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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.

 

 

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.

 

 

 

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.

 

 

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.

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.

Putting Pen to Paper

The Marsy's Law for Iowa coalition has been tearing it up on Letters to the Editor lately. This is a great way to reach neighbors throughout the community and help build the movement for greater crime victims rights in Iowa. 

 

Check out a few of our supporters' recent submissions to their local newspapers. 

 

If you're interested in getting involved in our efforts, drop us a line at [email protected]

Victims’ Rights Are About Balance, Not Undermining Due Process

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.

Balance

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.”

JusticeThe 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.

 

Sarah Shambrook

State Policy Director

Marsy's Law for Iowa