Why the Victims Rights Amendment Goes Against Common Sense

Article by Arwen Bird 

These days, there is often a call to use "common sense" in creating the laws that govern us. So, let's use common sense to answer this: how should government treat people who have been victimized by crime?

Using common sense, community members can often reach some basic agreement about how the criminal justice system should respond to a person who has been victimized. Common sense tells us that crime victims should be able to get the counseling, medical attention, information and assistance that they need to help them to recover as best they can. However, the reality is that the majority of survivors are not served by our current system (according to the Bureau of Justice Statistics, less than half of crime is ever reported), and those who do connect with the system know that services and resources are not adequate to meet their needs. Because of our system's intense focus on punishment, services to survivors are concentrated during the prosecution and conviction of a defendant. Outside of prosecution, survivors are largely left to fend for themselves.

It's clear that something needs to change. But given the reality of our current system's inadequacy at meeting the needs of crime survivors, the organized push to add the Victims' Rights Amendment (VRA) to the United States constitution simply does not make sense. Along with many of its counterparts in individual state constitutions, the VRA outlines a victims' right to information, participation and restitution. However, it does nothing to actually provide these "rights." The VRA is more like window dressing than an actual solution to the problem of inadequate victims' services.

Some background on the call for a Victims Rights Amendment

One of the outgrowths from the victims' movement in the early eighties was to address the fact that survivors had been intentionally excluded from criminal proceedings. Survivors had to organize and advocate, building their voice within the criminal justice system. By going public with their stories of surviving often terrible experiences and losses, it became clear that the crime victims' movement had a message that the public wanted to respond to. At some point, prosecutors figured out how much power this voice had and decided to make it their own. Victims' Assistance offices within individual District Attorney's offices were developed and DA's took control of representing the views of crime survivors. As a result, there are limited examples of what a crime victims/crime survivors movement would look like separate from the grasp of District Attorneys and the focus on criminal prosecution as "healing" for survivors.

Today, of the seven states in the Western Prison Project's region, five of them (Utah, Nevada, Idaho, Oregon and Washington) have amended their state constitutions with a "Victims' Rights" amendment. The constitutional amendments of two states, Oregon and Washington, give specific power to prosecutors to identify the victim and therefore who will be informed, able to participate and seek reparations in a case. The fact that the National District Attorneys' Association has endorsed the VRA is no surprise --- these amendments give them the power to choose who the crime victim is based on who will provide the best support for their efforts to prosecute and convict people of crimes. But in all of these states, victims' services are still small compared to the resources spent on prosecution and incarceration, and the amendments do not affect that part of the problem.

What would be the impact of a Federal "Victims' Rights" Amendment?

In the short term, the movement to pass the Victims' Rights Amendment uses precious energy that could be focused on making changes that directly benefit survivors. In the long term, passing the VRA could be damaging for survivors. In her 2002 testimony before the Senate Judiciary Committee regarding the VRA, Julie Goldschied, counsel for SAFE Horizon, the largest victims assistance provider in the country, described the consequences this amendment would have in the lives of domestic violence survivors. She talked about the very real possibility that a batterer could make a false claim that resulted in the arrest of the true victim. Under the VRA the batterer would be considered the true victim and would benefit from the proposed constitutional rights, including opposing release dates and getting information about the victims' whereabouts. These same concerns also apply in cases where the domestic violence survivor might fight back in self-defense and is subsequently charged with a crime.

The concerns of survivors and communities are best served by a trial in which the rights of people accused of crimes are protected. Among other rights, the constitution guarantees that people accused of crimes are considered innocent until proven guilty, informed of their rights, will have access to an attorney and a fair appeals process. If a defendant receives these rights, it will lessen the likelihood of an appeal, or mistrial, both of which could potentially lengthen the involvement of the survivor, and increase the chance that they will feel 're-victimized' by the process. Although the language in the VRA specifically conveys that none of these rights should interfere with the rights of people accused of crimes, some interpretations are that the language is so vague that future judicial rulings in favor of the VRA could undermine the rights of accused people.

As we have already noted, most of the 'rights' listed in the VRA replicate rights already outlined in individual state constitutions or by statute (laws that are not part of a state constitution). The fuel in the engine pushing the VRA is the lack of a "safety net" to catch survivors of crime and provide the support services that they need following the trauma of crime. What survivors of crime and violence need is help getting the assistance and rights they are already guaranteed: enforcement of existing rights needs to be a priority. Across the region, survivors of violence are owed millions of dollars in restitution --- and yet the burden to help collect money is placed in the hands of parole and probation officers, people whose primary responsibility is supposed to be helping people transition out of prison back into the community. This lack of resources devoted to addressing the needs of survivors is widespread in our criminal justice system; the VRA does nothing to address the real issues that survivors deal with.

Just as the movement for survivors' rights has evolved over time, so does our notion of common sense responses to violence. Statutory laws give us the flexibility to change our policies to reflect these changing norms. At one point the movement to end domestic and sexual violence advocated for mandatory arrest laws: if an officer arriving at a home discovered injuries or heard from victims that they feared for their safety, they were required to make an arrest. This was seen as a victory, but the reality is that too often batterers make false claims and because officers are required to make an arrest, officers have chosen to arrest both parties. The result of the law over the long term is not an upsurge in safety for victims, but rather more people being arrested. If the VRA were to pass and be enshrined in our constitution, and we discovered such unintended consequences, changing it would be virtually impossible.

The sad truth is that the federal and state VRA's do nothing to address the vast unmet needs and unequal treatment for survivors. The fact that none of the amendments (state or federal) are enforceable guarantees their place as an illusion of victims' rights. Considering the long-term, life-changing nature that any crime can have, the reality is that many survivors need help with housing, employment, stable food and health care -- none of which is guaranteed by the VRA. But, until there is real prioritizing of victims' services, there will be a forceful group of people calling for the VRA, unaware that it will not guarantee them access to restitution or to the services that they really need.

This article originally appeared in the Fall 2004 issue of Justice Matters.