February 3, 2005
STANDING TO ASSERT CRIME VICTIMS' RIGHTS
By: Sandra Norman-Eady, Chief Attorney
You asked if other states, especially Illinois, Indiana, Maryland, and New Mexico, give crime victim advocates legal standing to assert in court the constitutional and statutory rights of crime victims. We limited our search to state constitutions and statutes, if you would like us to do case law research please let us know.
We found that five states (Arizona, Indiana, Nevada, South Carolina, and Utah) and the federal government appear to give crime victims (or their designated representatives) standing to exercise their rights as victims. The federal law includes appropriations for states with victim rights laws substantially similar to the federal law.
A computer search of Illinois and Maryland constitutions and statutes revealed no express authorization for victim advocates to participate in court proceedings on victims' behalf. We confirmed our finding with the Division of Crime Victim Services in the Illinois Attorney General's Office and the Office of the Attorney General in Maryland.
Like Illinois and Maryland, New Mexico does not give crime victim advocates legal standing to assert victims' constitutional or statutory rights. However, the state's Constitution (Article II, § 24) states that a person accused or convicted of a crime cannot object to any person's failure to comply with that state's Victim Bill of Rights.
The Texas Constitution (Article I, § 30) authorizes the legislature to “enact laws to enforce victims' rights”. Although the legislature passed a law (Texas Code Ann. § 56.04 (d)) requiring a liaison to be appointed in criminal cases to assure that victims are afforded their rights, there does not appear to be a provision giving the liaisons standing to assert these rights.
Although they do give crime victim advocates legal standing to assert the victims' rights, Wisconsin and Colorado have established a process for victims' complaints of noncompliance. Crime victims in Wisconsin who believe their rights have been violated can report complaints to the Department of Justice's Victim Resource. In Colorado, an 18-member committee reviews crime victims' noncompliance complaints.
At least 33 states have adopted a crime victims' bill of rights. These generally give victims the rights to notice of criminal proceedings; participation in the process, including access to prosecutors; timely disposition of the case; and protection from the person who committed the act against them.
STATE LAWS ON CRIME VICTIMS' STANDING
In Arizona, crime victims have standing to seek an order or to bring a special action mandating that they be afforded any right, or given the right to challenge an order denying any right, guaranteed under the victims' bill of right as stated in the constitution (Article II, § 2.1), any implementing legislation, or court rules. A victim may have his personal counsel or the prosecutor assert these rights (ARS § 13-4437). If a victim is physically or emotionally unable to exercise any right but is able to designate a lawful representative who is not a bona fide witness, that designee may exercise the same rights that the victim could have exercised. The court may appoint a representative for incompetent, deceased, or otherwise incapacitated victims and family members may represent minors or vulnerable adult victims (ARS § 13-4403).
Victims may recover money damages from any governmental entity for the intentional, knowing, or grossly negligent violation of the victims' rights laws. Statutory and common law immunity provisions apply to these cases (ARS § 13-4437(c)).
Under ICA 35-40-2-1, crime victims have standing to assert their constitutional and statutory rights. However, these rights do not:
1. provide grounds for a victim to challenge a charging decision or a conviction, obtain a stay of trial, or compel a new trial;
2. give rise to a claim for damages against the state, a political subdivision, or any public official; and
3. provide grounds for a person accused of or convicted of a crime or an act of delinquency to obtain any form of relief.
Article I, § 8 (2) of the Nevada Constitution provides that “a person may maintain an action to compel a public officer or employee to carry out any duty required by the legislature [to protect crime victims constitutional rights].”
Article I, § 24 of South Carolina's Constitution provides that crime victims rights may be enforced by mandamus. Any judge may issue a writ of mandamus to require compliance by the state; a public official, employee, or agency; or any agency responsible for enforcing victims' rights. Willful failure to comply with a writ of mandamus is punishable as contempt.
Crime victims or their representatives may bring an action for declaratory relief or for a writ of mandamus to enforce their rights and petition to file an amicus brief in any court in any case affecting them (Utah Code Ann. § 77-38-11).
JUSTICE FOR ALL ACT OF 2004
The federal Justice For All Act of 2004 (PL 108-405) enhances protections for victims of federal crimes and increases federal resources available to state and local governments to combat crime.
Title I of the act, the “Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act,” requires courts to ensure that crime victims are afforded the rights the act prescribes. It specifies that a crime victim, his lawful representative, or the attorney for the government may assert the rights in U.S. District Court. If the requested relief is denied, the movant may petition the court of appeals for a writ of mandamus, which the appeals court must decide within 72 hours.
A court's failure to afford a crime victim his rights is not grounds for a new trial, but a victim can move to reopen a plea or a sentence on that basis. The act does not authorize a cause of action for damages or create, enlarge, or imply any duty or obligation to any victim or other person for any breach by federal government officers or employees (§ 102).
The act appropriates $7 million for fiscal year 2005 and $11 million each for fiscal years 2006-2009, in part, for the support of state organizations that enforce crime victims' rights and provide legal counsel and support services. The states where these organizations are located must have laws substantially equivalent to the federal law (§ 103).
Article I, § 9m of the Wisconsin Constitution requires the legislature to provide remedies for violations of the victims' bill of rights. The legislature enacted a law requiring the Department of Justice to act on complaints from crime victims. The department's Victim Resource Center tries to mediate complaints between victims and state officials or employees (WSA § 950.08). If the issues cannot be resolved through this informal complaint process, victims have the right to file a complaint with the Crime Victim' Rights Board.
The five-member board reviews and investigates complaints. If the board finds that a violation has occurred, it can (1) issue public and private reprimands, (2) refer violations or alleged violations by judges to the Judicial Commission, (3) seek appropriate equitable relief to protect the victim's rights (but it cannot seek to reverse, appeal, or modify a conviction), or (4) bring a civil action to collect up to $1,000 for intentional violations (WSA § 950.09).
Crime victims in Colorado have the statutory right to be informed of the process for enforcing their constitutional (Article II, § 16A) and statutory (CRS § 24-4.1-301) rights. They may enforce compliance by filing a complaint with the governor's Victims' Compensation and Assistance Coordinating Committee. The 18-member committee can demand that agencies respond to the complaints. After reviewing this information, the committee can set forth requirements for the agencies to follow. If the agency is unable or unwilling to fulfill the requirements, the committee refers the case to the governor, who may refer it to the attorney general to initiate a civil lawsuit.