Highlight the Right: Dignity, Respect and Fairness

The right to be treated with dignity, respect and fairness during all phases of the criminal justice process

Participation in the process of government is at the root­­­­­ of our democracy, yet victims of crime in Iowa currently have no meaningful participatory rights in the government process which is designed to seek justice for the trauma that they have endured. They are forced to act as a witness to their own trauma while their dignity is slowly chipped away. They are reminded again and again to remain on the sidelines while the government seeks justice for the public, but not given the opportunity to have their rights considered in that justice being sought. Victims of crime deserve to have their rights considered in the criminal justice system and that is exactly what a right to fairness, dignity and respect would afford them.

Crime victims’ rights are not a new concept. At the founding of our nation, victims often brought private prosecutions against defendants and the office of the public prosecutor was less of a formal role. As the public prosecutor’s role grew over time, though, victims began to be displaced from the system and eventually their voices lost altogether.[i] The victims’ rights movement has been working diligently to restore balance to the criminal justice system since the 1970’s[ii] and has had quite a bit of success. In fact, over 35 states[iii] now offer some form of constitutional protection to victims of crime and 27[iv] of those states include the right to fairness, dignity and respect. Similar to state constitutional provisions, the federal system also mandates a right to fairness, dignity and respect in the Crime Victims’ Rights Act (CVRA).[v] During its passage, one of the co-sponsors of the legislation made clear that the right to fairness, dignity and respect “is intended to direct government agencies and employees […] to treat victims of crime with the respect they deserve and to afford them due process.”[vi] Due process is often a term we hear associated with a defendant in criminal cases, but similar rights for victims ought to exist. The right to due process refers to the idea that individuals whose rights are to be affected by the government must be treated fairly in the government’s process of affecting their rights. This concept is thought to be derived from the legal principle laid out in the Magna Carta in 1354 that no person is to be deprived of life, liberty or property except by the “law of the land.”[vii] It is a legal notion older than our nation and one that was of great importance to the founders to protect against a tyrannical government.

Opponents of victims’ rights will often cite the defendant’s constitutional rights to due process as a reason victims’ rights should not exist, but this argument relies on a fallacious premise – that constitutional rights are somehow capped, and any rights given to one party takes away rights from another. This is simply not true. Affording victims constitutional rights takes away no rights from the defendant, nor should it. A defendant’s right to due process is one of the pillars of our American criminal justice system and can continue to exist simultaneously with a victims’ right to fairness, dignity and respect. Every day, our courts are tasked with balancing the interests of differing perspectives and interpreting the law based on the facts of the case. Adding victims’ rights to that balancing act does not change its functionality. Rather, giving victims the opportunity to have their interests considered in the prosecution of their experiences merely allows the victim input in the government system that is meant to seek justice for their victimization. Affording victims of crime the right to be treated with fairness, dignity and respect does not give victims control over the outcome of the case, the conviction or acquittal of the defendant, the sentencing or release. Instead it affords victims a chance to have their concerns considered in a government action in which they have a heightened interest.

[i] Paul G. Cassell & Margaret Garvin, Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J. Crim. L. & Criminology, 102-103 (2020).

[ii] Id. at 103

[iii] Al. Const. art. 1, § 6.01; Ak. Const. art. I, § 24; Ariz. Const. art. 2, § 2.1; Cal. Const. art. 1, § 28; Colo. Const. art. II, § 16a; Conn. Const. art. 1, § 8(b); Fl. Const. art. I, § 16; Ga. Const. art I, § 1, ¶XXX; Idaho Const. art. 1, § 22; Ill. Const, art. 1,  § 8.1; Ind. Const. art. 1, § 13(b); Kan. Const. art. 15, § 15; La. Const. art. I, § 25; Md. Const. Decl. of Rights art. 47; Mich. Const. art. I, § 24; Miss. Const. art. 3, § 26A; Mo. Const. art. I, § 32; Mont. Const. art. II, § 28; Neb. Const. art. I, § 28; Nev. Const. art. I, § 23; N.J. Const. art. I, § 22; N.M. Const. art., II, § 24; N.C. Const. art. I, § 37; N.D. Const. art. I, § 25; Ohio Const. art. I, § 10a; Okla. Const. art. II, § 34; Or. Const. art. I, § 42; R.I. Const. art. 1, § 23; S.C. Const. art. I, § 24; S.D. Const. art. 6, § 29; Tenn. Const. art. I, § 35; Tex. Const. art. I, § 30; Utah Const. art. I, § 28; Va. Const. art. I, § 8-A; Wash. Const. art. 1, § 35; Wis. Const. art. I, § 9m(2).

[iv] Ak. Const. art. I, § 24 (treated with dignity, respect, and fairness), Ariz. Const. art. 2, § 2.1(A)(1) (treated with fairness, respect, and dignity), Cal. Const. art. 1, § 28(b)(1) (treated with fairness and respect for his or her privacy and dignity); Conn. Const. art. 1, § 8(b)(1) (treated with fairness and respect); Ga. Const. art I, § 1, ¶XXX(a) (accorded the utmost dignity and respect and shall be treated fairly); Idaho Const. art. 1, § 22(1) (treated with fairness, respect, and dignity); Ill. Const, art. 1,  § 8.1(a)(1) (treated with fairness and respect for the victim’s dignity); Ind. Const. art. 1, § 13(b) (treated with fairness, dignity, and respect); La. Const. art. I, § 25 (treated with fairness, dignity, and respect); Md. Const. Decl. of Rights art. 47(a) (treated with dignity, respect, and sensitivity); Mich. Const. art. I, § 24(1) (treated with fairness and respect for the victim’s dignity); Miss. Const. art. 3, § 26A(1) (treated with fairness, dignity, and respect); Nev. Const. art. I, § 23(1)(a) (fairness and respect for his or her privacy and dignity); N.J. Const. art. I, § 22 (treated with fairness, compassion, and respect; N.M. Const. art., II, § 24(A)(1) (treated with fairness and respect for victim’s dignity); N.C. Const. art. I, § 37(1) (treated with dignity and respect); N.D. Const. art. I, § 25(1)(a) (treated with fairness and respect for the victim’s dignity); Ohio Const. art. I, § 10a(A)(1) (treated with fairness and respect for the victim’s safety, dignity and privacy); Okla. Const. art. II, § 34(A) (treated with fairness and respect for the victim’s safety, dignity and privacy); Or. Const. art. I, § 42(1) (accorded due dignity and respect); R.I. Const. art. 1, § 23 (treated with dignity, respect, and sensitivity); S.C. Const. art. I, § 24(A)(1) (treated with fairness, respect, and dignity); S.D. Const. art. 6, § 29(1)(treated with fairness and respect for the victim’s dignity); Tex. Const. art. I, § 30(a)(1) (treated with fairness and with respect for the victim’s dignity); Utah Const. art. I, § 28(1)(a) (treated with fairness, dignity, and respect); Va. Const. art. I, § 8-A (accorded fairness, dignity, and respect); Wash. Const. art. 2, § 35 (accorded due dignity and respect); Wis. Const. art. I, § 9m(2)(a) (dignity, respect, courtesy, sensitivity, and fairness).

[v] 18 U.S.C. § 3771.

[vi] 150 Cong. Rec. S10911 (daily ed. Oct. 9 2004) (statement of Sen. Kyl).

[vii] 'The 1215 Magna Carta: Clause 39', The Magna Carta Project, trans. H. Summerson et al. [http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39  accessed 23 September 2020]