Mimesis Law
11 December 2018

Debate: Extra Rights For Victims Strip Everyone Else Of Theirs

November 22, 2016 (Fault Lines) — Ed. Note: Following Andrew King’s post on the passage of victims’ rights laws, we charged Chris Seaton and Mario Machado with the following question: Should crime victims be given special rights in criminal prosecutions? This is Chris’ argument:

Our Constitution affords those accused of crimes incredible rights. Illegally or wrongfully obtained evidence is suppressed. No alleged criminal has to testify in court. The accused even get the right to face their accuser in court, present witnesses and evidence, and enjoy the right to “effective assistance of counsel” and a “speedy trial.”* All of these magnificent features function as a “check” against the power of the government.

But those are for the criminal. What about the victim? There are organizations making major waves for “victim’s rights,” claiming we need more protection for those allegedly hurt by bad people. Adding extra “rights” to those who suffered from a crime only makes people feel good. Expanding “victim’s rights” strips crucial rights from the very same people advocating for that expansion. Those extra rights for victims come at the expense of your rights, no matter how you may feel.

If you are the victim of a crime in this countrym you already get immense benefits. The state or federal prosecutor assigned to your case can expend every resource possible to secure a conviction. You will likely get a “victim witness coordinator” who will walk you through the process of testifying in court. If and when a conviction is secured, there is a chance you will get to sue in a civil trial, provided restitution isn’t already included as part of the sentence. In certain cases, the lawyer representing the accused can’t even question you about certain issues that might let the bad guy walk. Adding more “rights” to the ones you already have undermines the rights of others.

Let’s say, hypothetically, it’s just too hard for you to be in the same room as the guy you accused of sexual assault. It’s too much for you to have every word of your testimony questioned. The thought of “reliving the gory details” of that moment someone violated you makes you sick to your stomach. It would be nice if you could just watch the process though a camera on your laptop at the nearest Starbucks, so well meaning legislators pass a law allowing you that luxury.

This new set of “victims’ rights” takes away the rights of the guy or gal to face you in court and counsel of their choosing ask you questions that might lead to you hearing two words you dread may pass through a jurors lips. Those rights come from the Constitution and volumes of case law. There’s no justifiable reason to strip the nasty bad person in the jumpsuit of their rights, other than punishing them to soothe your feelings.

What about sentencing? Surely once the judge or jury declares the defendant guilty, the victim should have a say in the appropriate punishment? After all, we can’t have a world with more Brock Turners getting empathy for “twenty minutes of action” behind a dumpster, right? Once again, the answer is a big fat “no.” The law doesn’t allow victims to determine the sentence because during a time of emotional chaos they’re less likely to demand a sentence that is fair, impartial, and just.

Those words, “fair,” “impartial,” and “just” are major pillars of support for the biggest argument against providing victims more rights in the criminal justice system. Some day, the “victim” could be the accused, and want every right the expansion of “victims rights” takes away. If you’re reading this and shaking your head, saying “that could never happen,” consider all it takes to put you in a cell is a cop’s word you looked like a certain gang member. Video exists of cops boasting how they can plant cocaine on teenagers and make a possession charge stick. One sexual assault “case” was so full of holes campus AND regular police refused to press charges, and yet the accused is still called a “rapist.” Sometimes “victims” even fake horrendous crimes and take them to the police.

It’s those moments that demand we give the accused more rights, and leave alleged “victims” rights where they are. When you strip away the spurious arguments surrounding why victims deserve a greater role in the criminal justice system, the only rationale left is “empathy.” The law doesn’t concern itself with empathy, and that drives your Facebook friends crazy. Our system exists absent empathy because we know taking away someone’s life, liberty, and property is a serious matter. The laws and procedures surrounding that process have no room for emotional content because crime victims are already experiencing emotional turmoil that doesn’t allow for rational judgment.

Maybe that’s why the maligned-of-late Founding Fathers who set up this country gave those accused of crimes more rights than their accuser. They knew the business of crime and punishment was serious, and wanted to make sure in the event people stopped caring about Blackstone’s ratio enough protections existed to give even the truly bad people every chance possible to prove their innocence.

In the end, they knew that if you, the person reading this argument, had to face a jury of your peers, the burden needed to fall on the state to prove you guilty. They left out the person you allegedly harmed because imprisoning people should never be a personal matter of personal vengeance.

Rebuttal: Oh come on, Mario. You just did that to set me off, didn’t you?
First, the proposal for letting alleged crime victims have a say in a continuance is all well and good. I’d note, however, it’s the judge’s final say if a continuance is granted, and many don’t particularly like delaying cases. In my stomping grounds after continuance number one is granted at the General Sessions level you’d better have a damned good reason for continuances two and beyond. Those “good causes” usually involve defense counsel having a heart attack or death of a family member.
Second, the proposed “restraining order” strips due process rights from the accused and sets them up for another trip to the slammer, should one of the victims or witnesses happen to walk into a bar or other den of ill repute. And despite his concerns otherwise, sometimes even the nasty criminals go to the local Walgreens to get their kids medicine.
And appointing the victim their own attorney? Didn’t we just have a Fault Lines contributor discuss why this was a horrendously stupid proposition? Not to mention the taxpayer dollars wasted on such resources. Legislators already love admitting they’re tough on crime when cutting indigent defense appropriation budgets. There’s nothing to suggest they’d enjoy appropriating funds for a “victims’ appointed lawyer” list.
All three proposals are legally questionable, based on “feel good” principles, and magically find more ways to put people in jail. That is the end result of expanding “victims’ rights,” no matter how smart the contributor penning them.

*Your mileage may vary with the aforementioned rights.

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  • Brad
    22 November 2016 at 9:48 am - Reply

    I would add that victims’ rights properly sound in tort, and that is kept separate from the criminal law system for good reason. If the government wants to create and/or subsidize tort claims, then that may be appropriate. What is actually being proposed is jurisprudentially flawed in a fundamental way.