Tibbetts Trial Highlights Need for Marsy's Law

If you’re following the news lately, you know that the trial of Cristhian Bahena Rivera, accused of 1st degree murder in the death of University of Iowa student Mollie Tibbetts back in 2018, began this week.


Today, Iowa has no meaningful protections for victims of crime. There are no rights to pre-conviction participation for victims, no rights to safety or protection, and no right to privacy, among others. We differ from many other states across the country in terms of victims’ rights and with this case alone, we’ve seen the inadequacy of our victims’ rights laws play out in real time.


Earlier this spring, there was a dispute among the prosecution and defense over a subpoena for the bank records of the deceased victim. The dispute centered on the fact that the prosecution was not notified of the subpoena at the time of its issuance by the defense. The defense claimed in a hearing on the prosecutor’s motion that this was a clerical error, while the prosecution argued that Iowa law prohibits records-only subpoenas to non-parties and non-witnesses “without notice to opposing counsel and oversight by the district court.”


Iowa crime victims should see this as a huge red flag. Without any type of check on victim privacy, the defense is free to go on a rogue fishing expedition. Fishing expeditions exist when defense attorneys are allowed to proceed, unchecked, throughout the legal system. And that is exactly what occurred in this case.


Iowa victims have no meaningful right to privacy. There are minor statutory protections that stem from the controversial 2010 Iowa Supreme Court decision, State v. Cashen, which allowed a defense attorney to examine a victims’ private mental health records to determine if there was exculpatory evidence which would help their client. Following Cashen, and a vehement dissenting opinion from the late Chief Justice Cady, the Iowa Legislature passed new statutory protections for victims’ mental health records, overriding the court and attaching absolute privilege to mental health records. This barred the defense from examining these records unless a judge determined exculpatory evidence existed within. Those statutory protections only apply to records from a licensed mental health professional, though. There are no protections for other private victim records like diaries, text messages, dental records, or bank records.


Iowa victims need more than just statutory protections, they need constitutional ones. Constitutional rights are so much more important and powerful than statutes – they’re enforceable and can’t be ignored; they allow for redress and provide uniform application no matter where you live in the state; and they can’t be easily changed by simple majorities. Marsy’s Law for Iowa is under consideration by the Iowa Legislature and it would provide much needed constitutional protections for Iowa victims.


The dispute in the Tibbetts case turned out fine. The supposed records sought turned out to not exist. But what happens in the future when a defense attorney attempts again to go on a fishing expedition into the personal, private lives of victim of crime? Without Marsy’s Law and a right to privacy in Iowa’s constitution, absolutely nothing.