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Highlight the Right: Privacy

The right to privacy, including the right to refuse a deposition or discovery request

 

 

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

 

 

Marsy’s Law Could Provide Better Victim Privacy

Marsy’s Law Could Provide Better Victim Privacy

In Iowa, the law grants prosecutors the right to request that a minor provide deposition testimony outside the presence of the defendant per Iowa Rule of Criminal Procedure 2.13(2)(b) and Iowa Code § 915.38(1)(a). The problem is that, for the Court to grant this request, prosecutors must prove to the Court that the minor would suffer trauma and suffer from an impaired ability to communicate if forced to testify in the physical presence of the defendant. This opens the door to defense attorneys seeking and obtaining the victim’s counseling records.

 

First of all, any claim that a minor would not suffer such a trauma in having to testify in the physical presence of the defendant is ridiculous. Common sense should clearly inform anyone that a child sex abuse victim would suffer from trauma when being forced to sit in the same room as their abuser. Second, to meet the requirements of the statute, prosecutors must typically provide the Court with an expert, be it a counselor or psychologist, who would provide the proof needed to show that the minor would suffer from further trauma and suffer an impaired ability to communicate.  

 

Most defense attorneys, alerted to the existence of counseling or mental health records, will then seek to obtain those records pursuant to Iowa Code § 622.10(4)(a)(2)(b). This is unfortunate seeing as that, per State v. Barrett, 924 N.W.2d 878 (Iowa Ct. App. 2018), neither the federal nor state constitution requires that defense counsel be provided access to such privileged records. Though our statutes require that defense attorneys show the Court a good faith reasonable probability that counseling records contain specific exculpatory information not available from any other source, it is rare that our Courts actually require this before disclosing the entirety of these records to the defendant. The reason is that “exculpatory information” is incredibly broad, meaning anything that “tends to ‘establish a criminal defendant’s innocence.’” As Justice McDonald noted in Barrett, judges are not in a position to know what could be or is not exculpatory. This, in practice, leads many judges to over-disclose confidential records out of a fear of withholding something that is potentially exculpatory. The unfortunate truth is that, once records are disclosed to the defendant, the defendant does not “un-know” the records. Even if a higher Court were to overrule the previous decision, the harm is done. The victim now knows their privacy meant nothing to the Courts and that the defendant, in addition to criminally violating the victim, was able to further violate the victim’s privacy with court approval.

 

Marsy’s Law carries a provision preventing the release of a victim’s confidential information or records to criminal defendants. This right would also not come at the expense of a defendant’s constitutional rights. Our Iowa Supreme Court, in State v. Thompson, 836 N.W.2d 470 (Iowa 2013), approved of the Indiana Supreme Court analysis holding that an absolute privilege to confidential communications was constitutional. The Iowa Supreme Court correctly noted that the only reason why Iowa victims’ privileged communications are accessible by a defendant is because our legislature weighed a defendant’s right to present a complete defense more heavily against the “compelling interest in serving the psychological and emotional needs of victims of domestic violence and sexual abuse.” Id. at 489.

 

 

Reuben Neff

Wapello County Attorney

Marsy's Law for Iowa Supporter

Making Your Voice Heard...Digitally

Legislators care about their constituents (YOU) and the issues you care about! When a legislator hears about an issue from their constituents, it sends a message that this issue is important.

 

 

Iowa is falling behind on crime victims’ rights and we need your help to make sure legislators know their constituents want victims and survivors to have constitutional protections. Recording a short video urging Legislators to support constitutional rights for victims and survivors of crime in Iowa is a quick and easy way you can make your voice heard. We will compile these videos and format them into a digital postcard to be sent to legislators when they return to the capitol this winter. 



HOW TO COMPLETE THIS TASK:


1. RECORD: Using your cell phone, create a short video clip of yourself including your name, city, and 1-2 sentences supporting Marsy’s Law

NOT SURE WHAT TO SAY? Use our example below:
“Hello, my name is ___ and I’m from ___. I am urging you to pass meaningful
constitutional rights for victims of crime. This issue is very important to me
and it is time victims of crime have constitutional protections in Iowa. Thank
you!”

 

2. EMAIL: Once your video is finished, attach the recording to an email and send it to us at iowa@marsyslaw.us

 

3. KEEP IT GOING: Reach out to friends, family, coworkers, or anyone you know who lives in Iowa and ask them to record a video as well! The more digital postcards legislators receive, the more our issue comes to the forefront. 

 

 

Check out some examples from our supporters. 

 

 

Domestic Violence Awareness Month

October is Domestic Violence Awareness Month. This is a time that is recognized across the country to rally around DV survivors, highlight their struggles, speak out against the incredible damage this crime has on our society, families, survivors, and children.  

 

The U.S. Department of Justice estimates that every 9 seconds a woman in the U.S. is beaten or assaulted by a current or ex-significant other. Men are not immune to domestic violence. In fact, 1 in 4 men are victims of some form of physical violence by an intimate partner.

 

Two of our Marsy's Law for Iowa coalition members, who are Domestic Violence survivors, have bravely shared their voices this month: 

 

Shal

The day that I left my husband he became very angry. In front of my children, he punched me, full-force in the head. One would think the situation and all that followed - hospital visits, traumatic brain injury, living in a shelter - was the most terrifying part of my situation. The way our criminal justice system failed me as a DV survivor, and let me fall through the cracks was nearly as traumatizing as the assault itself. 

 

Through the entire criminal justice process, I was never notified of any of the court dates concerning my case. Not once was I told that I could be at the hearings. I was never informed on what was happening with the case. Why would it be incumbent upon me, as the victim, to somehow find out the details that affect my life, my well-being, my safety? 

 

Every day I was involved in the criminal justice process I felt like I did not matter, that I had no value. The system was designed to protect and value the person who brutally beat me and left me with a brain injury. My story is not unique. This is happening to crime victims all across Iowa. Our state can do better than this. 

 

October is recognized as Domestic Violence Awareness Month, a time to bring greater awareness to the issue of domestic violence. As a domestic violence survivor, I am using my voice to speak in support of Marsy’s Law.

 

As it stands now, our system is out of balance. Crime victims in Iowa deserve to have constitutionally protected rights. Marsy’s Law would establish rights in our state’s constitution that would ensure victims are informed of any and all hearings, that they are allowed to make their voice heard, that they are guaranteed reasonable protection from the person who hurt them, among other things. 

 

The state must stop failing DV victims like me who have suffered this terrible process or those who will unknowingly become victims someday in the future. We must give domestic violence survivors and all victims a voice in our state constitution by giving them meaningful constitutional rights. 

 

Vicki

I have been the victim of a crime where I was stalked and assaulted. The person who did this to me was relentless at pursuing me. Each time he was arrested and bailed out, his goal was to be at my home or in my presence. There were many times I thought I was safe but because of a broken criminal justice system, in reality I was in grave danger. 

 

October is Domestic Violence Awareness Month, a time to bring attention to this horrific crime that effects 31 percent of Iowa women and 19 percent of Iowa men. Domestic Violence carries with it economic, physical and mental impacts for the victims as well as children who are exposed to it. 

 

This month, as a DV survivor, I want to speak out about Iowa’s criminal justice system and its failure to protect victims of crime, including DV crimes. There were times when I was not informed or able to make my voice heard during the process. I feared for my life. I was first victimized by the person who hurt me and then repeatedly revictimized by a system I thought would keep me safe. 

 

Iowa needs a crime victims’ rights amendment to our state constitution. This would give victims meaningful constitutional rights like the undeniable right to speak at trial, the chance to be a part of the process and be notified of hearings or the status of their offender. 

 

In my case, and many others, this isn’t just a political talking point that legislators can turn away from when they’re at the capitol. Failure to pass a crime victims’ rights amendment is literally a matter of life and death.

These stories can be hard to read, let alone live through. This month, and every month, we stand with our DV survivors and truly appreciate the voice they bring to our organization.

 

We're encouraging Iowans to share the warning signs of Domestic Violence with their family, friends, and neighbors. 

 

Warning signs can include: 

  •  Their partner puts them down in front of other people
  •  Unexplained injuries or marks on their bodies
  •  Unusual behaviors like no longer spending time with friends and family

 

 

If you know someone who may be in a domestic violence situation, let them know they are not alone and help is available. 

Our Coalition is Growing

We know many law enforcement members across our state have dedicated their careers to serving Iowa’s communities and victims of crime. As they protect small towns, rural communities, entire counties, large cities and everything in between, it’s not uncommon that they get to know those who become victims of crime on a personal level. Our organization understands that oftentimes members of the law enforcement community do more than simply investigate crimes; they are there for the victims and families, and even end up being their voice when they are
not in a position to be heard.

Currently, Iowa has statutory laws on the books to help protect victims of crime. These laws give victims the right to be notified of court proceedings, allow them the opportunity to be heard at sentencing and in parole considerations, the right to be notified of any release or escape of the accused, and the right to restitution.

Law enforcement members of the Marsy's Law for Iowa coalition know that in some circumstances, they find these laws are not good enough and they believe victims of crime deserve dignity and permanent rights enshrined in our state’s constitution.

 

The criminal justice system can honor both the accused and victims equally, without diminishing the rights of anyone, and give both parties security and justice. Crime can happen anywhere, regardless the size of your town and even in a state like Iowa. 

 

Our coalition has been growing as we have begun to pile up new endorsements from all across the state. 

           

 

If you know any law enforcement officials who are interested in joining our fight for victims' rights, I can be reached at ldeclerck@marsyslaw.us

 

They may also sign up online. 

 

 

Leah DeClerck

Law Enforcement Coordinator

Marsy's Law for Iowa

Why the Iowa Legislature should support Marsy's Law

Written by: Ashley Hinson and Marti Anderson

A brave woman stood before a crowd at the Iowa Capitol recently. Her hands slightly shaking, she showed no fear as she testified before a legislative subcommittee recounting the night she was viciously assaulted by someone she loved, someone she trusted.

Marsy’s Law Protects Victims’ Safety and the Criminal Process

Marsy’s Law Protects Victims’ Safety and the Criminal Process

In Iowa, the public is well aware that defendants are typically arrested and then bond right out of jail within a day. Iowa’s bond rules are laid out in Iowa Code § 811.2. The two main considerations for the Court to weigh in setting bond are 1) what conditions of release will reasonably assure the defendant’s appearance and 2) the safety of another person or persons. Unfortunately, our courts typically only weigh the first consideration without much regard for the second. Marsy’s Law will change that.

 

The Court, by the letter of the law, should be taking the nature and circumstances of the offense charged, the defendant’s record of convictions, and any attempts by the defendant to avoid prosecution through flight or illegal actions. See Iowa Code § 811.2(2). Unfortunately, when prosecutors argue the circumstances of the offense charged, many judges will refuse to hear the argument by claiming the circumstances are not yet proven. Further, some judges have even refused to listen to prosecutors’ concerns that defense counsel and the defendant were attempting to push a victim to not correspond with the County Attorney’s Office. When the circumstances of an offense and improper attempts by a defendant to avoid prosecution will not be taken into consideration when setting bond, this is how defendants receive low bonds so consistently.

 

Further, since our Constitution only deals with a defendant’s rights, our courts rarely take the defendant’s danger to the community as seriously as they should. Instead, they focus on the defendant’s financial circumstances and little else.

 

Marsy’s Law will require that judges take crime victims’ safety into consideration when setting bail for defendants. A failure to do so would violate the Iowa Constitution if Marsy’s Law is passed. To protect victims from further victimization, we need this change. Marsy’s Law will require that a judge listen to a victim when determining bond.

 

Reuben Neff

Wapello County Attorney

Marsy's Law for Iowa Supporter

Suicide Prevention Month

 

 

September is National Suicide Prevention Month. There are staggering facts about suicide that highlight how this is something that can effect anyone, at any time. While we raise awareness of suicide this month, we also want to point those who may be hurting to helpful resources. The National Suicide Prevention Hotline is 1-800-273-8255 or you can chat online.

 

 

 

 

For those who are looking to help someone who is struggling, there is help available as well.  We can all prevent suicide by watching for warning signs, starting a conversation and knowing when to get help. 

 

Victims who have sustained trauma or abuse are certainly more at risk and should be aware of where to turn if they need to. In Iowa specifically, you can dial 2-1-1 to be connected to several resources including support and mental health resources. 

 

 

Battle For Rights Must Continue

The following guest post was submitted by Mahaska County Attorney Andrew Ritland. He has been an avid Marsy's Law for Iowa supporter and an outspoken advocate for Iowa's crime victims. 

For over a decade, victims across Iowa have been shortchanged. Up until a few months ago, when a county did not have a county attorney collection program, it took more time for victims to receive restitution and sometimes they received less than what was ordered by a judge. Under the old system, the first part of each payment was taken by a private, Texas-based debt collector and the remainder was sent to the victim. For example, for every $100 an offender paid towards restitution, a victim would only receive $75 after collection fees. This system not only extended the time it took for victims to be repaid, but it could reduce the total amount paid to victims. When a defendant did not pay everything he owed, victims were left with less money due to collection fees. For example, if the court ordered an offender to pay $2,000 in victim restitution but the offender only paid $1,000, the victim would receive $750 and the remaining $250 would be paid to the private debt collector, not the victim. In this scenario, victims, not offenders, were paying for the cost of private collections. Even more egregious, private debt collectors could deduct a collection fee from victim restitution payments even if they did nothing to collect on a case. If an offender voluntarily made a payment, the private debt collector would receive 25 percent of the funds even though they never made any collection efforts.

 

Though interrupted by a global pandemic, the Iowa Legislature made significant progress in reforming the collection of delinquent court debt. On June 25, 2020, Gov. Kim Reynolds signed into law Senate File 457 which, among other things, ended private collection of court debt and instead empowered the Iowa Department of Revenue to collect delinquent fines, fees, and victim restitution. While removing private debt collectors was an important victory, there is more work to be done. Just like the private debt collectors before them, the new legislation permits the Department of Revenue to impose a collection fee on top of the amount a defendant owes. However, the legislation is silent on whether victim restitution will be paid first and in full before this fee is collected. If history is any guide, there is a real possibility restitution payments will again be delayed and possibly reduced when the first portion of each payment is used to pay collection fees.

 

While the legislature can, and must, pass legislation to make sure victim restitution is paid first and in full, more is needed. By adding a crime victims’ rights amendment to the Iowa Constitution, we can ensure that for generations to come, victims will have the right to be compensated by defendants for the harm they cause. Moreover, a constitutional amendment will help preserve other important rights such as the right to participate in court proceedings and the right to be protected from defendants. We cannot leave these vital rights subject to the vicissitudes of the legislature. We have been fortunate that during this legislative session, there has been strong defenders of victim rights on both sides of the aisle. However, we may not always be so blessed. If the political mood shifts, victim rights can be quickly and easily undermined by new legislation.

 

While victims have reason to celebrate the passage of this new law, the battle for their rights must continue. Crime victims deserve durable, lasting rights which only a constitutional amendment can afford. I urge you to contact your local representatives and tell them we must add a crime victims’ rights amendment to the Iowa Constitution.