counterpoint on the Crime Victims’ Rights Amendment:
Responses
to key objections raised by opponents.
by Steve Twist
Letter from Safe Horizons
April 7, 2002
1. "Victim's rights are critical but not the same as defendant's rights."
Safe Horizon's admits that "participatory rights [for victims] are essential to help them achieve justice." Historically this country had ensured "essential" "participatory rights" through the U. S. Constitution. As Prof. Tribe has explained, the rights proposed for crime victims in S. J. Res. 1 "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."
It is undisputed that defendants "face the loss of fundamental rights and liberty at the hands of the government." This fact alone does not diminish the fact that victims are denied notice of proceedings, excluded from proceedings, silenced at proceedings, and when their victims' interests in safety, delay, and restitution are ignored, at the hands of the government. Essentially, the government denies"fundamental rights and liberty" sometimes of defendants and sometimes of crime victims. Both of these denials need remedies. As Attorney General Reno earlier testified in the House, "[U]nless the Constitution is amended to ensure basic rights to crime victims, we will never correct the existing imbalance in this country between defendants' constitutional rights and the haphazard patchwork of victims' rights."
2. "Constitutionally recognized rights for victims and defendants inevitably will clash. One of Safe Horizon's fundamental concerns with S. J. Res. 1 is that it could erode the rights of the accused, particularly when they are in tension with the rights of the asserted victim. ... For example, in New York State (as elsewhere), potential witnesses are routinely excluded from the courtroom so that their testimony will not be tainted by that of other witnesses and unfairly prejudice the defendant. The proposed amendment squarely poses a conflict because it grants a victim the right not to be excluded from the proceedings which is particularly problematic where the victim is also a witness, forcing the judge to weigh the defendant's right to a fair trial against a victim's newly created right not to be excluded."
No passage could better expose the challenges that victims face and the need for a national threshold of rights for crime victims. A criminal defendant has no constitutional right to exclude a victim from the courtroom during trial, even if the victim is also a witness. Despite this, the practice of "invoking the rule" of exclusion of witnesses is so pervasive that it is perceived as a right. The courts have held otherwise. See e.g. Bellamy v. State, 594 So.2d 337 (Fla. 1992) (cited in NOW's fn. 1, supra, "mere presence of the victim in the courtroom in a sexual battery case would not prejudice the jury against the defendant."); State v. Beltran-Felix, 922 P.2d 30 (Utah Ct. App. 1996). Additionally, in those jurisdictions that permit victims, even as witnesses, to be in the courtroom throughout the trial, there is no evidence that defendants have been "unfairly prejudiced." In fact, in Alabama, where victims sit at counsel table with the prosecutor throughout the proceedings, there is no evidence of prejudice to defendants. Sadly, the predominant culture of the criminal justice system assumes the prejudice and on the basis of that erroneous assumption denies victims rights. Only the constitution, the law of the land, has the power to change culture.
3. "Victims of domestic violence are especially at risk. ... Under S. J. Res. 1, the batterer whose false accusations result in prosecution of the victim could be accorded 'victim' status and could benefit from all the proposed Constitutional rights. The same concern applies to cases in which domestic violence victims strike back at their batterers... ."
Victims of domestic violence have much to gain and nothing to fear from the Crime Victims Rights Amendment. · A battered woman needs the right to notice of release proceedings and release.
Despite these critical needs, Safe Horizons tilts at windmill fears that arise from a small number of odd cases. The fear that victims' rights might be used be used against victims of domestic violence who strike back at their batterers or who are falsely accused of crimes, is unfounded in jurisdictions where these rights are established. Moreover, the text of the amendment makes it clear that even victims rights may be restricted when public safety concerns are an issue. The issue of the application of a restriction would arise as the right was invoked and would be resolved accordingly and no waiver of a 5th Amendment right would ever be required for a battered woman to assert a substantial interest in safety.
4. "We believe that considerable progress with respect to victims' rights has been made in New York and elsewhere in recent years... ."
This comment is reminiscent of the famous New Yorker magazine cover where, from Manhattan, the rest of the country looks compressed and trivial. "Considerable progress" remains elusive in the country and the injustices done to victims, which continue "in New York and elsewhere" are neither compressed nor trivial.
5. Citing the experiences of the September 11 attacks, Safe Horizons writes, "These experiences reinforce the importance of carefully balancing defendant's rights and victim's rights."
It is unclear just how the experiences of September 11 reinforce the importance of balancing defendants' and victims' rights, and Safe Horizons does not elaborate on the point.
6. "...the proposed amendment would at best be symbolic, and at worst harmful,... it could prove meaningless for the majority of victims whose cases fail to be prosecuted."
The rights proposed are neither mere symbol, nor are they harmful. Instead the rights are meaningful and enforceable, embodying the participatory rights that have been the core values of the mainstream victims' movement for more than 20 years. Further, the rights will not abridge the rights of the accused, nor hurt innocent victims. The fact that some cases may not go forward to prosecution is no basis for denying all victims basic and fundamental rights.