January 27, 2000
REMEDIES FOR VIOLATIONS OF A VICTIM'S CONSTITUTIONAL RIGHTS
By: Christopher Reinhart, Research Attorney
You asked about creating a remedy for violating a victim's constitutional rights, similar to the federal civil rights law § 1983.
The Connecticut Constitution guarantees crime victims a number of rights, such as the right to information about proceedings, the right to express an opinion about a plea agreement, and the right to speak at sentencing. Connecticut law does not specifically provide a remedy for deprivation of these rights. Several statutes might address conduct that deprives someone of these rights. In some cases, the conduct might amount to criminal threatening. In cases where the criminal defendant sues the crime victim, a victim might recover multiple damages in a civil suit under the vexatious lawsuit statute.
The legislature could pattern a specific remedy after the federal civil rights provision, 42 U.S.C. § 1983. Under that law, a person has a civil cause of action for damages for deprivations of federal constitutional or legal rights by someone acting under color of state law. Remedies under § 1983 include damages, punitive damages, injunctions, and attorneys' fees. A similar statute could apply to deprivations of a victim's constitutional rights. But under the color of state law requirement, a
§ 1983 type statute would only apply to state and local officials and employees (and private citizens in limited circumstances). It would not address most conduct by private individuals unless that provision was changed.
The legislature could also amend other statutes to provide specific remedies for these violations. The vexatious lawsuit statute could provide remedies like those of § 1983 for suits against victims and make attorneys liable for filing those suits as well. In addition, for more serious conduct, the legislature could extend the recently enacted law prohibiting intimidation of a witness to cover intimidation of a victim.
VICTIM'S CONSTITUTIONAL RIGHTS
Amendment XXIX of the Connecticut Constitution guarantees victims the right to:
1. fair treatment and respect throughout the criminal justice process;
2. timely disposition of the case following arrest of the accused, provided no right of the accused is abridged;
3. reasonable protection from the accused throughout the criminal justice process;
4. notification of court proceedings;
5. attend the trial and all other court proceedings the accused has the right to attend, unless the victim is to testify and the court determines that his testimony would be materially affected by hearing other testimony;
6. communicate with the prosecution;
7. object to or support a plea agreement entered into by the accused and prosecution and to make a statement to the court prior to acceptance of the plea or nolo contendre;
8. make a statement to the court at sentencing;
9. restitution, which is enforceable in the same manner as other actions or as otherwise provided by law; and
10. information about the arrest, conviction, sentence, imprisonment, and release of the accused.
§ 1983 LAWSUITS
The legislature could pattern a specific remedy after the federal civil rights provision, 42 U.S.C. § 1983. Under that law, a person has a civil cause of action for damages for deprivations of federal constitutional or legal rights by someone acting under “color of state law.” Remedies under § 1983 include damages, punitive damages, injunctions, and attorneys' fees.
Acting under color of law usually refers to actions by state and local officials and employees. It can sometimes include private individuals when there is a significant connection between the person and the state (such as a private individual assisting a state official or acting under state authority). Attorneys representing clients pursuing legal remedies in court generally do not qualify as state actors.
A similar statute could apply to deprivations of a victim's constitutional rights. But under the color of state law requirement, the statute would not address most conduct by private individuals unless that provision was changed.
GROUNDLESS OR VEXATIOUS SUITS
Under CGS § 52-568, anyone who commences or prosecutes a civil action or complaint against another person without probable cause must pay double damages. If the suit is also brought with malicious intent to unjustly vex and trouble, the person must pay treble damages. This statute would already apply to someone who files a baseless suit to retaliate against a victim.
But the statute could be amended to include specific provisions for victim's rights. The statute could allow double or treble damages, punitive damages, and recovery of attorneys' fees and costs when an action is brought in retaliation for a person exercising the constitutional rights of a victim. As an additional deterrent, the statute could extend liability for the suit to the attorney who files it if he did not have probable cause to believe it was a valid lawsuit. Other procedures could allow for speedy hearings and dismissal of suits against victims.
INTIMIDATION OF A WITNESS
PA 99-240 created the crime of intimidation of a witness. The legislature could extend the statute to cover intimidation of a crime victim. Under the act, a person intimidates a witness when he uses, attempts to use, or threatens to use physical force against the witness or another person intending to (1) influence, delay, or prevent the witness' testimony or (2) cause him to testify falsely, withhold testimony, elude a summons to testify, or fail to appear. The person must believe that an official proceeding is pending or about to be started. The act defines “official proceeding” as one held or that may be held before any legislative, judicial, administrative, or other agency or official authorized to take evidence under oath. It is punishable by one to 10 years in prison, a fine of up to $10,000, or both.
Two other statutes could provide models for legislation. CGS § 31-51q prohibits an employer from disciplining or discharging an employee for exercising certain federal and state constitutional rights (religious freedom, free speech, assembly, and petitioning government). CGS § 46a-58(a) makes it a discriminatory practice to deprive someone of any rights, privileges, or immunities protected by the federal or state constitution or laws on account of religion, national origin, alienage, color, race, sex, blindness, or physical disability.