The New Crime Victims' Rights Act:
Empowering Victims Without Harming Defendants' Rights

By DAVID FONTANA

Thursday, May. 20, 2004

Last month, the Senate voted, 96-1, to pass the Crime Victims' Rights Act (the CVRA). The CVRA will, if enacted into law, grant victims of federal crimes a range of new rights in federal criminal proceedings. The House is likely to approve this legislation soon, and President Bush has indicated his strong support for the rights created by this bill.

Assuming that the bill becomes law, it will mean that for the first time ever, victims of federal crimes will be guaranteed substantial rights to observe and participate in portions of the trials of those accused of victimizing them -- and other, related rights as well.

In 1996, President Bill Clinton endorsed a constitutional amendment to protect victims' rights -- as did the Democratic and Republican Party platforms of that year. But the amendment never succeeded in passing.

In this column, I will argue that the CVRA is a very positive step. If Congress passes the CVRA and the President signs it, it will be changing federal criminal law for the better. Criminal cases will incorporate a broader range of perspectives, and victims themselves will find their interaction with the legal system to be more constructive.

Moreover, because of the way the new legislation is structured, this will be done at very little cost. Although victims' rights will be accommodated, defendants and prosecutors will not forgo any of their traditional roles in a criminal trial, and a trial's traditional truth-seeking function will be preserved.

The Specific Rights the CVRA Will Protect

Among other provisions, the law states that victims will have to be informed about, and allowed to participate in, many proceedings related to the crime. Victims will have the right to "confer with the attorney for the Government" in the criminal proceeding. Victims will also have the right to be protected from the accused, and to receive compensation for their injuries.

The CVRA is very vague about how far these rights extend. For instance, the CVRA states that victims have the right to be "reasonably heard" in proceedings addressing the plea, sentence or release of a defendant. Judges in particular cases will have to determine what "reasonable" means in this context.

Considering the Rights of Victims: How the CVRA Will Change Things

The CVRA's decision to provide a victim with a greater role at trial is a wise one. In our criminal justice system, the defendant represents their own interests and is concerned with avoiding criminal punishment, and the prosecutor represents the interests of the government and is concerned with procuring a conviction. No one represents the victim.

Of course, the victim shares the prosecutor's interest in seeing a conviction rendered. But their interests also diverge: Unlike the victim, the prosecutor also has to look at the possibility of a prosecution, conviction and sentence from a broader perspective, a perspective influenced by general law enforcement priorities and resources.

Before the CVRA, the victim of a federal crime was not guaranteed any real voice in the criminal process. But after the CVRA becomes law, that will change. Criminal trials will involve a fuller consideration of the range of interests and perspectives at issue in the trial, which ought to lead to better and more comprehensively reasoned pleas, verdicts and sentences.

Victims themselves will also personally benefit from their new rights. By participating in trials, victims may be able to start to heal any emotional trauma suffered as a result of the crime. Discussing the case with the government attorney, and participating in legal proceedings, may help the victim regain the sense of control that the crime itself may have taken from them.

Still Protecting the Rights of Defendants and Prosecutors

Despite the overwhelming Senate vote in favor of the CVRA, its provisions -- particularly those allowing victim participation in the trial -- have been controversial. But they shouldn't be.

Critics of the CVRA's victim participation provisions have pointed out that, to quote noted criminal law scholar Stephen Schulhofer, "[t]he purpose of the [criminal] trial is to determine whether the defendant is factually and legally responsible for an offense." The defendant asserts one version of the facts, and the prosecution another, and a neutral fact-finder determines the actual truth. And these critics see the victim's participation as necessarily inimical to this truth-seeking process.

But there's no reason that should be so. Under the "reasonable" participation requirement, as noted above, individual judges can and must tailor the role of the victim to make sure that they do not interfere with the trial's truth-seeking function -- or with the constitutional rights of criminal defendants.

The CVRA itself only grants victims the right to be "reasonably heard" during certain portions of the criminal process--the release, plea and sentencing. In addition, it's important to note that while victims are given this voice, they are not given decisionmaking power -- and defendants' rights are not curtailed. Victims have the right to "confer" with prosecutors -- not to direct their actions. Prosecutors still decide whether to file charges or to agree to a plea bargain, and they still decide on trial strategy. Meanwhile, defendants still have the same rights and powers the Constitution has always guaranteed them.

For these reasons, there are no major costs to passing the Crime Victims' Rights' Act. In addition, there are undeniable benefits to the criminal process in general and to victims in particular, who were previously often shut out of the very criminal process that is supposed to address the wrongs they have suffered.

As state after state passes new victims' rights legislation, and Congress pushes forward with the CVRA, that is very good news.

Note from Ed.: Interested readers may also want to check out FindLaw's Crime Victim Resources section.


David Fontana is pursuing degrees in law at Yale and Oxford.

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