The following is an analysis of a proposed legislation bill for the Right of Crime Victims and Witness Act, this report will be reviewing section 4 of the act. I will be examining and summarizing the proposed bill and access whether the bill sufficiently supports victim’s rights. My analysis will summarized any issues involved in the legislation’s proposed section of the bill and will give any recommendation that seen fitted.
Section 4.1
The right of victim to be treated with respect and fairness and respect for the victim’s dignity and privacy and to be free from harassment, intimidation, and abuse throughout the criminal process. One of the biggest concern that victim’s have is the fear that the accused will learn their identity and where they live through the use of public records and testimony and will seek them and their family ( Victim’s Rights, n.d.). During the court proceedings, victim’s, their family members and witness should be provided with a secure waiting area away from the defendant or the defendant’s family, friends, attorney, or witness( Fine & Klaskin 2012).
Section 4.1.5
The victim have the right to receive notice that any hearing before a court ruling for access to any to any of the victim’s records, information , or communications that are privileged and confidential by law. Victims have the right to be notified by the courts and have to be present at the hearing should their confidential records, reports, or information is being requested by the accused ( Office of the United States Attorneys, 2016).
Victim’s Right Legislation Critique
3
Section 4.2
The right of the victim is to receive timely notification of all court proceedings. This also included letting the victim be notified if the offender is released on bail or has ended his sentence. This process do present a problem as the responsibility to notify the victim falls on the States Attorney office or law enforcement. As of now there have yet to be an answer to who takes the responsibility to notify the victim of any changes ( Davis & Mulford 2008).
Section 4.3
The victim has the right to communicate with the prosecution. It is within the victim’s right to confer with the prosecutor before a trail and thought the case proceedings. Doing this will allow the victim to gather and provide information about the crime to the prosecutor prior to reaching a plea agreement ( National Crime Victim Law Institute, 2011).
Section 4.4
The right of victim to be heard at at any court proceeding involving a post-arraignment, release decision, plea, or sentencing. He or she has the right to be heard in any public proceeding should the defendant’s charge be changed or released (Office of the United States Attorneys, 2016) . The victim is also is given the right to present a victim impact statement during the proceedings. Victim impact statement gives the victim and their family members the rights in their own words to described how the crime affect them
( Victim Impact Statement, 2008).
Section 4.5
The right of victims to be notified of the conviction, sentencing, imprisonment and release of the accused. They has the right to be notified of the offender’s sentence and if the offender is arrested and released from correctional facility. It also state that the victim has the right to be notified if the accused has a parole hearing and when the accused is released after the criminal sanction (Davis & Mulford 2008).
Section 4.6
Victim’s Right Legislation Critique 4
The right of the victim to have timely disposition of the case following the arrest of the accused. When victims are given a timely disposition of the case this will ensures that the judge and state are considering the victim’s interest when ruling on a postponement or a motion of continuance (Davis & Mulford 2008). Currently, thirty-two states have victims rights amendments as apart of the constitution ( Proposed Victims’ Rights Amendment, n.d.)
Section 4.7
The right of victim to be reasonably protected through the criminal justice process. Victims can be fearful of what the offender and the offender’s friends and family might do to them. The right for protection make sure that safety measures for the victim are in place so that they can get a protective order that will prohibit the defendant from having any contact with the victim. Victim’s personal information will prohibits the offender from receiving information on the victim and their family members thus preventing all forms of retaliation. Other protective measures includes police escorts to and from the courthouse, witness protection programs, residence relocation programs, and denial of bail for the accused ( Victims Rights n.d).
Section 4.7.5
The right of victim to have safety of the victim’s family considered in the denying or fixing of the bail, determining the releasing of the defendant and setting condition of the release after arrest and conviction. The process would allow the courts to take into consideration not only the safety and welfare of the victim, but the family members and the general public as well ( State of California Department off Justice, n.d.).
Section 4.8
The right of victim to be present at all trail and court proceedings unless the victim is to testify. The court determines that their testimony would be materially affected if the victim hears other testimonies. This is right is important because it will allow the victim can see how the justice system works and hear counsel’s arguments with the reaction of the judge, jury, and defendant.
Section 4.9
Victim’s Right Legislation Critique 5
The right for the victim to have present at all court proceedings including proceedings that falls under the Juvenile Court Act of 1987 and advocate or other support person. The court will recognize that crime victims benefit from having an advocate or someone for support with them in the courtroom. This will open the victim to a better exercise their right to be present throughout the court proceedings. The proceedings will be conducted if it involves a minor unless the minor waives the right to be present ( Illinois General Assembly, n.d.).
Section 4.10.b.c
The right for the victim to seek restitution. Restitution is partial or full compensation paid by the offender to the victim as a part of the criminal sentence or condition of his or her probation. This can only be awarded in a criminal trail, not a civil trail; it is a reimbursement to the victim for the losses incurred without consideration of the defendant’s financial circumstances. By having the defendant pay restitution to the victim it will ensure that the defendant recognizes the damages that their action has caused to the victim and society. This also states that any law enforcement agency that investigates this case in the state is require dot provide the victim with a written statement and an explanation of their rights within 48 hours.
Analysis
As it stand, the United States Constitution does not include language that provides victims with rights. The Constitution also don’t provide a widespread of rights to people suspected of committing crimes. While other processes have a clear guidelines on how the victim should be questioned by law authorities and how the crime report should be processed. Naming a specific individual in each jurisdiction to work directly with the victim would be key in allowing the victim to be informed of the process regarding litigation. The act states, if the victim feel as though their right have been violated the prosecuting attorney would need to file a motion to assert or enforce that right and let the court would determine the case.
Victim’s Right Legislation Critique 6
To help enforce the strength of the bill, more emphasis should be placed on helping adolescents, people with developmental disabilities, and the elderly. These are the group that are the most vulnerable to sexual violence and will face more obstacles from the justice system. Adolescents will developmental issues are at risk for sexual assault in their lifetime through acquaintance and date rape. Elderly are often dependent on others for their care and are more likely to be mistreated by caretakers (Advocated for Human Rights 2006). Common Victims’ Rights are excluded from the bill. These include the Right to Information and Referral, the Right to apply for Victim Compensation, the Right to a Copy of the Pre-sentence Report and Transcripts and Right to Standing and Remedies.
Missing these rights would mean that victim wouldn’t have all of the information that is necessary about the court proceedings and resources available to them. They wouldn’t know how to access the pre-sentence report and court transcripts to meaningfully participate int he trail. They wouldn’t know how to apply for compensation from the government to reimburse for losses. The bill also fail the victim as it does not address any specific liabilities to those who violate victim’s rights. I would said that States Attorney, law enforcement and judicial staff need to go through an intensive training process that would require certification in dealing with victims’ rights. For those who violate the rights of the victim, they deserver to be written up after a while and there is no change than an investigation will be conducted. If it turns out that a victims’ rights have been violated than that will result in a suspension, loss of license or complete removal from the case.
Summary
The Rights of Crime Victims and Witnesses Act is a bill of rights for the victim that defines the victim as any natural person that is determined by the prosecutor or the court to have suffered direct harm because of a violent crime. It summarizes that majority of the Common Rights for Victims with the exclusion of the following rights: Standing and Remedies, A Copy of Records, Information and Referral and
Victim’s Right Legislation Critique 7
Compensation. The bill also fail to address the rights of the vulnerable and special populations and does not provide verbiage on allowing victims to give Victim Impact Statement. Even thought, the bill addresses procedures to implement these rights, the biggest challenges ahead is placing the responsibility on law enforcement, prosecutors, judges and correctional facilities.