To many, it may seem that the accused have more rights than victims. After all, defendants are guaranteed a plethora of rights that are outlined in the U.S. Constitution; from initial contact with law enforcement to sentencing and appeal. Victims, on the other hand, have rights under various passed acts and State Constitutions.
What role does the victim play and what rights do victims have?
The role of a victim in the criminal justice process is completely voluntary and the extent of victim involvement will vary in terms of case circumstances, respective jurisdictional customs and practices, and social views and media influence that is exerted onto the victim following a crime. A victim is not required nor can a victim be forced to take any type of legal action against their offender. Victims cannot be thrust into the criminal or civil justice process by force, threat or coercion. Likewise, the same is true if such means of force are being used against the victim to alienate their influence in a criminal case (Burgess, Regehr, & Roberts 2013, n.p.).
With that in mind, when a criminal case is filed, the victim may choose to cooperate with the criminal investigation and serve as a witness for the state against the defendant who allegedly committed a crime against them, although legally it is viewed as a crime against the state, not the person in criminal proceedings. The victim, if he/she cooperates with law enforcement authorities, may testify during suppression hearings when the defense tries to suppress evidence that was collected in violation of defendant due process rights (exculpatory evidence) before a trial begins. The victim may also be subjected to great distress once a trial begins by having to testify in the presence of the accused and withstand the scrutiny of cross-examination. The victim may have input on the sentencing hearing (post-conviction) by submitting a victim impact statement, and be awarded restitution (return of stolen property or monetary compensation for stolen property and/or damages for stolen property, or a combination of). Additionally, the victim should, in theory, be notified of any granted appeals on account of successful conviction. Also, a victim should be notified when the convicted offender comes up for a parole hearing so that he/she may have the opportunity to present support or lack of support for conditional release. Furthermore, when an offender is released on parole the victim should be notified because, this could endanger the victim and put them at risk for re-victimization by that offender (Burgess, Regehr, & Roberts 2013, n.p.).
Because many jurisdictions have established victim service centers and designated victim advocates that work directly with the victim to provide various forms of aid, support and assistance with case building and trial preparation, it lessens the trauma of having to relive or recount the event or events that the victim suffered, and it can help to achieve and maintain victim cooperation during the investigative and trial phases of a case. In many instances, a criminal case may not have enough merit without the victim’s cooperation in investigative activities or testimony in court. Their testimony plays a significant role in bringing criminal offenders to justice (Burgess, Regehr, & Roberts 2013).
However, victim rights are not always honored once the criminal justice process is in full-swing, and there is often few resources for the victims when this happens. For example, victims are not always notified about parole hearings/early conditional release. Because many victims are often overlooked or left uninformed Marsy’s Law has been extended past California’s border and marked its place on the books of states who advocate for the protections and provisions of victims in conjunction with their constitutional rights (Balmert 2017, n.p.).
The law was passed in California in 2008, after Marsy Nicholas, Cali., was killed by her ex-boyfriend in 1983 at age 21. Shortly after her murder, Marsy’s mother had a run in with the ex-boyfriend inside a grocery store while he was out on bail. To ensure that no other victim or victim’s family must endure such an incident, Marsy’s Law was put into writing and pushed through the legislative process by Marsy’s brother, Henry Nicholas (Balmert 2017, n.p.).
While Marsy’s Law may not make critical changes to victim rights since it encompasses many of the same considerations that are already afforded to victims under state legislation, it is a legal way to hold key players accountable when victim’s rights are ignored or overlooked. Marsy’s Law has already been passed in Illinois, North Dakota, South Dakota and Montana. The vote for passage in Ohio will be taking place on November 7, 2017 (Balmert 2017, n.p.).
Balmert, J. (2017, October 9). Election 2017: What is Ohio Issue 1, aka Marsy’s Law?. Cincinnati.com. Retrieved from https://www.cincinnati.com/story/news/politics/2017/10/09/election-2017-what-ohio-issue-1-aka-marsys-law/688598001/
Burgess, A. W., Regehr, C., and Roberts, A.R. (2013). Victimology. 2nd e.d. Burlington, MA. Jones & Bartlett Learning, LLC.
Marsy’s Law. (n.d). About Marsy’s Law. Retrieved from https://marsyslaw.us/about-marsys-law/