98 Pages Posted: 27 Aug 1999
This article argues against adoption of the proposed victim's rights amendment. The first set of arguments addresses the lack of fit between claims made by proponents of the amendment and constitutional theory and practice. The second set addresses the difficulties posed by issues of legal representation under the amendment. The final part discusses the author's experience with the criminal justice system in a rape case; the story contradicts the claim that a constitutional amendment is necessary to afford victims human dignity, respect, and individual participation in cases. Discussions of the problems of identifying who properly is a victim entitled to rights under the amendment, determining what assists victims of crime, and knowing the effects of the amendment on substantive criminal law and the criminal justice process are woven into discussions of individual legal issues.
The victim's rights amendment would be unique in requiring the government to provide an indeterminate class of individuals with positive liberties and claims on government resources. There is no strong constitutional argument to support such liberties and claims. Whether examined from a social contract, majoritarian, or fundamental rights approach, none of the proponents' claims justify the amendment. Arguments that the amendment is necessary to reduce trauma or provide some form of therapy for victims are unsubstantiated and may be contradicted by what we know about trauma and recovery. Reconciling the amendment with the Bill of Rights, including the First Amendment, raises major concerns about the abrogation of long-standing individual rights against the state.
Although the victim's rights amendment does not provide for a right to counsel, the question of representation in exercising consitutional rights cannot be overlooked. The article argues that the assumption prosecutors easily can represent victims as well as the community's interests in criminal cases overlooks the many instances when victim's rights and obligations to criminal justice conflict. The use of private counsel also introduces further uncertainty in the process.
The article concludes that the amendment is not necessatry to achieve decent treatment of victims, and that we lack sufficient information and justification for the amendment.
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