VictimLaw - Victims Right

GENERAL OVERVIEW

Introduction

Thirty years ago, victims had few legal rights to be informed, present, and heard within the criminal justice system. Victims did not have to be notified of court proceedings or of the arrest or release of the defendant, they had no right to attend the trial or other proceedings, and they had no right to make a statement to the court at sentencing or at other hearings. Moreover, victim assistance programs were virtually non-existent.

Since then, there have been tremendous strides in the creation of legal rights and assistance programs for victims of crime. Today, every state, the District of Columbia, and several territories have an extensive body of basic rights and protections for victims of crime within its statutory code. Victims’ rights statutes have significantly influenced the manner in which victims are treated within the federal, state, and local criminal justice systems.

The core rights for victims of crime include:

The right to be treated with fairness, dignity, sensitivity, and respect;
The right to attend and be present at criminal justice proceedings;
The right to be heard in the criminal justice process, including the right to confer with the prosecutor and submit a victim impact statement at sentencing, parole, and other similar proceedings;
The right to be informed of proceedings and events in the criminal justice process, including the release or escape of the offender, legal rights and remedies, and available benefits and services, and access to records, referrals, and other information;
The right to protection from intimidation and harassment;
The right to restitution from the offender;
The right to privacy;
The right to apply for crime victim compensation;
The right to restitution from the offender;
The right to the expeditious return of personal property seized as evidence whenever possible;
The right to a speedy trial and other proceedings free from unreasonable delay;
The right to enforcement of these rights and access to other available remedies.

Victims’ Rights Constitutional Amendments

In addition to statutory victims’ rights, nearly two-thirds of the states have adopted amendments to their state constitutions guaranteeing rights to victims of crime. Including crime victims’ rights in state constitutions increases the strength, permanence, and enforceability of victims’ rights. Some state amendments include a few broadly worded rights, while others provide a long list of rights for victims.

Rights that are guaranteed by a constitution are stronger than rights that are set out only in statutes. Incorporating victims’ rights into constitutions also gives those rights a degree of permanence. Statutes can be changed at any time by the state or federal legislature. In contrast, it is relatively difficult to change the constitution of a state or that of the United States. In most states, a constitutional amendment must be passed by each house of the legislature by a two-thirds majority. This must usually be done at least twice, often with a legislative election between votes. Identical language must be passed each time. The amendment is then presented to voters at a general election for ratification. Therefore, in most states the process of adopting a constitutional amendment takes several years. As a result, once crime victims’ rights are incorporated into a state’s constitution, they are likely to remain there indefinitely. In addition, giving victims’ rights constitutional protections generally makes those rights enforceable. If an official or a state agency violates a constitutional right, a court usually has the power to order that official or agency to comply with the constitution.

Although there is no amendment to the U.S. Constitution affording crime victims’ rights, the Crime Victims’ Rights Act (CVRA), enacted as part of the Justice for All Act of 2004, establishes the rights of crime victims in federal criminal justice proceedings, provides mechanisms for victims to enforce those rights, and gives victims and prosecutors standing to assert victims’ rights.

Who May Exercise Victims' Rights

Exactly who the law considers a “victim” entitled to a particular right is defined by the federal, state, or tribal code. In some jurisdictions, basic rights are afforded only to victims of felonies, while in others, victims of any violent crime, whether felony or misdemeanor, may exercise such rights. Many jurisdictions also provide rights to victims of serious juvenile offenses, and extend victims’ rights to the surviving family members of a homicide victim, or to the parent, guardian, or other relative of a minor, disabled or incompetent victim. In some states, a victim's legal representative or another person designated by the victim may exercise rights on the victim’s behalf.

Along with general rights for crime victims, many jurisdictions have created special rights for certain groups of crime victims with unique needs. These include victims of sexual assault, domestic violence, stalking, or human trafficking, or victims who are elderly, young children, or victims with disabilities. .

Right To Attend

Introduction

Most jurisdictions give crime victims and their families the right to be present during criminal justice proceedings. This right is important to victims, who often want to see the criminal justice process at work. They may want to hear counsel’s arguments and view the reactions of the judge, jury, and defendant.

Proceedings Victims May Attend

The victim’s right to attend proceedings generally includes the right to attend the trial, sentencing, and parole hearing of the offender, but may include other proceedings as well. Some states provide that victims have the right to attend “those proceedings at which a defendant has the right to be present."

Exclusion of Witnesses

A victim’s right to attend the trial is often limited in cases where the victim is also a witness in the criminal case. A longstanding rule of evidence provides for the exclusion, or “sequestering,” of witnesses during the trial. This rule was designed to prevent witnesses from being influenced by the testimony of other witnesses in the case. Some jurisdictions require any witness to be excluded on the request of a party while others leave exclusion to the discretion of the judge. Increasingly, jurisdictions are changing this rule on witnesses to allow victims to remain in the courtroom even when they will be a witness, or require the court to first rule that the victim’s testimony is likely to be influenced by the testimony of other witnesses before ordering the victim to be kept out of the courtroom.

Presence of Support Persons

Crime victims may benefit from having a support person present during proceedings. The supportive presence of a trusted advocate or family member often enables a crime victim to better exercise his or her right to be present during proceedings. Recognizing this, a number of states give crime victims a right to have an advocate or support person present during proceedings.

Employment Protection While Attending Proceedings

A majority of states have adopted laws protecting the employment of victims who participate in court-related activities. Some states only protect victims’ employment when they are subpoenaed to appear in court. Others provide employment protection whenever the victim attends hearings or consults with the prosecutor prior to the trial. The strongest laws prohibit employers from terminating or penalizing certain victims who miss work due to court appearances, medical appointments, or counseling sessions.

Right To Compensation

Introduction

Crime victim compensation is a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible for limited compensation. Generally, victims apply to the compensation program of the state where they live or where the crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.

Most compensation programs are open to the direct victims of violent crime, or to their surviving family members. A few allow victims of serious financial crime to seek compensation for counseling expenses. Those who pay a victim’s medical or funeral expenses may be eligible for direct reimbursement from the compensation program.

Eligibility

In order to be eligible, the victim must generally have reported the crime during a certain period of time and cooperated in the prosecution of the case. They must also file an application for compensation within a certain time period. Victims may be ineligible if their own misconduct contributed to their injuries—for example, if they were injured while they were committing a crime.

Compensable Expenses

Each state determines which expenses it will cover. Most compensation programs will be medical expenses, counseling expenses, lost wages, and funeral expenses. Many will pay for a sexual assault forensic exam, crime scene cleanup, family member counseling, or other related expenses. With very limited exceptions, they do not pay for property loss or for pain and suffering. Compensation programs are “payers of last resort.” They will only pay what is not covered by insurance or another source of assistance.

Each state has a cap on the total compensation that will be paid in a case, and may also have limits on various categories of expenses, such as no more than $5,000 for burial expenses or $350 for crime scene cleanup.

Procedural Issues

State law sets out the application and award procedures, as well as payment procedures, appeal procedures, and confidentiality of information received. State law generally also provides that compensation awards are not considered in bankruptcy proceedings and may not be taxed.

State law also generally sets out the source of funding for the compensation program—often a fine on criminal offenders. Some state compensation programs also administer a separate program to collect offender profits from crime, often called “notoriety-for-profit” programs.

Right to Be Heard

Introduction

One of the most significant rights for crime victims is the right to be heard during critical criminal justice proceedings that affect their interests. Such participation is the primary means by which victims play a proactive role in the criminal justice process. When a crime victim is allowed to speak at the sentencing hearing, or to submit a victim impact statement regarding the impact of the offense on the victim and the victim’s family, there is an acknowledgment by the criminal justice system of the personal nature of the crime and of the harm suffered.

Conferral with Prosecutor

Several jurisdictions have adopted laws requiring the prosecutor to obtain the views of the victim before a disposition is final, whether this involves a plea agreement, dismissal of charges, or a pretrial diversion of the defendant. A few jurisdictions require the prosecutor to certify to the court that he or she has consulted the victim before a plea can be accepted.

Communication with the Court or other Authority

Most jurisdictions give victims the right to be heard by the court or another authority, such as the parole board, before major decisions are made. The most common stage for this during the criminal justice process is at sentencing.

Every state allows some form of victim impact information at sentencing. The majority of states require victim impact information to be included in the pre-sentence report and allow victim impact statements to be presented at the sentencing hearing. Generally, the law specifies that victim impact statements may be oral or written, but in several states the statement may also be submitted by videotape, audiotape, or other electronic means.

In general, victim impact statements may be given by the victim, homicide survivors, or the parent or guardian of a minor victim. Many states also authorize statements by a representative or family member of a victim who is physically incapacitated, however some limit such representative’s statements to cases where the incapacitation was the direct result of the crime.

Victim impact information usually describes the harm the offense has had on the victim, including descriptions of the financial, physical, psychological or emotional impact, harm to familial relationships, descriptions of any medical treatments or psychological services required by the victim or the victim's family as a result of the victimization, and the need for any restitution. State law might list the elements to be included in the statement, or it may simply permit a "description of the impact of the offense." In addition, many states allow the victim to state his or her opinion about the appropriate sentence.

In addition to allowing victim impact statements at sentencing, the majority of states also permit victim input at the parole hearing of the offender. In order to provide such input, the victim is usually required to maintain a current address on file with the parole board, the prosecutor's office, or some identified criminal justice agency. A vast majority of states allow victims to present a written or oral statement to the parole board for consideration at the parole hearing. A few states specifically authorize the use of audio or videotaped statements at the parole hearing.

Communication with the Defendant

Along with communicating to criminal justice officials, many states provide a victim the right to communicate with the defendant. This may take the form of a structured “victim-offender mediation” program, where a third party arranges a formal meeting between a victim or surviving family member and a convicted offender. Several jurisdictions also give victims the opportunity to serve on a victim impact panel to educate convicted offenders about the real-world impact of crime.

Right to Be Informed

Introduction

The criminal justice system is often required to provide general information of interest to victims. Most states also give victims or their families the right to be notified of important, scheduled criminal proceedings and the outcomes of those proceedings. They also notify victims when hearings have been canceled and rescheduled.

General Information Provided to Victims

The general information that criminal justice officials are often required to provide includes: notice of the availability of crime victim compensation; referrals to victim services, such as rape crisis centers, battered women’s shelters, and general victim service agencies; information about the steps involved in a criminal prosecution; and contact information for an individual within the criminal justice system.

In addition, victims may also have the right to be informed of various legal rights, including the rights to: attend a proceeding and/or submit a victim impact statement; sue the offender for money damages in the civil justice system; have a court order that they be protected from the offender and/or the offender's family and associates; and collect witness fees for their testimony, among others.

Notice of Events and Proceedings in the Criminal Justice Process

There are dozens of events or proceedings in the ordinary criminal justice process for which notice may be required by statute. These commonly include:

Arrest of the accused;
Arraignment of the defendant;
Bail release and related proceedings;
Pretrial release and related proceedings;
Dismissal of charges;
Negotiated pleas and entry of plea bargain;
Trial dates and times;
Sentencing hearings;
Final sentence or disposition;
Conditions of probation or parole;
Post-trial relief proceedings;
Appeals process and related proceedings;
Parole release and related proceedings;
Pardon/commutation of sentence and related proceedings;
Cancelled and rescheduled proceedings;
Final release from confinement, including from a mental institution; and
Escape and subsequent recapture of offender.

Some of the notice requirements listed above have been more widely adopted by states than others. For example, nearly every state notifies victims of the trial date and time and the sentencing hearing. Fewer notify victims of the offender’s release on bail. Following conviction, most states notify victims of the offender’s parole hearing or parole release, but only a few notify victims of an offender’s pardon or commutation of sentence.

In addition to the events and proceedings most commonly addressed in state victim notification laws, some states notify victims of: the grand jury hearing; probation or parole revocation proceedings; the transfer of a convicted offender to an out-of-state prison facility; and the death of the offender.

Victim Notification Systems

Many laws that provide for victim notification also address the form of that notification. For example, laws regarding notification of bail release in some jurisdictions require immediate notice to the victim by telephone, while in others, “notification” may be limited to providing crime victims a telephone number to call to find out whether an arrested defendant has been released.

A number of jurisdictions have implemented automated victim notification systems to comply with their victim notification laws. Victims can call a toll-free number 24 hours a day to inquire about an offender’s status or register to be notified immediately of an offender’s release, escape, transfer, or court appearance. Once notification is triggered, the system will attempt to contact the victim at the number(s) provided and continue to do so for a designated period of time or until the victim answers the call.

Right to Privacy

Introduction

Privacy concerns are an issue for crime victims throughout the criminal justice process. Fear of harassment or retaliation from offenders who may learn their names and find out where they live through public records or court testimony deters victims from seeking justice. Victims who want to be notified by criminal justice agencies of offenders’ releases and scheduled proceedings may be reluctant to provide the contact information necessary to request notice. Anxiety over who might have access to compensation files, pre-sentence reports, and victim impact statements may result in guarded participation by victims.

Protection of Personal Information in Criminal Justice Records

Victims may have the right to protect the privacy of personal information, such as their name or identity, address, phone number, and place of employment contained in criminal justice documents, compensation records, and court testimony, as well as contact information provided for notification purposes. In some instances, the safety of the victim may be at stake if this personal information is made public. Some states extend this protection to witnesses or the immediate family members of the victim. Certain special victim populations, such as children, victims of sexual assault, domestic violence, stalking, or human trafficking, the elderly, and other vulnerable adults may have additional confidentiality rights that address their unique privacy concerns.

In general, statutory protections of a victim’s right to privacy related to information contained in criminal justice records most often take the following forms: 1) prohibition against compelling testimony relating to personal information in open court; 2) exclusion or limited disclosure of victim identifying information in criminal justice records, including law enforcement reports, court materials, and prosecution documents; and 3) protection from release of addresses and/or phone numbers provided for notice purposes.

Victim/Counselor Privilege

Traditionally, many types of communication have been protected from disclosure in court. These include communications between husband and wife, physician and patient, attorney and client, clergy and parishioner, and psychotherapist and patient. More recently, confidential communications generated in the course of a counseling relationship has also been afforded statutory protection from disclosure. In general, victim/counselor privilege laws enable counselors to maintain the confidentiality of information revealed to them, even if they are called to testify as a witness in a trial or another proceeding. In addition to preventing counselors from testifying or being compelled to testify in court, many privilege laws directly extend protection to a counselor’s written records, such as reports, memoranda, and working papers produced during the course of the counseling relationship.

Because of the sensitive nature of sexual assault crimes and the need to protect domestic violence, stalking, and human trafficking victims from future harm, much of the legislation extending testimonial privileges to counselors and victim advocates or service providers has been limited to these victim populations.

Victim/counselor privilege laws generally fall into one of three categories: absolute, semi-absolute, and qualified. Some states have enacted statutes that provide an absolute privilege prohibiting disclosure of confidential counseling records and communications under any circumstances without the victim’s consent. Other states specify exceptions to the victim/counselor privilege within their respective statutes. These states set forth a semi-absolute privilege and authorize disclosure in limited situations when disclosure of information is in the public interest. The most common exceptions involve reporting of abuse or neglect of a child or vulnerable adult, perjured testimony, evidence of the victim’s intent to commit a crime, or malpractice proceedings against the counselor. Although these laws do not provide the unlimited confidentiality of absolute privilege laws, they do provide complete protection from disclosure except under narrowly defined circumstances.

The remaining states have a qualified privilege that authorizes disclosure if a court finds it appropriate given the facts of the case. In making that determination, a court must use a balancing test, weighing the value of the evidence to the defendant against the victim’s need to keep the communication confidential. As a result, the confidentiality of counseling communications is decided on a case-by-case basis, and both parties are given the opportunity to make their arguments for or against disclosure.

Address Confidentiality Programs

In addition, many states have created address confidentiality programs to enable victims of domestic violence, sexual offenses, trafficking, and stalking to substitute an alternative address in place of their actual address in order to keep their whereabouts private. The program provides participants with a means to prevent abusers and potential abusers from locating them through public records by assigning them a legal substitute mailing address, which may be used as a residential, school, and employment address. Often, this substitute address is also used for voter registration purposes.

Right to Protection

Introduction

Many jurisdictions give crime victims the right to protection during the criminal justice process. This right may take the form of a generally stated right to protection, or may include specific protective measures. Most jurisdictions have defined criminal offenses of intimidation of victims or witnesses. Many provide that victims must be informed of protective procedures that are available.

Protective Measures

Measures to protect crime victims take various forms. Some examples include:

Police escorts to and from court;
Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
Witness protection programs;
Residence relocation; and
Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.

Several jurisdictions have also enacted laws to make it easier for victims to participate in the criminal justice process. Some give victims the right to refuse or limit any interviews with defense attorneys. Others provide for special court arrangements for vulnerable victims, such as young children. These arrangements may include closed-circuit testimony from outside the courtroom, arranging the courtroom so the victim does not see the defendant, or closing the courtroom to the general public.

Employment Protection

Many states also provide a means to protect a victim’s job or economic status during the criminal justice process. This many include requiring the prosecutors’ office to intervene with employers or creditors on request, or prohibiting employers from firing or punishing a victim from taking time off to participate in the criminal justice process.

Right to Restitution

Introduction

The term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.

Courts have the authority to order restitution by convicted offenders as part of their sentences. In approximately one-third of states, courts are required to order restitution to victims in cases involving certain types of crimes, typically violent felony offenses. In many other states, if the court fails to order restitution, or orders restitution for only part of the victim’s losses, the court must state its reasons for doing so on the record. Payment of restitution is often a condition of probation or parole as well.

Not only can courts order restitution to the direct victim of a crime, they are often able to order restitution to the state victim compensation board, if that board has paid some of the victim’s expenses, or to a victim service agency that provided assistance to the victim.

Losses Covered

Restitution can cover any out-of-pocket losses directly relating to the crime, including:

medical expenses;
therapy costs;
prescription charges;
counseling costs;
lost wages;
expenses related to participating in the criminal justice process (such as travel costs and child care expenses);
lost or damaged property;
insurance deductibles; and
other expenses that resulted directly from the crime.

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonably expected future losses, such as ongoing medical or counseling expenses.

In calculating the restitution owed, a court will look at the victim’s losses. The court may also consider the defendant’s financial resources or other financial obligations, either in setting the total amount of restitution owed or when formulating a payment plan for the defendant.

Collecting Restitution

Courts may order restitution to be paid immediately, or may set a payment plan. Often the court clerk is designated to receive payments, but where restitution is a condition of probation or parole, the probation or parole office may be responsible for collection.

Because a defendant may be ordered to pay various fines and fees, as well as restitution to one or more victims, a jurisdiction may set out a priority of payments. For example, the law may state that each payment received from a defendant is to be split among all the obligations, or that the restitution must be paid first, followed by fines and fees.

Many jurisdictions provide that restitution orders become civil judgments. This expands the ability of victims to collect restitution and also means that the orders can remain in effect for many years, typically 10 to 20 years. In many jurisdictions, civil judgments can be renewed, so they can stay in effect even longer. Depending on the jurisdiction, the civil judgment may be enforceable immediately, or enforceable when the offender defaults on payment, or enforceable only after the criminal justice process is completed and the offender has been released from probation, prison, or parole.

In some states, authorities are entitled to seize offenders' financial assets and property through garnishment and attachment to satisfy restitution orders. This authority may be granted immediately, or only after the defendant fails to pay as ordered.

When payment of restitution is a condition of probation or parole, probation or parole may be revoked if the defendant willfully fails to pay.

In those states with prison work programs, restitution payments are typically collected out of the wages of those programs. Some states collect restitution from state income tax refunds, prisoner accounts, lottery winnings, or damage awards from lawsuits against the prison.

Offender profits from crime

Many jurisdictions have laws that prohibit convicted offenders from making a profit from their crime. These are often called “notoriety-for-profit” laws. Under these laws, the offender is typically required to notify a state agency when he or she enters into a contract related to the crime. The state agency then freezes or holds the profit and notifies the victim. The victim has a certain amount of time to bring a civil suit against the offender.

Right to Return of Property

A victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held as evidence.

All 50 states and the District of Columbia have passed laws outlining procedures for the return of stolen or personal property seized for evidentiary purposes in subsequent criminal proceedings.

In most states, property may be returned to its owner when it is no longer needed as evidence in a criminal prosecution. Since this often means the victim is deprived of his or her property for months or even years while the case is appealed or retried, some states have attempted to impose specific time requirements for the return of property.

A number of states have attempted to promote the prompt return of property needed as evidence by authorizing a photograph of the item to be serve as evidence.

Right to A Speedy Trial

A number of jurisdictions give crime victims the right to “a speedy trial” or “disposition of the case free from unreasonable delay.”

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances. “Continuances” are court-ordered delays of court proceedings. Many jurisdictions require that, in ruling on a continuance requested by a party, the court must also consider the impact of the delay on the victim.

In addition, several jurisdictions give priority to certain types of cases. They may require that cases involving children, or vulnerable elderly victims, be given preference in setting the court docket.

Right to Enforcement/Remedies of Victims

Introduction

Since crime victims have been afforded legal rights in every state, they also need ways to ensure that those rights are enforced.

Enforcement Mechanisms

A jurisdiction may promote the enforcement of victims’ rights through court proceedings. In a few jurisdictions, victims have “legal standing” to assert their rights. Because a crime victim is not a “party” to the case—that status is limited to the defendant and the prosecuting jurisdiction (such as the state)—legal standing for victims is not automatic but must be provided by statute or court ruling. In some jurisdictions, the victim does not have standing, but the prosecutor or some other official has the authority to seek court enforcement of the victim’s rights.

Aside from general “standing” to assert rights, some jurisdictions have other limited court options for enforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency to comply with the law, or allow other limited actions.

Several states have created a designated entity to receive, investigate, and attempt to resolve crime victim complaints. In some states, this may be an ombudsman or state victim advocate; in others, it may be a committee or board. Experience in those states has shown that the majority of calls from crime victims are resolved by providing information or referrals. However, many go on to the formal complaint and investigation stages. Some states also give the investigatory agency the ability to impose consequences on offending agencies or officials found to have violated a victim’s rights.

Limitations on Enforcement

Many victims’ bills of rights state that violation of a right does not create a civil cause of action against any government agency or official. Also, most specifically provide that a failure to provide a right to a victim cannot be raised by a defendant as a ground for appeal.

Disclaimer

This information is provided as a general overview of crime victims’ rights, which vary in scope and strength across the state, tribal, and federal criminal justice systems. It is not intended to serve as legal advice or statutory interpretation for any given jurisdiction.