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Marsy’s Law – Protecting Victims From Intimidation

 

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.

 

Reuben Neff

Wapello County Attorney 

Marsy's Law for Iowa supporter

Law Enforcement Innovation During COVID-19

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.

 

Sydney Fox 

Marsy's Law for Iowa Advocacy Coordinator 

An Appetite for Prevention, What About Protection?

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.

 

 

Sarah Shambrook

Marsy's Law for Iowa 

As Courts Open, Victims Must Be Included

For nearly four months, courthouses across Iowa have been closed due to the COVID-19 pandemic. Recent news reports indicate a plan for some courts to resume hearing cases beginning in July, but continuing to restrict in-person hearings.

We know the COVID pandemic has certainly changed the way we live our lives, but the courts ABSOLUTELY MUST include victims in proceedings, even if the circumstances make it difficult. 

As the law stands now, Iowans who become the victim of a crime have no constitutional right to be notified of hearings or proceedings. Certainly, an amendment to our state’s constitution would remedy this problem in the future, and give victims equal access to justice in our courts.

Currently, Iowa crime victims are not provided enforceable rights in the state’s constitution. Marsy’s Law for Iowa is pushing  for rights to be added, including things like:

The right to be informed;

The right to be notified, present and heard at court proceedings;

The right to restitution;

The right to reasonable protection from the accused;

And the right to enforce these rights in the criminal justice process.

 

Join our fight today. 

Healing is Not Linear

My name is Sydney Fox and I am the new Advocacy Coordinator with Marsy’s Law for Iowa. I am not new to our organization - I've been working as a Field Director, mobilizing our law enforcement and grassroots coalitions. In my new role, I am looking forward to working with victims and survivors from across the state who are supportive of Marsy’s Law and are seeking an avenue of advocating for victims to have equal access to justice.

 

In working with survivors, I can provide information for victim service agencies that can provide direct services. Additionally, I meet with victim service organizations to cultivate a clear understanding of how the implementation of Marsy’s Law would be beneficial for crime victims in our state.

 

 

Prior to my work for Marsy’s Law, I was a student at Iowa State University where I earned a bachelor’s degree in Psychology and Interdisciplinary Studies, along with a minor in Sociology. I am passionate about understanding why and how people do what they do coupled with being driven to continue learning more about inequalities such as gender, race, and social class. Additionally, I held various positions where I advised, advocated for, and empowered students.

 

I spent a great deal of time interning at Polk County Crisis and Advocacy Services. My work here consisted of assisting advocates whose services focused on aiding survivors of sexual assault and violent crimes through the criminal justice system. My educational background accompanied with previous roles and opportunities has aided me in my time with Marsy’s Law.

 

I understand that healing is not linear.For those who have experienced trauma, simply having the comfort of enforceable rights can be extremely powerful. When victims have rights that are equally as important as the offenders’, it sends a clear message: they are important, they matter, and they are heard. With Iowa being one of a handful of states that does not have constitutional rights, it is imperative now more than ever that we need to elevate crime victims’ rights to the state constitution.

 

If you are interested in getting more involved with advocating for victims’ rights, want to get to know each other more, or have any questions or concerns I can be reached by email at [email protected] or by phone at 712-541-2718. Thank you!

 

Sydney Fox

Rep. Jacobsen is a Guardian of Victims' Rights

 

We recently presented another “Guardian of Victims’ Rights” award, this time to to Rep. Jon Jacobsen (R-Council Bluffs) for his legislative efforts in helping advance crime victims’ rights.

 

Iowa crime victims’ know they have a strong advocate in Rep. Jacobsen. He has been a trustworthy, compassionate listener, always stopping to really understand a victims’ story. Iowa victims have found him to be a consistent and vocal legislator who has been dedicated to strengthening their rights.

 

“Giving Iowa crime victims a voice in the process is not a partisan issue. Giving crime victims a voice in the process is common sense and the right thing to do,” said Jacobsen. “No victim should be made to feel that their rights are less than the person who perpetrated the crime against them. I will continue working to move this legislation forward.”

 

Thank you Rep. Jacobsen to your commitment to victims' rights in Iowa. 

 

Elder Abuse Awareness Week

June 12 - June 19 is recognized as Elder Abuse Awareness Week in Iowa. Studies show that 1 in 10 seniors in America experience mistreatment or abuse. We know that seniors can be susceptible to becoming victims of crime and that it even oftentimes goes unreported. 

 

ALL crime victims deserve to have their rights protected in our state’s Constitution. This will ensure that victims have rights that are equal to the constitutional rights of the defendant. These constitutional protections for crime victims would include the following rights:

  • the right to be informed of their rights
  • the right to be treated with fairness, dignity and respect;
  • the right to reasonable protection from the accused;
  • the right to be notified, be present and be heard at court proceedings;
  • the right to notification of the status of the offender
  • the right to restitution;
  • and the right to enforce these rights in the criminal justice process.

 

Several organizations across the state posted videos discussing the most common forms of Elder Abuse. Click to watch the informational videos: 

 

Elderbridge Agency on Aging - Financial Exploitation

Heritage Area Agency on Aging - Physical Abuse

Milestones Area Agency on Aging - Self-Neglect

 

Seniors who become victims of crime deserve equal constitutional protections.  You can find more info here: https://www.agingresources.com/  

Supporting Survivors During COVID-19

As the COVID-19 pandemic continues to disrupt the lives of Iowans and Americans across the country, it's been evident that the situation is dire for those in domestic violence situations. 

 

Staying at home with abusers, the state of the economy and financial struggles have created new and increasingly tense situations. At the same time, shelters have been concerned about outbreaks of the virus.

 

What can be done? 

 

Well first of all, if you are in a bad situation there are places to turn - please seek help immediately. 

 

Additional resources are also locally available to help Iowans recover from this pandemic. COVID Recovery Iowa is providing free services to all Iowans - confidential counseling at no cost, activities for children, groups, stress management activities and skills to name a few. Call their 24/7 toll free hotline at 1-800-447-1985 or visit covidrecoveryiowa.org

 

 

The Office for Victims of Crime has put together this incredibly thorough guide.

And finally, information on how to support older survivors during COVD-19. They state, "As victim advocates and programs navigate supporting older survivors through the COVID-19 pandemic, collaboration, creativity, and compassion will be key. Socially isolated older adults are at a higher risk for abuse, but social distancing is not the same as isolation. Here are some tips for programs to consider when providing supports for older victims of crime and abuse in a time of social distancing." 

 

We will get through this... together. 

Internship Opportunities

We know the recent COVID-19 pandemic has cancelled a lot of things for students, not only classes but previously scheduled internships. Our team is small, but mighty. We have consistently offered valuable learning opportunities through internships over the past two summers. 

 

You can read more about some of our past interns' experiences here. 

 

We are always looking for interns who are passionate, hardworking and driven. We will provide hands-on experiences in a variety of areas, exposing students to tasks and efforts that are new to them while also giving them an opportunity to grow skills they already have. 

 

Please let us know if you may be interested in more information. 

 

 

 

 

 

 

 

Why We Do What We Do, Featuring Marianne Dunavant

The Marsy's Law for All national organization recently hosted another very insightful event with victims' rights advocate Marianne Dunavant. 

It has been 13 years since the tragic murder of Marianne Dunavant's fiancée. Turning her pain into purpose, she has poured herself into the effort to make her community stronger and safer. She has served on the boards of prestigious child advocacy and domestic violence organizations as well as numerous community groups and charitable organizations. Marianne has been named one of the Top Twenty Most Influential Women of West Tennessee and was named one of the Best of the Best community activists by the readers of the Covington Leader newspaper.

In the second installment of our ongoing Facebook Live series, "Why We Do What We Do," the national team sat down with Marianne to discuss her path to becoming an advocate for victims' rights after enduring tragedy.

 

If you missed the discussion, you can watch the full clip here. Be sure to sign up for our emails to be alerted to future webcasts.