The Victims' Turn: Laws For Defendants' Rights

Crime victims have a set of rights that are protected by law. These rights include being treated with respect and dignity, being reasonably protected from the accused, and being informed of the progress of the case and their role in it. Victims also have the right to financial assistance and continued employment, as well as to be heard at sentencing and parole proceedings. In some cases, victims may also have the right to mediation as an alternative to court. These rights are designed to ensure that victims are treated fairly and with compassion throughout the criminal justice process.

Right to privacy

Crime victims have a right to be treated with fairness and respect for their dignity and privacy. This includes the right to be reasonably protected from the accused and to be informed of any public court proceedings involving the crime. In the US, 39 states provide victims with the right to be present during criminal justice proceedings, although many have imposed restrictions and limitations. For example, victims can be excluded from proceedings if their testimony would be materially altered by hearing other testimony.

The right to privacy for victims is especially important in cases of sexual assault. Advocates and attorneys can help victims protect their privacy by discussing strategies to ensure confidentiality and limit the spread of information. For instance, victims can request that sensitive information, such as photos from a sexual assault forensic exam and medical or mental health records, be protected from the defence. They can also seek protective orders, request in-camera review, or file motions to seal sensitive records and limit the scope of inquiry. In some states, victims can file civil suits using a fictitious name to further protect their identity.

Additionally, rape shield statutes offer protection for victims by preventing the introduction of irrelevant past sexual history or abuse. However, victims may need to reveal details of past sexual experiences to their attorney or prosecutor to enforce these laws.

The right to privacy also extends to criminal arrestees and suspects. An article in the Maryland Law Review argues that the identities of arrestees and suspects should be kept private until a judge or grand jury finds probable cause of guilt. The author proposes that a collective decision through legislation should determine when an arrestee or suspect is publicly named, rather than leaving it to the discretion of criminal justice agencies and reporters. Accusations can stigmatize individuals even if they are unfounded, and currently, there is no obligation to report on a defendant's exoneration.

Right to protection from the defendant

Crime victims have the right to be reasonably protected from the accused. In some cases, after charges are filed, a judge will issue a Criminal Protective Order (CPO) to protect the victim before a trial or after a defendant is found guilty. A CPO requires the defendant to stay away from the victim, their family, and any witnesses. Victims of some crimes may also be able to ask for protection by filing their own case for a restraining order.

In New York, for example, an Order of Protection is a legal document in which a judge orders someone to follow specific conditions of behavior. The purpose of a Temporary Order of Protection is to maintain peace and provide protection until all the facts have been gathered and the case is heard in court. When the court is convinced that someone has committed an offense or endangered the person protected by the Order, a final Order is issued.

The Victims' Bill of Rights Act of 2008 provides all victims with rights and due process. The California Constitution and many laws give rights to victims if someone is charged with a crime against them. Many of these rights are automatic, but some have to be requested.

Right to information about the case

Crime victims have the right to be informed about the case and its proceedings. This includes the right to reasonable, accurate, and timely notice of any public court proceedings, parole proceedings, or any release or escape of the accused. Victims should be informed of their role and the scope, timing, and progress of the proceedings, especially in cases involving serious crimes. They have the right to request a copy of the police report, as well as information about the arrest and charges filed. Additionally, victims can ask to be notified about the defendant's conviction, sentence, incarceration details, release status, and parole status.

In the United States, the Crime Victims' Rights Act outlines specific rights for crime victims, including the right to be reasonably protected from the accused and the right to not be excluded from public court proceedings, unless there is a valid reason for their exclusion. Crime victims also have the right to be heard at public proceedings, to confer with the government attorney, and to receive full and timely restitution.

The Victims' Bill of Rights Act of 2008 in California provides victims with rights and due process. This includes the right to privacy, protection from the defendant, and access to information about the case. Victims can request confidential information, such as their address and phone number, to be kept private from public records. They can also seek protection through a Criminal Protective Order (CPO) or a restraining order.

Victims are also entitled to participate in the court process, including deciding whether to talk to the defendant's lawyer, attending court hearings, and making victim impact statements during sentencing. They have the right to get their property and money returned to cover financial losses, known as restitution. Additionally, victims can apply for compensation through the California Victim Compensation Board or file civil lawsuits against the defendant.

To ensure that victims receive the necessary support, free help is available through organizations like the Victim Witness Assistance Center and the Victims Legal Resource Center. These organizations provide assistance in understanding and requesting victims' rights.

Right to participate in the court process

The right to participate in the court process is a fundamental aspect of ensuring justice for victims of crimes. This right is enshrined in laws such as the Crime Victims' Rights Act (CVRA) in the United States and the Victims' Bill of Rights Act of 2008 in California. These laws outline specific provisions to facilitate the participation of victims in the judicial process.

One crucial aspect of the right to participate is the ability of victims to choose whether to engage with the defendant's lawyer. During the investigation phase, the defendant's lawyer or their hired investigator may want to speak with the victim. Recognizing the potential impact on the victim, the law grants them the agency to decide if they want to engage in such communication. If they consent, they can also set reasonable boundaries on the scope of their answers. This aspect of the law empowers victims by giving them a voice in the process while respecting their potential vulnerability.

Victims are also granted the right to attend court hearings and be present during crucial stages of the judicial process. This includes the right to be notified of and attend any public hearing where the defendant and prosecutor are entitled to be present. Furthermore, victims can request to be informed about the defendant's conviction, sentence, place of incarceration, scheduled release date, actual release or escape, and parole status. This real-time access to case developments ensures that victims are not left in the dark about the progress of justice.

Another way victims can actively participate in the court process is by making statements or providing information during sentencing. This often takes the form of a victim impact statement, where victims can share how the crime has affected their lives. This statement is considered by the probation department conducting a pre-sentence investigation. Additionally, victims have the right to provide information about their financial losses, which can influence the restitution order issued by the court. This right to be heard and to seek restitution empowers victims to actively seek redress for the harm they have endured.

The right to participate in the court process also extends to interactions with the attorney for the government in the case. Victims are granted the reasonable right to confer with the government attorney, providing them with an opportunity to share their perspectives and insights. This aspect of the law ensures that victims are not merely passive observers but active participants in the pursuit of justice.

Right to financial assistance and restitution

The right to financial assistance and restitution is a critical component of ensuring justice for victims of crimes. This right aims to restore victims to their pre-victimisation state and provide them with the means to recover from the financial and psychological impacts of the crime. Here are some key aspects of this right:

Eligibility for Financial Assistance and Restitution:

• Direct victims: These are individuals or businesses who have suffered physical, psychological, or financial harm as a direct result of the defendant's crime.
• Indirect victims: Some courts may order defendants to pay restitution to indirect victims, such as family members of direct victims. For example, the surviving members of homicide victims or children who witness domestic violence may be eligible for restitution in certain jurisdictions.
• Third parties: Many states require defendants to provide financial assistance to third parties, such as insurance companies and victim compensation programs, who assist victims in their recovery.
• Government agencies: Defendants may be ordered to compensate government agencies for expenses incurred while investigating crimes with no direct victims, such as drug offenses or welfare fraud.

Types of Losses Compensated:

• Lost, stolen, or damaged property
• Medical, dental, or counselling expenses
• Lost wages due to injury or time spent in court or assisting in the investigation
• Legal fees related to collecting restitution or settling a victim's estate
• Moving or security expenses
• Costs for temporary housing, food, childcare, and transportation due to moving out of the offender's household
• Costs incurred by victims of identity theft to re-establish their identity and credit history

Determining the Restitution Amount:

• Victims submit documentation of their losses, such as receipts, bills, and repair estimates, to the prosecutor or probation department.
• The probation department may prepare a presentence report with a preliminary assessment of appropriate restitution.
• At a restitution hearing, the prosecution must prove the victim's right to restitution and the appropriate amount by a preponderance of the evidence.
• Defendants have the right to challenge the information, cross-examine witnesses, and present their own evidence.
• The judge makes the final decision on the amount of restitution to be ordered.

Collecting Restitution:

• Court orders for restitution do not guarantee payment. It depends on the defendant's income and assets.
• Incarcerated defendants are typically required to work and contribute a portion of their earnings towards restitution.
• Supervised release (probation or parole) officers can monitor payments and obtain financial information. Non-compliance can result in revocation of parole or probation.
• Victims can pursue enforcement by filing the restitution order as a civil judgment, allowing them to seek civil remedies for debt collection, including wage garnishment, liens, and levies.
• Some states allow tax revenue departments to intercept a defendant's tax refund or lottery winnings to fulfil restitution orders.

The Role of Restitution in Rehabilitation:

Restitution plays a vital role in the defendant's rehabilitation process. It encourages them to take responsibility for their actions, face the consequences, and become productive members of society. Additionally, restitution saves judicial resources by eliminating the need for separate civil lawsuits to recover monetary damages.

Frequently asked questions