Newsletter

Victims' Rights

The function of the criminal justice system is to punish criminal behavior by the arrest, prosecution, and sentencing of those who violate the law. However, because we live in a free society, the system must be appropriately balanced between the power of the government and the rights of the individual. Therefore, the primary focus of the system has been to protect the rights of the criminally accused. The United States Constitution guarantees certain rights to a person accused of a crime, including the right to a trial by jury in open court, the right to be represented by a lawyer and the right to be free of cruel and unusual punishments. Other rights are applicable to all people, but mostly affect those singled out for criminal investigation, like the prohibition against unreasonable search and seizure.

Over the years this emphasis on the rights of the accused have led some people to conclude that criminal offenders are treated better by the system than are the victims of crime. In a typical scenario, the police seem more interested in getting information about the criminal and the crime than taking care of a crime victim. The prosecutor seems more interested in building his case against the accused than in alleviating the crime victim's suffering or fear of testifying. The victim is almost peripheral to the main action and is often uninformed and not consulted when major events take place in the case.

In recent years, a growing victims' rights movement has lead to the implementation of a variety of measures to correct this perceived imbalance in the criminal justice system. In 1982, Congress passed the Victims and Witness Protection Act that makes it a crime to intimidate a witness or retaliate against a person who testifies or provides evidence to the prosecution. In addition, the act allows a prosecutor to bring a proceeding for a restraining order to protect the victim, thereby alleviating the need of the victim to hire a private attorney to secure a protective order if one is needed. A person convicted of retaliation faces a ten-year sentence that can be increased to twenty years for attempted murder of the victim or death if the victim is killed. Many states have, similarly, passed victims' rights laws.

Many state and federal laws require a criminal offender to make restitution to the victim, and the court will order restitution when the offender is sentenced. The offender is ordered to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime such as medical bills, destroyed property, and lost wages. By federal law, under the Mandatory Victims' Restitution Act of 1996, restitution is required where a violent crime has been committed and for certain other, limited, offenses.

Sentencing schemes have also been revised to include a time and place for victims of crime and their families to address the court. The victim or family members are given a chance at the sentencing hearing to tell the judge in writing or in person how they have been affected by the crime and their opinion as to a legitimate sentence. In 1997, Congress passed the Victim Rights Clarification Act which confirms that a victim cannot be prevented from attending a federal criminal trial merely because of the fact that they are expected to testify at the sentencing phase of the trial. Victim-offender mediation programs focus on the need for a victim and victimizer to meet face-to-face and discuss the crime. Participation is voluntary for both victim and offender and the goal of the program is to arrive at an agreement on how the offender can redress the harm he or she caused.

Other measures that address the concerns of crime victims include the use of victim advocates. Sometimes the advocates are funded by the prosecutor's office and sometimes they are part of the court system. Their function is to assist victims in all aspects of the criminal proceeding. The advocates should keep the victim informed about the progress of the case and explain the basics of the procedure. Victim advocates may also assist battered spouses in getting restraining orders against their abusers and inform them of community resources.

Finally, the system is doing more to notify and protect victims of crime when the offender is released from jail. Laws such as Megan's Law in New Jersey have been passed in many jurisdictions. Megan's Law requires certain convicted sex offenders to register with the police in the neighborhood where they live and requires the police to notify members of the public about the presence of the offender. Currently, proposed legislation tentatively titled the No Second Chances for Murderers, Rapists or Child Molester's Act of 1997 (or "Aimee's Law") is being considered in Congress. This Act would penalize a state that releases a convicted murderer, rapist or child molester from prison when that criminal later commits a similar offense in a different state. Domestic abuse statutes often require the government to notify the victim whenever the offender is released from jail, even during the pre-trial period.
Ten Rights of Crime Victims

Many aspects of criminal law focus on the rights of the criminal. However, recent attention has been focused on the rights of the victims of crimes, who often suffer great emotional, if not physical, injuries at the hands of the criminal. All fifty states and the federal government now have laws that protect victims. In many states, a victim is considered to be the person who directly suffers the effects of the crimes (such as the person who is murdered) and immediate family members who suffer the secondary effects of the crime (such as the loss of a loved one). If you have been a victim of a crime, you should know that there are ten major rights that you may have.

• You have the right to seek a criminal complaint against the criminal. As soon as you can, you should contact your local law enforcement agency and report the crime to them. After the police investigate the matter, they may chose to arrest the individual. A prosecutor will then determine what crimes should be charged.
• You have the right to ask for issuance of a criminal complaint if the police decide not to arrest the alleged criminal. You can usually file an application for such a complaint with the court in the place where the crime occurred. If the court, after an investigation, decides not to file the complaint, you can appeal that decision.
• You have the right to testify in a probable cause hearing to determine if a criminal complaint should be transferred to another court to be heard. In a probable cause hearing, you will be required to answer questions posed by both the prosecutor and the defendant's attorney.
• You may be called as a witness at trial. If so, you will be required to testify under oath concerning the crime and will be asked questions by both the prosecutor and the defendant's attorney. You have the right to be present in the courtroom during the trial of the defendant.
• If the defendant is found guilty, you have the right to address the court and jury either in person or through a writing to describe the impact the crime has had upon you and your family. You will be allowed to make an "impact statement" regarding what punishment you feel would be appropriate for the defendant. Your victim impact statement is important it will be used prior to the sentencing phase, and it may be reviewed on appeal. It will also be referenced in any later parole hearings.
• You may have rights in some states to receive victim services and protections. These rights may include the right to the assistance of a victim's rights worker, personal security and protection services, crisis counseling, emergency transportation services, assistance in the return of recovered personal property, and other rights.
• You have the right, before, during, and after a trial, to be free from harassment about the case. If you feel that you are being harassed, tell the prosecutor or check to see whether the court has a victim witness representative to help you.
• You may have the right to monetary compensation for any physical or emotional injury the crime caused. You may be entitled to payment for crime-related medical expenses, crime-related mental health services, and lost wages. If you have a loved one who was killed, you may be entitled to compensation for loss of services of the deceased, the costs of funeral and burial expenses for the deceased, and your own medical or mental health care expenses incurred in dealing with your loss, although there may be exceptions to this compensation.
• In many states, you have the right to be notified if the defendant is going to be released. You may also have the right to be notified if the defendant escapes from prison or jail.
• You have the right to access to the courts to file a lawsuit if your rights and protections as a victim are not respected.

DISCLAIMER: This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

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