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The Rights of Victims

  • Why doesn’t the Constitution protect victims as well as criminals?
  • Are there any laws protecting the victims of crime?
  • What is being done to give victims more say in criminal trials?

The function of the criminal justice system is to punish criminal behavior by the arrest, prosecution, and sentencing of those who violate the law. However, because we live in a free society, the system must be appropriately balanced between the power of the government and the rights of the individual. Therefore, the primary focus of the system has been to protect the rights of the criminally accused. The United States Constitution guarantees certain rights to a person accused of a crime, including the right to a trial by jury in open court, the right to be represented by a lawyer and the right to be free of cruel and unusual punishments. Other rights are applicable to all people, but mostly affect those singled out for criminal investigation, like the prohibition against unreasonable search and seizure.

Over the years this emphasis on the rights of the accused has led some people to conclude that criminal offenders are treated better by the system than are the victims of crime. In a typical scenario, the police seem more interested in getting information about the criminal and the crime than taking care of a crime victim. The prosecutor seems more interested in building his case against the accused than in alleviating the crime victim’s suffering or fear of testifying. The victim is almost peripheral to the main action and is often uninformed and not consulted when major events take place in the case.

In recent years, a growing victims’ rights movement has led to the implementation of a variety of measures to correct this perceived imbalance in the criminal justice system. In 1982, Congress passed the Victims and Witness Protection Act which makes it a crime to intimidate a witness or retaliate against a person who testifies or provides evidence to the prosecution. In addition, the act allows a prosecutor to bring a proceeding for a restraining order to protect the victim, thereby alleviating the need of the victim to hire a private attorney to secure a protective order if one is needed.   A person convicted of retaliation faces a ten-year sentence that can be increased to twenty years for attempted murder of the victim or death if the victim is killed.

Many state and federal laws require a criminal offender to make restitution to the victim, and the court will order restitution when the offender is sentenced. The offender is ordered to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime such as medical bills, destroyed property, and lost wages.

Sentencing schemes have also been revised to include a time and place for victims of crime and their families to address the court. The victim or family members are given a chance at the sentencing hearing to tell the judge in writing or in person how they have been affected by the crime and their opinion as to a legitimate sentence. Victim-offender mediation programs focus on the need for a victim and victimizer to meet face-to-face and discuss the crime. Participation is voluntary for both victim and offender and the goal of the program is to arrive at an agreement on how the offender can redress the harm he or she caused.

Other measures that address the concerns of crime victims include the use of victim advocates. Sometimes the advocates are funded by the prosecutor’s office and sometimes they are part of the court system. Their function is to assist victims in all aspects of the criminal proceeding. The advocates should keep the victim informed about the progress of the case and explain the basics of the procedure. Victim advocates may also assist battered spouses in getting restraining orders against their abusers and inform them of community resources.

Finally, the system is doing more to notify and protect victims of crime when the offender is released from jail. Laws such as Megan’s Law in New Jersey have been passed in many jurisdictions. Megan’s Law requires certain convicted sex offenders to register with the police in the neighborhood where they live and requires the police to notify members of the public about the presence of the offender. Domestic abuse statutes often require the government to notify the victim whenever the offender is released from jail, even during the pre-trial period.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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