There is a common misconception about the victims’ rights movement that protecting victims in the criminal justice process somehow diminishes the constitutional rights of criminal defendants. The fallacious reasoning for this misconception typically symbolizes constitutional rights as a pie and argues that for any right a victim is granted, a slice of pie, or right, is taken away from a criminal defendant. This metaphor, though, could not be further from the truth.
Constitutional rights are not a pie, but instead a scale allowing the court to fairly weigh rights on equal levels of the hierarchy of laws in determining an outcome. Constitutional rights for victims of crime merely reestablish the victim’s rightful place as an interested participant in the pursuit of justice and allow the court to weigh the constitutional rights of victims with the constitutional rights of criminal defendants. Unfortunately in Iowa, with our lack of meaningful constitutional rights for victims of crime, that balance can never be achieved. Marsy’s Law for Iowa is fighting to change that.
It can be unsettling to imagine change to a structure that has been as ingrained in our collective minds as the criminal justice system, but the good news is Iowa is not the first state to consider establishing constitutional rights for victims of crime in our state constitution. There are in fact 36 other states that have already done so and a number of states considering amendments. One of the states that has already established constitutional rights for victims of crime is Utah, which passed a crime victims’ rights amendment in 1995. Utah courts, now, have the opportunity to meaningfully balance the rights of victims and criminal defendants. In a recent Utah Supreme Court consolidated opinion of two cases, the court was able to rightfully restore a balance to the criminal justice system in the face of competing constitutional rights.
The recent opinion was on the Utah Supreme Court’s hearing on a specific aspect of two different cases. Both cases involved rape and sexual assault of minors and centered on the ability of a defendant to subpoena the testimony of the child victim during a preliminary hearing. A preliminary hearing is a hearing held early-on in the criminal justice process, following the arrest of the defendant, which requires the state to prove to a judge that there is probable cause for a case to proceed to trial. If the judge finds probable cause, the case will proceed. In the Utah cases, both defendants had subpoenaed the testimony of the child victims at the preliminary hearing and both the victims and the state had filed motions to quash the subpoenas in opposition. The trial court in one of the cases determined the defendant could subpoena the victim, while the trial court in the other determined the subpoena would not survive the prosecution’s motion to quash. The Utah Supreme Court granted a hearing on the differing trial court interpretations “in recognition of guidance from this court on the clash between the rights of defendants and victims in preliminary hearings.” After weighing the defendants constitutional right to compulsory process, otherwise known subpoena power, and the victims’ constitutional rights to fairness, dignity, and respect and to be free from harassment and abuse, the court determined that the defendant’s power to subpoena witnesses for preliminary hearing is not absolute and the defendant must show that testimony from a victim is “reasonably likely to defeat the showing of probable cause.” In layman’s terms, this means the defendant must show that the victims’ testimony will somehow question the state’s case and otherwise convince a judge that the case should not proceed to trial. In its opinion, the Utah Supreme Court made it a point to highlight the social science research arguing that a child victim, particularly, is additionally traumatized by testifying about their abuse, especially at the hands of an abuser who likely groomed the child and “’desensitize[d]’ a child victim after ‘befriend[ing]’ her by increasing levels of abuse from minimal acts to more ‘invasive’ ones.”
The Utah Supreme Court was able to make this landmark decision protecting victims from having to testify against their alleged abuser and confront their trauma multiple times because Utah protects victims’ rights constitutionally. In making its determinations, the court did not argue that the victim had an absolute right to oppose a subpoena, nor did it argue that the defendant had an absolute right to subpoena testimony of the victim in a preliminary hearing. Rather the court weighed the competing constitutional rights of victims and defendants and outlined a test that can be used going forward for cases in which this issue emerges. The victim is granted their rightful place to participate in a government proceeding and the defendant retains their right to due process.
In Iowa, there is little hope for an outcome of this magnitude. Instead, victims and their testimony will likely remain as pieces of evidence until the state recognizes that victims have a constitutional right to fairness and dignity under the law. Marsy’s Law for Iowa would enshrine similar protections for crime victims in our state constitution and allow victims standing to enforce their rights through appellate review. It is time victims in Iowa are granted participatory access to justice and it is time our state legislature recognizes crime victims as more than a piece of evidence.
State Policy Director
Marsy's Law for Iowa
In June, U.S. Senator Joni Ernst (R-IA), and Rep. Cindy Axne (D- IA) sent a letter to Iowa Governor Kim Reynolds to "request funding for domestic violence programs in Iowa be distributed quickly, and to urge the use of federal funding to ensure survivors have safe housing options."
Similar to Marsy's Law for Iowa, these issues can overcome partisan bickering and bring Iowans together to help those who desperately need it.
The full press release is printed below (source):
In their letter, the members cite the heightened danger that the COVID-19 pandemic poses to survivors of domestic violence, especially children that lack access to school or child care programs, in requesting additional resources to protect this vulnerable population.
“We have heard from service providers across Iowa that the pandemic is intensifying the needs of survivors of domestic violence,” the members wrote. “We request that as Iowa receives funding, grants, and other federal assistance that will support our domestic violence programs, you will ensure this money is provided quickly in order to ensure Iowans get the assistance they desperately need.”
Domestic violence is a leading cause of homelessness for women and children, and the letter urges the Governor to use funding included in the Coronavirus Aid, Relief, and Economic Security (CARES) Act to ensure that families do not lose access to housing.
“Addressing housing instability and homelessness is a key aspect of an effective pandemic response, and it especially helps domestic violence survivors,” the members wrote. “The flexibility in the CARES Act specifically allows…traditional federal housing assistance funds, to be used to provide emergency shelter, or rental, mortgage, or utility assistance to help keep individuals housed.”
In addition to $45 million in support for grants through the Family Violence Prevention and Services Act, the CARES Act also includes $4 billion for Emergency Solutions Grants, $5 billion for Community Development Block Grants, and $150 billion for a newly created Coronavirus Relief Fund. In their letter, the members urge the use of all of these funding sources to protect Iowans and provide survivors with critical assistance as quickly as possible.
When criminal charges are filed against a rapist, murderer, or stalker, one of the first actions typically carried out by defense attorneys is to request the evidence against their client and to set up depositions. As the law currently stands, defense counsel possess the absolute right to depose victims. On top of this, most courts throughout our state require that the victim be subjected to questioning by defense attorneys in the presence of the defendant. Not only do rape victims have to sit through often humiliating questions by defense attorneys concerning intimate personal details, they have to suffer this while sitting a mere two feet from the rapist. Marsy’s Law can change this.
Iowa Rule of Criminal Procedure 2.27 establishes when a defendant must be present throughout his or her prosecution. The Rule states the defendant shall be present at initial appearance, arraignment and plea (unless a written arraignment form is filed), pretrial proceedings, and shall be personally present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.
The Iowa Supreme Court, in State v. Peterson, 219 N.W.2d 665 (Iowa 1974), held that a defendant may take discovery depositions of a State’s witness. After that, new rules of criminal procedure were created to delineate the actual procedures for how this would be accomplished. The Iowa Supreme Court, in State v. Folkerts, 703 N.W.2d 761 (Iowa 2005), State v. Davis, 259 N.W.2s 812 (Iowa 1977), and State v. Holderness, 301 N.W.2d 733 (Iowa 1981), sometimes makes it seem that defendants have the right to depositions and to be present for them by relying on rules of procedure that state a defendant “shall be personally present at every stage of the trial.”
The Iowa Supreme Court has previously confused the concept of discovery depositions and depositions taken for introduction at trial (depositions to perpetuate testimony). These two types of deposition are, in fact, different since one, a deposition to perpetuate testimony, will be the only time a defendant has the right to confront a witness while the other, a discovery deposition, is merely to interview, at which point the defendant attending trial will carry out their right to confront the witness.
Thankfully, despite some of the Iowa Supreme Court’s confusion, the Court did clearly state, in Otteson v. Iowa Dist. Ct., 443 N.W.2d 726 (Iowa 1989), that “if a deposition is taken for discovery only-not for use at trial- the deposition is not a ‘stage of trial’ for which the defendant must be present.”
Though many attorneys and even judges in Iowa seem to believe that a defendant has the absolute constitutional right to be present during depositions, neither the State nor national Constitution provide such a right. In Van Hoff v. State, 447 N.W.2d 665 (Iowa Ct. App. 1989), the Iowa Court of Appeals specifically noted that
“[d]epositions, which were taken as discovery depositions and not to perpetuate testimony of one who would be absent from trial and none of which were introduced into evidence at trial, were not ‘stages of trial’ at which defendant had to be present and failure of counsel to have defendant present at depositions did not constitute ineffective assistance.”
This principal of law was reaffirmed by our appellate courts as recently as March 20, 2019 in Beloved v. State, 928 N.W.2d 170 (Iowa Ct. App. 2019), where the defendant’s convictions for two sexual abuse charges were sustained despite the defendant complaining that he was unable to be present during the defense attorney’s deposition of a State expert witness.
With Marsy’s Law, we would insert a constitutional protection preventing what has become standard in most parts of Iowa: courts requiring victims to sit in often small rooms in near proximity to their tormentor during depositions. There is no constitutional requirement imposing the need for this. The confrontation clause does not require this. Our own Iowa Supreme Court and Court of Appeals recognize that this is not required. Despite no defendant constitutional right to obligate the victim to submit to a deposition with their tormentor present, district and associate district courts typically require it anyway. Judges currently worry more about the defendant’s rights in these matters to the point that they even grant defendants more rights than they actually have.
Inserting a victim’s rights clause into the Iowa Constitution would obligate our Iowa Supreme Court to amend its rules of criminal procedure to not require that victims be subjected to the abuse they currently are subjected to. Marsy’s Law will provide prosecutors with a constitutional provision to argue what should already be the case: victims do not have to submit to a deposition with the defendant present. Below is Florida’s rules of criminal procedure relating to depositions. They are included to show that other states, possessing the same language in their constitution regarding confrontation, impose rules far more respectful of victims.
Florida Rule of Criminal Procedure 3.220(h)(7) – Defendant’s Physical Presence. A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant’s presence on the witness, if any, (C) any cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.
Florida Rule of Criminal Procedure 3.220(h)(4) – Depositions of Sensitive Witnesses. Depositions of children under the age of 18 shall be videotaped unless otherwise ordered by the court. The court may order the videotaping of a deposition or the taking of a deposition of a witness with fragile emotional strength, or an intellectual disability as defined in section 393.063, Florida Statutes, to be in the presence of the trial judge or a special magistrate.
Florida Rule of Criminal Procedure 3.220(h)(1)(D) – no deposition shall be taken in a case in which the defendant is charged only with a misdemeanor or a criminal traffic offense when all other discovery provided by this rule has been complied with unless good cause can be shown to the trial court. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness’ testimony (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition. However, this prohibition against the taking of depositions shall not be applicable if following the furnishing of discovery by the defendant the state then takes the statement of a listed defense witness pursuant to section 27.04, Florida Statutes.
Wapello County Attorney
Marsy's Law for Iowa supporter
Our team recently participated in a webinar hosted by End Violence International, taking a deeper look at how law enforcement is handling victim interviews during COVID and including them in the process and adhering to their rights.
As our country faces the effects of COVID-19, professionals across the nation have implemented new measures to continue performing their job duties. It became paramount to law enforcement that for handling crimes to continue they needed to devise a safe way to conduct interviews with victims. “Trauma informed, victim-centered practices should be the foundation for an interview of any format,” says Lieutenant Andrea Mumford and with victim-centered practices in consideration, it was crucial that law enforcement included victim advocates in the development of this virtual process.
It was vital for law enforcement and victim advocates to consider the issues that might arise before implementing the use of a virtual meeting software. These issues included the importance of all parties being in a safe and private environment for the meeting, all parties were made aware of the virtual interview being recorded, and the potential barriers that were unique to each victim. These barriers consisted of accessibility issues, limited technology, education or language divide, and socioeconomic concerns. The plan focused on building rapport with the victim virtually; creating a fall back plan, such as a three-way call; the victim was given resources needed, such as an interpreter; ensured the victim knew they could take breaks throughout the process, while also allowing the advocate and victim a chance to discuss privately after the interview was conducted.
COVID-19 has forced us into a new way of thinking and we have seen in many ways that what was done in the past might not be what we need to continue for the future. We have seen the measures taken to create victim-centered practices for virtual interviews, now this same attention is needed towards giving victims' rights at an equal level as the accused. As COVID-19 cases decline and old ways are implemented once again, our effort remains working towards elevating crime victims’ rights to the state constitution. We hope that law enforcement and victim services continue being openminded to new ways to better our criminal justice system.
Marsy's Law for Iowa Advocacy Coordinator
The Iowa Legislature passed two important bills this session relating to crime victims, and specifically human trafficking. The first, House File 2554, adds a new section to Iowa Code §709, the statute defining the criminal offenses related to sexual abuse. The new section 709.23 outlines a new criminal offense, Continuous sexual abuse of a child, and defines the new offense as being committed when an adult sexually abuses the same child three or more times over the course of at least 30 days or longer. This bill also amends §692A to include the new offense in definitions and classification regarding the sex offender registry. While this additional section does not mention human trafficking specifically, the provisions of the section lend themselves to additional criminal charges for human traffickers, because victims of sex trafficking are often abused multiple times in a day over the course of their victimization, which often lasts longer than 30 days.
The second bill which passed this session is directly related to human trafficking, and specifically prevention in Iowa. House File 2259, which was managed by Representative Gary Mohr in the House and Senator Chris Cournoyer in the Senate, passed with unanimous support from both chambers. This bill outlines a new procedure for human trafficking training of hotel/motel staff in the state of Iowa. It provides for a new training program about the prevention of human trafficking and warning signs to look for in hotels/motels to be developed and made available for any hotel/motel in the state. While the bill stipulates that this is a voluntary training certification for hotels/motels to complete, it also requires the certification of training for any hotel/motel wishing to receive public funds in the form of lodging of government officials or staff, conferences, meetings or other events paid for by government funds. In other words, no government funds will be distributed to a hotel/motel which has not completed the training within the last three years. The provisions of this bill are set to begin in January 2022. This important bill will help make sure hotel/motel employees in the state of Iowa are properly trained to see the warning signs of human trafficking and understand the correct and safest avenues for reporting.
Both bills passed this session regarding human trafficking are great steps forward for prevention and criminalization of abuse and I applaud the legislature for taking these strides. One thing the bills are missing, though, is adequate protection for victims. While prevention is important to reduce crime or identify it more quickly when it occurs (HF2259), and criminalization of conduct is important to deter criminal conduct and provide punishment when the criminal conduct occurs (HF2554), protection is needed for the victims of crime following the arrest and conviction of an offender. Without adequate protection under the law, no one in the criminal justice process exists to effectively represent the interests of the victim and victims of crime are often re-traumatized by the system.
In Iowa, currently, we do not have the needed protections for victims of crime. We continue to be one of a handful of states which has no mention of crime victims in our state constitution, and while code section relating to victims’ rights is comprehensive, it is not weighted equally as the rights of a defendant in our courts and lacks any mechanism of enforcement when a victim’s right is violated. A victim’s voice under Iowa law is treated merely as a piece of evidence and it is past time we fix that. Passing constitutional rights for victims of crime would provide victims of human trafficking, as well as other indictable offenses, the needed protection in our criminal justice system and I encourage the Legislature to take a look at comprehensive constitutional rights for crime victims in 2021.
Marsy's Law for Iowa