Victims’ Rights: Legal Protections For Survivors Of Crime

For hundreds of years, crime victims in the United States were treated as little more than pieces of evidence, glorified witnesses who would be used to secure a conviction – and then quickly forgotten.

A Crime Victim’s Rights: The Basics Of Federal Law

It wasn’t always like this. After the American Revolution, criminal proceedings were spearheaded, not by independent police forces and prosecution departments, but by victims themselves. Soon, though, victims faded from the picture, as crime was reframed as an offense against the state, rather than one that affected actual individuals.

The criminal justice system eventually became focused more on promoting the legal rights of suspects and convicted criminals than victims.

Today, the tide is turning. In the footsteps of numerous advocates and allies, crime victims are now being afforded an unprecedented array of rights, along with access to the criminal justice system. We’re far from a perfect system, but things are getting better.

How Does The Law Define “Victim”?

As a matter of law, the term “victim” includes any person who suffers direct harm, either physically, emotionally or financially, through the the commission of a crime. When a minor (someone under 18) or a person deemed mentally incompetent is harmed by crime, the “victim” designation carries over to include their parent or a legal guardian.

Elderly individuals who are considered mentally incapacitated can be represented, as a matter of their victims’ rights, by a spouse, adult child or sibling. Institutions and their authorized representatives can also be considered legal “victims.”

What Legal Rights Do Survivors Have?

Victims have a right to live without fear of receiving threats, suffering further personal injuries or being intimidated. You have a right to be heard, and to have your experiences, perspective and desires taken into account in sentencing and parole decisions.

You have a right to be present at public court proceedings. You have a right to information during criminal investigations, including notice of arrests, charges and the release of suspects.

These rights, and many more, are enumerated in two separate laws:

• The Victims’ Rights & Restitution Act (1990)
• The Crime Victims’ Rights Act (2004)

In very basic terms, the first of these laws, the Victims’ Rights & Restitution Act, outlines a number of services to which victims are entitled after a crime has been committed. The Crime Victims’ Rights Act, on the other hand, attempts to draw victims further into the criminal justice process, while ensuring fair and dignified treatment.

The Victims’ Rights & Restitution Act

When it was passed in 1990, the Victims’ Rights & Restitution Act instructed every federal agency and department involved in the investigation and prosecution of criminal activity to designate specific employees (known as “responsible officials”) who are tasked with identifying and supporting victims.

Responsible officials have one job: find victims of crime, inform them of their right to services and help them access those services. Victim specialists can be found in all federal law enforcement agencies, assisting victims as a crime is being investigated. Once criminal charges have been filed, their responsibilities usually pass to “responsible officials” working in state-specific US Attorney’s offices.

How Responsible Officials Can Help

Next, we’ll cover what “responsible officials” are actually required to do, from helping victims find emotional counseling to protecting their safety during court proceedings. As we cover these various rights and responsibilities, we’ll follow along the timeline adhered to in most criminal cases, beginning just after the crime has been committed and finishing up after the criminal trial has concluded.

After The Crime

At all times, victim specialists are tasked with ensuring the basic safety of crime victims, arranging for reasonable protection measures, including police escorts, relocation programs and court-approved restraining orders.

• inform victims of the places where they can receive emergency medical and social services
• inform victims of any financial restitution or other relief to which they are entitled, along with how to secure that restitution
• inform victims of counseling, treatment or other support services that are available, including free programs organized and managed by local non-profits
• help victims get in touch with the people or organizations who provide support services

During Investigation & Prosecution

During the investigation and prosecution of crimes, responsible officials focus on providing timely information about the process:

• the status of the criminal investigation, whenever doing so would not interfere with the investigation
• the arrest of a suspect
• the filing of charges against a suspect
• the scheduled date and time of each court proceeding at which the victim is required or entitled to attend
• the release of a suspected offender
• the detention status of a suspect
• the acceptance of a guilty plea or plea of nolo contendere (in which a criminal defendant accepts conviction but does not admit guilt)

In cases of sexual assault, Attorney General’s offices have even more detailed responsibilities. When a rape kit is necessary, the costs of the physical examination will be paid directly by the government or victims will be reimbursed.

Moreover, the Attorney General will pay for two anonymous and confidential tests for sexually-transmitted diseases, along with a consultation with a medically-trained professional.

In Court

During court proceedings, victims who must or choose to be present are provided with their own waiting areas, out of sight and hearing from the criminal defendant and any defense witnesses.

After Trial

After a criminal trial has concluded, victims have the right to be informed of the trial’s outcome, including the verdict, sentence and the date on which the offender will become eligible for parole.

Responsible officials are also required to explain the basic corrections process, providing general information on how incarceration works and on what grounds an offender may be allowed to leave custody, including furlough and probation.

Throughout investigation and prosecution, victim specialists must ensure that any property of the victim held by the police as evidence is maintained in good position and returned as soon as possible.

Court-Ordered Restitution

“Restitution” is a form of financial compensation, distinct from the money available from victim compensation funds, paid by criminal offenders to their victims. As a part of sentencing, courts can order a convicted offender to reimburse the victim for the harms caused by their crime. In theory, restitution judgments can be ordered to compensate victims for any out-of-pocket financial losses:

• medical expenses
• therapy and counseling costs
• expenses incurred participating in the criminal justice process (travel expenses, childcare)
• lost wages
• lost or damaged personal property
• crime scene clean-up expenses

Many of these damages are also available in civil lawsuits, but restitution does not take pain and suffering into account. Court-ordered compensation only applies to pecuniary damages, easily-quantified financial losses that can be proven with a receipt.

Filing a civil lawsuit, on the other hand, offers victims the possibility, not only of securing damages for financial losses, but for emotional, psychological and physical suffering as well. In fact, pain and suffering awards are often far larger than the awards granted for purely economic losses.

Victims Have To Demand Restitution

Courts don’t mete out restitution sentences in all cases. It’s far more common in cases of serious crimes, the National Center for Victims of Crime reports. Around one-third of states have laws that require courts to order restitution, but this requirement is usually limited to violent felony offense cases.

In many cases, restitution will only be granted after the victim him or herself has demanded it. Here are two ways to increase your chances of securing restitution:

• Ask your case’s prosecutor to request restitution during plea negotiations, sentencing determinations or probate hearings. Make clear that this crime has taken a financial toll on your life. Then demand compensation from the offender.
• Include in your victim impact statement a full list of the out-of-pocket expenses you’ve been forced to cover because of the crime.

Collecting restitution, however, may be an even bigger problem than convincing a court to order it in the first place. Courts have established a number of mechanisms to speed up the payment process. Even so, it’s hard to secure restitution from an offender who doesn’t have the money.

Many victims will only be fully compensated after a number of years, if they ever receive all the money at all. That’s why some states find the money in more creative ways, garnishing an offender’s wages or dipping into their income tax returns.

During Incarceration

A victim specialist’s work doesn’t end when the criminal trial ends. In the years following a conviction, responsible officials must inform victims at the earliest possible opportunity of:

• the scheduling of a parole hearing
• the offender’s release from custody, either through escape, work release or furlough
• the offender’s death (if death occurs while the offender is in custody)

As we’ve seen, the Victims’ Rights & Restitution Act ensures that victims are adequately protected and well-informed of a criminal case’s progress. Information, however, isn’t the same as participation, a possibility that the 1990 law didn’t even consider.

An effort to actually include victims in the criminal justice process would only come more than a decade later, with the passage of the Crime Victims’ Rights Act.

The Crime Victims’ Rights Act

The Crime Victims’ Rights Act, which is part of the larger Justice For All Act passed in 2004, grants victims of federal criminal acts ten basic rights:

1. the right to be reasonably protected from the accused
2. the right to reasonable, accurate and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused
3. the right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding
4. the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing or any parole proceeding
5. the right to confer with the attorney for the Government in the case
6. the right to full and timely restitution as provided by law
7. the right to proceedings free from unreasonable delay
8. the right to be treated with fairness and with respect for the victim’s dignity and privacy
9. the right to be informed in a timely manner of any plea bargain or deferred prosecution agreement
10. the right to be informed of these rights, as well as the rights conferred in the Victims’ Rights and Restitution Act

With these provisions, Congress stepped a little closer to bringing victims, the actual people who are harmed by crimes, into the criminal justice system. There is much good in the Crime Victims’ Rights Act; it’s certainly an improvement over previous decades, when victims had few, if any, rights at all.

Victim impact statements, in particular, have incorporated the experiences and trauma of crime victims into the justice system in unprecedented ways, allowing those harmed by crime to have a real effect on sentencing and parole decisions.

Victims rights advocates, however, say that many of the promises implicit in the Crime Victims’ Rights Act have yet to be fulfilled. Even in states with strong victim protection laws, researchers have found that many victims are still not being made aware of their options for counseling and health services and still not being allowed to write victim impact statements.

Enforcement

As we all know, rights don’t have much meaning unless they can be enforced effectively. According to the US Department of Justice, the Justice For All Act of 2004 offers crime victims two separate avenues for redress when their federal rights go unrespected:

• Victims can move for a federal court order, commanding that their rights be respected. If the initial application for a court order is denied, victims have the right to appeal the decision.
• Victims can file an administrative complaint with the Attorney General after a Justice Department official fails to enforce the victim’s rights.

When a victim’s rights are not being honored, some benefit from legal representation. Thankfully, a network of victim litigation clinics has cropped up to offer crime victims free counsel as they fight to have their rights upheld during criminal proceedings.

These litigation clinics are operated, with funding from the federal government, by the National Crime Victim Law Institute, a program of Lewis & Clark Law School.

Related Crime Victim Resources

• Third-party liability for crime
• State victim compensation programs
• Violent crime lawsuits