NOVA observes National Crime Victims’ Rights Week (NCVRW) every year by offering trainings and exciting events throughout the week! This year, the Department of Justice’s Office for Victims of Crime (OVC)’s official NCVRW theme is Seek Justice | Ensure Victims’ Rights | Inspire Hope. Sign up to receive updates on NOVA’s NCVRW 2020 observation.
This year, look forward to:
Alicia “Kozak” Kozakiewicz will share her story of surviving an Internet luring, abduction, and captivity. While Alicia’s experience may be harrowing, her ability to transcend tragedy and dedicate herself to protecting other children is inspiring. She will discuss the aftermath of recovery and the process of reunification. Alicia will provide alternative practices for handling endangered child cases and give unique insight into the phases of abduction, survival, recovery, family reunification, and resilience.
Ohio’s victims’ rights constitutional amendment, Marsy‘s Law, passed in November 2017, and went into effect on February 5, 2018. Ohio Crime Victim Justice Center (OCVJC) has led the efforts to successfully provide guidance to implement the constitutional amendment, draft legislation to clarify and expand the constitutional provisions, and litigate Marsy‘s Law rights across the state from the trial courts to the Ohio Supreme Court. OCVJC will provide guidance, suggestions, and concrete examples to assist attendees in implementing Marsy‘s Law and other victims’ rights laws in their states.
Victim are an essential part of criminal proceedings. To ensure that they can participate fully in the criminal justice process, every jurisdiction in the country gives victims rights in criminal cases. This session, taught by the Justice Department’s former senior attorney advisor on victim rights, discusses what rights victims have, how rights are enforced, and to whom they apply, as well as steps we can take to ensure victims receive their rights—and their voice—in court proceedings.
To ensure that they can participate fully in the criminal justice process, every jurisdiction in the United States gives victims rights in criminal cases. This section discusses what rights victims have, how rights are enforced, and to whom they apply, as well as steps we can take to ensure victims receive their rights in court proceedings.
While this website can provide you with a general overview of the types of rights that victims have and an understanding of how they are usually accorded, it’s important that you know the specific rights victims are entitled to in your particular jurisdiction, as the rights and definitions can vary. To find the rights available to victims in your courts, check www.victimlaw.org or search online for “[jurisdiction] victim rights law,” e.g., “Alaska victim rights law.” Most state attorney general’s offices list the victims’ rights available in that state.
Every state and the federal government guarantee victims rights under the law. In some jurisdictions, victim rights are also guaranteed in the state constitution. Defendant rights are guaranteed in every state constitution as well as in the federal constitution. There is an important distinction between constitutional and statutory rights: Constitutional rights trump statutory rights. If there is ever a conflict between the rights of two individuals (e.g., the victim and the defendant), the constitutional rights will win out. Thus, where victim rights are contained in the state constitution, victims are on even footing with the defendant as pertains to state constitutional protections. However, because victims do not have rights under the federal constitution, the defendant’s federally-protected constitutional rights will prevail over rights under state law, a state constitution, or federal law.
The key to understanding the meaning of the term “victim” is the concept of harm. A victim is someone who has been harmed. If we say that someone is a victim of a recent hurricane, we mean that person was harmed by the hurricane—lost her home, for instance, or broke her arm. A crime victim, in legal terms, is someone who was injured by the crime, meaning the crime that is being investigated or prosecuted in the case.
To determine whether someone is a victim entitled to rights in the case, ask three questions:
Is there some reason this person cannot or should not receive rights in the case? In some states, only victims of certain types of crimes (violent crime, for instance, or felonies) are entitled to rights. In addition, those who are culpable for the crime (unindicted co-conspirators) may not be able to assert rights in the case. Finally, those who are minors, incapacitated, incompetent, or deceased generally may have others assert rights on their behalf.
Victims’ rights vary from jurisdiction to jurisdiction, but some rights are guaranteed in most jurisdictions. This section will discuss those.
Protection: The federal government and some state governments grant victims a right to protection, often termed a right “to be reasonably protected from the accused.” Some states phrase this as a right “to be free from intimidation, harassment, or abuse.”
While individual protection can never be guaranteed, it is incumbent on all participants in the criminal justice system to work to enhance security for victims and witnesses. Good communication among team members is essential to ensuring protection for victims and witnesses throughout the criminal justice process. Notify prosecutors and agents on the case immediately if security issues are raised and collaborate to identify and execute a safety plan for the threatened individual. State and local resources may be helpful in relocating victims and witnesses (as well as their family members, where appropriate) and obtaining security enhancements such as alarm systems and reinforced locks for doors and windows. It is important to stress to the threatened individual, though, that such security enhancements are never absolute, and that the individual must take steps to protect himself, such as avoiding the dangerous areas and staying off social media.
Witness intimidation is generally a separate crime that may be prosecuted in appropriate cases. However, the defendant does have the right to mount a defense to the criminal charges, and thus the defendant’s merely contacting the victim or witness is generally not seen as witness intimidation. Each victim or witness can decide whether to talk with the defendant or defense counsel. If the contact has become harassing, though, the prosecutor may be able to seek a no contact order or other order limiting the communications. If you are uncertain whether contacts rise to the level of criminal intimidation, discuss it with the prosecutor.
Notice: Most jurisdictions guarantee victims the right to notice about proceedings in the criminal case. In some jurisdictions, this is handled by email or letter notices sent to the victim; in others, victims can access a website or call center for information about the case. Federal victim notification is provided through the Victim Notification System. States provide victim notice through VINE.
While the specific hearings about which victims are guaranteed notice and the precise wording of the victim notification right varies by jurisdiction, the goal of this right is to ensure that victims are kept apprised of proceedings in the criminal case. A victim who does not know about a proceeding is not able to participate in it in any way. Further, for many victims, the notifications they receive are the sole interaction they will have with the criminal justice system. Knowing that the case is proceeding apace can be incredibly comforting. To enhance victims’ ability to receive this right, practitioners should take care to obtain full and accurate contact information for victims in those jurisdictions where notice is sent affirmatively, and in other jurisdictions to ensure that victims have the information they need to register for and access VINE.
Beyond the right to notice of proceedings, many jurisdictions also guarantee victims a right to notice of their rights. It is helpful to have a standardized practice for providing this notice to victims. For instance, in many jurisdictions, law enforcement officers carry a tear sheet detailing the victim rights, which can be provided to victims at the scene of a crime or during a witness interview. It is also worthwhile to list the rights in a prominent place on the prosecutor’s or law enforcement agency’s website. Many offices develop a brochure detailing victims’ rights as well as services available and how to access them. A quick online search will provide many samples. As with all information provided to victims, it is essential to keep materials up to date. Try to ensure that any statutory or constitutional changes in victims’ rights are reflected in online and printed materials as soon as possible.
Attendance: Every state and federal jurisdiction guarantees victims a right to attend court proceedings. However, most place some limitation on the exercise of that right where the victim is also a witness in the case. For instance, the federal victims’ rights law gives victims the right not to be excluded from public court proceedings “unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” Some states grant the right only to the extent that it does not interfere with the rights of the accused. Other jurisdictions limit the right to certain proceedings, such as at “important” hearings, or at “critical stages of the criminal justice process.”
It is helpful to reach out to victims prior to the trial and any other key hearings to learn whether the victim would like to attend the proceeding, or to ask that they, as a courtesy, notify your office if they plan to attend. This allows any issues regarding attendance to be raised with the court ahead of time rather than by surprise at the start of a hearing.
Finally, in most jurisdictions, travel costs are not guaranteed for victim attendance, but funding sources may be available where the victim is indigent.
Hearing: Every jurisdiction provides victims with the right to give input into the sentencing decision. Depending on the jurisdiction, this can be provided orally at the sentencing hearing or in writing, either in a standalone victim impact statement or as part of the pre-sentence report. What information can be included in the victim’s statement varies widely from jurisdiction to jurisdiction. Some jurisdictions limit the statement to expressions of the impact of the crime on the victim, while others also allow the victim to provide a sentencing recommendation. In some states, victims are permitted to obtain court documents, like the pre-sentence report, to help them in formulating their statement.
Some jurisdictions specifically require victims to be sworn in and subject to cross-examination as they provide their statement. Most are silent on whether victims must be sworn in and subject to cross-examination. Where silent, practice may vary, even from courtroom to courtroom. Discuss with the prosecutor whether the victim is likely to be required to be sworn in or subject to cross-examination, and apprise the victim accordingly so that he is prepared if he wishes to speak.
In some jurisdictions, victims have the right to be heard at proceedings other than the sentencing, as well. For instance, federal crime victims have the right to be heard at all public court proceedings “involving release, plea, sentencing, or parole.”
Finally, in a few states and localities, community victim impact statements are allowed. This is a way for those who do not fit the legal definition of victim but who have been impacted by the crime to let the court know how the crime has affected them and their community.
As with the right to be present, it is helpful to provide the court with prior notice if a victim wants to be heard so that, for instance, the court has not planned for a quick hearing and twelve victims show up to provide oral statements. In some jurisdictions the victim must make a prior request in order to make a statement. Most prosecutors’ offices provide victims with forms or sample statements to aid in the preparation of their statements. Victims may need assistance in understanding the types of information that can be included, and remembering all of the impacts of the crime, from financial, like medical bills and time lost from work; to physical, like headaches and nausea; to emotional, like insomnia and fractured relationships. The fuller the picture the victim can provide, the more appropriate the sentence will be to the impact of the crime.
Restitution: Restitution is an order by the court directing the offender to make payment to the victim for losses incurred due to the crime. The amount of restitution is decided by the court at the sentencing hearing. The federal government and every state give victims a right to restitution. Some jurisdictions also have separate laws specifically covering entitlement to restitution and how it should be paid. Most jurisdictions instruct the court to take into consideration the defendant’s ability to pay in making a restitution award. Some also allow courts to create a payment plan based upon the defendant’s income and expenses.
Restitution is generally limited to financial, out of pocket costs like medical bills, lost wages, funeral expenses, and property damage. In the federal courts, victims are sometimes awarded future medical or therapy costs, or even lost future income, where there is adequate evidence to support the award. Many states have explicitly limited the types of losses which may be recovered in restitution, stating that emotional distress may not be recovered. Victims also may not double recover—if a victim has been reimbursed by insurance, by a state fund like Crime Victims’ Compensation, or through a civil judgement, then any restitution will go to the entity that covered the loss or will not be awarded at all.
Finally, in the federal criminal justice system and in some states, restitution may be ordered even where actions that caused the injury are not the basis of the defendant’s guilty plea in the case. For example, imagine a case where the defendant pleads guilty to possession of child pornography, but he had used the child pornography to groom a child for a molestation. That child’s bills for medical and psychological treatment may be the basis of a restitution award even where the abuse was not charged conduct in the case, if the defendant agrees to it as part of the plea.
Confer: In most jurisdictions, victims have a right to confer, or consult, with the prosecutor. This entitles victims to discuss case matters and provide input to the prosecutor regarding their views. Many decisions by the prosecutor can have a large, even dispositive, impact on the case. For instance, the overwhelming majority of cases are resolved by plea agreement. Where the victim has a right to confer, he can share with the prosecutor his views on a possible plea. Some jurisdictions require prosecutors’ offices to reach out affirmatively to solicit victim views prior to entering into any plea agreement.
The right is often limited to conferences where “reasonable” or “practicable,” and some jurisdictions explicitly protect prosecutorial discretion. The goal of the right is for victims to have input into the prosecutor’s decisions, but not to direct the prosecution themselves. Some states specifically say that the failure to confer does not affect the validity of the plea agreement or subsequent judgment.
In some jurisdictions, this right to confer is explicitly limited to discussions regarding the plea, while others state the right more broadly as a general right to communicate with the prosecutor, or explicitly give a right to confer on other matters, like extradition or charging decisions.
Timely Disposition: In a number of states and in the federal system, victims are entitled to a “speedy trial” or to timely disposition of the case. The timely disposition right allows victims to object when a case is delayed repeatedly (or, in jurisdictions where victims do not have standing to assert their rights, for prosecutors to raise the issue with the court). For many victims, continued delays in the case affect their ability to recover from the crime. Where this right is available, it can be a powerful way to protect victims’ interests.
Privacy: Many jurisdictions grant victims a right to privacy. The federal right, for instance, is “to be treated with fairness and with respect for the victim’s dignity and privacy.” This right can be a valuable tool to protect victims from unnecessary and irrelevant intrusions into their privacy, to keep their identities and locations confidential, and to enhance their safety. Where possible, keeping a victim’s name and identifying information out of court records helps to secure their privacy. In some jurisdictions, victims are entitled to prior notice and an opportunity to object before records related to their private information can be obtained. Where a subpoena seeks private victim information like medical or counseling records, this right may be an option to bar or limit the information from release.
It is a common saying in law that a right is meaningless without the means to enforce it. Victim rights are much less effective where there is no way to challenge their denial. Saying that a victim has rights is one thing; allowing the victim to object to the denial of a right is something more. For instance, if a victim does not receive notice of a hearing and thus is unable to attend or speak at it, is it possible for the hearing to be held again? If the victim is not permitted to express views on a potential plea, should the plea be set aside? Of course, the best path is to ensure wherever possible that victims receive their rights in the first instance. It is worthwhile to know, however, what remedy, if any, is available for the denial of a victim’s rights.
Enforcement rights vary widely from jurisdiction to jurisdiction. Some do not allow any enforcement at all; some allow victims to challenge any denial of a victim right and even appeal the trial court’s order; and some allow challenges of specific denials, but not others. In some jurisdictions, victims can file complaints against prosecutors, law enforcement agents, victim assistance personnel, and even judges who violate their rights. There are nonprofit organizations that will provide free legal help to victims who want to challenge a denial of their rights. To access them, contact the National Crime Victims Law Institute or your local Legal Aid Society.
A special consideration for survivors in sexual assault cases is what is commonly called the Rape Shield Law. The Rape Shield Law is in reality a series of laws, enacted in each state of the United States as well as in the federal system, to protect sexual assault survivors from certain kinds of questions. These laws grew out of a common practice in sexual assault cases where defendants would raise the survivor’s past sexual history, purportedly as evidence that she likely consented to the attack.
The federal rule, which is similar to the rule in many states, is contained in Federal Rule of Evidence 412. It says that evidence to prove that a victim engaged in past sexual behavior or has a propensity to engage in sex is not admissible in a civil or criminal case involving a claim of sexual misconduct. There are a few exceptions—to prove that physical evidence (semen, for instance) was from someone other than the defendant; past instances of sex with the defendant, to show consent; and where necessary to protect a defendant’s constitutional rights. Different states have other exceptions, including to show that the victim has a bias against the defendant, has made false allegations of sexual assault in the past, or to show the defendant’s mistaken belief that the victim had consented. The National District Attorneys Association has a compilation of all of the states’ rape shield laws here: https://ndaa.org/wp-content/uploads/NCPCA-Rape-Shield-2011.pdf
As you probably gathered from seeing the exceptions to these laws, a prosecutor can never guarantee that a victim’s personal life will remain private during a case. Remember, though, that the overwhelming majority of cases do not go all the way through a trial where a victim would need to testify. Even in those cases that do go to trial, the prosecutor has tools to protect the victim’s privacy, like protective orders, sealing the courtroom, and using pseudonyms or initials instead of the victim’s name. Similar protections can be used at preliminary hearings where evidence is discussed. Be sure to talk with the victim about any concerns and communicate those to the prosecutor, so that she can develop a plan to address them appropriately.
Join the National Organization for Victim Assistance 3rd Annual NCVRW Virtual 5k! Unite with advocates, crisis responders, survivors, and community members around the world as we walk to raise awareness about promoting and advancing crime victims’ rights. Learn more.
STEP 1: Register as an Individual or Team
Purchase your Hope in Action: #WhyWeAdvocate t-shirt No longer available
We are excited to learn about your 5k! Share your photos with NOVA by using #NOVA5K #WhyWeAdvocate #NCVRW2020 for your chance to win a prize!
Thank you for submitting! NOVA is currently reviewing the 2020 Board of Directors Award nominations for a person or program that embodies our 2020 theme: Hope in Action, inspiring change and reminding us all #WhyWeAdvocate.
NOVA annually presents awards in six different categories to recognize the extraordinary accomplishments of individuals and programs making inspiring strides in victim services. NOVA Board of Directors Awardees will receive a NOVA Life Membership and a free registration to NOVA’s 46th Annual Training Event in Orlando, Florida.
The Internet and Child Victimization
Best Practices for State Victims’ Rights Legal Services Programs