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.
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.
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."
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."
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.
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." This ruling served as a high-water mark in the shift away from the victim-centric approach to criminal justice, making it clear that victims in the 1970s had "no formal legal status beyond that of a witness or piece of evidence."
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." 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.
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."
The report contained 68 recommendations for service providers and
government officials, many of which are mandated through victims' rights
legislation today. The report included a recommendation for a victims' rights amendment to the U.S. Constitution.
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.
Victims' rights legislation
Since
1982, thirty-three states have amended their constitutions to address
victims' rights, and all states have passed victims' rights legislation.
That same year, Congress passed the first piece of federal crime
victims' rights legislation, the Victim and Witness Protection Act. 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.
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. 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:
- The right to protection from the accused,
- The right to notification,
- The right not to be excluded from proceedings,
- The right to speak at criminal justice proceedings,
- The right to consult with the prosecuting attorney,
- The right to restitution,
- The right to a proceedings free from unreasonable delay,
- 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.
State law
All states have passed legislation that protects the rights of victims of crime, and most have passed constitutional amendments that afford protection to crime victims. Some state laws apply to only victims of felony offenses, while other states also extend rights to victims of less serious misdemeanor offenses. When a victim is a minor, disabled, or deceased, some states permit family members to exercise rights on behalf of the victim.
Common state law protections include:
- 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.
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.
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.
National Organization for Victim Assistance (NOVA)
NOVA
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.
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,
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. 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); and (3) the Convention on the Rights of the Child (CRC). The ICCPR has been ratified by 172 nations, including the United States, Canada, Russia, and France. It includes the following provisions related to victims' rights:
- 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." 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." The report also recommends U.S. ratification of the CEDAW and CRC.
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.
- Some claim that proposed incorporation of victims' rights will directly undermine defendant's rights.
- Some view victims' rights as impinging on prosecutorial discretion.
- Some argue that victim participation will inappropriately focus criminal proceedings on vengeance and personal emotion.
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.
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.
