Protecting, Enforcing and Advancing Victims’ Rights
NCVLI News
Lewis & Clark Law School
spring/summer 2005 Publication
MESSAGE FROM THE DIRECTOR
NCVLI News is a biannual publication of the National Crime Victim Law Institute. Contact NCVLI staff at: NCVLI Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219 Tel: 503.768.6819 Fax: 503.768.6255 ncvli@lclark.edu www.ncvli.org Contents Director’s Message
.................................Page 1 State/Federal Demonstration Project
................................Page 2 “In the Trenches”
................................Page 4 NCVLI Technical Assistance & Brief Bank
................................Page 5 Grassroots Beginnings of Victims’ Rights Movement
................................Page 6 Strategic Litigation
................................Page 8 Advocate Spotlight
...............................Page 11 Rape Victim Standing
................................Page12 A Victim’s Story........Page15 ..
Contributors Editorial Content: Prof. Douglas Beloof, Esq. Barbara Brady, LCSW Joanna Tucker Davis, Esq. Meg Garvin, Esq. Jim & Sally Goelzer Dan Levey, M.Ed. Kim Montagriff, Esq Liani Heh Reeves, Esq. Editor: Diane Heintz
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by Professor Doug Beloof, NCVLI Executive Director
ach edition of NCVLI News presents the opportunity to move crime victims’ rights into the future and to facilitate an understanding of the third wave of crime victims’ rights. The third wave includes many facets, some of which are discussed in this edition. Broadly speaking, the third wave is about crime victim laws that are directly enforceable by the victim in trial and appellate courts. This direct rights enforcement is a critical component of justice for victims of crime.
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To better understand the future, it is important to know the past. The article, “The Grassroots Beginnings of the Victims’ Rights Movement” is an overview of the beginnings of the crime victims’ rights movement. In limited space, the article mentions but a few of the movement’s many heroes. These pioneers, and others, paved the way for the rights of present and future victims – rights that are directly enforceable in the best tradition of civil rights. The tradition of civil rights enforcement and how crime victims’ rights fit within that tradition is the subject of the article, “Advancing Victims’ Rights through Impact Litigation: Taking a Page from History.” The article reviews the NAACP’s strategy to win social justice for African Americans through litigation in conjunction with other efforts. The article predicts that coordinated, strategic litigation is more likely to advance victims’ rights than ad hoc litigation, and that for social change to occur, litigation must accompany broader movement efforts. Finally, while issues of a victim’s ability to enforce his or her rights have been addressed in past editions of NCVLI News, standing, in a variety of contexts, continues to be critical to crime victims’ rights. There is much the crime victims’ and anti-sexual assault movements have to learn from each other. In this edition, standing is taken up in the context of violence against women. In particular, the article “Learning Across Movements: The Example of Rape Victim Standing in Rape Shield Procedures” reviews the procedures of rape shield laws and compares them to victims’ rights procedures. It discusses and analyzes direct victim standing to enforce rape shield laws allowed under federal law. It then urges that the same direct enforcement available to crime victims to enforce their rights be available to sexual assault victims to directly enforce rape shield laws in all jurisdictions. Through these articles, this edition of NCVLI News hopes to encourage all of us to look to the past to learn valuable lessons, and to inspire all of us to keep the movement pointed to the future. For a comprehensive treatment of the enforceability of victims’ rights, see Douglas E Beloof. The Third Wave of Crime Victims’ Rights: Standing, Remedy and Review, BYU L. Rev. (Pending publication Spring 2005.)
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Preparation of NCVLI News was supported by Grant No. 2002-VFGX-K004, awarded by the Office for Victims of Crime (OVC), Office of Justice Programs, U.S. Department of Justice. The opinions, findings and conclusions expressed in this newsletter are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. OVC is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office of Juvenile Justice and Delinquency Prevention. Board of Directors
Sean Beers, CPA, J.D. Gail Burns-Smith Collene Campbell Gary Campbell Helene Davis Jim Goelzer Sally Goelzer James Huffman, J.d., Lewis & Clark Law School Dean (ex officio) Candace Kane, Ph.D., J.D. NCVLI Staff Executive Director Professor Douglas E. Beloof, J.D. Program Manager Barbara Brady, LCSW Staff Attorneys Meg Garvin, J.D. Jessica Mindlin, J.D. Kim Montagriff, J.D. Liani Heh Reeves, J.D. Joanna Tucker Davis, J.D. Administration Bea Frelich, Jeff Hanson Julie Hawkins, Diane Heintz
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UPDATE:
STATE/FEDERAL DEMONSTRATION PROJECT
by Barbara Brady, NCVLI Program Manager
Project Mantra: “Demonstrate to Duplicate” he Demonstration Project, funded by NCVLI through a grant from the Office for Victims of Crime of the U.S. Department of Justice, works to identify and implement promising practices in crime victims’ rights enforcement. Specifically, the Project is identifying promising practices in enforcement of, advancement of, and education about crime victims’ rights in the criminal justice system. There are seven major elements to the Project: NCVLI’s Annual Law & Litigation Conference, the National Alliance of Victims’ Rights Attorneys, this Newsletter, NCVLI Aid, education of the legal profession, NCVLI’s amicus curiae litigation, and a system of pro bono legal clinics. Together these Project elements create a system for victims’ rights enforcement, advancement, and education. At the end of 5 years, the Project’s experience will be captured in blueprints for state and federal jurisdictions to follow as they develop additional crime victims’ rights legal clinics throughout the country.
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While each element of the Project is crucial, the system of pro bono legal clinics is the flagship of the Project. There are currently 9 clinics - 8 state and 1 federal: ♦
Arizona: Crime Victims Legal Assistance Project, Arizona Voice for Crime Victims, Phoenix, Arizona is two clinics - a state clinic and the only federal clinic in the Project.
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California: McGeorge School of Law’s Crime Victims Legal Clinic, Sacramento, California.
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Idaho: Victims’ Rights Clinic, University of Idaho, Moscow, Idaho.
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Maryland: Maryland Crime Victim Law Clinic, Maryland Crime Victims’ Resource Center, Upper Marlboro, Maryland.
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New Jersey: New Jersey Crime Victims’ Legal Advocacy Program, New Jersey Crime Victims’ Law Center, in Sparta, New Jersey.
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New Mexico: Victims Rights Legal Assistance, DWI Resource Center, Inc, Albuquerque, New Mexico.
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South Carolina: Crime Victim Legal Network, South Carolina Victims Assistance Network, Columbia, South Carolina.
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Utah: Utah Crime Victim’s Legal Clinic, Salt Lake Rape Crisis Center, Inc., in Salt Lake City, Utah.
These clinics are tasked with representing victims of crime in criminal courts, educating the legal profession, and recruiting pro bono attorneys, and the clinics are making progress in each of these areas.
Targeted Litigation – A Strategy to Advance Victims’ Rights As a strategy to achieve the greatest possible positive impact on victims’ rights, each clinic is both representing victims of crime and identifying priority issues to target, which, if aggressively litigated, will push the envelope and establish most firmly the rights of crime victims in the criminal justice system.
NCVLI welcomes story ideas and suggestions for future articles that spotlight a service provider, attorney, advocate or private citizen working on behalf of crime victims. We are also interested in hearing from victims who want to share their experiences with our readers. Please send submissions to: NCVLI Newsletter Lewis & Clark Law School 0858 SW Palatine Hill Road Portland, OR 97219
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Call, fax or email to: Tel: 503-768-6251 Fax: 503-768-6255 ncvli@lclark.edu
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The priority issues identified thus far include:
Trial and appellate standing The right to counsel The right to attend and be heard at specific proceedings The right to notice of hearings, including pretrial and post conviction release The right to be treated with dignity, fairness, and respect The right to protection The right to privacy The right to confer with the prosecution on plea agreements The right to timely disposition The right to restitution The clinics and NCVLI are already litigating many of these priority issues, with several early successes. Here are just a few examples: ♦ The Arizona Clinic was able to protect a rape victim’s counseling records from pretrial discovery and is challenging the state’s marital rape statute; ♦ The California Clinic is regularly litigating restitution issues and is fighting to protect the counseling records of a victim; ♦ The Maryland Clinic took a case up to the state’s highest court arguing for victim trial and appellate standing in a case involving restitution; ♦ The New Mexico Clinic successfully argued on a motion to reconsider that a victim had the right to be present; and ♦ The South Carolina Clinic has assisted numerous victims in the presentation of their victim impact statement.
Education of the Legal Profession In addition to bringing cases to trial and appellate courts for enforcement of victims’ rights, the clinics work to expand the knowledge of participants within the criminal justice system and to add to the number of attorneys capable of representing victims of crime. By the end of 2004, the clinics had trained 130 attorneys, 18 law students, and 719 services providers in crime victim legal issues. All the clinics have established a relationship with a law school and by fall 2005, nearly every clinic will have a course and/or a clinic on crime victims’ rights taught within the law school curriculum.
Recruiting Pro Bono Attorneys Each clinic has begun, or advanced, its recruitment efforts to bring more pro bono attorneys and students into the victims’ rights field. As of the end of 2004, the clinics had over 50 pro bono attorneys interested in assisting with victims’ rights.
Victims Served As of the end of 2004, the clinics had served a total of 546 victims of crime, referring some individuals to other service providers as appropriate, and representing many in criminal court.
NCVLI Assistance While the clinic attorneys are in the trenches everyday, NCVLI staff attorneys provide support. This support comes in many forms, including legal research, writing, and consultation to the clinic attorneys on active and anticipated cases; participation as amicus curiae in cases litigated by the clinics; on-site and remote training of clinic attorneys; and consultation in the development of policies and procedures to best serve the representation needs of clients.
Wrap-Up With 9 clinics forming a network of legal advocacy for crime victims in 8 states, and with NCVLI providing technical assistance and training for these clinics and for attorneys around the country, the enforcement of the rights of crime victims nationwide is strengthening. In each state where there is a Project Clinic, more victims of crime are being represented in court, and more participants in the criminal justice system are seeing the power of victim standing. In each state where there is a Project Clinic, more attorneys are engaged in representing victims of crime in criminal court, and more law students are learning about this area of law. In time, there will come a “tipping point,” when the leadership of these 9 clinics will demonstrate that other jurisdictions, other law schools, and other organizations can make the criminal justice system work for not only the state, and not only the defendant, but also the victims of crime. In each newsletter, we will keep you posted about our progress towards the “tipping point.”
National Alliance of Victims’ Rights Attorneys Register for NAVRA membership today and join the growing number of Victims’ Rights Attorneys and Advocates who exchange and share knowledge and resources to more effectively represent victims in the criminal justice system. Visit NAVRA’s Website: http://www.lclark.edu/org/ncvli/alliance.html p // / g/ / to download a membership registration form and take advantage of the temporary waiver of membership fees. An update of NAVRA Membership and activities can be found on page 14.
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IN THE TRENCHES CVLI is introducing a new column in which we will publish news from the frontlines of the crime victims’ rights movement – information about cases we all want and need to know about, but that aren’t published in any of the reporters. If you know of a victims’ rights case that should be included in our next “In the Trenches” column, please email us at ncvli@lclark.ed @ u.
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Arizona:
A victim’s attorney represented the parent of a murder victim in a case where the defendant shot the victim in the back of the head and then desecrated the victim’s body in an effort to hide the crime. At sentencing, the victim’s attorney complemented the state’s sentencing arguments by providing full details of the aggravated nature of the crime, including the impact on the crime victim. The court sentenced the defendant to the maximum aggravated term of 22 years and made a finding that the crime was exceptionally aggravated. Minor victims witnessed the defendant murder their father in the parking lot of their apartment complex. The victims’ attorney argued that the minor victims had the right to refuse a defense interview and to be reasonably protected throughout the criminal process. The trial court denied the defendant’s request for a pretrial interview of the minor victims. The victims’ attorney further argued that the victims’ mother, who was exercising victims’ rights on behalf of her children, also had the right to refuse a defense interview. The trial court ruled that the victims’ mother could be interviewed by the defense. The victims’ attorney moved to stay the proceedings and appealed the ruling of the trial court. That appeal is pending.
New Mexico:
Maryland:
A defendant, convicted of sexual abuse against a child, filed a motion to revise his sentence. After a hearing, the court voided his conviction. Despite having filed a request to be notified as to all events relating to the case, neither the child victim nor the victim’s representative were notified of the hearing and, were denied their rights to be informed, present, and heard at the hearing, as required by law. The victim’s attorney filed a motion for reconsideration, which was denied by the trial court. The case is now on direct appeal to the Court of Special Appeals, In a case where the defendant died following conviction but while appeal was pending, the victim’s attorney opposed the defendant’s motion to dismiss the indictment and void the criminal conviction of the defendant. A decision is pending.
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In a death penalty sentencing proceeding, a trial court judge concluded that the victim’s representatives would not be entitled to exercise their right to be heard until afterr the court determined whether to impose a sentence off death. Following the victim’s attorney’s application forr leave to appeal, the trial court reconsidered its ruling and allowed the victim’s representatives to be heard prior to making the determination of whether to impose death.
In a juvenile case, the victim’s attorney filed an entry off appearance and a motion to protect the victim’s rights. The defendant opposed both the entry of appearance and the motion. The trial court initially stated that, despite state constitutional and statutory victims rights, the victim had no standing, but the motion to protect the victim’s rights would stand if the victim’s attorney withdrew herr entry of appearance. Attempting to assure the victim’s rights were protected, the victim’s attorney withdrew the entry of appearance, but the court ultimately struck the motion as well. In a sexual assault case, the victim’s attorney filed an entry of appearance which was sua sponte e struck by the trial court. The court concluded that, despite state constitutional and statutory victims’ rights, there was no statute or case law that allowed a victim’s attorney to enter an appearance in a criminal case. However, the court indicated it did not want to jeopardize the proposed plea agreement and ensured that all victims’ rights were observed.
South Carolina:
In South Carolina, two victims were sexually assaulted by a medical doctor as adolescent patients. The solicitorr refused to charge the doctor for two years, despite the victims’ attorney’s advocacy. The victims’ attorney cooperated with the media, supported the victims while they told their story to the public, and consequently, eight new victims came forward to pressure the solicitorr to act. Within weeks, the doctor was charged with three counts of sexually assaulting children, and he relinquished his medical license. Through their attorney, two victims presented victim impact statements at the plea hearing.
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NCVLI’S TECHNICAL ASSISTANCE & BRIEF BANK s part of its mission to advance crime victims’ rights, NCVLI litigates nationwide and provides research and educational material in response to technical assistance requests from attorneys across the country. The following is a sampling of the issues NCVLI has addressed and the types of assistance NCVLI is able to provide.
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NCVLI’s staff attorneys have submitted amicus curiae briefs in the following cases, often together with co-amici: •
The ethical rules and professional responsibilities that constrain a victim’s attorney when making extrajudicial statements to the media about a criminal case.
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Under South Carolina law, whether a victim of a prior sexual assault by the defendant could testify at trial under the "common plan or scheme" exception to the general rule that the prior bad acts of a defendant are inadmissible evidence.
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The steps that Arizona trial courts may take to ensure that pro se defendants conform to rules of evidence and procedures, as well as, under certain circumstances, enact special procedures to ensure the safety and security of victims in the courtroom.
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The procedural devices available to challenge a proposed state criminal court rule that would require online publication of the names and addresses of all victims and witnesses.
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Whether an attorney who represents a crime victim in a criminal proceeding is prohibited from representing the same victim in a related civil proceeding.
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Identification of confidentiality and privacy issues that arise from the provision of on-line counseling services, such as which state’s counseling privilege applies when dealing with interstate communication, whether any federal privacy laws would apply to that interstate communication, and record keeping issues.
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Compilation of a fifty state survey of laws regarding parental rights when rape results in pregnancy, and identification of arguments as to why a court should deny or otherwise limit a perpetrator’s parental rights.
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Summary of how states have responded to the issue of alcohol-facilitated sexual assault, including issues to be considered in developing appropriate public policy and model language.
KEPPLER V. BLAKEY. ARIZONA SUPREME COURT. Defendant, purportedly married to the victim at the time of the crime, relied on the state’s marital defense to the sexual assault statute to seek dismissal of the sexual assault charges against him. Supporting the victim’s claim that it violates the constitution to exclude victims who are married to their assailants from the protection of the sexual assault statute, NCVLI argued that the victim was a proper participant and had standing to challenge the constitutionality of the marital defense to sexual assault.
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COOPER V. DISTRICT COURT AND COOPER. ALASKA COURT OF APPEALS. Defendant who pled guilty to various acts of domestic violence was sentenced to a treatment program that did not meet the standards of the Department of Corrections. NCVLI argued that the trial court acted outside its jurisdiction in sentencing the defendant to an unauthorized treatment program, and that the victim was a proper participant and had standing to present this jurisdictional defect in the criminal sentence to an appellate court.
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Since fall 2004, NCVLI’s staff attorneys have also analyzed these and other legal issues:
DEBOER V. REEVES.
COLORADO TRIAL COURT.
A former criminal defendant filed civil tort claims, including malicious prosecution, abuse of process, and defamation, against a juvenile and her family who previously executed criminal witness statements regarding plaintiff’s criminal sexual conduct. NCVLI argued that the juvenile and her family’s reporting of criminal conduct is protected First Amendment petitioning activity and cannot be the basis of civil liability.
If you would like a copy of any of these materials, other educational materials regarding victims’ rights, or if you are an attorney seeking technical assistance, please contact NCVLI by calling (503) 768-6819 or via our website at www.ncvli.org g.
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THE GRASSROOTS BEGINNINGS OF THE VICTIMS’ RIGHTS MOVEMENT by Joanna Tucker Davis, NCVLI Staff Attorney
he story of the victims’ rights movement is the story of heroes — the survivors of crime who never asked to be brought into the system but were dragged into it by the criminals and who stepped forward to make sure justice is done; the advocates whose work on behalf of victims is ceaseless; the politicians whose leadership is admirable; and law enforcement and prosecutors whose bravery and dedication are inspirational. The work of each of these groups of courageous people over the last three decades has resulted in sweeping changes to our criminal justice system; changes that have profoundly improved the lives of crime victims.
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To truly understand how sweeping the changes of the last twenty five years have been, one needs to go back approximately three hundred years, to the founding of our country. Our legal system was based primarily on English common law which, for all crimes except treason, consisted entirely of private prosecution. In this system of justice, crime victims were entirely and solely responsible for investigating and prosecuting the crimes against them. And the harm of crime was primarily thought of as a private harm, not a social harm. By the time of the American Revolution, however, this idea of a system solely in the hands of the victim had fallen into disfavor, and almost all of the colonies had established public prosecutors. While this new system did not exclude private prosecution, increasingly, the trend was away from private involvement in the criminal justice system. The shift away from a victim-centered system was based on sound principles and has had some positive outcomes. For instance, placing responsibility for crime in the hands of the government resulted in more equal justice, ensured more crimes were prosecuted, and ensured that such prosecutions were properly conducted. It also reflected an appreciation for the fact that society, as well as the victim, has an interest in ensuring crimes are prosecuted and the guilty punished. However, as often happens, the pendulum swung too far. By the late 1960s and early 1970s, America had a criminal justice system in which victims had been relegated solely to the role of witnesses - mere evidence for the state - and, as a legal matter, the only harm of crime was seen as the harm to the public at large. Many victims were left feeling invisible and unsafe. Not surprisingly, many felt disenfranchised and betrayed by a system in which they saw themselves as the only participant without any rights. TIME FOR A CHANGE It was time for a change, and in the 1970s, various individuals and groups began working to transform the role of crime
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victims in the criminal justice system. From academia, studies emerged in the newly developed fi eld of victimology that provided statistical evidence of the effects of crime on victims and demonstrated that victims’ dissatisfaction with the criminal justice system had a direct impact on victims’ willingness to report crimes and to cooperate with the prosecution of crimes. From the civil rights movement came a call for equal justice for all victims of crime. Citizens from all walks of life were concerned with rapidly rising crime rates and worked towards reforms. Additionally, survivors of crime and their advocates began to mobilize, establishing grassroots crime victims’ organizations in the 1970s. For instance, •
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In 1972, one of the the first crime victims’ advocacy organization, Aid for Victims of Crime (now the Crime Victim Advocacy Center - CVAC), was founded in St. Louis by Carol Vittert and other citizens concerned with victims’ issues. Over the last 33 years, CVAC has provided invaluable assistance and advocacy to crime victims. Much of the organization’s work was conducted under the leadership of Ed Stout, whose recent death is deeply mourned within the crime victims’ rights community. In 1975, the National Organization for Victim Assistance (NOVA) was established. This groundbreaking organization was an outgrowth of the nation’s first national conference on victim assistance and was formed by a group of the country’s leading activists for victims’ rights. In 1978, Robert and Charlotte Hullinger founded Parents of Murdered Children (POMC), after the murder of their 19 year old daughter, Lisa. In 1979, Candi Lightner and Cindi Lamb founded Mothers Against Drunk Driving (MADD) after Candi Lightner’s 13 year old daughter, Cari, was killed by a repeat offender drunk driver and Cindi Lamb’s infant daughter became a quadriplegic after being hit by a repeat offender drunk driver.
At the same time, the women’s movement pushed for reforms in the areas of sexual assault and domestic violence. The nation’s first rape crisis center, Bay Area Women Against Rape (BAWAR), was founded in 1971 by a group of women, including the mother of a rape victim. The women came together in response to the treatment a teenage girl received by law enforcement and hospital personnel after she was sexually assaulted. Seven years later, the National Coalition Against Sexual Assault was formed to provide leadership to the many
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rape crisis shelters that were being founded around the country. Near this same time, the movement against domestic violence arose, providing shelters, education and resources to women who were assaulted. The country’s first hotlines and shelters for battered women and their children were established. Many of these hotlines and shelters were staffed by volunteers who were themselves domestic violence survivors. At the same time, efforts were underway to create a new paradigm – to persuade law enforcement officers and prosecutors’ offices to treat domestic violence as a crime, rather than a private, family matter. In 1978, the National Coalition Against Domestic Violence was founded by over 100 battered women’s advocates from around the country who had attended the U.S. Commission on Civil Rights hearing on battered women in Washington, DC. In sum, the 1970s was a time of new beginnings for the victims’ rights movement—grassroots efforts were born that highlighted the plight of victims and the problems with the criminal justice system, and created much needed services and advocacy for crime victims. The above are just a very few of the organizations founded by victims and their advocates in the 1970s. (Regrettably, t h e limite d sp ac e of t hi s newsletter simply does not allow us to acknowledge all of the individuals and groups that rose up to fight for victims and to whom we owe so much gratitude.)
brutally kidnapped, raped, tortured, and murdered Stephanie. During the trial, the Ropers were not informed of what was occurring and were not allowed to attend the trial. After the guilty verdict, Roberta was to testify at sentencing about her daughter and the impact of this terrible crime on her family. The court upheld an objection from the defense attorney, however, and Roberta was told that the impact of the murder on her family was “irrelevant,” despite the fact the defendant was able to call many witnesses on his behalf to talk about his life. The Ropers went on to found the Stephanie Roper Foundation (now the Maryland Crime Victims’ Resource Center) and became a powerful force for the enactment of laws that give rights to victims, both in Maryland and nationwide. Victims now have rights in the criminal justice system. In fact every state in the nation and the federal government have passed statutes over the last twenty five years that give victims some rights in the criminal justice process. Thirty-three states have made those rights part of their state constitutions.
Over the last three decades, the pendulum of our criminal justice system has begun to swing into a proper equilibrium—from the 16th century extreme of placing on victims all responsibility for enforcing crime, to the mid20th century exclusion of any legal role or status in the criminal justice system for the victim, to the proper balance now on the horizon.
In response to this movement, in the early 80s, President Ronald Reagan’s Task Force on Victims of Crime — a group made up of law enforcement, lawyers, judges, victim advocates and others — traveled the country listening to victims and, in 1982, produced a written report detailing its findings and recommendations for reforms . Many of these recommendations have become reality. The Office for Victims of Crime (OVC) was established within the United States Department of Justice in 1983. The Victims of Crime Act (VOCA) was passed in 1984 and now funds services all over our country with monies collected from fines, forfeitures and fees levied against federal criminal offenders. In fact, since 1983 more than 6 billion dollars has gone from the pockets of the offenders to fund services that help victims. The last twenty five years have also seen extensive changes in the enactment of laws that give crime victims’ rights in the criminal justice system. These laws are grounded in the experiences of victims - victims like Roberta and Vincent Roper. In 1982, their 22 year old daughter, Stephanie, a senior in college was home for a weekend visit with her family. As she drove home from a friend’s house, her car broke down. Jack Ronald Jones and Jerry Beatty came upon her stranded on the side of the road, and
Over the last three decades, the pendulum of our criminal justice system has begun to swing into proper equilibrium - from the 16th century extreme of placing on victims all responsibility for enforcing crime, to the mid-20th century exclusion of any legal role or status in the criminal justice system for the victim, to the proper balance now on the horizon.
There is no question that the rise of grassroots organizations and the laws passed as a result of the advocacy of those organizations over the last twenty five years have improved the lives of many victims. Unfortunately, for many these rights have remained paper promises - laws on the books that are not enforced. Research and the experience of many victims suggest that, even in states that provide strong protections for victims, these rights are often not honored. Why? Some are afraid that these laws will allow victims to control the process or overrule the decisions of prosecutors or judges or infringe on defendant’s rights - fears that are based not in fact, but on misunderstanding of the laws. Some in the criminal justice system are simply resistant to any change to business-asusual. This ongoing resistance to victims’ involvement in the criminal justice system is why the work of heroes, those few highlighted in this article and those many others across the country, continues to be so crucial. The grassroots efforts have only begun; we must all join together to ensure that justice is done for crime victims.
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ADVANCING VICTIMS’ RIGHTS THROUGH STRATEGIC LITIGATION: TAKING A PAGE FROM HISTORY by Meg Garvin, NCVLI Lead Staff Attorney
“’[Y]ou [ ] fools ggo ahead and have your fun . . . we ain’t begun to work yet.’” Thurgood Marshall, commenting during the post-Brown v. Board of Education celebration.1
newsletters NCVLI will detail strategies for strategic litigation to advance victims’ rights.
The Civil Rights Movement: An Evolving Strategy3
ocial movements seek to bring about historic social change by advancing justice. The social movement of The National Association for the Advancement of crime victims’ rights has been successful in this endeavor Colored People (NAACP) was founded in 1909 by a over the past three decades. As Joanna Tucker Davis multiracial group of activists. During its early years, notes in her article in this newsletter, the crime victims’ the NAACP engaged in lobbying, public education, and rights movement began with a handful of grassroots ad hoc litigation. From 1925-30, the NAACP began to organizations working to achieve justice for crime victims, develop a plan for coordinated litigation to win social and has gained considerable momentum, passing victims’ justice for African-Americans. The impetus for the plan, rights constitutional amendments and/or statutes in in part, was a belief that it was a waste of time and money every jurisdiction. These changes to conduct isolated, ad hoc established in law that the crime o bring about true change, the rights litigation, and instead, a victim cannot be ignored in the provided by law must be implemented widespread legal campaign pursuit of justice. Despite these was necessary. The strategy advances, the crime victims’ rights and enforced in practice; to do that began in earnest with an movement must recognize that, in most effectively requires the move- infusion of $100,000 from 2 Thurgood Marshall’s words, it “ain’t ment to engage in strategic litigation. the Garland Fund to launch begun to work yet.” To bring about a strategic legal attack on true change, the rights provided by law must be implemented racial discrimination. With a portion of these funds, in and enforced in practice; to do that most effectively requires 1930 the NAACP and the Garland Fund formed a joint the movement to engage in strategic litigation.2 committee and hired a staff attorney, Nathan Margold.
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This article is the beginning of a concerted effort to look to, learn from, and import from the litigation strategies of other social movements, with an eye towards creating a strategic victims’ rights litigation plan. One of the preeminent social movements, the civil rights movement, provides an example of the using litigation for social change. The United States Supreme Court’s decision in Brown v. Board of Education n, 347 U.S. 483 (1954), is a commonly recognized moment of strategic litigation. The lesson of Brown v. Board of Education n requires understanding that the victory of that case was the culmination of a conscious strategy to challenge racial inequality through litigation, that a part of that conscious strategy was regular evolution of the strategy itself, and that this seminal legal victory did not complete the work of the civil rights movement. This article discusses some basic lessons the victims’ rights movement can take from Brown v. Board of Education n, and in future
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Margold undertook a comprehensive study of the segregation laws to determine how best to challenge racial inequality through the courts. Margold’s report, issued in May 1931, concluded that segregation in public education, as practiced, did not even comply with the separate but equal principle of Plessy v. Ferguson, 163 U.S. 537 (1896), because the facilities provided African Americans were separate, but not equal, as evidenced by the disproportionate per-pupil and perteacher expenditures. Margold’s report recommended a direct challenge to the education system as a violation of equality through a series of suits against jurisdictions that practiced segregation. In 1935, Charles Hamilton Houston, former Dean of Howard University’s School of Law, was appointed to be the first Special Counsel of the NAACP. Houston believed that legal challenges alone would not affect
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What the civil rights model teaches is that a successful legal strategy is one that has a goal, but also allows room for revision through analysis, on a case-by-case basis and periodic review from a movement perspective.
sufficient change and that a direct challenge to the education system might not succeed and might, in fact, result in an unfavorable Supreme Court decision reaffirming Plessy. With those concerns in mind, Houston revised the NAACP’s strategy to be one of incremental legal attacks through equalization lawsuits targeted at graduate and professional schools. Equalization suits demanded relief in the form of making specific facilities and educational opportunities for black students equal to those of white students rather than directly challenging the constitutionality of the education system as a whole. Throughout the 1930s and 40s, Houston – who was joined by, and eventually succeeded by, Thurgood Marshall – successfully argued a number of cases using this strategy: Pearson v. Murrayy, 182 A. 590 (Md. 1936), (resulting in the desegregation of the University of Maryland’s law school); and in State ex rel. Gaines v. Canada a, 305 U.S. 337 (1938) (ordering admission of a black student to the University of Missouri Law School.)4
the civil rights legal strategy that was not necessarily recognized throughout the campaign. Other histories recount that the NAACP did not have any litigation strategy but instead constructed one post hoc. Both types of history represent an unsophisticated conception of strategy. What the history of the NAACP reveals is that there was an overarching legal strategy that sought to dismantle Plessy. The history also reveals that over the years the NAACP regularly revised and reviewed its strategic decisions, including analysis of whether and when to launch a direct or indirect attack on educational inequality; whether to use the legal tool of mandamus or injunction; whether to file in state or federal court; whether a particular case or plaintiff materially contributed to the movement; whether to target the deep south or the border states; whether any particular court was ready for a frontal assault on segregation or whether smaller, tactical assaults were better for the day; and how best to conduct a national litigation strategy that included both local counsel and a centralized national office. What the civil rights model teaches is that a successful legal strategy is one that has a goal, but also allows room for revision through analysis - on a case-by-case basis - and periodic review from a movement perspective.
True social change begins before and
continues even after successful litigation.
While there were also unsuccessful cases, by 1950 the equalization lawsuits had gradually undermined the legal foundation of Plessyy. Believing the time was ripe for a direct attack on segregation in public education, the NAACP again revised its strategy and Brown v. Board of Education n was born. In the Supreme Court, Brown v. Board of Education consisted of six separate cases in five jurisdictions: Briggs v. Elliot out of South Carolina; Gebhart v. Belton and Gebhart v. Bulah h out of Delaware; Davis v. County School Board out of Virginia; and Bolling v. Sharpe out of the District of Columbia. Victory came in the form of the Supreme Court’s unanimous decision on May 17, 1954, holding that the segregation of children in public schools solely on the basis of race violated the Fourteenth Amendment and deprived black children, as a racial minority group, a right to equal educational opportunities. Some histories written about the NAACP litigation strategy add a thread of consistency regarding the evolution of
A Necessary But Not Sufficient Strategy This call to strategic litigation is not a call to abandon other avenues of advancement of crime victims’ rights, nor is it a claim that litigation is the answer to all victims’ woes. A singular focus on litigation, even strategic litigation, is misplaced.5 True social change begins before and continues after even successful litigation. This truth about social change is evident from Brown v. Board of Education. There are actually two Brown v. Board of Education decisions – Brown I, discussed above, and Brown II. Brown II occurred because the Supreme Court’s 1954 decision in Brown I did not continued on page 10
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(Footnotes)
address the remedy for the constitutional violation, but instead held over the cases for re-argument of the issue of implementation and remedy in 1955. In Brown II, 349 U.S. 294 (1955), the Supreme Court remanded the cases to the trial courts and ordered school boards to develop plans of desegregation that would proceed with “deliberate speed” and be supervised by local federal courts. What followed Brown II is a well-known story of hostility, purposefully delayed implementation, mixedresults in implementation, and, more than fifty years later, a continuing struggle for educational equality. The civil rights movement demonstrates that social change can occur only when litigation is complemented by a popular, socio-political movement. As the crime victims’ rights movement advances to the next stage and includes strategic litigation, it must not abandon the many tools of change already working for it such as public education and legislative and constitutional reform. Instead, the crime victims’ rights movement must wed strategic litigation to the other aspects of its movement. The Work Ahead The call for lawyering for social change is not a new one. As Charles Hamilton Houston is oft-quoted as saying: “A lawyer’s either a social engineer or a parasite on society.” Neither is the call for lawyering for social change new to the victims’ rights movement.6 This article calls for even more than mere lawyering to advance the victims’ rights movement. It calls for a thoughtful and strategic approach to litigation that advances the movement nationwide. It asks the movement to move beyond ad hoc, isolated litigation, into strategic litigation. This has begun to happen, as evidenced by the thoughtful litigation of each of the nine clinics that are part of the State and Federal Clinics and System Demonstration Project, funded by the Office for Victims of Crime. (See article on page 2). Moving forward, articles in NCVLI News will articulate a strategic litigation plan targeting critical cases for the advancement of crime victims’ rights nationwide and highlight the successes and lessons to be learned as this next phase of the crime victims’ rights movement advances.
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Genna Rae McNeil, “BEFORE BROWN: REFLECTIONS ON HISTORICAL CONTEXT AND VISION,” 52 AM. UNIV. L. REV. 1431, 1443 (August 2003) (quoting James T. Patterson, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY 71 (2001)). 2
Strategic litigation is often called impact, public interest, structural, strategic, or social action litigation. I have chosen the word “strategic” because it implies the understanding that the purpose of the litigation is a true social movement and that such movement requires short and long term tactical analysis. 3
The history of the NAACP and the civil rights movement provided throughout this article is taken in large part from the NAACP’s own website, Legal Affairs History at http:// p www.naacp.org/departments/legal/legal_history.htm p g p g g _ y l, and Mark V. Tushnet, THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950, passim (1987). Additional useful sources include Leland B. Ware, “EDUCATIONAL EQUITY AND BROWN V. BOARD OF EDUCATION: FIFTY YEARS OF SCHOOL DESEGREGATION IN DELAWARE,” 47 HOWARD L. J. 299, 301 (Winter 2004); McNeil, “BEFORE BROWN: REFLECTIONS ON HISTORICAL CONTEXT AND VISION,” supra. 4
While this article addresses the evolution of the education cases, it should be noted that the movement’s strategy included other avenues of attack, including salary and compensation disputes. 5
See e Gerald N. Rosenberg, THE HOLLOW HOPE CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); Michael Klarman, NEITHER HERO NOR VILLAIN: THE SUPREME COURt, RACE, AND THE CONSTITUTION IN THE TWENTIETH CENTURY: CHAPTER 2: THE PROGRESSIVE ERA (UNIVERSITY OF VIRGINIA SCHOOL OF L AW LEGAL STUDENTS WORKING PAPER NO. 99-3B, JUNE 1999), ONLINE AT HTTP://PAPERS.SSRN.COM /ABSTRACT _ ID =170228, VISITED MAY 1, 2005; Kevin R. Johnson, “L AWYERING FOR SOCIAL CHANGE: WHAT’S A L AWYER TO DO?” 5 MICH. J. OF RACE AND L AW 201 (Fall 1999). 6
See, e.g., John W. Gillis and Douglas E. Beloof, “THE NEXT
STEP FOR A MATURING VICTIM RIGHTS MOVEMENT: ENFORCING CRIME VICTIM RIGHTS IN THE COURTS,” 33 MCGEORGE L. REV. 689 (Summer 2002).
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ADVOCATE SPOTLIGHT: MOTHERS AGAINST MURDER AND ASSAULT by Liani Jean Heh Reeves, NCVLI Staff Attorney
o achieve justice for all crime victims, the crime victims’ rights movement must pursue a variety of avenues. One traditional avenue of the movement has been to address advocacy for victims in the aftermath of victimization. This article features an organization that uses preventive advocacy to advance the victims’ movement.
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In 1989, like too many young African American men, Helene Davis’ 16-year old son, Darrell Davis, was murdered in Oakland, California. Oakland’s murder rate is disproportionately high for its population – while Oakland only accounts for 29% of the total population of Alameda County, it accounts for almost 71% of the homicides. Oakland’s minority youth have been most affected by this violence. In 2002, 113 people were homicide victims in Oakland; 80% of these were African American men and one-third were under the age of 25.
for you. It doesn’t make you and the whole rest of your family, you know, irrelevant,” explains Davis. “There seems to be an assumption of wrongdoing by certain victims that leads law enforcement not to share information with victims and families,” says Davis. Too often, law enforcement’s lack of recognition of victimization leads to lack of service delivery and focus by advocacy organizations. “It’s like it’s no big deal,” says Davis. “The sad part is that all a police officer really has to do in a report is to even say ‘possible gang involvement’ or ‘possible drug involvement’ and then they’re taking you down even another notch so now you’re not even worthy of the representation or acknowledgement that something has happened.” This is not justice for all crime victims.
Serving these victims and preventing future victimization is now a priority for MAMA. The group of victim-survivors In 1997, Helene Davis and Rotynia channels their energy into ending Adams-Payne founded Mothers the cycle of violence affecting he women of M A M A a re Oakland’s youth. Today, MAMA is Against Murder and Assault (MAMA), a victim-run, offender-centered, using their experiences as crime a community-based organization non-profit organization based in that provides rehabilitative services victims to effect change for to high-risk male youth (ages Oakland. Davis and Adams-Payne their community. This creative 14-18) offenders adjudicated in originally established MAMA as a support group for parents of murdered approach is benefiting crime Alameda County. MAMA’s client children. It was comprised of women population is primarily those youth victims everywhere . . . who had lost children to violence that have entered the juvenile correction system. According to who came together to support each Davis, the goal of the organization other through their grieving process. is to reach out to youth at risk of involvement in escalating Today, Adams-Payne remains the didrector of MAMA, which violent incidents. is comprised of women who, like Davis, have lost their children to violence but who recognize the need to address crime and As a group of victims who uniquely understands the pain and victimization from a proactive perspective. The women of loss associated with violence, MAMA gives youth offenders MAMA channel their grief into the hope that fewer women an up close and personal look at the after-effects of their and children will ever suffer victimization. behavior. At the same time, the organization gives victims
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Davis is a proponent of the crime victims’ rights movement, but as a victim herself, she has come to understand some of the weaknesses of the movement. For instance, despite the alarming rates of victimization devastating Oakland’s minority youth, Davis discovered that this at-risk population and their families were often treated differently because of perceptions of who “victims” are. Over the years Davis has seen how surviving family members are affected by law enforcement and media perceptions of their children being involved in gang or drug-related activities. “We’ve had families who’ve come to our meetings who really felt like they couldn’t, they shouldn’t be there because their son was doing something illegal. But we have to say to them: this meeting’s not for your son. It’s
the opportunity to share their life experiences. The hope of MAMA is to reintegrate offenders into the community by “raising their awareness and consciousness about being productive citizens,” says Davis. She continues, “at the top of their list of unique needs is positive examples delivered with sometimes brutal honesty. So many of the youth don’t get honest answers to their questions and/or concerns and are left to draw their own conclusions about life. Most often, this leads to doing what they know or what they see.” The women of MAMA are using their experiences as crime victims to effect change for their community. This creative approach is benefiting crime victims everywhere by building a more comprehensive and holistic crime victims’ movement.
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LEARNING ACROSS MOVEMENTS: THE EXAMPLE OF RAPE VICTIM STANDING IN RAPE SHIELD PROCEDURES1 by Profesor Douglas E. Beloof, NCVLI Executive Director FINAL ARTICLE IN
3
PART SERIES ON
CRIME VICTIM STANDING
AND
CONSTITUTIONAL RIGHTS
espite healthy differences, the general victims’ rights to a victim’s interests, no one remains to defend the victim’s movement and the anti-rape movement share an interest in confidentiality. Moreover, the state may simply agree with a the enforcement of victims’ law reforms. Both movements have defendant that certain prior sexual history evidence is admissible, been frustrated by the lack of government compliance with, and again leaving no one to champion the rape victim’s privacy and enforcement of, victims’ laws. Both movements have struggled confidentiality. to achieve consistent law reform through prosecutors. For both movements, the enforcement of victims’ laws is stymied in similar Even if prosecutors were always stalwart defenders of ways. Government, in the form of police, judges, prosecutors, or rape victims’ confidentiality at the trial level, in almost all jurisdictions prosecutors are other executive branch agencies presently unable to enforce (such as parole authorities), may espite different emphases, both movements rape shield laws through neglect or refuse to comply with - victims’ rights & anti rape - seek to pretrial appellate review of trial victims’ laws. Despite different fundamentally reform a criminal process that court rulings. Only two states emphases, both movements seek have statutes explicitly allowing to fundamentally reform a criminal fails to consider (victims’) rights. the prosecution to bring an process that fails to consider their rights. This article uses current rape shield law as an example of interlocutory appeal from a rape shield ruling that is adverse to how the two movements can come together, learn from each other, the victim. See ARK. CODE ANN. §16-42-101(b)(3); OR. REV. STAT. and through shared strategies and efforts, secure enforcement of § 40.210(4)(c). Neither statute permits an interlocutory appeal by victims’ rights in the criminal process, thereby advancing victims’ a victim - the person whose privacy and confidentiality interests are actually at stake. interests.
D
D
RAPE SHIELD LAW – THE LACK
OF
VICTIM VOICE
Under current rape shield law, rape victims cannot directly protect The structure of a legal contest of relevance staged between the their individual privacy and confidentiality interests. This is true prosecution and the defense, parties without a personal interest in because, in all but a handful of jurisdictions, rape victims have no the privacy and confidentiality of the materials at issue, is inherently explicit right to participate in either trial level rape shield hearings flawed. It is flawed because it marginalizes victims’ personal or pretrial appellate review of adverse court rulings on rape shield interests in rape shield protections. Only with direct enforcement of victims’sprivacy law. Moreover, while the interests will the full state can, and often does, he structure of a legal contest of relevance staged potential of rape shield object to the introduction between the prosecution and the defense, parties laws be realized. of the victim’s prior sexual history, from the rape without a personal interest in the privacy and The lack of express granting victim’s perspective there confidentiality of the materials at issue, is inherently provisions standing for direct are concerns over such flawed . . . because it marginalizes victims’ personal enforcement does not exclusive prosecutorial necessarily foreclose interests in rape shield protections. authority. an interlocutory appeal While in the best of by a victim. A victim’s circumstances a prosecutor will object and seek to exclude right to appeal an adverse pretrial rape shield ruling might be a defendant’s introduction of the prior sexual history of the implied from a combination of rape shield procedures and rules rape victim at pretrial hearings, almost all rape shield laws governing interlocutory appeals, and from non-rape shield contemplate that prosecutors may themselves try to introduce strategic avenues, including the collateral order doctrine and evidence of the victim’s prior sexual conduct. While prosecutorial general victims’ rights. introduction of such evidence may be the exception rather than DIRECT ENFORCEMENT: THE FEDERAL EXAMPLE the rule, it points out that when the state takes a position adverse The Fourth Circuit Court of Appeals has implied a victim’s right ____________________ of interlocutory appeal from the federal rape shield procedures 1 Taken in part from Douglas E. Beloof, Enabling Rape Shield which expressly allow the victim to participate in the trial level Procedures Under Crime Victims’ Constitutional Privacy Rights,
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rape shield hearing. In Doe v. United States, 666 F.2d 43 (4th Cir. 1981), the court concluded that the rape victim could bring an interlocutory appeal to challenge an adverse pretrial rape shield ruling. Rejecting the defendant’s assertion that the court lacked jurisdiction to consider the victim’s appeal, the court stated: “The text, purpose, and legislative history of [the rape shield rule] clearly indicate that Congress enacted the rule for the special benefit of the victims of rape.” Id. at 45, 46. The court observed that the rule made no reference to appeal; nevertheless, the court held that the remedy was “implicit as a necessary corollary of the [rape shield] rule’s explicit protection of the privacy interests Congress sought to safeguard.” Id. at 46. In reaching this conclusion, the court found significant the fact that “[n]o other party in the evidentiary proceeding shares these interests to the extent that they might be viewed as a champion of the victim’s rights.” Id. Further, the court explained, the congressional intent would be “frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling made at a pre-trial hearing conducted pursuant to the [rape shield] rule.” Id.
provides that the court must “afford the alleged victim and the parties a right to attend and be heard.” UTAH R. EVID. 412(c)(2). Louisiana seems to extend victim participation, providing that “[t]he victim, if present, has the right to attend the hearing and may be accompanied by counsel.” LA. CODE EVID. art. 412(E)(2). There is reason to believe that these three states would permit a victim’s interlocutory appeal because, like Doe, these states allow for victim participation in the trial level rape shield hearing. In the forty-seven states not providing for victim participation in the trial level hearing, it may be difficult to persuade the courts that a victim’s own interlocutory appeal is implicit in rape shield laws.
DIRECT ENFORCEMENT: THE COLLATERAL ORDER DOCTRINE The collateral order doctrine may provide a separate avenue of review. Some state and federal courts allow for appeal under the collateral order doctrine. To be appealable, the order “must determine claims of right separate from, and collateral to, rights asserted in the action.” 4 AM. JUR. 2D Appellate Review § 113 (2003). The order “must be the final disposition of the collateral issue.” Id. Finally, the order must “immediately affect the rights of the parties, and if review is deferred” rights will probably be irreparably lost. Id.
The Doe court also rejected any suggestion that inconvenience or delay necessarily renders impermissible the victim’s interlocutory appeal. The court stated that the “inconvenience and costs associated with permitting the victim to appeal are minimal . Relying on the collateral order doctrine, an intermediate . . [and] are no greater than those resulting from government appellate court in Pennsylvania held that an order requiring appeals of suppression a rape crisis center orders.” Id. The court to produce privileged continued, “[b]ecause he idea of rape victims directly exercising their rights in communications is a the [rape shield] rule trial court and enforcing them on review is increasingly final and appealable provides for pre-trial order. Commonwealth common in contexts other than rape shield hearings. evidentiary hearings, v. Miller , 593 A.2d appeals are unlikely 1308, 1310 (Pa. to involve significant Super. 1991). Citing postponements of criminal trials.” Id. The court noted that in the United States Supreme Court and Pennsylvania Supreme Court instant case the appeal was heard with no delay of the criminal precedent, the Miller court ruled that “an order which appears to trial. Id. The court observed that on the other side of the balance be interlocutory can be considered final and appealable if: ‘1) it was the manifest injustice to the rape victims in delaying an appeal is separate from and collateral to the main cause of action; 2) the until after final judgment. Id. Absent immediate appeal, “victims right involved is too important to be denied review; and, 3) the aggrieved by the court’s order . . . have no opportunity to prevent question presented is such that if review is postponed until final their privacy from invasions forbidden by the rule.” Id. The court judgment in the case, the claimed right will be irreparably lost.’” opined that appeal following judgment “is no remedy, for the Id. at 1309 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 harm that the [rape shield] rule seeks to prevent already will have U.S. 541, 546 (1949)). Applying these factors, the court held that occurred.” Id. Having concluded that appeal was in keeping with the order requiring the production of privileged communications Congressional intent to safeguard a rape victim’s privacy interests, was separate from and collateral to the underlying criminal action. that no other party could “champion . . . the victim’s rights,” and Id. at 1309-10. The court opined that the “victim’s right to privacy that the test of practical finality was met, the court concluded the and confidentiality in her relationship with [the rape crisis center] victim had standing to appeal. Id. is too important to be denied review” on appeal. Id. at 1310. Moreover, if the rape crisis center were denied an interlocutory The federal example is, however, of limited import to the states. appeal, the victim’s “claimed right of confidentiality and privacy Only two states explicitly, and one state implicitly, provide victims would be lost irreparably since once the information is divulged, with the same procedural trial level participation as the federal the privilege is lost.” Id. While the Miller case involved a third rule when conducting a pretrial rape shield hearing. North Dakota party record holder, there is little doubt that appeal under the requires notice to the victim and “afford[s] the victim and parties collateral order doctrine would extend to a victim in Pennsylvania a right to attend and be heard.” N.D. R. EVID. 412(c)(2). Utah if she possessed her own privileged records.
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NAV R A
DIRECT ENFORCEMENT: GENERAL VICTIMS’ RIGHTS
The idea of rape victims directly exercising their rights in trial court and enforcing them on review is increasingly common in contexts other than rape shield hearings. There are many contexts in which rape victims exercise other, more general, victims’ rights. For example, under the Florida Constitution, a sexual assault victim exercised her right to attend the trial of the offender. Bellamy v. State, 594 So.2d 337 (Fla. Dist. Ct. App. 1992). In California, a sexual assault victim exercised her right to give a sentencing recommendation. People v. Jones, 14 Cal. Rptr. 2d 9 (Cal. Ct. App. 1992). The Massachusetts Supreme Court affirmed that a sexual assault victim can exercise the general victims’ right to a “prompt disposition.” Hagen v. Manchester Super. Ct., 772 N.E.2d 32, 37 (Mass. 2002) (giving victims the ability to address the trial court, but ruling the right to prompt disposition was inapplicable under the facts). In a New Mexico case, a rape victim invoked a broad state constitutional victims’ right to “privacy” in an attempt to prevent disclosure of medical records. State v. Gonzales, 912 P.2d 297 (N.M. Ct. App. 1996). Rape victims should similarly be allowed to directly exercise rape shield protections in trial courts and challenge adverse rulings in appellate courts. CONCLUSION Rape shield laws were put in place to protect the individual rape victim’s privacy and confidentiality. Despite this, parties not directly invested in the victim’s privacy and confidentiality are charged with enforcement. The anti-rape and victims’ rights movements can change that by joining together to secure individual, direct, victim standing to enforce rape shield laws in trial and appelate courts.
NCVLI STAFF
NATIONAL ALLIANCE OF VICTIM’S RIGHTS ATTORNEYS MISSION: NAVRA PROMOTES THE EXCHANGE OF KNOWLEDGE AND RESOURCES TO FOSTER A NATIONAL NETWORK OF SKILLED ATTORNEYS TO REPRESENT CRIME VICTIMS IN THE CRIMINAL JUSTICE SYSTEM.
Founded in 2002 as an assocation of the National Crime Victim Law Institute, NAVRA continues to grow in membership and networking services. NAVRA members receive:
Victims’ Rights case updates, researched and summarized on a quarterly basis
Conference-call trainings beginning in fall 2005
List-serve access for lawyer and law student members
Annual NCVLI Law & Litigation Conference tuition reduction & members’ event
NAVRA membership is comprised of prosecutors, private attorneys, sexual assault and domestic violence advocates, corrections and law enforcement officers, and services providers. NAVRA’s 100 attorneys and 80 non-lawyer members are from 33 states. In celebration of the Silver Anniversary of the victims’ rights movement, NCVLI would like to recognize and honor the many individuals and organizations whose dedication to the protection and enforcement of victims’ rights over the past 25 years have made a substantive change in the administration of justice for crime victims. To thank our existing NAVRA members and to continue to build a broad based aliance of victims’ rights representatives, NCVLI will waive membership fees and annual dues for the remainder of 2005. Attorneys, law students, victim advocates, and crime victims are encouraged to join NAVRA to lend support to the ongoing movement towards justice for victims of crime. Download a membersip form from NCVLI’s website at: http://www.lclark.edu/org/ncvli/alliance.html.
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A VICTIM’S STORY Dan Levey is Arizona Governor Janet Napolitano’s Advisor for Victims, and is assisting Arizona Department of Corrections in the development of a comprehensive Office of Victims’ Services. He is the National President of POMC (Parents of Murdered Children), and a Board Member of NOVA (National Organization for Victim Assistance). Since his brother’s murder in 1996, Dan has worked tirelessly to support crime victims. He has been an active participant in public policy development, and has helped to draft legislation that keeps victims’ issues front-and-center in the criminal justice process. In both local and national arenas, Dan is a passionate and effective champion of justice for crime victims.
My Firsthand Experience by Dan Levey, M. Ed
n the early morning hours of Sunday, November 3, 1996, my life as I knew it changed forever. I received a phone call like so many victims of violent crime who receive news that fundamentally alters their existence forever. My sister-in-law had called to tell me that my brother Howard had been shot, and that I needed to get to the hospital as quickly as possible. I will never forget that feeling—my heart stopped and I just kept repeating “how could this happen?” I remember racing with my wife to the hospital in central Phoenix and praying and hoping my brother would live. Over the course of the next eight hours my brother slipped away from us. We later learned the details of his murder: he had arrived early for his weekly basketball game, a Sunday morning ritual at the same central Phoenix elementary school for over ten years. He was sitting in his car reading the newspaper as he waited for his buddies to show up for the game. Howard was approached and shot at point blank range by two gang members, thrown out of his car, and left to die on the pavement. The perpetrators had seen him sitting in his vehicle and never for a second thought about the man behind the wheel, only that they wanted his car. My brother Howard was a gentle unpretentious person who would have probably given them his car . . . but he was neverr given the chance. In a matter of moments this loving, caring, gentle soul was taken in the prime of his life—the criminals who took his life never thought for a moment about the little girl who would never again see her dad, or the wife left behind who will never feel her husband’s arms around her again, norr his 16 year-old son who would not have another chance to watch a ball game with his dad. Our family was devastated, and I wondered if we would all survive—but survive we do, in his memory.
I
ncvli.org When did I first become a crime victim advocate? Certainly, it was the day my brother was murdered. At first, we were told he would live, but would never walk or have control of his bodily functions; we were reassured to believe that at least he would live. Over the ensuing hours, however, his condition deteriorated, and his injuries proved to be fatal. As doctors often do, they sat us in a small room and said “we’re sorry - we’ve lost him” and quietly walked out of the room. I remember seeing my family fall apart right in front of me as we all began to cry – to sob. Within moments, an intensive care nurse came into the room and said in a very snippety voice “you people need to keep it down, we have others trying to rest.” I remember thinking: who is here for us? No clergy arrived, no crisis worker; simply our family, alone. The hospital’s remedy was to give us all prescription medication so we could go home and sleep. I remember the police asking my wife to drive my brother’s blood soaked car home after the detectives indicated they were done processing it. Those were really the first embers of my advocacy. I remember thinking I am going to one day fight to make a difference, so no one ever feels the way we felt sitting in that hospital, alone, sad and scared. I remember staring at my brother as he lay motionless except for his breathing, probably already brain dead, and praying for him to wake up, so that life as we knew it could resume. But he did not. I made him the promise right then that I would honor his life by fighting first to try to help catch these guys—and then to try and help others who have to walk in similar shoes. I stayed awake the entire first night thinking about him and his family, and my family, and what I could do to help. For many survivors, their first instincts are fight or flight, and for me I knew I was going to fight. I knew my brother well, we shared a room as kids growing up, talked often, and worked together in the insurance business. I could hear him saying “keep fighting bro, don’t let them kill you, too—make a difference.” I still hear his voice saying those words every day to me. I held press conferences, a remembrance walk, raised reward money, and hung signs in the area where he was murdered. I talked at length to the media about my brother’s murder. Eventually, two suspects were arrested for unrelated crimes, but the police thought they were the guys responsible for my brother’s murder. Because of the reward money, some people had come forward with what proved to be reliable information. Eventually, the co-defendant (not the shooter) agreed to confess and testify against the shooter. Both defendants eventually pled guilty; the shooter pled to first degree murder and was sentenced to life, with a 25 year minimum, and the co-defendant received 15 years for his manslaughter plea. Although I am glad the two perpetrators were held responsible to some degree, my experience in the criminal justice system was that justice is not always swift, severe, or certain as we might have learned in our high school civics classes. continued on back page
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In the immediate aftermath of my brother’s murder I started attending support group meetings at Parents Of Murdered Children, Inc. in Phoenix (which is also for the friends and families of those who have died by violence). I never in a million years thought I would attend a support group meeting, as I did not see myself as the support group type. However, I soon realized this was a place where I could relax, cry, even laugh, and hear other people share theirr devastating stories, and I found comfort in the unique but shared experiences of people whose lives, like mine, had been shattered. In the years since my brother Howard’s murder and in memory of who he was, I have dedicated my life to helping crime victims in the hope that I can help make at least one victim’s road a little less painful. I started out as a victim advocate at the Arizona Attorney General’s office and now work as Arizona Governor Janet Napolitano’s Advisor for Victims, one of the first positions off its kind in any Governor’s office. I respond to crime victim calls on an almost daily basis, remembering what it was like to be on the other end of the phone—calling anyone and everyone hoping someone would say “I will help.” It took some time, but eventually I met some incredible people who did step forward to help me and my family. I also remember what it was like not getting my calls returned, crying myself to sleep and wondering if anyone really cared. I like to say this was the unfortunate hand I was dealt in life and I am going to play it to make a difference. I would like to share some words that were written by Carrie Freitag in her book “Surviving the Aftermath off Murder.” Carrie is a friend, colleague, author and fellow survivor whose brother was also murdered. With Carrie’s permission I have slightly modified her words in order to personalize them.
Nationall Crime Victim Law Institute at Lewis & Clark Law School 10015 SW Terwilliger g Boulevard Portland,, OR 97219 www.ncvli.org
ncvli.org
Homicide Grief Homicide Grief is the yearning to say one last good-bye. Grieff is clenching your teeth until you have a headache that won’t go o away. Grief is a field of fog and distance where we wander lostt and aimless. Grief is dreaming about our loved one and not being g able to think of anything else. Grief is wondering why fate chose e them and not me. Grief is the fear of living with the loss, and fearr of losing more. Grief is the identity crisis that ensues when we e lose those who help define who we are, how we live, and how we e relate to one another. Grief is panning through memories overr and over searching for jewels. It is looking at old family picturess and yearning for that day so long ago in the past. Grief is hearing g that special song on the radio and knowing your loved one is with h you. Grief is having to look into your nine-year old niece’s eyess and try to explain why her daddy is never coming home. The great Nobel Prize winning author and holocaust survivorr Ellie Weissel said “We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.” Indeed, those are words I have chosen to live my life by—and I hope you will too, for we can never be silent in the pursuit of justice for victims.
In
memoriam: Judge William Keys..
On April 27, 2005, Bill’s family, NCVLI and thee community lost a bright light. Bill Keys was Chair off the NCVLI Board, diligently serving from its inception.. Bill loved life and people, and generously donated hiss time and energy to furthering the cause of victims’’ rights. He is sorely missed as Chair and friend..
NON-PROFIT ORG. US POSTAGE
PAID PORTLAND, OR PERMIT NO.438