My state, Connecticut, has a “Victim’s Rights Amendment” (Article XXIX) which was adopted in November, 1996. Section ‘b’ of the Article reads:
In all criminal prosecutions, a victim, as the general assembly may define by law, shall have the following rights: (1) the right to be treated with fairness and respect throughout the criminal justice process; (2) the right to timely disposition of the case following arrest of the accused, provided no right of the accused is abridged; (3) the right to be reasonably protected from the accused throughout the criminal justice process; (4) the right to notification of court proceedings; (5) the right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person’s testimony would be materially affected if such person hears other testimony; (6) the right to communicate with the prosecution; (7) the right to object to or support any plea agreement entered into by the accused and the prosecution and to make a statement to the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the accused; (8) the right to make a statement to the court at sentencing; (9) the right to restitution which shall be enforceable in the same manner as any other cause of action or as otherwise provided by law; and (10) the right to information about the arrest, conviction, sentence, imprisonment and release of the accused. The general assembly shall provide by law for the enforcement of this subsection. Nothing in this subsection or in any law enacted pursuant to this subsection shall be construed as creating a basis for vacating a conviction or ground for appellate relief in any criminal case.
Why was this Amendment written? The argument seems simple enough. The feeling was that those accused of a crime are given lots of protection. But that “victims” didn’t have any rights. The advantages and disadvantages of such an amendment were debated and eventually the Amendment was passed. I will note that it was clearly pointed out during those debates that the rights proposed in the Amendment were already in other places Connecticut law.
I actually do not have an objection to the protection of “victims”. However, I feel that the amendment is not well crafted in two basic areas. First, the wording and the definitions completely ignore the concept of “innocent until proven guilty”. Second, it does not protect all possible “victims” associated with a criminal proceeding. We’ll take each one in order.
Innocent Until Proven Guilty
In all criminal proceedings, whether in Connecticut or any other state, or at the federal level, the accused has the right of making the government prove their guilt “beyond a reasonable doubt.” That means that when the accused goes to trial, the jury is specifically directed to assume innocence until such time as the government has proven their case. Yet the wording of the Amendment clearly states that a person is a victim once criminal proceedings are initiated against the accused. My question is this. How can a person be termed a victim before the government has obtained a conviction? The wording of the Amendment, in and of itself, prejudices the rights of the accused by granting “victim” status at the time of arrest. The definition of a victim in the Connecticut General Statutes is:
Sec. 1-1k. “Victim of crime”, “crime victim”, defined. Except as otherwise provided by the general statutes, “victim of crime” or “crime victim” means an individual who suffers direct or threatened physical, emotional or financial harm as a result of a crime and includes immediate family members of a minor, incompetent individual or homicide victim and a person designated by a homicide victim in accordance with section 1-56r.
Once again we see that there is no consideration given to the rights of the accused. It simply assumes that if someone is accused of a crime, the other person must be a victim. That concept, that the person is a victim, runs deep. It is echoed in police reports, arrest warrant affidavits, search warrant affidavits, statements by State’s Attorneys, and in the media. Each time the word “victim” is used to refer to a person who may or may not be one, the public is further prejudiced against the accused. And that basic undermining of the accused’s rights is brought on by the poor wording of the Amendment.
According to Don Noel of the Hartford Courant, this point was raised at the time the Amendment was being debated:
Professor Martin Margulies, a constitutional scholar at the Quinnipiac School of Law, points out that the purpose of a trial is to determine whether there is a perpetrator and a victim. Creating victims’ rights at the outset of the process, he warns, could jeopardize a basic tenet of American law, that the accused is presumed innocent until proven guilty. (Vote Against an Unneeded Amendment, Hartford Courant, October 11, 1996)
Who Else Is Victimized?
Now let’s look at the other side of the coin. Are there other possible victims when an accusation is made? My contention is that there are – and maybe many. I am specifically speaking about cases where a person accused of a crime is not guilty of that crime. The fact of the matter is that this happens. And it seems to be happening more and more all the time.
When a person is accused of a crime, especially one that the public has been trained to believe is horrific, the person is identified almost immediately in the media. Their name, address, and sometimes even their photo and work place are published for the world to see. Interviews with police officers claiming “More charges are expected” are commonplace. And one of the major problems is that the news is not very balanced.
To gain market share, news of this type is presented in the most sensational format possible. And most times it is biased against the accused. Look at a typical article from a newspaper. In that media, the information the news editor deems most important is included in the first few paragraphs. Why? Because they know that most people don’t read entire articles, just the first few paragraphs. Take one of those articles at random (or take a dozen – it doesn’t matter). What you will find is that the information presented in the first few paragraph makes it sound certain that the police have found and charged the right person. The impression is that the person is guilty even though the writer intersperses the word “alleged” here and there in the article. Any information that points to the idea that the person might be innocent is usually buried deep in the article, often in the last few sentences.
From the moment such an article appears, general public opinion is turned against the accused. Do you think this isn’t true? Try reading one of those articles online and then look at the comments section at the end of it. Read what people write. You will see that the vast majority of the comments call for the immediate punishment of the accused. Rarely will you find a comment that says “We don’t know all the information. Let’s wait and see what happens at trial.”
So why is this important? Think about the person accused of such a crime that is innocent. Once their name is published, their life is ruined. Public opinion is turned against them. They may get threatening letters and telephone calls. They may have protestors outside their home generating even more news coverage. They will probably lose their job. Friends and family turn against them. There is the possibility of violence happening to them based on the misplaced belief that if someone is accused they are guilty. And all of this doesn’t even begin to address the prohibitive cost of defending oneself against criminal charges in today’s world. That cost, even if the accused wins his case, will bring most people to the edge of, or even over into, bankruptcy.
All of that is bad. But there is more. Think about a person in this predicament who has a family. How does all of this effect his/her spouse? What about the effect on any children in that family? You see, states will rush to help the defined “victims” of a crime, but they will not raise one finger to help the family of the accused even though they may be seriously effected by the accusation. In essence, once a person has been accused punishment begins for them and their family as well. And how is that fair? It is not.
Now you may be asking yourself how I know about all of these things? The answer is quite simple. I’ve been through it – all of it. Based on charges and proceedings published in the media people threatened to harm both me and my family. We lost support of friends. We were shunned in our community. All of us, me, my wife, and my children, had counseling help for the anxiety and depression that the public exposure to all of this caused. We had to live with that anxiety and fear for many years. And even now, after I have been exonerated and my name cleared, we are still facing the negative consequences of the publication of the charges. Most of our community only knows me for the charges I had against me. They do not know about the prolonged court battles and the exoneration. They do not know the details of how the prosecutor was severely chastised by the Connecticut Supreme Court for his unethical behavior in violating my civil rights and ensuring I could not get a fair trial. They may be aware that the charges were eventually dismissed but attribute it to some type of paperwork screw up on the part of the prosecution. More than that, even things as simple as job applications are jeopardized because background checks using outdated information have still shown the conviction which was completely reversed. None of that is fair.
So, what is the solution? As I said early on in this post, the state does not go far enough when considering protecting possible victims of an alleged crime. My family was victimized by the entire process: Victimized by the complete lack of investigation by police departments. Victimized by the turning of a blind eye to lying and biased wording on arrest and search warrant affidavits by sworn police officers. Victimized by the rubber stamping of those arrest and search warrants by the prosecution and the judge. Victimized by the media coverage of the alleged events. Victimized by the State Police computer forensics unit when they ignored the specifics of the search warrant, found and turned over attorney-client privileged information to the prosecution after being court ordered not to do so. Victimized by the prosecutor when he read and used my own trial strategy against me at trial. I could go on – there is even more.
As a country and a people we should begin by protecting the identity of an accused person as well as the accuser. Until such time that the government obtains a conviction at trial (or accepts a plea deal), we should at least follow the time honored tradition of presuming innocence rather than portraying guilt at the outset of proceedings. This may not prevent the civil rights abuses by officials within the system, but it would alleviate the entire public opinion problem inherent in our society. Is that too much to ask?