Highlight the Right: Victim Participation
The right to be informed of your rights
The right to reasonably confer with the government attorney
The right to be present at trial and proceedings
The right to be heard at any proceeding involving the disposition of the defendant or a right of the victim
The right to meaningful citizen participation in our government is one of the most fundamental principles of our democracy. We have fought and continue to fight to ensure that all people have the inherent right to have their voice heard in the process of governing. While this battle typically revolves around voting rights and the right to have a voice in decisions by our legislative and executive branches of government, the judicial branch of government is also an important government process in which all interested participants must be entitled a constitutional voice in participation. Presently in Iowa, our statutory laws provide victims no meaningful participation in the case prior to conviction of the offender. However, Marsy’s Law for Iowa’s participatory rights for victims of crime would grant greater access to justice by guaranteeing victims their right to be informed of their rights, be present and heard at court proceedings and the right to reasonably confer with the government attorney.
When someone is arrested for a crime, they are read a series of highly recognizable rights that are required to inform the alleged offender of the rights they have[i], in order to exercise or waive those rights during the investigation and prosecution of their case. The same should be true for victims. In order to exercise the rights that victims will possess under Marsy’s Law for Iowa, it logically follows that they be informed of the rights that exist upon identification as a victim of the crime. In most states that require the right to be informed, this happens by way of a notification card[ii] identifying the constitutional rights a victim has, how to register as a victim, contact information for the government attorney and available victim services. This card is given to the victim by law enforcement upon identification as a victim of crime and works to ensure victims are properly informed of their rights. Should a victim choose not to exercise their rights, they are free to do so under Marsy’s Law for Iowa’s opt-in victim participation model.
Because justice looks different for everyone, it is important that the victims’ interests are presented to the government attorney prior to any plea offer or disposition of the case. For example, some victims may not want to have the offender incarcerated, especially if the person is the sole wage-earner for the family. Without a meaningful right to confer with the government attorney prior to the disposition of the case, the formulaic approach to justice could further harm the victim. Providing victims the right to explain their interests allows the government attorney to approach their recommendations for justice in a more nuanced and balanced way, that incorporates the victims’ interests.
Historically, victims were always present in the courtroom during court proceedings, often responsible for the prosecution of their own cases.[iii] As the role of the public prosecutor grew, though, victims began to be left out of the process[iv] and the adoption of the rule of sequestration in most jurisdictions in the mid-1970s sealed the fate of victims being excluded from the prosecution of their own justice.[v] The victims’ rights movement has been instrumental in working to restore balance to this injustice and now 34 states provide victims a constitutional right to attend trial and other proceedings.[vi] Iowa is woefully behind in the restoration of balance to the criminal justice system and provides no participatory rights prior to conviction for the victim in either our state constitution or state statute. Victims deserve the unqualified right to attend the proceedings of the prosecution of violence perpetrated against them. While not a party to the case, victims are not disinterested observers either. Victims deserve the unqualified right to be present at the criminal prosecution of a case where they are the named victim. The procedure taking place recreates the traumatic event that has significantly impacted their lives. Victims, just like the defendant, deserve to be present to see and hear what is taking place.
Victims must be provided with the right to be heard in appropriate court proceedings prior to the conviction or acquittal of the defendant to ensure the victims’ interests are properly weighed in the outcome of the prosecution. Currently, Iowa Code §915 provides the opportunity for a victim impact statement,[vii] but this happens after conviction and at a point in the case when the sentencing court is likely already bound by sentencing guidelines or plea agreement. A victim in Iowa currently has no right, whether in statute or the constitution, to have their voice heard in court prior to the conviction or acquittal of a defendant. This creates a massive gap in legitimate participation for victims. Our Iowa laws also vary from an overwhelming number of states which have protected a victim’s right to due process by ensuring they have a right to be head when appropriate.[viii] Violence and the trauma that results for victims is highly personal and different for every person. It cannot be entered into a formula that ensures the same outcome for every situation. If the victim chooses to participate, their experience must be voiced in any proceeding affecting their rights for due process to be met. Just like Iowa must afford a defendant due process, it must afford a victim the choice to be heard during the criminal justice process. Giving the victim a voice doesn’t dictate an outcome any more than giving a defendant due process prescribes an end result. Fairness and due process increase public faith in an impartial and accessible criminal justice system.
Marsy’s Law for Iowa will grant victims constitutional rights to participation and guarantee victims the right to enforce their participatory rights in the criminal justice system. Victim participation promotes justice. It allows for the voices of those directly harmed to be heard, fosters possibilities for resolutions outside of traditional modes, and provides equal access to justice.
[i] Miranda v. Arizona, 384 US 436 (1966)
[ii] See e.g. ORS 147.417 (1).
[iii] 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).
[v] National Crime Victim Law Institute, Fundamentals of Victims’ Rights: A Summary of 12 Common Victims’ Rights, Victim Law Bull., 2 (2011).
[vi] See Al. Const. art. 1, § 6.01(1); Ak. Const. art. I, § 24; Ariz. Const. art. 2, § 2.1(A)(3); Cal. Const. art. 1, § 28(b)(7); Colo. Const. art. II, § 16a; Conn. Const. art. 1, § 8(b)(5); Fl. Const. art. I, § 16(b)(6)(a); G.A. Const. art I, § 1, ¶XXX(a)(3); Idaho Const. art. 1, § 22(4); Ill. Const, art. 1, § 8.1(a)(10 and 11); Ind. Const. art. 1, § 13(b); Kan. Const. art. 15, § 15(a); La. Const. art. I, § 25; Md. Const. Decl. of Rights art. 47(b); Mich. Const. art. I, § 24(1); Miss. Const. art. 3, § 26A(1); Mo. Const. art. I, § 32(1)(1); Neb. Const. art. I, § 28(1); Nev. Const. art. I, § 23(1)(g); N.J. Const. art. I, § 22; N.M. Const. art., II, § 24(A)(5); N.C. Const. art. I, § 37(1a)(a1); N.D. Const. art. I, § 25(1)(g); Ohio Const. art. I, § 10a(A)(2); Okla. Const. art. II, § 34(A); Or. Const. art. I, § 42(1)(a); S.C. Const. art. I, § 24(A)(3); S.D. Const. art. 6, § 29(A)(7); Tenn. Const. art. I, § 35(3); Tex. Const. art. I, § 30(b)(2); Utah Const. art. I, § 28(1)(b); Wash. Const. art. 1, § 35; Wis. Const. art. I, § 9m(2)(e).
[vii] Iowa Code § 915.21
[viii] See Al. Const. art. 1, § 6.01(a); Ak. Const. art. I, § 24; Ariz. Const. art. 2, § 2.1(A)(4); Cal. Const. art. 1, § 28(b)(8); Colo. Const. art. II, § 16a; Conn. Const. art. 1, § 8(b)(7); Fl. Const. art. I, § 16(b)(6)(b); G.A. Const. art I, § 1, ¶XXX(a)(4); Idaho Const. art. 1, § 22(6); Ill. Const, art. 1, § 8.1(a)(5); Kan. Const. art. 15, § 15(a); La. Const. art. I, § 25; Md. Const. Decl. of Rights art. 47(b); Mich. Const. art. I, § 24(1); Miss. Const. art. 3, § 26A(1); Mo. Const. art. I(1)(2), § 32; Neb. Const. art. I, § 28(1); Nev. Const. art. I, § 23(1)(h); N.M. Const. art., II, § 24(A)(7); N.C. Const. art. I, § 37(1a)(b); N.D. Const. art. I, § 25(1)(i); Ohio Const. art. I, § 10a(A)(3); Okla. Const. art. II, § 34(A); Or. Const. art. I, § 42(1)(a); R.I. Const. art. 1, § 23; S.C. Const. art. I, § 24(A)(4 and 5); S.D. Const. art. 6, § 29(A)(9); Tenn. Const. art. I, § 35(4); Utah Const. art. I, § 28(1)(b); Va. Const. art. I, § 8-A(3); Wash. Const. art. 1, § 35; Wis. Const. art. I, § 9m(2)(i).