July 2000 

Rethinking Victims' Rights

By Terrence M. Walters

To criticize the victims’ rights movement is a little like standing in the center of the Notre Dame campus during football season and leading a cheer for Southern Methodist. It should not be attempted without a clear understanding that such action is going to be highly unpopular in some quarters. Nevertheless, as the victims’ role in the criminal justice system becomes more prominent, we must not be afraid to scrutinize it and, when appropriate, criticize it.

Recently, there was a movement in Congress to amend the Constitution to provide a "Victims’ Rights" amendment. Although at least for now that movement has failed, one must wonder what has caused such a perceived lack of rights that lawmakers would seriously consider the extreme measure of amending the Constitution. The perception that victims have no rights -- and its corollary that defendants have all the rights -- are ones which have now seemingly taken on lives of their own. Before we can have a rational dialogue about the role of victims in the criminal justice system, those perceptions must be addressed.

Terrence M. Walters is a partner in the law firm of Walters & Wintering in Rochester, Minnesota. He has been in the private practice of criminal law since 1976 and also serves as a part-time public defender.

In a criminal case, whether or not one claiming to be a "victim" is or is not in fact a "victim" is frequently the issue in dispute. For purposes of this commentary, however, let us focus on situations where there is a clearly defined and undisputed victim or class of victims. What rights do those people have? In Minnesota, if one is a victim, he or she has statutorily granted rights in that particular case which other members of the general public do not have. Minn. Stat. 611A gives victims a number of rights:

• the right to be notified of available services; the right to apply for restitution, and a process for collecting it that is far more favorable than that available to other creditors;
• the right to request that law enforcement withhold public access to data revealing the victim’s identity;
• notice of any contemplated plea bargain;
• nput on any contemplated pretrial diversion;
• the right to provide a victim impact statement as part of the investigation before sentencing;
• the right to address the court at the time of sentencing;
• the right to notice of the defendant’s release; and
• the right to notice of information about any appeal filed by the defendant.

Victims also have rights even more basic than those, including the right to come and go as they please regardless of the outcome of the case. It is so fundamental that it is often overlooked: the state is seeking to do something to the defendant, not to the victim. Naturally, the rights we all have vis-a-vis the state are going to be implemented in any particular case on the defendant’s behalf. Hence, the perception that "defendants have all the rights." Victims have the same rights as the defendant and whenever any criminal defendant’s rights are vindicated, the rights of all are vindicated. This is a fundamental truth which, if the movement to amend the Constitution is any indicator, needs to be brought home to the American public.

In addressing the claim that victims have no rights, we should distinguish between those claimed rights that are unique to the role of the victim and generalized frustrations which are shared by all who deal with the system, including defendants and their families. Frustration over backlogged court calendars, for example, is a common complaint from both victims and defendants. It does not mean, however, that one side is being denied rights accorded the other or that one side is being granted rights at the expense of the other.

The news media are accomplices, whether wittingly or unwittingly, in perpetuating the myth that victims have no rights. Emotional reactions from angry and distraught victims make for compelling television; thoughtful analyses by students of the criminal justice system do not. A staple of the emotional television interview with the angry distraught victim is the charge that the defendant has all the rights while the victim has none.

Are there "rights" that are being denied to victims? The few restrictions I have seen placed on victims have been for the purpose of assuring a fair trial. For example, courts have prohibited victims and their supporters from wearing badges or other insignia in court that suggest a particular outcome. That is an order with which few would disagree and one that would also apply to supporters of the accused. Nevertheless, such orders are seen by some as denials of victims’ "rights." Even routine witness sequestration orders have been seen by some as a denial of victims’ rights. No one, victim or not, has the "right" to interfere with a fair trial. That is another of those truths that is so fundamental we sometimes overlook it.

"the right to address the court at sentencing, . . . is often abused"

What of the rights that now exist for victims? Should we be looking critically at how those rights are being implemented? A right granted by Minn. Stat. 611A.038, the right to address the court at sentencing, is one that is often abused. Possibly for fear of seeming insensitive, judges are reluctant to place reasonable restrictions on victims’ statements at sentencing. Minn. Stat. 611A.038 directs the trial court to limit these statements to "factual issues which are relevant to sentencing." While I have heard many thoughtful statements from victims, I have also all too often heard statements that degenerate into vituperative personal attacks spoken directly to the defendant. The right of a victim to address the court should not be used to make the courtroom look like the "Jerry Springer Show." Since victim statements are statutorily allowed as a formal part of the sentencing process, it is logical that either the Rules of Criminal Procedure or the General Rules of Practice for the District Courts regulate them. Rule 27.03 subd. 3 of the Rules of Criminal Procedure as currently written simply states that the court shall give the victim an opportunity to make a statement "with respect to any matter relevant to the question of sentence." Some additional reasonable and basic rules for victim statements would include the following:

1. All remarks must be addressed to the court, not to the defendant or counsel;

2. Personal attacks will not be allowed; and

3. Unfounded allegations based on innuendo will not be allowed.

The right to speak at sentencing may be a catharsis for victims. However, it may also set victims up for disillusionment if they are not fully advised about what issues are relevant to sentencing and what the likely range of sentences is for a particular crime. For example, if a defendant is being sentenced for having caused a death accidentally, his sentence will be significantly less than that which would be imposed on one who causes death intentionally. This is so even though the pain felt by the victim family is just as great in either case. Victims who have not been fully advised in such a case can be left with the feeling that the court placed a low value on the life of their loved one.

When sentencing in a death case, there is an implicit suggestion in the victim-impact process that the defendant’s sentence should be tied to the level of loss felt by the victim’s loved ones, rather than the nature and degree of the defendant’s misconduct. Should the defendant’s sentence be greater if the victim had a large close-knit family? Should the defendant’s sentence be reduced if the victim had no family or was estranged from his or her family? These are rhetorical questions, the answers to which I hope are obvious. We would do well to be cautious about expanding victims’ role in the criminal justice system without stopping to consider the philosophy behind that system. That philosophy is premised on the belief that criminal sanctions should be imposed on behalf of society as a whole and should be imposed in an objective manner.

There is much that is good about the victims’ rights movement and greater sensitivity to victims is certainly a change for the better. We must not lose sight, however, of the fact that our criminal justice system has historically been society’s alternative to private vendettas as a means of punishing criminal transgressors. Objectivity, consistency, and proportionality are the goals of such a system. The more we move toward a system that is focused on the private redress of the individual victim rather than the public redress of society, the more elusive will be those goals.