Victims' rights

Victims' rights are legal rights afforded to victims of crime. These may include the right to restitution, the right to a victims' advocate, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.[1][2]

United States

The Crime Victims' Rights Movement in the United States is founded on the idea that, during the late modern period (1800-1970), the American justice system strayed too far from its victim-centric origins.[3] Since the 1970s, the movement has worked to give victims a more meaningful role in criminal proceedings, aiming at the inclusion of "the individual victim as a legally recognized participant with rights, interests, and voice."[3]

History

During the colonial and revolutionary periods, the United States criminal justice system was "victim-centric," in that crimes were often investigated and prosecuted by individual victims. In the 19th and early 20th centuries, however, the focus shifted so that crime was seen primarily as a "social harm."[3] The criminal justice system came to be seen as a tool for remedying this social harm, rather than an avenue for redress of personal harm, and the role of the victim in criminal proceedings was drastically reduced.[3]

The modern Crime Victims' Rights Movement began in the 1970s. It began, in part, as a response to the 1973 U.S. Supreme Court Decision in Linda R.S. v. Richard D. (410 U.S. 614). In Linda R.S., the Court ruled that the complainant did not have the legal standing to keep the prosecutors' office from discriminately applying a statute criminalizing non-payment of child support. In dicta, the court articulated the then-prevailing view that a crime victim cannot compel a criminal prosecution because "a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another."[3] This ruling served as a high-water mark in the shift away from the victim-centric approach to criminal justice,[4] making it clear that victims in the 1970s had "no formal legal status beyond that of a witness or piece of evidence."[5]

If the Linda R.S. Ruling was a clear representation of the problem of victim exclusion, it also hinted at a solution to the problem. The Court stated that Congress could "enact statutes creating victims' rights, the invasion of which creates standing, even though no injury would exist without the statute."[6] With this statement, the Court provided a legal foundation for victims' rights legislation.

Along with these legal developments, there was a concurrent growth in social consciousness about victims' rights. This was due, in part, to the fact that concern for the fair treatment of victims provided a nexus between disparate, but powerful, social movements. The law and order Movement, the Civil Rights Movement, and the feminist movement all challenged the criminal justice system to think more carefully about the role of the victim in criminal proceedings. Supporters of these causes helped form the grassroots foundation of the modern Victims' Rights Movement, providing educational resources and legal assistance, and establishing the country's first hotlines and shelters for victims of crime.[7]

In 1982, President Ronald Reagan's Task Force on Victims of Crime released its final report which detailed the concerns of victims' rights advocates, claiming that "the innocent victims of crime have been overlooked, their pleas for justice have gone unheeded, and their wounds - personal, emotional, financial - have gone unattended."[8] The report contained 68 recommendations for service providers and government officials, many of which are mandated through victims' rights legislation today.[9] The report included a recommendation for a victims' rights amendment to the U.S. Constitution.[10]

In the decades that followed, proponents of victims' rights experienced substantial legislative success. Today, the Victims' Rights Movement continues to promote legislation that guarantees substantive rights for victims, and provides the procedural mechanisms to effectively enforce those rights. Victims' rights organizations also do ground-level advocacy, providing individual victims with legal guidance and support, and educate future legal professionals on issues related to victims' rights.[11]

Victims' rights legislation

Since 1982, thirty-three states have amended their constitutions to address victims' rights, and all states have passed victims' rights legislation.[3] That same year, Congress passed the first piece of federal crime victims' rights legislation, the Victim and Witness Protection Act.[12] In 1984, the Victims of Crime Act was passed. A decade later, in 1994, the Violence Against Women Act became law. In 2004, the landmark Crime Victims' Rights Act was passed, granting crime victims eight specific rights, and providing standing for individual victims to assert those rights in court.[13]

Federal law

Victims of Crime Act (VOCA)

VOCA established the Crime Victims Fund, which awards grants to crime victim compensation programs, victim notification systems, and victim assistance programs.[14] The Fund is financed by offender fees.

Crime Victims' Rights Act of 2004

The Crime Victims' Rights Act, part of the Justice for All Act of 2004, enumerates the rights afforded to victims in federal criminal cases. The Act grants victims the following rights:[15]

  1. The right to protection from the accused,
  2. The right to notification,
  3. The right not to be excluded from proceedings,
  4. The right to speak at criminal justice proceedings,
  5. The right to consult with the prosecuting attorney,
  6. The right to restitution,
  7. The right to a proceedings free from unreasonable delay,
  8. The right to be treated with fairness, and respect for the victims' dignity and privacy

The Crime Victims' Rights Act was named for Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn, murder victims whose families were denied some or all of the rights granted by the Act in the course of their cases.[16]

State law

All states have passed legislation that protects the rights of victims of crime,[17] and most have passed constitutional amendments that afford protection to crime victims.[3] Some state laws apply to only victims of felony offenses, while other states also extend rights to victims of less serious misdemeanor offenses.[17] When a victim is a minor, disabled, or deceased, some states permit family members to exercise rights on behalf of the victim.[17]

Common state law protections include:[17][18]

  • The right to be treated with dignity and respect,
  • The right to be informed about the prosecution, plea offers, court proceedings, and sentencing,
  • The right to make a statement in court at the time of sentencing,
  • The right to protection,
  • The right to seek compensation from a state victim's rights fund,
  • The right to restitution from the offender,
  • The right to return of personal property, and
  • The right to be informed of parole proceedings or release from incarceration, and the right to make a statement to the parole board,
  • The right to enforcement of victim's rights.

Many prosecuting attorneys' offices have a victim's rights officer or multiple employees who assist victims of crime during and after a prosecution. A crime victim who is seeking compensation or restitution should submit a timely claim for compensation to the probation department or prosecuting attorney, along with documentation in support of the claim, in order to ensure that the amounts are included in a restitution order when the defendant is sentenced.[18]

U.S. victims' rights organizations

National Crime Victim Law Institute

National Crime Victim Law Institute (NCVLI) is a national non-profit legal advocacy organization based at the Lewis & Clark Law School in Portland, Oregon. The organization was founded in 1997 by Professor Doug Beloof. It seeks to enhance victims' rights through a combination of legal advocacy, training and education, and public policy work. NCVLI also hosts an annual 2-day Crime Victim Law conference, and maintains a Victim Law Library, which contains laws and educational resources related to victims rights.[19]

National Alliance of Victims' Rights Attorneys (NAVRA)

NAVRA is a membership alliance of attorneys and advocates dedicated to the promotion of crime victims' rights. It is a project of the National Crime Victim Law Institute. Membership in NAVRA provides access to expert services for crime victims, including a searchable database of case summaries, amicus briefs, and sample pleadings, as well as a directory of victims' rights professionals.[20]

National Organization for Victim Assistance (NOVA)

NOVA[21] is a private non-profit organization dedicated to promoting rights and services for victims of crime. Founded in 1975, NOVA is the oldest national victims rights organization. The organization is focused both on national advocacy and on providing direct services to victims.

National Center for Victims of Crime

National Center for Victims of Crime is a nonprofit organization based in Washington, D.C. that advocates for victims' rights.[22]

Rise

Rise is an NGO working to implement a bill of rights for sexual assault victims.

International victims' rights

Outside the United States, victims' rights have been acknowledged as a basic human right. In 1985, the U.N. adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,[23] which outlines international best practices for treatment of crime victims. The report recognizes an offender's obligation to make fair restitution to his or her victim, acknowledges that victims are entitled to fair treatment and access to the mechanisms of justice, and generally draws attention to the need for victims' rights in the criminal justice process.[24] Other United Nations provisions that touch on victims' rights include (1) The International Covenant on Civil and Political Rights (ICCPR); (2) the Convention on the Elimination of Discrimination of Women (CEDAW);[25] and (3) the Convention on the Rights of the Child (CRC).[26] The ICCPR has been ratified by 67 nations, including the United States, Canada, Russia, and France. It includes the following provisions related to victims' rights:[27]

  • Rights to be protected from harm, which impose obligations on governments to have effective criminal justice systems (Article 6.1, Article 7, and Article 17)
  • Rights to be recognized by and treated equally before the law (Articles 2, 3, 16, and 26)
  • A right of non-discrimination (Article 2)
  • Rights to a remedy and to access to justice (Articles 2 and 14)
  • Due process rights (Articles 9, 10, 14, and 15)

In 2008, Human Rights Watch published an analysis comparing United States victims' rights laws to international Human Rights Standards. This report, titled "Mixed Results: U.S. Policy and International Standards on the Rights and Interests of Crime," found that "while U.S. Jurisdictions, both federal and state, have made significant progress in recent decades, much more can be done to ensure that victims' rights and legitimate interests are upheld."[27] The report states that the U.S. should use the UN's Basic Principles as a guide to inform their laws and policies. In addition, it recommends that the U.S. adopt policies that: (1) Remove arbitrary limits on the definition of "victim" in state and federal laws; (2) Expand access to victim services and compensation; and (3) "Maintain and enforce standards for the collection and preservation of evidence, particularly rape kit evidence."[27] The report also recommends U.S. ratification of the CEDAW and CRC.[27]

Criticisms of the victim-inclusion approach

There are three major criticisms of the Victims' Rights Movement, and the accompanying victim-inclusion approach to criminal justice.

  1. Some claim that proposed incorporation of victims' rights will directly undermine defendant's rights.[28]
  2. Some view victims' rights as impinging on prosecutorial discretion.[29]
  3. Some argue that victim participation will inappropriately focus criminal proceedings on vengeance and personal emotion.[30]

In connection with the last of these criticisms, it has been noted that victims seeking "closure" may promote outcomes as diverse as retribution, on one hand, and forgiveness on the other, and the legal system is inadequate to providing therapeutic satisfaction in either case.[30]

Proponents of victims' rights respond by noting that victims' rights of privacy, protection and participation are civil rights that ensure that individual harm is among the harms recognized by the system, and that such rights afford a voice in the process, not a veto of enforcement discretion. Proponents also cite the criminal courts' well-established capacity to afford rights to participants other than the defendants (such as the media), suggesting that accommodation of victims' interests is both possible and desirable.[19]

References

  1. ↑ For a description of typical U.S. victim's rights, see "About Victims' Rights". VictimLaw. Office for Victims of Crime Training and Technical Assistance Center. Retrieved 1 October 2017.
  2. ↑ For statutory protection of victim's rights, see, e.g., "18 U.S. Code § 3771 - Crime victims' rights". Cornell Law School Legal Information Institute. Retrieved October 1, 2018.
  3. 1 2 3 4 5 6 7 "History of victims' rights". National Crime Victim Law Institute. 2011. Retrieved October 1, 2018.
  4. ↑ see also Federal Rule of Evidence 615, enacted in 1975, which required exclusion of witnesses (including victims) from the courtroom when requested by the prosecution or defense. https://www.law.cornell.edu/rules/fre/rule_615
  5. ↑ NCVLI Bulletin, "Fundamentals of Victims' Rights: A Brief History of Crime Victims' Rights in the United States," available at ncvli.org
  6. ↑ "History of NCVLI". National Crime Victim Law Institute. Retrieved 19 April 2013.
  7. ↑ Davis, Joanna T. (2005). "The Grassroots Beginning of the Victims' Rights Movement". National Crime Victim Law Institute. NCVLI News. Retrieved 1 October 2017.
  8. ↑ "Office for Victims of Crime". Ojp.usdoj.gov. 2010-10-01. Retrieved 2014-01-02.
  9. ↑ "A Retrospective of the 1982 President's Task Force on Victims of Crime". Ncjrs.gov. Retrieved 2014-01-02.
  10. ↑ "Issues: Constitutional Amendments". National Center for Victims of Crime. Retrieved 1 October 2017.
  11. ↑ "Mission & values". National Crime Victim Law Institute. Retrieved 19 April 2013.
  12. ↑ "Victim Witness". United States Attorney's Office, Western District of Louisiana. Retrieved 1 October 2017.
  13. ↑ See: Statement of Sen. Feinstein re. CVRA (150 Cong. Rec s2329, April 22, 2004; and Jon Kyl, Stepven J. Twist, Stephen Higgins, "On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Lourna Gillis, and Nila Lynn Crime Victims' Rights Act," Lewis and Clark Law Review, 581, (2005)
  14. ↑ "42 USC Chapter 112 - VICTIM COMPENSATION AND ASSISTANCE | Title 42 - The Public Health and Welfare | U.S. Code | LII / Legal Information Institute". Law.cornell.edu. Retrieved 2014-01-02.
  15. ↑ "H.R. 5107" (PDF). Government Printing Office. 20 January 2004. Retrieved 1 October 2017.
  16. ↑ "S.2329 - Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act". Congress.gov. United States Congress. 22 April 2004. Retrieved 1 October 2017.
  17. 1 2 3 4 "Victims' Rights". National Center for Victims of Crime. Retrieved 1 October 2017.
  18. 1 2 Larson, Aaron (1 August 2016). "What Are Your Rights if You Are the Victim of a Crime". ExpertLaw. Retrieved 1 October 2017.
  19. 1 2 "National Crime Victim Law Institute". National Crime Victim Law Institute. Retrieved 19 April 2013.
  20. ↑ navra.org
  21. ↑ trynova.org
  22. ↑ ncvc.org
  23. ↑ "A/RES/40/34. Declaration of basic principles of justice for victims of crime and abuse of power". Un.org. 1985-11-29. Retrieved 2014-01-02.
  24. ↑ National Crime Victim Law Institute (NCVLI) (2011-09-23). "This Month in Rights: Victims' Rights are Human Rights: News". Law.lclark.edu. Retrieved 2014-01-02.
  25. ↑ "Convention on the Elimination of All Forms of Discrimination against Women". Un.org. Retrieved 2014-01-02.
  26. ↑ "UNTC". Treaties.un.org. Retrieved 2014-01-02.
  27. 1 2 3 4 Mixed Results: US Policy and International Standards on the Rights and Interests of Victims of Crime (PDF). Human Rights Watch. 2008. ISBN 1-56432-373-0. Retrieved 19 April 2013.
  28. ↑ "Rights of the Accused - Criminal Defense Wiki". Defensewiki.ibj.org. 2012-10-04. Retrieved 2014-01-02.
  29. ↑ Goldstein, Abraham S. (Autumn 1984). "The Victim and Prosecutorial Discretion: The Federal Victim and Witness Protection Act of 1982". Law and Contemporary Problems. 47 (4): 225–248. JSTOR 1191691.
  30. 1 2 Kanwar, Vik (2001–2002). "Capital Punishment as 'Closure': Limits of a Victim-Centered Jurisprudence" (PDF). New York University Review of Law and Social Change. 27.
  • VictimLaw, Office for Victims of Crime Training and Technical Assistance Center
  • Victim’s Law, A bill produced by Keir Starmer, the victims of a crime would have extended right to challenge decisions over criminal investigations.
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